EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
CAL DIVE INTERNATIONAL, INC.
PREAMBLE
The Corporation, Coflexip, a French Corporation ("Coflexip"), First
Reserve Secured Energy Assets Fund, Limited Partnership, First Reserve Fund V,
Limited Partnership, First Reserve Fund V-2, Limited Partnership and First
Reserve Fund VI, Limited Partnership , Xxxxxx X. Xxxxx, Xxxx X. Xxxxx, S. Xxxxx
Xxxxxx, Xxxxxx X. Xxxxx and the other Shareholders of the Company, have entered
into that certain 1997 Amended and Restated Shareholders Agreement dated as of
April 11, 1997 (the "Shareholders Agreement"). The Shareholders Agreement
regulates certain aspects of corporate governance of the Corporation, including,
without limitation, the composition of the Corporation's Board of Directors. In
conjunction with the Shareholders Agreement, the Corporation agreed to amend and
restate these By-Laws. Accordingly, to the extent any provision of these By-Laws
conflicts with any provision of the Shareholders Agreement, the provisions of
the Shareholders Agreement shall prevail.
ARTICLE 1.
OFFICES
The registered office of the Corporation in Minnesota shall be as stated
in the Articles of Incorporation, as from time to time amended. The Corporation
may also have offices in Texas and at such other places as the Board of
Directors shall from time to time determine.
ARTICLE 2.
CORPORATE SEAL
The Corporation shall have no corporate seal.
ARTICLE 3.
SHAREHOLDERS MEETINGS
SECTION 3.01. REGULAR MEETINGS
(1) Regular meetings of the Shareholders of the Corporation for the
purpose of election of Directors and transaction of such other business as may
properly come before the regular meetings may be held annually at the principal
executive office of the Corporation or at such other place within or without the
State of Minnesota or Texas as may be designated by the Board of Directors.
Regular meetings of Shareholders, when held, shall be held on the second Tuesday
in May of each year at 10:00 a.m., or at such date and time as the Board of
Directors may from time to time designate. Regular meetings of the Shareholders
(but not special meetings) may also be called by the Shareholders in accordance
with the provisions of Minnesota Statutes Chapter 302A. Regular meetings of the
Shareholders shall be known as "annual meetings."
(2) At the annual meeting of the Shareholders, only such business shall be
conducted as shall have been properly brought before the annual meeting. To be
properly brought before the annual meeting of Shareholders, business must be (i)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (ii) otherwise brought before the
meeting by or at the direction of the Board of Directors, or (iii) otherwise
properly brought before the meeting by a Shareholder of the Corporation who is a
Shareholder of record at the time of giving of notice provided for in this
Section 3.01 of Article 3, who shall be entitled to vote at such meeting and who
complies with the notice procedures set forth in this Section 3.01 of Article 3.
For business to be properly brought before an annual meeting by a Shareholder,
the Shareholder, in addition to the requirements set forth above, must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a Shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than ninety (90)
days prior to the anniversary date of the immediately preceding annual meeting
of Shareholders of the Corporation. A Shareholder's notice to the Secretary
shall set forth as to each matter the Shareholder proposes to bring before the
annual meeting: (a) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (b) the name and address, as they appear on the Corporation's
books, of the Shareholder proposing such business, (c) the class and number of
shares of voting stock of the Corporation which are
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beneficially owned by the Shareholder, (d) a representation that the Shareholder
intends to appear in person or by proxy at the meeting to bring the proposed
business before the annual meeting, and (e) a description of any material
interest of the Shareholder in such business. Notwithstanding anything in these
By-Laws to the contrary, no business shall be conducted at an annual meeting
except in accordance with the procedures set forth in this Article 3. The
presiding officer of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Article 3, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
SECTION 3.02. SPECIAL MEETINGS. Special meetings of the Shareholders may
be called for any purpose at any time by the Chief Executive Officer or a
majority of the Board of Directors. The Board of Directors or the Chief
Executive Officer shall within thirty (30) days of receipt of such written
request cause a special meeting of Shareholders to be called, said meeting to be
held no later than ninety (90) days after receipt of the written request.
SECTION 3.03. NOTICE OF SHAREHOLDER MEETINGS. Written notice of
Shareholders' meetings, whether regular or special, shall be mailed to all
Shareholders entitled to vote at any such meeting at least ten (10) days, and
not more than sixty (60) days, before the date of the meeting. The written
notice shall contain the date, time and place of the meeting and, in the case of
a special meeting, the purpose or purposes thereof.
SECTION 3.04. WAIVER OF NOTICE. Failure to receive notice of the time,
place and purpose of any meeting of Shareholders may be waived by any
Shareholder in writing or orally before, at, or after the meeting. Attendance by
a Shareholder at a meeting is a waiver of notice of that meeting, except where
the Shareholder objects at the beginning of the meeting to the transaction of
business because the meeting is not lawfully called or convened, or objects
before a vote on an item of business because the item may not lawfully be
considered at that meeting and does not participate in the consideration of the
item at that meeting.
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SECTION 3.05. RECORD DATE. The Board of Directors may fix in advance a
date not more than sixty (60) days prior to the date of any meeting of
Shareholders as the record date for the determination of Shareholders entitled
to vote at the meeting.
SECTION 3.06. QUORUM. The presence, in person or by proxy, of the holders
of a majority of the outstanding shares entitled to vote thereat shall
constitute a quorum for the transaction of business at all meetings of
Shareholders. If, however, a quorum is not present or represented at any meeting
of Shareholders, the Shareholders entitled to vote at the meeting, either
present in person or represented by proxy, shall have the power to adjourn the
meeting to a future date. The time and place to which an adjournment is taken
shall be publicly announced at the meeting, and no further notice thereof shall
be necessary.
Provided that a quorum is present or represented at an adjourned meeting,
any business may be transacted which might have been transacted at the original
meeting. If a quorum is present when a duly called or held meeting of
Shareholders is convened, the Shareholders present may continue to transact
business until adjournment, even though the withdrawal of a number of
Shareholders originally present leaves less than the proportion or number
otherwise required for a quorum.
SECTION 3.07. VOTING. A Shareholder entitled to vote at a meeting of
Shareholders may vote in person or by proxy. Except as otherwise provided by law
or the Articles of Incorporation, every Shareholder shall be entitled to one
vote for each share outstanding in his name on the record of Shareholders of the
Corporation. The votes of a corporate Shareholder may be cast in person or by
proxy, and shall be executed by any duly elected officer of a corporate
Shareholder.
SECTION 3.08. PROXIES. Every appointment of a proxy must be in writing and
must be dated and signed by the Shareholder and filed with an officer of the
Corporation at or before the Shareholders' meeting at which the appointment is
to be effective. No appointment of a proxy shall be valid after the expiration
of eleven (11) months from the date of its execution, unless a longer period is
expressly provided in the appointment.
SECTION 3.09. NOMINATION FOR ELECTION AS A DIRECTOR. Except as provided in
the Shareholders Agreement, only persons who are nominated in accordance with
the procedures set forth in these ByLaws
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shall be eligible for election as, and to serve as, directors. Nominations of
persons for election to the Board of Directors of the Corporation may be made at
a meeting of Shareholders (a) by or at the direction of the Board of Directors
or (b) by any Shareholder of the Corporation who is a Shareholder of record at
the time of giving of notice provided for in this Section 3.09, who shall be
entitled to vote for the election of directors at the meeting and who complies
with the notice procedures set forth in this Section 3.09. Such nominations,
other than those made by or at the direction of the Board of Directors, shall be
made pursuant to timely notice in writing to the Secretary of the Corporation.
To be timely, a Shareholder's notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation (i) with respect
to an election to be held at the annual meeting of the Shareholders of the
Corporation, not less than ninety (90) days prior to the anniversary date of the
immediately preceding annual meeting of Shareholders of the Corporation; and
(ii) with respect to an election to be held at a special meeting of Shareholders
of the Corporation, not later than the close of business on the tenth (10th) day
following the date on which notice of the date of the special meeting (whether
or not such notice of the date of the special meeting constitutes the "notice of
special meeting" required by Section 3.02 of Article 3 of these By-Laws) was
mailed to Shareholders or public disclosure of the date of the special meeting
was made, whichever first occurs. Such Shareholder's notice to the Secretary
shall set forth (i) as to each person whom the Shareholder proposes to nominate
for election or re-election as a director, all information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including such person's written
consent to being named in the proxy statement as a nominee and to serve as a
director if elected); and (ii) as to the Shareholder giving the notice (a) the
name and address, as they appear on the Corporation's books, of such Shareholder
and (b) the class and number of shares of voting stock of the Corporation which
are beneficially owned by such Shareholder. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a Shareholder's notice of nomination which pertains
to the nominee. In the event that a person is validly designated as a nominee to
the Board of Directors in accordance with the procedures set forth in this
Section 3.09 and shall thereafter become unable or unwilling to stand for
election to the Board of Directors, the Board of Directors or the Shareholder
who proposed such nominee, as the case may be, may designate a substitute
nominee. Other than directors chosen pursuant to this Section 3.09, no person
shall be eligible to serve as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 3.09 of Article 3.
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The presiding officer of the meeting of Shareholders shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these By-Laws, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this Section 3.09, a
Shareholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section 3.09.
SECTION 3.10. NO SHAREHOLDER ACTION BY WRITTEN CONSENT. Action shall not
be taken by written consent of the Shareholders but, in all cases, shall be
taken at a meeting of the Shareholders as described in this Article 3.
ARTICLE 4.
DIRECTORS
SECTION 4.01. DUTIES AND POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of Directors
(hereinafter, the "Board of Directors" or "Board"), subject to any Shareholder
control agreement entered into in accordance with Minnesota Statutes Chapter
302A, including, without limitation, the Shareholders Agreement. The Board shall
take action by the affirmative vote of a majority of the Directors present at a
meeting, except as otherwise provided by law, or the Shareholders Agreement, or
the Articles of Incorporation; provided a quorum is present. The Board may adopt
such rules and regulations for the conduct of its meetings and the management of
the Corporation as it deems appropriate, consistent with law, the Shareholders
Agreement, these By-Laws and the Articles of Incorporation.
SECTION 4.02. ELECTION OF DIRECTORS. Directors need not be U.S. citizens
or Shareholders of the Corporation. The number of directors of the Corporation
shall be fixed as provided in the Shareholders Agreement or when such agreement
is no longer in effect, from time to time by the Directors or Shareholders
pursuant to these By-laws. The Directors shall be classified, with respect to
the time for which they severally hold office, into three classes, as nearly
equal in number as possible, as shall be provided in the manner specified in the
Shareholders Agreement and these By-laws, one class to be originally elected for
a term expiring at the annual meeting of Shareholders to be
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held in 1997, another class to be originally elected for a term expiring at the
annual meeting of Shareholders to be held in 1998, and another class to be
originally elected for a term expiring at the annual meeting of Shareholders to
be held in 1999, with the members of each class to hold office until their
successors are elected and qualified. At each annual meeting of Shareholders of
the Corporation, the successors of the class of directors whose term expires at
the meeting shall be elected to hold office for a term expiring at the annual
meeting of Shareholders held in the third year following the year of their
election.
SECTION 4.03. TERM OF OFFICE. Subject to the Shareholders Agreement, newly
created directorships resulting from any increase in the number of directors and
any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors. Any Director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of Directors in which the new directorship was created or the vacancy
occurred and until such Director's successor shall have been elected and
qualified. No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of any incumbent Director.
SECTION 4.04. REGULAR MEETINGS. The Board of Directors may, pursuant to a
standing resolution of the Board, provide for Board meetings to be held at
regular intervals. Such meetings shall be known as "regular meetings" and may be
held at such place or places, within or without the State of Texas or Minnesota,
as the Board shall designate from time to time. No notice of the purpose of
regular meetings of the Board shall be required.
SECTION 4.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
of the Corporation may be called BY ANY TWO (2) Directors by giving ten (10)
days notice to all Directors of the date, time, place and purpose of the
meeting. Such notice shall be given to each Director by registered mail or by
facsimile or by a notice in writing delivered to the Director personally or to
his usual place of business.
SECTION 4.06. PREVIOUSLY SCHEDULED MEETINGS. If the day or date, time and
place of a Board meeting have been provided in these By-Laws or announced at a
previous meeting of the Board, no notice
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is required. Notice of an adjourned meeting need not be given other than by
announcement at the meeting at which adjournment is taken.
SECTION 4.07. WAIVER OF NOTICE AND ASSENT TO ACTION. Failure to receive
notice of any meeting of the Board may be waived by any Director before, at or
after the meeting in writing or orally. Attendance by a Director at a meeting is
a waiver of notice of that meeting, except where the Director objects at the
beginning of the meeting to the transaction of business because the meeting is
not lawfully called or convened and does not participate thereafter in the
meeting.
SECTION 4.08. QUORUM. The presence of a majority of the Directors shall
constitute a quorum for the transaction of business. In the absence of a quorum,
a majority of the Directors present may adjourn a meeting of the Board from time
to time until a quorum is present. If a quorum is present when a duly called or
held Board meeting is convened, the Directors present may continue to transact
business until adjournment, even though the withdrawal of a number of Directors
originally present leaves less than the proportion or number otherwise required
for a quorum.
SECTION 4.09. ABSENT DIRECTORS. A Director may give advance written
consent or opposition to a proposal to be acted on at a Board meeting. If the
Director is not present at the meeting, consent or opposition to a proposal does
not constitute presence for purposes of determining the existence of a quorum,
but consent or opposition shall be counted as a vote in favor of or against the
proposal and shall be entered in the minutes or other record of action at the
meeting, if the proposal acted on at the meeting is substantially the same or
has substantially the same effect as the proposal to which the Director has
consented or objected.
SECTION 4.10. VOTING. At all meetings of the Board of Directors, each
Director shall have one (1) vote irrespective of the number of shares that he
may hold. The Board of Directors shall take action by the affirmative vote of a
majority of Directors present at a duly held meeting at which a quorum is
present or voting pursuant to Section 4.08 of these By-Laws, except where the
affirmative vote of a larger proportion or number is required by law or the
Articles of Incorporation or the Shareholders Agreement.
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SECTION 4.11. COMPENSATION. The compensation of Directors shall be as
fixed from time to time by the Board of Directors.
SECTION 4.12. VACANCIES. Subject to the Shareholders Agreement, vacancies
on the Board of Directors resulting from the death, resignation, removal, or
disqualification of a Director may be filled by the affirmative vote of a
majority of the remaining Directors, even though less than a quorum. Each
Director elected under this section to fill a vacancy shall hold office until a
qualified successor is elected by the Shareholders.
SECTION 4.13. REMOVAL. Subject to the Shareholders Agreement, a Director
may be removed only by the Shareholders as provided in the Corporation's
Articles of Incorporation.
SECTION 4.14. RESIGNATION. A Director may resign at any time by giving
written notice to the Corporation. The resignation is effective without
acceptance when the notice is given to the Corporation, unless a later effective
time is specified in the notice.
SECTION 4.15. ELECTRONIC COMMUNICATIONS. A conference among Directors by
any means of communication through which the Directors may simultaneously hear
each other during the conference constitutes a Board meeting, if the same notice
is given of the conference as would be required under these By-Laws for a Board
meeting, and if the number of Directors participating in the conference would be
sufficient to constitute a quorum at a meeting. A Director may participate in a
Board meeting at which he is not personally present by any means of
communication through which the Director, other Directors so participating, and
all Directors physically present at the meeting may simultaneously hear each
other during the meeting. Participation in a Board meeting by any of the
foregoing means constitutes presence in person at the meeting.
SECTION 4.16. WRITTEN ACTIONS. Any action required or permitted to be
taken at a Board meeting may be taken by a written action signed collectively,
or individually in counterparts, by all Directors. Any such written action shall
be effective when signed by all the Directors, unless a different effective time
is provided in the written action.
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SECTION 4.17. COMMITTEES. The Board of Directors may from time to time, by
resolution, adopted by the affirmative vote of a majority of the Directors
present at a duly called Board Meeting, establish one or more committees having
the authority of the Board in the management of the business of the Corporation
to the extent provided in the resolution. Any committee so established shall
consist of one (1) or more natural persons and shall be subject at all times to
the direction and control of the Board of Directors. At any meeting of any such
committee the presence of a majority of the members of the committee shall be
necessary to constitute a quorum for the transaction of business. Unless a
larger or smaller proportion or number is provided for in the resolution
establishing a committee, such committee shall take action by the affirmative
vote of a majority of committee members present at a duly held meeting.
SECTION 4.18. POWER TO AMEND BY-LAWS. In furtherance and not in limitation
of the powers conferred by statute, the Board of Directors is expressly
authorized to make, alter or repeal from time to time the By-Laws of the
Corporation in any manner not inconsistent with the laws of the State of
Minnesota or the Articles of Incorporation of the Corporation or the
Shareholders Agreement.
ARTICLE 5.
OFFICERS
SECTION 5.01. OFFICERS AND QUALIFICATIONS. The officers of the Corporation
may consist of positions and titles as the Board of Directors may from time to
time designate. Any corporate officer may hold more than one office or any
number of offices.
SECTION 5.02. ELECTION. The officers of the Corporation shall be elected
or appointed periodically by the Board of Directors.
SECTION 5.03. TERM OF OFFICE. Each officer of the Corporation shall hold
office until their respective successors are elected and have qualified, or
until their earlier death, resignation, or removal.
SECTION 5.04. REMOVAL. Subject to limitations in the Shareholders
Agreement, any officer of the Corporation may be removed at any time, with or
without cause, by the affirmative vote of a majority of
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the Directors present at a duly called Board meeting. All officers, agents and
employees, other than those elected or appointed by the Board of Directors, may
be removed by the officer appointing them.
SECTION 5.06. VACANCIES. All vacancies in any office of the Corporation
may be filled by the Board of Directors.
SECTION 5.07. DUTIES. The officers of the Corporation including, without
limitation, the Chairman, Vice Chairman, Chief Executive Officer, President,
Chief Operating Officer, Executive and Senior Vice Presidents, Vice Presidents,
the Secretary, Treasurer and Assistant Secretary and Treasurer, if any, shall
perform such duties as are from time to time prescribed by the Board of
Directors or the Chief Executive Officer (excepting the Chairman or Vice
Chairman who shall report directly to the Board of Directors) .
SECTION 5.08. COMPENSATION. The Compensation of all officers of the
Corporation shall be fixed by the Board of Directors or by such committee or
person as the Board may from time to time designate.
ARTICLE 6.
SHARES
SECTION 6.01. CERTIFICATES. The shares of the Corporation shall be
represented by certificates approved by the Board of Directors and signed by any
two (2) of the Chairman, President or Chief Financial Officer. Each certificate
shall state the name of the Corporation, that the Corporation is incorporated in
Minnesota, the name of the person to whom it is issued, the number and class or
series of shares represented thereby, the date of issue, the par value of such
shares, if any, and may contain such other provisions as the Board or the
Shareholders Agreement may designate.
SECTION 6.02. SIGNATURE. For the purpose of facilitating the execution of
stock certificates, the Board of Directors may appoint one or more additional
persons, having power to sign stock certificates, or to execute any instrument
on behalf of the Corporation which shall have been approved by the Board of
Directors.
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SECTION 6.03. TRANSFER OF SHARES. The shares of the Corporation shall be
assignable and transferable only on the books and records of the Corporation on
behalf of the registered owner, or his duly authorized attorney, upon surrender
of the certificate duly and properly endorsed together with proper evidence of
authority to transfer. The Corporation shall issue a new certificate for the
shares surrendered to the person or persons entitled thereto.
SECTION 6.04. LOST OR DESTROYED CERTIFICATES. If a certificate is lost or
destroyed, another may be issued in its stead upon proof of such loss or
destruction and upon giving such security as is deemed necessary by the Board of
Directors to indemnify the Corporation against loss therefrom.
ARTICLE 7.
INDEMNIFICATION
SECTION 7.01. DEFINITIONS. For purposes of this Article 7, the terms
defined in this Section 7.01 have the meanings given them herein.
SECTION 7.1.1 OFFICIAL CAPACITY. "Official capacity" means (a) with
respect to a director, the position of director in the Corporation, (b) with
respect to a person other than a director, the elective or appointive office or
position held by an officer or member of a committee of the Board of Directors
and (c) with respect to a director or officer of the Corporation who, while a
director or officer of the Corporation, is or was serving at the request of the
Corporation or whose duties in that position involve or involved service as a
director, officer or trustee of another organization, the position of that
person as a director, officer or trustee, as the case may be, of the other
organization.
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SECTION 7.1.2. PROCEEDING. "Proceeding" means a threatened, pending, or
completed civil, criminal, administrative, arbitration, or investigative
proceeding, including a proceeding by or in the right of the Corporation.
SECTION 7.02. INDEMNIFICATION REQUIRED. The Corporation shall defend and
indemnify a person made or threatened to be made a party to a proceeding by
reason of the former or present official capacity of the person with the
Corporation against judgments, penalties, fines (including, without limitation,
excise taxes assessed against the person with respect to an employee benefit
plan), settlements, and reasonable expenses (including, without limitation,
attorneys' fees and disbursements), incurred by the person in connection with
the proceeding, if, with respect to the acts or omissions of the person
complained of in the proceeding, the person:
(a) Has not, pursuant to the provisions of Section 7.1.1 (c) of these
By-Laws, been indemnified by another organization or employee
benefit plan for the same judgments, penalties, fines (including,
without limitation, excise taxes assessed against the person with
respect to an employee benefit plan), settlements, and reasonable
expenses (including attorneys' fees and disbursements), incurred by
the person in connection with the proceeding with respect to the
same acts or omissions;
(b) Acted in good faith;
(c) Received no improper personal benefit and the provisions of
Minnesota Statutes Chapter 302A relating to director conflicts of
interest, if applicable, have been satisfied;
(d) In the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and
(e) In the case of acts or omissions undertaken while acting in the
official capacity described in Section 7.1.1, clause (a) or (b),
reasonably believed that the conduct was in the best interests of
the Corporation, or in the case of acts or omissions undertaken
while acting in the official capacity described in Section 7.1.1,
clause (c), reasonably believed that the conduct was not opposed to
the best interests of the Corporation. If the person's acts or
omissions complained of in the proceeding relate to conduct as a
director, officer or trustee, the conduct is not considered to be
opposed to the best interests of the Corporation if the person
reasonably believed that the conduct was in the best interests of
the participants or beneficiaries of the employee benefit plan.
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Nothing in this Section 7.02 shall be interpreted to prohibit the Board,
in its discretion, from extending indemnification hereunder to other persons.
SECTION 7.03. ADVANCES. If a person is made or threatened to be made a
party to a proceeding, the person is entitled, upon written request to the
Corporation, to payment or reimbursement by the Corporation of reasonable
expenses (including, without limitation, attorneys' fees and disbursements),
incurred by the person in advance of the final disposition of the proceeding,
(a) upon receipt by the Corporation of a written affirmation by the person of a
good faith belief that the criteria for indemnification set forth in Section
7.02 have been satisfied and a written undertaking by the person to repay all
amounts so paid or reimbursed by the Corporation, if it is ultimately determined
that the criteria for indemnification set forth in Section 7.02 have not been
satisfied, and (b) after a determination that the facts then known to those
making the determination pursuant to Section 7.05 would not preclude
indemnification under this Article 7. The written undertaking required by clause
(a) is an unlimited general obligation of the person making it, but need not be
secured and shall be accepted without reference to financial ability to make the
repayment.
SECTION 7.04. REIMBURSEMENT TO WITNESSES. This Article 7 does not require,
or limit the ability of, the Corporation to reimburse expenses (including
attorneys' fees and disbursements), incurred by a person in connection with an
appearance as a witness in a proceeding at a time when the person has not been
made or threatened to be made a party to a proceeding.
SECTION 7.05. DETERMINATION OF ELIGIBILITY.
7.5.1. PROCEDURE GENERALLY. All determinations whether
indemnification of a person is required because the criteria set forth in
Section 7.02 have been satisfied and whether a person is entitled to
payment or reimbursement of expenses in advance of the final disposition
of a proceeding as provided in Section 7.03 shall be made:
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(a) By a majority of the Board of Directors who are not at the
time parties to the proceeding (Board members who are part of
the proceeding shall not be counted for determining either a
majority or the presence of a quorum); or
(b) If a quorum under Clause (a) cannot be obtained, in accordance
with Minnesota Statutes Chapter 302A; or
(c) If an adverse determination is made or if no determination is
made within 60 (sixty) days after the termination of a
proceeding or after a request for an advance of expenses, as
the case may be, by a court in this state, which may be the
same court in which the proceeding concerning the person's
liability took place, upon application of the person and any
notice the court requires.
7.5.2. ALTERNATIVE PROCEDURE FOR NON-MANAGEMENT. With respect to a
person who is not, and was not at the time of the acts or omissions
complained of in the proceedings, a director, officer, or person
possessing, directly or indirectly, the power to direct or cause the
direction of the management or policies of the Corporation, the
determination whether indemnification of this person is required because
the criteria set forth in Section 7.02 have been satisfied and whether
this person is entitled to payment or reimbursement or expenses in advance
of the final disposition of a proceeding as provided in Section 7.03 may
be made by an annually appointed committee of the Board, having at least
one member who is a director. The committee shall report at least annually
to the Board concerning its actions.
7.06. DISCLOSURE. If the Corporation indemnifies or advances expenses to a
person in accordance with this Article 7 in connection with a proceeding by or
on behalf of the Corporation, it shall report the amount of the indemnification
or advance and to whom and on whose behalf it was made as part of the annual
financial statements furnished to Shareholders pursuant to Minnesota Statutes
Chapter 302A covering the period when the indemnification or advance was paid or
accrued under the accounting method of the Corporation reflected in the
financial statements.
7.07. INSURANCE. The Corporation may maintain insurance, at its expense,
to protect itself and any person who is or was serving as a director, officer,
senior management employee or agent of the
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Corporation or is or was serving at the request of the Corporation as a
director, officer, senior management, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other enterprise
or employee benefit plan against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Minnesota Business Corporation Act.
7.08. SAVINGS CLAUSE. If this Article 7 or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless each director and
officer of the Corporation, as to costs, charges and expenses (including,
without limitation, attorney's fees and disbursements), judgments, fines, and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative to the full extent
permitted by any applicable portion of this Article 7 that shall not have been
invalidated and to the fullest extent permitted by applicable law.
ARTICLE 8.
AMENDMENTS
Except as provided in the Articles of Incorporation, the power to adopt,
amend, or repeal the By-Laws of the Corporation is vested in the Board of
Directors. The power of the Board is subject to the power of the Shareholders,
exercisable in the manner provided by statute, to adopt, amend, or repeal
By-Laws adopted, amended or repealed by the Board. The Board shall not amend or
repeal a By-Law fixing a quorum for meetings of Shareholders, prohibiting the
taking of Shareholder action without a meeting, prohibiting Shareholders from
calling a special meeting, fixing the number, election and term of Directors, or
providing for the removal of Directors, or removing the provisions relating to
the Corporation electing not to be governed by the provisions of Minnesota
Statutes Section 302A.671 (Control Share Acquisition Act) or Minnesota Statutes
Section 302A.673 (the Business Combinations Act) as such latter Section relates
to Coflexip, Coflexip Stena Offshore USA Holdings Inc., a Delaware corporation,
or any company affiliated with either of them, contained in Article XII of the
Articles of Incorporation of the Corporation, as amended.
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ARTICLE 9.
DISTRIBUTIONS
Subject to the Shareholders Agreement, the Board of Directors may declare
or authorize and the Corporation may make distributions to the extent provided
by law. Such distributions may, but need not, be in the form of a dividend or a
distribution in liquidation, or as consideration for the purchase, redemption or
other acquisition of shares of the Corporation. The Board may at any time set
apart out of any funds of the Corporation available for distribution any reserve
or reserves for any proper purpose and may alter or abolish any reserve or
reserves so established.
ARTICLE 10.
FISCAL YEAR
The last day of the Corporation's fiscal year shall be December 31 or such
other day as is designated by the Board of Directors from time to time.
CERTIFICATION
The undersigned, the General Counsel of the Corporation, hereby certifies
that the foregoing Amended and Restated By-Laws were adopted pursuant to a 1997
Written Action of the Board of Directors and Shareholders, effective as of April
11, 1997.
Xxxxxx X. Xxxxxx
Senior Vice President/General Counsel
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Amended and Restated By-laws
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