1
EXHIBIT 3.02
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
BYLAWS
OF
OCEANEERING INTERNATIONAL, INC.
AMENDED AND RESTATED AS OF AUGUST 18, 2000
- --------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page No.
--------
ARTICLE I STOCKHOLDERS...............................................................................1
Section 1.1 Annual Meetings...................................................................1
Section 1.2 Special Meetings..................................................................1
Section 1.3 Notice of Meetings................................................................1
Section 1.4 Adjournments......................................................................2
Section 1.5 Quorum............................................................................2
Section 1.6 Organization......................................................................2
Section 1.7 Voting; Proxies...................................................................2
Section 1.8 Fixing Date for Determination of Stockholders of Record...........................3
Section 1.9 List of Stockholders Entitled To Vote.............................................4
Section 1.10 Election of Directors.............................................................4
Section 1.11 Other Stockholder Business........................................................6
Section 1.12 Approval or Ratification of Acts or Contracts by Stockholders.....................7
Section 1.13 Action By Consent of Stockholders.................................................7
Section 1.14 Conduct of Meetings...............................................................8
ARTICLE II BOARD OF DIRECTORS.........................................................................8
Section 2.1 Number; Board Classification; Term; Eligibility for Election; Vacancies...........8
Section 2.2 Regular Meetings..................................................................8
Section 2.3 Special Meetings..................................................................9
Section 2.4 Telephonic Meetings...............................................................9
Section 2.5 Organization......................................................................9
Section 2.6 Order of Business.................................................................9
Section 2.7 Notice of Meetings................................................................9
Section 2.8 Quorum; Vote Required for Action..................................................9
Section 2.9 Informal Action by Directors.....................................................10
Section 2.10 Director Compensation............................................................10
ARTICLE III BOARD COMMITTEES..........................................................................10
Section 3.1 Board Committees.................................................................10
Section 3.2 Board Committee Rules; Minutes...................................................11
Section 3.3 Existing Committees..............................................................11
ARTICLE IV OFFICERS..................................................................................11
Section 4.1 Designation......................................................................11
Section 4.2 CEO..............................................................................11
Section 4.3 Powers and Duties of Other Officers..............................................11
Section 4.4 Term of Office, etc..............................................................11
ARTICLE V CAPITAL STOCK.............................................................................12
Section 5.1 Certificates.....................................................................12
-i-
3
Section 5.2 Transfer of Shares...............................................................12
Section 5.3 Ownership of Shares..............................................................12
Section 5.4 Regulations Regarding Certificates...............................................12
Section 5.5 Lost or Destroyed Certificates...................................................12
ARTICLE VI INDEMNIFICATION...........................................................................13
Section 6.1 General..........................................................................13
Section 6.2 Expenses.........................................................................13
Section 6.3 Advances.........................................................................13
Section 6.4 Request for Indemnification......................................................13
Section 6.5 Nonexclusivity of Rights.........................................................14
Section 6.6 Insurance and Subrogation........................................................14
Section 6.7 Severability.....................................................................14
Section 6.8 Certain Actions Where Indemnification Is Not Provided............................14
Section 6.9 Definitions......................................................................15
Section 6.10 Notices..........................................................................15
Section 6.11 Contractual Rights...............................................................16
Section 6.12 Maintenance of Insurance.........................................................16
ARTICLE VII MISCELLANEOUS.............................................................................16
Section 7.1 Offices..........................................................................16
Section 7.2 Fiscal Year......................................................................16
Section 7.3 Seal.............................................................................16
Section 7.4 Interested Directors; Quorum.....................................................16
Section 7.5 Form of Records..................................................................17
Section 7.6 Bylaw Amendments.................................................................17
Section 7.7 Notices; Waiver of Notice........................................................17
Section 7.8 Resignations.....................................................................17
Section 7.9 Facsimile Signatures.............................................................18
Section 7.10 Reliance on Books, Reports and Records...........................................18
Section 7.11 Certain Definitional Provisions..................................................18
Section 7.12 Captions.........................................................................18
-ii-
4
AMENDED AND RESTATED
BYLAWS
OF
OCEANEERING INTERNATIONAL, INC.
The Board of Directors of Oceaneering International, Inc. (the
"Corporation") by resolution has duly adopted these Amended and Restated Bylaws
(these "Bylaws") to govern the Corporation's internal affairs.
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meetings. The Corporation will hold an annual
meeting of the holders of its capital stock (each, a "Stockholder") for the
election of directors of the Corporation (each, a "Director") at such date, time
and place as the Board of Directors of the Corporation (the "Board") by
resolution may designate from time to time. The Corporation may transact any
other business at an annual meeting which has properly come before that meeting
in accordance with Section 1.11.
Section 1.2 Special Meetings. Any of the following may call special
meetings of Stockholders for any purpose or purposes at any time and designate
the date, time and place of any such meeting: (i) the Board pursuant to a
resolution that a majority of the total number of Directors the Corporation
would have if there were no vacancies (the "Whole Board") has duly adopted; (ii)
any committee of the Board (each, a "Board Committee") the Board has duly
designated and empowered to call special meetings;(iii) the chairman of the
Board (the "Chairman"); and (iv) the CEO (as hereinafter defined). Except as the
certificate of incorporation of the Corporation (as amended from time to time
and including each certificate of designation, if any, respecting any class or
series of preferred stock of the Corporation which has been executed,
acknowledged and filed in accordance with applicable law, the "Certificate of
Incorporation") or applicable law otherwise provides, no other Person or Persons
may call a special meeting of Stockholders.
Section 1.3 Notice of Meetings. By or at the direction of the Chairman
or the secretary of the Corporation (the "Secretary") whenever Stockholders are
to take any action at a meeting, the Corporation will give a written notice of
that meeting to the Stockholders entitled to vote at that meeting which states
the place, date and hour of that meeting and, in the case of a special meeting,
the purpose or purposes for which that meeting is called. Unless the Certificate
of Incorporation, these Bylaws or applicable law otherwise provides, the
Corporation will give the written notice of any meeting of Stockholders not less
than 10 nor more than 60 days before the date of that meeting. If mailed to any
Stockholder, any such notice will be deemed given (whether or not delivered)
when deposited in the United States mail, postage prepaid, directed to that
Stockholder at his address as it appears in the stock records of the
Corporation.
-1-
5
Section 1.4 Adjournments. Any meeting of Stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business it
might have transacted at the original meeting. If the adjournment is for more
than 30 days, or if after the adjournment the Board fixes a new record date for
the adjourned meeting, the Corporation will give, in accordance with Section
1.3, notice of the adjourned meeting to each Stockholder of record and entitled
to vote at the adjourned meeting.
Section 1.5 Quorum. Except as the Certificate of Incorporation, these
Bylaws or applicable law otherwise provides: (i) at each meeting of Stockholders
the presence in person or by proxy of the holders of shares of stock having a
majority of the votes the holders of all outstanding shares of stock entitled to
vote at the meeting could cast will be necessary and sufficient to constitute a
quorum; and (ii) the holders of stock so present and entitled to vote at any
duly convened meeting at which the necessary quorum has been ascertained may
continue to transact business until that meeting adjourns notwithstanding any
withdrawal from that meeting of shares of stock counted in determining the
existence of that quorum. In the absence of a quorum, the chairman of the
meeting or the Stockholders so present may, by majority vote, adjourn the
meeting from time to time in the manner Section 1.4 provides until a quorum
attends. Shares of its own stock belonging to the Corporation or to another
corporation, limited liability company, partnership or other entity (each, an
"Entity"), if the Corporation, directly or indirectly, holds a majority of the
shares entitled to vote in the election of directors (or the equivalent) of that
other Entity, will be neither entitled to vote nor counted for quorum purposes;
provided, however, that the foregoing will not limit the right of the
Corporation to vote stock, including but not limited to its own stock, it holds
in a fiduciary capacity.
Section 1.6 Organization. The Chairman will chair and preside over any
meeting of Stockholders at which he is present. The Board will designate the
chairman and presiding officer over any meeting of Stockholders from which the
Chairman is absent. The Secretary will act as secretary of meetings of
Stockholders, but in his absence from any such meeting the chairman of that
meeting may appoint any person to act as secretary of that meeting. The chairman
of any meeting of Stockholders will announce at that meeting the date and time
of the opening and the closing of the polls for each matter on which the
Stockholders will vote at that meeting.
Section 1.7 Voting; Proxies. (a) Except as the Certificate of
Incorporation otherwise provides, each Stockholder entitled to vote at any
meeting of Stockholders will be entitled to one vote for each share of capital
stock of the Corporation he holds which has voting power on the matter in
question. Each Stockholder entitled to vote at a meeting of Stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy, but no proxy will
be voted or acted on after three years from its date, unless that proxy provides
for a longer period. A proxy will be irrevocable if it states that it is
irrevocable and if, and only so long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A Stockholder may revoke any
proxy he has given for a meeting which is not irrevocable by attending that
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by delivering a proxy in accordance with applicable law bearing a later
date to the Secretary. Proxies for use at any meeting of Stockholders must be
filed, before or at the time of
-2-
6
that meeting, with the Secretary or such other person as the Board by resolution
may designate from time to time.
(b) The secretary of any meeting of Stockholders will take charge of
and canvass all ballots delivered at that meeting and will decide all questions
relating to the qualification of voters, the validity of proxies and the
acceptance or rejection of votes at that meeting, unless the chairman has
appointed an inspector or inspectors to decide those questions. Voting at
meetings of Stockholders: (i) need not be by written ballot unless the Board, in
its discretion, by resolution so requires or, in the case of any such meeting,
the chairman of that meeting, in his discretion, so requires; and (ii) unless
applicable law otherwise requires, need not be conducted by inspectors of
election unless so determined by the holders of shares of stock having a
majority of the votes the holders of all outstanding shares of stock entitled to
vote thereon which are present in person or by proxy at that meeting could cast.
(c) At all meetings of Stockholders at which a quorum is present for
the election of Directors, a plurality of the votes cast by the holders of
outstanding shares of stock of the Corporation entitled to vote in the election
of Directors will be sufficient to elect, except as the Certificate of
Incorporation may otherwise provide. In the case of any question to which the
stockholder approval policy of any national securities exchange or quotation
system on which capital stock of the Corporation is traded or quoted on the
Corporation's application, the requirements under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any provision of the Internal Revenue
Code of 1986, as amended, or the rules and regulations thereunder (the "Code")
applies, in each case for which question the Certificate of Incorporation, these
Bylaws or the General Corporation Law of the State of Delaware, as amended (the
"DGCL"), does not specify a higher voting requirement, that question will be
decided by the requisite vote that stockholder approval policy, Exchange Act
requirement or Code provision, as the case may be, specifies (or the highest
requisite vote if more than one applies). A majority of the votes cast on the
question whether to approve the appointment of independent public accountants
(if that question is submitted for a vote of Stockholders) will be sufficient to
approve. All other elections and questions which have properly come before any
meeting will, unless the Certificate of Incorporation, these Bylaws or
applicable law otherwise provides, be decided by the vote of the holders of
shares of stock of the Corporation present in person or by proxy at that meeting
and having a majority of the votes entitled to vote thereon.
Section 1.8 Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the Stockholders entitled to notice of
or to vote at any meeting of Stockholders or any 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 by
resolution may fix a record date, which record date: (i) must not precede the
date on which the Board adopts that resolution; (ii) in the case of a
determination of Stockholders entitled to vote at any meeting of Stockholders or
adjournment thereof, will, unless applicable law otherwise requires, not be more
than 60 nor less than 10 days before the date of that meeting; (iii) in the case
of a determination of Stockholders entitled to express consent to corporate
action in writing without a meeting, will not be more than 10 days from the date
on which the Board adopts the resolution fixing the record date; and (iv) in the
case
-3-
7
of any other action, will not be more than 60 days prior to that other action.
If the Board does not fix a record date: (i) the record date for determining
Stockholders entitled to notice of or to vote at a meeting of Stockholders will
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 the day next
preceding the day on which the meeting is held; (ii) the record date for
determining Stockholders entitled to express consent to corporate action in
writing without a meeting will be (A) if applicable law does not require a prior
action by the Board, the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
in accordance with applicable law; and (B) if applicable law requires prior
action by the Board, at the close of business on the day on which the Board
adopts the resolution taking that prior action; and (iii) the record date for
determining Stockholders for any other purpose will be at the close of business
on the day on which the Board adopts the resolution relating thereto. A
determination of Stockholders of record entitled to notice of or to vote at a
meeting of Stockholders will apply to any adjournment of that meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting.
Section 1.9 List of Stockholders Entitled To Vote. The Secretary will
prepare and make, at least 10 days before each meeting of Stockholders, a list
of the Stockholders entitled to vote at that meeting which complies with the
requirements of Section 219 of the DGCL as in effect at that time. Such list
shall be open to examination by any Stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least 10 days prior
to the meeting, either 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 also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present at the meeting.
Section 1.10 Election of Directors. (a) Subject to such rights of the
holders of any class or series of the Corporation's capital stock as the
Certificate of Incorporation may prescribe, only persons who are nominated in
accordance with the procedures this Section 1.10 sets forth will be eligible for
election by Stockholders as Directors. Nominations of persons for election to
the Board may be made at any meeting of Stockholders at which Directors are to
be elected: (i) by or at the direction of the Board or any Board Committee the
Board has duly designated and empowered to nominate persons for election as
Directors; or (ii) by any Stockholder who (A) is a Stockholder of record at the
time that Stockholder gives the notice this Section 1.10 specifies below, (B)
will be entitled to vote at that meeting in the election of the Director for
which that Stockholder is making the nomination and (C) complies with this
Section 1.10.
(b) For a Stockholder to bring any nomination of a person for election
as a Director properly before any meeting of Stockholders, that Stockholder must
have given timely notice of that nomination (a "Nomination Notice") in proper
written form to the Secretary. To be timely, a Stockholder's Nomination Notice
must be delivered to, or mailed and received at, the principal executive offices
of the Corporation: (i) if it relates to an election at any annual meeting of
Stockholders, not later than the close of business on the 120th day and not
earlier than the 180th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that, if the date of the pending
annual meeting is more than 30 days before or more than 60 days after that
anniversary date, that Nomination Notice will be timely if it is so delivered
not later than the last to occur of the close of business on (A) the 120th day
prior to the pending annual meeting or (B) the
-4-
8
10th day following the day on which the Corporation first makes a public
announcement of the date of the pending annual meeting; and (ii) if it relates
to any special meeting of Stockholders, not earlier than 180 days prior to that
special meeting and not later than the last to occur of the close of business on
(A) the 120th day prior to that special meeting or (B) the 10th day following
the day on which the Corporation first makes a public announcement of the date
of that special meeting. The public disclosure of an adjournment of any annual
or special meeting will not in any event commence a new time period for the
giving of any Nomination Notice.
(c) To be in proper written form, any Nomination Notice of a
Stockholder must: (i) set forth (A) as to each person whom that Stockholder
proposes to nominate for election as a Director, (1) the name, age and business
address of that person, (2) the principal occupation or employment of that
person, (3) the class or series and number of shares of capital stock of the
Corporation which that person owns beneficially or of record and (4) all other
information, if any, relating to that person which Section 14 of the Exchange
Act and the rules and regulations thereunder would require the Corporation or
that Stockholder to disclose in a proxy statement or any other filing in
connection with solicitations of proxies for an election of directors and (B) as
to that Stockholder and the beneficial owner, if any, of capital stock of the
Corporation on whose behalf the nomination is being made, (1) the name and
address of that Stockholder as they appear in the stock records of the
Corporation and the name and address of that beneficial owner, (2) the class or
series and the number of shares of capital stock of the Corporation which that
Stockholder and that beneficial owner each owns beneficially or of record, (3) a
description of all arrangements and understandings between that Stockholder or
that beneficial owner and each proposed nominee of that Stockholder and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made by that Stockholder, (4) a representation by that
Stockholder that he intends to appear in person or by proxy at that meeting to
nominate the person(s) named in that Nomination Notice and (5) all other
information, if any, relating to that Stockholder and that beneficial owner
which Section 14 of the Exchange Act and the rules and regulations thereunder
would require the Corporation or that Stockholder to disclose in a proxy
statement or any other filing in connection with solicitations of proxies for an
election of directors; and (ii) be accompanied by a written consent of each
person that Stockholder proposes to nominate for election as a Director to be
named as such a nominee and to serve as a Director if elected.
(d) Except as the Certificate of Incorporation, these Bylaws or
applicable law otherwise provides, the chairman of any meeting of Stockholders
at which Directors are to be elected will have the power and duty to determine
whether nominations of persons for election as Directors have been made in
accordance with the procedures this Section 1.10 sets forth and, if that
chairman determines that any such nomination has not been made in compliance
with these procedures, to declare to that meeting that such nomination is
defective and will be disregarded.
(e) Notwithstanding anything in Section 1.10(b) to the contrary, if the
number of Directors to be elected at an annual meeting of Stockholders is
increased and the Corporation has not made a public announcement at least 100
days prior to the first anniversary of the preceding year's annual meeting,
which announcement (i) names all the nominees for Director of the Board or any
duly designated and empowered Board Committee or (ii) specifies the size of the
increased Board, a Stockholder's Nomination Notice will be timely, but only with
respect to nominees for any new positions that increase creates, if that
Nomination Notice is delivered to, or mailed and received at,
-5-
9
the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which the Corporation first makes
that public announcement.
(f) For purposes of Section 1.11 and this Section 1.10, "public
announcement" means disclosure in a press release the Dow Jones News Service,
Associated Press or any comparable national news service in the United States
reports or in a document the Corporation publicly files with the Securities and
Exchange Commission (the "SEC") pursuant to the Exchange Act.
(g) Notwithstanding the foregoing provisions of this Section 1.10, a
Stockholder also must comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters this
Section 1.10 sets forth.
Section 1.11 Other Stockholder Business. (a) At any annual meeting the
Corporation holds pursuant to Section 1.1, the Stockholders will transact only
such business, in addition to the election of Directors, as has been properly
brought before that meeting. Except as the Certificate of Incorporation
otherwise provides, to be brought properly before any annual meeting, business
other than the election of Directors ("Other Business") must be (i) business the
notice of that meeting (or any supplement thereto) given by or at the direction
of the Board specifies, (ii) business otherwise properly brought before that
meeting by or at the direction of the Board and (iii) business (A) properly
brought before that meeting by a Stockholder who (1) is a Stockholder of record
at the time that Stockholder gives the notice this Section 1.11 specifies below,
(2) will be entitled to vote on that business at that meeting and (3) complies
with this Section 1.11, (B) that is a proper subject for Stockholder action and
(C) is properly introduced at that meeting.
(b) For a Stockholder to bring any Other Business properly before any
annual meeting of Stockholders, that Stockholder must have given timely notice
thereof (a "Business Notice") in proper written form to the Secretary. To be
timely, a Stockholder's Business Notice must be delivered to, or mailed and
received at, the principal executive offices of the Corporation not later than
the close of business on the 120th day and not earlier than the 180th day prior
to the first anniversary of the preceding year's annual meeting; provided,
however, that if the date of the pending annual meeting is more than 30 days
before or more than 60 days after that anniversary date, that Business Notice
will be timely if it is so delivered not later than the last to occur of the
close of business on (A) the 120th day prior to that pending annual meeting or
(B) the 10th day following the day on which the Corporation first makes a public
announcement of the date of the pending meeting. The public disclosure of an
adjournment of any annual meeting will not in any event commence a new time
period for the giving of any Business Notice.
(c) To be in proper written form, any Business Notice of a Stockholder
must set forth: (i) as to each matter of Other Business that Stockholder
proposes to bring before an annual meeting, (A) a brief description of that
Other Business, (B) the reasons for conducting that Other Business at an annual
meeting and (C) each material interest in that Other Business of that
Stockholder and the beneficial owner, if any, of capital stock of the
Corporation on whose behalf that proposal is being made; and (ii) as to that
Stockholder and each such beneficial owner, (A) the name and address of that
Stockholder as they appear on the Corporation's books and the name and address
of that beneficial owner, (B) the class or series and the number of shares of
capital stock of the Corporation which that Stockholder and that beneficial
owner each owns beneficially or of record,
-6-
10
(C) a description of all arrangements and understandings between that
Stockholder or that beneficial owner and any other person or persons (including
their names) in connection with that Other Business and (D) a representation by
that Stockholder that he intends to appear in person or by proxy at that meeting
to bring that Other Business before that meeting.
(d) Except as applicable law otherwise provides, the chairman of any
annual meeting of Stockholders will have the power and duty to determine whether
proposals by Stockholders of any Other Business to be brought before that
meeting have been made in accordance with the procedures this Section 1.11 sets
forth and, if that chairman determines that any such proposal has not been made
in compliance with these procedures, to declare to that meeting that such
proposal is defective and will be disregarded.
(e) At any special meeting the Corporation holds pursuant to Section
1.2, the Stockholders will transact only such business as (i) the notice given
of that meeting pursuant to Section 1.3 sets forth and (ii) constitutes matters
incident to the conduct of that meeting as the chairman of that meeting
determines to be appropriate.
(f) Notwithstanding the foregoing provisions of this Section 1.11, a
Stockholder also must comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters this
Section 1.11 sets forth.
Section 1.12 Approval or Ratification of Acts or Contracts by
Stockholders. The Board in its discretion may submit any act or contract for
approval or ratification at any annual meeting of Stockholders, or at any
special meeting of Stockholders called for the purpose of considering any such
act or contract, and any act or contract that the holders of shares of stock of
the Corporation present in person or by proxy at that meeting and having a
majority of the votes entitled to vote on that approval or ratification approve
or ratify will (provided that a quorum is present) be as valid and as binding on
the Corporation and on all Stockholders as if every Stockholder had approved or
ratified it.
Section 1.13 Action By Consent of Stockholders. Unless the Certificate
of Incorporation otherwise provides, Stockholders may, without a meeting, prior
notice or a vote, take any action they must or may take at any annual or special
meeting, if the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take that action at a
meeting at which all shares entitled to vote thereon were present sign a written
consent to that action which sets forth that action and cause the delivery of
that consent to the Corporation (i) at its registered office in the State of
Delaware or its principal place of business or (ii) to an officer or agent of
the Corporation having custody of the books in which the Corporation records
minutes of proceedings or other actions of Stockholders. Any such delivery made
to the Corporation's registered office in the State of Delaware must be made by
hand or by certified or registered mail, return receipt requested. Stockholders
may execute any consent pursuant to this Section 1.13 in counterparts, all of
which together will constitute a single consent. Every written consent pursuant
to this Section 1.13 shall bear the date of signature of each Stockholder who
signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within 60 days of the earliest
dated consent delivered to the Corporation in the manner this Section 1.13
requires, written consents signed by a sufficient number of holders to take
action are delivered to the
-7-
11
Corporation in accordance with the provisions of this Section 1.13. The
Corporation will give prompt notice of the taking pursuant to this Section 1.13
of any action without a meeting by less than unanimous written consent to those
Stockholders who have not consented to that action in writing and who, if the
action had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for that meeting had been the date that written
consents signed by a sufficient number of holders to take the action were
delivered to the Corporation as this Section 1.13 provides.
Section 1.14 Conduct of Meetings. The Board may adopt by resolution
such rules and regulations for the conduct of meetings of Stockholders as it
deems appropriate. Except to the extent inconsistent with those rules and
regulations, if any, the chairman of any meeting of Stockholders will have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of that chairman, are appropriate for the
proper conduct of that meeting. Those rules, regulations or procedures may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to Stockholders of record, their
duly authorized and constituted proxies or such other persons as the chairman of
the meeting may determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. Except to the extent the
Board or the chairman of any meeting otherwise prescribes, no rules or
parliamentary procedure will govern any meeting of Stockholders.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number; Board Classification; Term; Eligibility for
Election; Vacancies. The number of Directors of the Corporation (exclusive of
any Directors to be elected by the holders of any one or more series of the
Corporation's preferred stock voting separately as a class or classes, as the
Certificate of Incorporation may provide for) shall not be less than three nor
more than 12, the exact number of Directors to be determined from time to time
by resolution adopted by the affirmative vote of a majority of the Whole Board.
In accordance with the provisions of the Certificate of Incorporation, the Board
(exclusive of any Directors to be elected by the holders of any one or more
series of the Corporation's preferred stock voting separately as a class or
classes, as the Certificate of Incorporation may provide for) shall be divided
into three classes, Class I, Class I and Class III, which shall be as nearly
equal in number as possible. Each Director will hold office for a term ending on
the date of the third annual meeting following the annual meeting at which that
Director was elected and, the foregoing notwithstanding, will serve until his
successor shall have been duly elected and qualified or until his earlier death,
resignation or removal. Only persons who are nominated in accordance with the
procedures Section 1.10 sets forth will be eligible for election as Directors.
Any vacancies in the Board may be filled in such manner as the Certificate of
Incorporation provides.
Section 2.2 Regular Meetings. The Board will hold its regular meetings
at such places, on such dates and at such times as the Board by resolution may
determine from time to time, and any such resolution will constitute due notice
to all Directors of the regular meeting or meetings
-8-
12
to which it relates. By notice pursuant to Section 2.7, the Chairman or a
majority of the Board may change the place, date or time of any regular meeting
of the Board.
Section 2.3 Special Meetings. The Board will hold a special meeting at
any place or time whenever the Chairman or a majority of the Board by resolution
calls that meeting by notice pursuant to Section 2.7.
Section 2.4 Telephonic Meetings. Members of the Board may hold and
participate in any Board meeting by means of conference telephone or similar
communications equipment that permits all persons participating in the meeting
to hear each other, and participation of any Director in a meeting pursuant to
this Section 2.4 will constitute the presence in person of that Director at that
meeting for purposes of these Bylaws, except in the case of a Director who so
participates only for the express purpose of objecting to the transaction of any
business on the ground that the meeting has not been called or convened in
accordance with applicable law or these Bylaws.
Section 2.5 Organization. The Chairman will chair and preside over
meetings of the Board at which he is present. A majority of the Directors
present at any meeting of the Board from which the Chairman is absent will
designate one of their number as chairman and presiding officer over that
meeting. The Secretary will at as secretary of meetings of the Board, but in his
absence from any such meeting the chairman of that meeting may appoint any
person to act as secretary of that meeting.
Section 2.6 Order of Business. The Board will transact business at its
meetings in such order as the Chairman or the Board by resolution will
determine.
Section 2.7 Notice of Meetings. To call a special meeting of the Board,
the Chairman or a majority of the Board must give a timely written notice to
each Director of the time and place of, and the general nature of the business
the Board will transact at, all special meetings of the Board. To change the
time or place of any regular meeting of the Board, the Chairman or a majority of
the Board must give a timely written notice to each Director of that change. To
be timely, any notice this Section 2.7 requires must be delivered to each
Director personally or by mail, telegraph, telecopier or similar communication
at least two days before the meeting to which it relates; provided, however,
that notice of any meeting of the Board need not be given to any Director who
waives the requirement of that notice in writing (whether after that meeting or
otherwise) or is present at that meeting.
Section 2.8 Quorum; Vote Required for Action. At all meetings of the
Board, the presence in person of a majority of the total number of Directors
then in office will constitute a quorum for the transaction of business, and the
participation by a Director in any meeting of the Board will constitute that
Director's presence in person at that meeting unless that Director expressly
limits that participation to objecting to the transaction of any business at
that meeting on the ground that the meeting has not been called or convened in
accordance with applicable law or these Bylaws. Except in cases in which the
Certificate of Incorporation or these Bylaws otherwise provide, the vote of a
majority of the Directors present at a meeting at which a quorum is present will
be the act of the Board.
-9-
13
Section 2.9 Informal Action by Directors. Unless the Certificate of
Incorporation or these Bylaws otherwise provides, the Board may, without a
meeting, prior notice or a vote, take any action it must or may take at any
meeting, if all members of the Board consent thereto in writing, and the written
consents are filed with the minutes of proceedings of the Board the Secretary
maintains.
Section 2.10 Director Compensation. The Directors shall be paid their
expenses, if any, of attendance at each meeting of the Board and or any Board
Committee, and nonmanagement Directors shall be paid such sums, retainers and
fees for attending and performing services in connection with meetings of the
Board or any Board Committee as the Board may fix from time to time by
resolution. No such payment will preclude any Director from serving the
Corporation in any other capacity or from receiving compensation therefor.
Nonmanagement Directors who are members of special or standing Board Committees
will be allowed compensation for attending meetings of those Board Committees in
such amounts as the Board may fix from time to time by resolution.
ARTICLE III
BOARD COMMITTEES
Section 3.1 Board Committees. (a) The Board, by resolution a majority
of the Whole Board adopts, may designate one or more Board Committees consisting
of one or more of the Directors. The Board may designate one or more Directors
as alternate members of any Board Committee, who may replace any absent or
disqualified member at any meeting of that committee. The member or members
present at any meeting of any Board Committee and not disqualified from voting
at that meeting may, whether or not constituting a quorum, unanimously appoint
another Director to act at that meeting in any place of any member of that
committee who is absent from or disqualified to vote at that meeting.
(b) The Board by resolution may change the membership of any Board
Committee at any time and fill vacancies on any of those committees. A majority
of the members of any Board Committee will constitute a quorum for the
transaction of business by that committee unless the Board by resolution
requires a greater number for that purpose. The Board by resolution may elect a
chairman of any Board Committee. The election or appointment of any Director to
a Board Committee will not create any contract rights of that Director, and the
Board's removal of any member of any Board Committee will not prejudice any
contract rights that member otherwise may have.
(c) Pursuant to Section 3.1(a), the Board may designate an executive
committee (the "Executive Committee") to exercise, subject to applicable
provisions of law, all the powers of the Board in the management of the business
and affairs of the Corporation when the Board is not in session, including the
powers to (i) declare dividends and (ii) authorize the issuance by the
Corporation of any class or series of its capital stock. The Executive Committee
will include the Chairman among its members.
-10-
14
(d) Each other Board Committee the Board may designate pursuant to
Section 3.1(a) will, subject to applicable provisions of law, have and may
exercise all the powers and authorities of the Board to the extent the Board
resolution designating that committee so provides.
Section 3.2 Board Committee Rules; Minutes. Unless the Board otherwise
provides, each Board Committee may make, alter and repeal rules for the conduct
of its business. In the absence of those rules, each Board Committee will
conduct its business in the same manner as the Board conducts its business
pursuant to Article II. Each committee shall keep regular minutes of its
meetings and shall report the same to the Board as a whole.
Section 3.3 Existing Committees. The Board has heretofore designated
the Board Committees Exhibit A to these Bylaws lists, and has assigned to those
Board Committees the responsibilities that Exhibit A sets forth or refers to.
ARTICLE IV
OFFICERS
Section 4.1 Designation. The officers of the Corporation will consist
of a chief executive officer ("CEO"), president, chief financial officer, chief
operating officer, chief accounting officer, secretary, treasurer and such
senior or other vice presidents, assistant secretaries, assistant treasurers and
other officers as the Board or the CEO may elect or appoint from time to time.
Any person may hold any number of offices of the Corporation.
Section 4.2 CEO. The CEO will, subject to the control of the Board: (i)
have general supervision and control of the affairs, business, operations and
properties of the Corporation; (ii) see that all orders and resolutions of the
Board are carried into effect; (iii) have the power to appoint and remove all
subordinate officers, employees and agents of the Corporation, except for those
the Board elects or appoints; and (iv) sign and execute, under the seal of the
Corporation, all contracts, instruments, mortgages and other documents
(collectively, "documents") of the Corporation which require that seal, except
as applicable law otherwise requires or permits any document to be signed and
executed and except as these Bylaws, the Board or the CEO authorize other
officers of the Corporation to sign and execute documents. The CEO also will
perform such other duties and may exercise such other powers as generally
pertain to his office or these Bylaws or the Board by resolution assigns to him
from time to time.
Section 4.3 Powers and Duties of Other Officers. The other officers of
the Corporation will have such powers and duties in the management of the
Corporation as the Board by resolution may prescribe and, except to the extent
so prescribed, as generally pertain to their respective offices, subject to the
control of the Board. The Board may require any officer, agent or employee to
give security for the faithful performance of his duties.
Section 4.4 Term of Office, etc. Each officer will hold office until
the first meeting of the Board after the annual meeting of Stockholders next
succeeding his election, and until his successor is elected and qualified or
until his earlier resignation or removal. No officer of the Corporation will
have any contractual right against the Corporation for compensation by reason of
-11-
15
his election or appointment as an officer of the Corporation beyond the date of
his service as such, except as a written employment or other contract otherwise
may provide. The Board may remove any officer with or without cause at any time,
but any such removal will not prejudice the contractual rights of that officer,
if any, against the Corporation. The Board by resolution may fill any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise for the unexpired portion of the term of that office at any time.
ARTICLE V
CAPITAL STOCK
Section 5.1 Certificates. Shares of capital stock of the Corporation
will be evidenced by certificates in such form or forms as the Board by
resolution may approve from time to time or, if and to the extent the Board so
authorizes by resolution, may be uncertificated. The Chairman, the president or
any vice president of the Corporation and the Secretary or any assistant
secretary of the Corporation may sign certificates evidencing certificated
shares. Any of or all the signatures and the Corporation's seal on each such
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before the
Corporation issues that certificate, the Corporation may issue that certificate
with the same effect as if he were such officer, transfer agent or registrar at
the date of that issue.
Section 5.2 Transfer of Shares. The Corporation may act as its own
transfer agent and registrar for shares of its capital stock or use the services
of such one or more transfer agents and registrars as the Board by resolution
may appoint from time to time. Shares of the Corporation's capital stock will be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives on
surrender and cancellation of certificates for a like number of shares.
Section 5.3 Ownership of Shares. The Corporation will be entitled to
treat the holder of record of any share or shares of its capital stock as the
holder in fact thereof and, accordingly, will not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it has express or other notice thereof, except
as the applicable laws of the State of Delaware otherwise provide.
Section 5.4 Regulations Regarding Certificates. The Board will have the
power and authority to make all such rules and regulations as it may deem
expedient concerning the issue, transfer and registration or the replacement of
certificates for shares of capital stock of the Corporation.
Section 5.5 Lost or Destroyed Certificates. The Board may determine the
conditions on which a new certificate of stock may be issued in place of a
certificate alleged to have been lost, stolen or destroyed and may, in its
discretion, require the owner of the allegedly lost, stolen or destroyed
certificate or his legal representative to give bond, with sufficient surety, to
indemnify the Corporation and each transfer agent and registrar against any and
all losses or claims that may
-12-
16
arise by reason of the issue of a new certificate in the place of the one
allegedly so lost, stolen or destroyed.
ARTICLE VI
INDEMNIFICATION
Section 6.1 General. The Corporation will, to the fullest extent
applicable law as it presently exists permits, and to such greater extent as
applicable law hereafter may permit, indemnify and hold harmless each Indemnitee
from and against any and all judgments, penalties, fines (including excise
taxes), amounts paid in settlement and, subject to Section 6.2, Expenses
whatsoever arising out of any event or occurrence by reason of the fact that
such Indemnitee is or was a Director or an officer of the Corporation. The
Corporation may, but need not, indemnify and hold harmless any Indemnitee from
and against any and all judgments, penalties, fines (including excise taxes),
amounts paid in settlement and, subject to Section 6.2, Expenses whatsoever
arising out of any event or occurrence by reason of the fact that such
Indemnitee is or was an employee or agent of the Corporation or is or was
serving in another Corporate Status (other than as a Director or an officer of
the Corporation) at the written request of the Corporation.
Section 6.2 Expenses. If any Indemnitee is, by reason of his serving as
a director, officer, employee or agent of the Corporation, a party to and is
successful, on the merits or otherwise, in any Proceeding, the Corporation will
indemnify him against all his Expenses in connection therewith. If that
Indemnitee is not wholly successful in that Proceeding but is successful, on the
merits or otherwise, as to any Matter in that Proceeding, the Corporation will
indemnify him against all his Expenses relating to that Matter. The termination
of any Matter against which any Indemnitee is defending himself by dismissal of
that Matter with or without prejudice will constitute success of that Indemnitee
with respect to that Matter. If any Indemnitee is, by reason of any Corporate
Status other than his serving as a director, officer, employee or agent of the
Corporation, a party to and is successful, on the merits or otherwise, in any
Proceeding, the Corporation may, but need not, indemnify him against all his
Expenses in connection therewith. If any Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding, the Corporation may, but need
not, indemnify him against all his Expenses in connection therewith.
Section 6.3 Advances. In the event of any threatened or pending
Proceeding in which any Indemnitee is a party or is involved and that may give
rise to a right of that Indemnitee to indemnification under this Article VI,
following written request to the Corporation by that Indemnitee, the Corporation
promptly will pay to that Indemnitee amounts to cover his Expenses in connection
with that Proceeding in advance of its final disposition on the receipt by the
Corporation of (i) a written undertaking of that Indemnitee executed by or on
behalf of that Indemnitee to repay the advance if it ultimately is determined
pursuant to the provisions of this Article VI or by final judgment or other
final adjudication under the provisions of any applicable law that the
Indemnitee is not entitled to be indemnified by the Corporation pursuant to
these Bylaws and (ii) satisfactory evidence as to the amount of those Expenses.
Section 6.4 Request for Indemnification. To request indemnification,
any Indemnitee must submit to the Secretary a written claim or request therefor
which contains sufficient
-13-
17
information to reasonably inform the Corporation about the nature and extent of
the indemnification or advance sought by that Indemnitee. The Secretary will
promptly advise the Board of each such request.
Section 6.5 Nonexclusivity of Rights. The rights of indemnification and
advancement of Expenses this Article VI provides are not exclusive of any other
rights to which any Indemnitee may at any time be entitled under applicable law,
the Certificate of Incorporation, these Bylaws, any agreement, a vote of
Stockholders or a resolution of Directors, or otherwise. No amendment,
alteration or repeal of this Article VI or any provision hereof will be
effective as to any Indemnitee for acts, events and circumstances that occurred,
in whole or in part, before that amendment, alteration or repeal. The provisions
of this Article VI will continue as to any Indemnitee whose Corporate Status has
ceased for any reason and will inure to the benefit of his heirs, executors and
administrators. Neither the provisions of this Article VI nor those of any
agreement to which the Corporation is a party will preclude the indemnification
of any person whom this Article VI does not specify as having the right to
receive indemnification or is not a party to any such agreement, but whom the
Corporation has the power or obligation to indemnify under the provisions of the
DGCL.
Section 6.6 Insurance and Subrogation. The Corporation will not be
liable under this Article VI to make any payment of amounts otherwise
indemnifiable hereunder to or for the benefit of any Indemnitee if, but only to
the extent that, that Indemnitee has otherwise actually received such payment
under any insurance policy, contract or agreement or otherwise. In the event of
any payment hereunder to or for the benefit of any Indemnitee, the Corporation
will be subrogated to the extent of that payment to all the rights of recovery
of that Indemnitee, who shall execute all papers required and take all action
the Corporation reasonably requests to secure those rights, including execution
of such documents as are necessary to enable the Corporation to bring suit to
enforce those rights.
Section 6.7 Severability. If any provision or provisions of this
Article VI shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby; and, to the
fullest extent possible, the provisions of this Article VI will be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
Section 6.8 Certain Actions Where Indemnification Is Not Provided.
Notwithstanding any other provision of this Article VI, no person will be
entitled to indemnification or advancement of Expenses under this Article VI
with respect to any Proceeding, or any Matter therein, brought or made by that
person against the Corporation; provided, however, if any Indemnitee seeks a
judicial adjudication of or an award in arbitration to enforce his rights under,
or to recover damages for breach of, this Article VI, that Indemnitee will be
entitled to recover from the Corporation, and will be indemnified by the
Corporation against, all his Expenses in that judicial adjudication or
arbitration, but only if he prevails therein; and if it is determined in that
judicial adjudication or arbitration that he is entitled to receive part of, but
not all, the indemnification or advancement of expenses sought, his Expenses in
connection with that judicial adjudication or arbitration will be appropriately
prorated between those in respect of which this Section 6.8 entitles him to
indemnification and those he must bear.
-14-
18
Section 6.9 Definitions. For purposes of this Article VI:
"Corporate Status" describes the status of a person who is or was a
director, officer, employee or agent of the Corporation or of any other
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, provided that person is or was serving in that capacity at
the written request of the Corporation. For purposes of these Bylaws,
"serving at the written request of the Corporation" includes any service by
an Indemnitee (at the written request of the Corporation) which imposes
duties on or involves services by that Indemnitee with respect to any
employee benefit plan or its participants or beneficiaries.
"Expenses" of any person include all the following that are
actually and reasonably incurred by or on behalf of that person: all
reasonable attorneys' fees, retainers, court costs, transcript costs, fees
of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all
other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating or being or preparing to be a witness in a Proceeding.
"Indemnitee" includes any person who is, or is threatened to be
made, a witness in or a party to any Proceeding as described in Section 6.1
or 6.2 hereof by reason of his Corporate Status.
"Matter" is a claim, a material issue or a substantial request for
relief.
"Proceeding" includes any action, suit, alternate dispute
resolution mechanism, hearing or any other proceeding, whether civil,
criminal, administrative, arbitrative, investigative or mediative, any
appeal in any such action, suit, alternate dispute resolution mechanism,
hearing or other proceeding and any inquiry or investigation that could lead
to any such action, suit, alternate dispute resolution mechanism, hearing or
other proceeding, except one (i) initiated by an Indemnitee to enforce his
rights under this Article VI or (ii) pending on or before the date of
adoption of these Bylaws.
Section 6.10 Notices. Promptly after receipt by any Indemnitee of
notice of the commencement of a Proceeding in respect of which he contemplates
seeking any indemnification or advance or reimbursement of Expenses pursuant to
this Article VI, that Indemnitee must notify the Corporation of the commencement
of that Proceeding; provided, however, that (i) any delay in so notifying the
Corporation will not constitute a waiver or release by that Indemnitee of any
rights hereunder and (ii) any omission by Indemnitee to so notify the
Corporation will not relieve the Corporation from any liability that it may have
to Indemnitee otherwise than under this Article VI. Any communication required
or permitted to the Corporation must be addressed to the Secretary at the
Corporation's principal executive offices, and any such communication to any
Indemnitee must be addressed to that Indemnitee's address as shown in the
Corporation's records, unless he specifies otherwise, and must be personally
delivered or delivered by overnight mail delivery. Any such notice will be
effective upon receipt.
-15-
19
Section 6.11 Contractual Rights. The right to be indemnified or to the
advancement or reimbursement of Expenses (i) is a contract right based on good
and valuable consideration pursuant to which any Indemnitee may sue as if these
provisions were set forth in a separate written contract between that Indemnitee
and the Corporation, (ii) is and is intended to be retroactive and will be
available as to events occurring prior to the adoption of these provisions and
(iii) will continue after any rescission or restrictive modification of these
provisions as to events occurring prior thereto.
Section 6.12 Maintenance of Insurance. The Board may from time to time
authorize the Corporation to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against that liability under the provisions of these Bylaws.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Offices. The Corporation's registered office shall be in
the City of Wilmington, County of New Castle, State of Delaware. The Corporation
may have such other offices within and without the State of Delaware as have
heretofore been established or may hereafter be established by or with the
authority of the Board. The Corporation's administrative office shall be located
at 11911 FM 529, Houston, Texas.
Section 7.2 Fiscal Year. The fiscal year of the Corporation shall end
on March 31.
Section 7.3 Seal. The corporate seal will have the name of the
Corporation inscribed thereon and will be in such form as the Board by
resolution may approve from time to time. The seal may be used by an officer of
the Corporation causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise applied to any acknowledgments, agreements,
applications, affidavits, certificates, contracts, instruments, statements or
other documents executed for or on behalf of the Corporation.
Section 7.4 Interested Directors; Quorum. No contract or transaction
between the Corporation and one or more of its Directors or officers, or between
the Corporation and any other Entity in which one or more of its Directors or
officers are directors or officers (or hold equivalent offices or positions), or
have a financial interest, will be void or voidable solely for this reason, or
solely because the Director or officer is present at or participates in the
meeting of the Board or Board Committee which authorizes the contract or
transaction, or solely because his or their votes are counted for that purpose,
if: (i) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board or the Board
Committee, and the Board or Board Committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested Directors, even though the disinterested Directors be less than a
quorum; or (ii) the material facts as to his relationship or interest and as to
the contract or
-16-
20
transaction are disclosed or are known to the Stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of those Stockholders; or (iii) the contract or transaction is fair as
to the Corporation as of the time it is authorized, approved or ratified by the
Board, a Board Committee or the Stockholders. Common or interested Directors may
be counted in determining the presence of a quorum at a meeting of the Board or
of a Board Committee which authorizes the contract or transaction.
Section 7.5 Form of Records. Any records the Corporation maintains in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time.
Section 7.6 Bylaw Amendments. The Board has the power to adopt, amend
and repeal from time to time the Bylaws of the Corporation, subject to the right
of Stockholders entitled to vote with respect thereto to amend or repeal those
Bylaws as adopted or amended by the Board. Bylaws of the Corporation may be
adopted, amended or repealed by the affirmative vote of the holders of at least
66.7%of the combined voting power of the outstanding shares of all classes of
capital stock of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class, at any annual meeting, or at any
special meeting if notice of the proposed amendment is contained in the notice
of that special meeting, or by the Board as specified in the preceding sentence.
Section 7.7 Notices; Waiver of Notice. Whenever any notice is required
to be given to any Stockholder, Director or member of any Board Committee under
the provisions of the DGCL, the Certificate of Incorporation or these Bylaws,
that notice will be deemed to be sufficient if given (i) by telegraphic,
facsimile, cable or wireless transmission or (ii) by deposit of the same in the
United States mail, with postage paid thereon, addressed to the person entitled
thereto at his address as it appears in the records of the Corporation, and that
notice will be deemed to have been given on the day of such transmission or
mailing, as the case may be.
Whenever any notice is required to be given to any Stockholder or
Director under the provisions of the DGCL, the Certificate of Incorporation or
these Bylaws, a waiver thereof in writing signed by the person or persons
entitled to that notice, whether before or after the time stated therein, will
be equivalent to the giving of that notice. Attendance of a person at a meeting
will constitute a waiver of notice of that meeting, except when the 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. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Stockholders, the Board or any Board
Committee need be specified in any written waiver of notice unless the
Certificate of Incorporation or these Bylaws so require.
Section 7.8 Resignations. Any Director or officer of the Corporation
may resign at any time. Any such resignation must be made in writing and will
take effect at the time specified in that writing, or, if that resignation does
not specify any time, at the time of its receipt by the Chairman or the
Secretary. The acceptance of a resignation will not be necessary to make it
effective, unless that resignation expressly so provides.
-17-
21
Section 7.9 Facsimile Signatures. In addition to the provisions for the
use of facsimile signatures these Bylaws elsewhere specifically authorize,
facsimile signatures of any officer or officers of the Corporation may be used
as and whenever the Board by resolution so authorizes.
Section 7.10 Reliance on Books, Reports and Records. Each Director and
each member of any Board Committee designated by the Board will, in the
performance of his duties, be fully protected in relying in good faith on the
books of account or reports made to the Corporation by any of its officers, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board or by any such committee, or in relying in good
faith upon other records of the Corporation.
Section 7.11 Certain Definitional Provisions. (a) When used in these
Bylaws, the words "herein," "hereof" and "hereunder" and words of similar import
refer to these Bylaws as a whole and not to any provision of these Bylaws, and
the words "Article" and "Section" refer to Articles and Sections of these Bylaws
unless otherwise specified.
(b) Whenever the context so requires, the singular number includes the
plural and vice versa, and a reference to one gender includes the other gender
and the neuter.
(c) The word "including" (and, with correlative meaning, the word
"include") means including, without limiting the generality of any description
preceding that word, and the words "shall" and "will" are used interchangeably
and have the same meaning.
Section 7.12 Captions. Captions to Articles and Sections of these
Bylaws are included for convenience of reference only, and these captions do not
constitute a part hereof for any other purpose or in any way affect the meaning
or construction of any provision hereof.
End of Bylaws
-18-
22
BYLAWS
EXHIBIT "A"
COMMITTEES
Per ARTICLE III, of the Bylaws of Oceaneering International, Inc. (the
"Company") the following committees are designated by the Board of Directors of
the Company (the "Board") with the committee authority and responsibility
specified in the Appendix indicated opposite the name of the committee. Members
of the Audit Committee shall be independent members of the Board. The membership
and composition of the committees shall be as designated by the Board from time
to time.
Audit Committee Appendix "A"
Nominating Committee Appendix "B"
Compensation Committee Appendix "C"
A-1
23
APPENDIX "A"
OCEANEERING INTERNATIONAL, INC.
AUDIT COMMITTEE CHARTER
GENERAL
The Audit Committee of the Board of Directors of Oceaneering
International, Inc. shall consist of three independent directors. Members of the
Committee shall be considered independent if they have no relationship to the
Company that could interfere with the exercise of their independence from
management and the Company. As determined by the Board of Directors, the Members
of the Committee will be financially literate with at least one having
accounting or related financial management expertise. Company management,
internal and independent auditors and the Company's General Counsel may attend
each meeting or portions thereof as required by the Committee. The Committee
will have two meetings each year on a regular basis and will have special
meetings if and when required.
RESPONSIBILITIES
The Audit Committee's role is one of oversight whereas the Company's
management is responsible for preparing the Company's financial statements and
the independent auditors are responsible for auditing those financial
statements. The Audit Committee is not providing any expert or special assurance
as to the Company's financial statements or any professional certification as to
the independent auditor's work. The following functions shall be the key
responsibilities of the Audit Committee in carrying out its oversight function.
1. The Committee and Board shall be ultimately responsible for
the selection, evaluation, and replacement of the independent
auditors. The Committee will:
recommend annually the appointment of the independent auditors
to the Board for its approval and subsequent submission to the
stockholders for ratification, based upon an annual
performance evaluation and a determination of the auditors'
independence;
A-2
24
determine the independence of the independent auditors by
obtaining a formal written statement delineating all
relationships between the independent auditors and the
Company, including all non-audit services and fees;
discuss with the independent auditors if any disclosed
relationship or service could impact the auditors'
objectivity and independence; and
recommend that the Board take appropriate action in response
to the auditors statement to ensure the independence of the
independent auditors.
2. Inquire of company management and independent auditors
regarding the appropriateness of accounting principles
followed by the Company, changes in accounting principles and
their impact on the financial statements.
3. Review with Company management the Company's financial
reporting process, published financial statement and/or major
disclosures and the adequacy of the Company's system of
internal controls.
4. Review and discuss with Company management and General Counsel
legal and regulatory matters that may have a material impact
on the Company's financial statements and Company compliance
policies.
5. Meet with independent auditors and review their report to the
Committee including comments relating to the system of
internal controls, published financial statements and related
disclosures, the adequacy of the financial reporting process
and the scope of the independent audit. The independent
auditors are ultimately accountable to the Board and the
Committee on all such matters.
6. Provide an open avenue of communications between the internal
and independent auditors and the Board of Directors, including
private sessions with the internal and independent auditors,
as the Committee may deem appropriate.
7. Review the internal audit program in terms of scope of audits
conducted or scheduled to be conducted.
A-3
25
8. Review with the internal auditors any major findings and
recommendations from internal audits conducted Company-wide.
Consult with internal auditors regarding on-going monitoring
programs including the Company's Statement of Philosophy and
Beliefs and compliance with policies of the Company.
9. Review with both the internal and independent auditors the
plans for the audit of the Company's information technology
procedures and controls.
10. Review with the internal and independent auditors the
coordination of their respective audit activities.
11. Prepare a Report, for inclusion in the Company's proxy
statement as required, disclosing that the Committee reviewed
and discussed the audited financial statements with management
and discussed certain other matters with the independent
auditors. Based upon these discussions, state in the Report
whether the Committee recommended to the Board that the
audited financial statements be included in the Annual Report.
12. Review and reassess the adequacy of the Audit Committee's
charter annually. If any revisions therein are deemed
necessary or appropriate, submit the same to the Board for its
consideration and approval.
QUORUM
For the transaction of business at any meeting of the Audit Committee,
a majority of the members shall constitute a quorum.
A-4
26
APPENDIX "B"
NOMINATING COMMITTEE
Responsibilities:
1. Recommending to full Board of Directors of the Company (the "Board")
nominees to fill Board vacancies.
2. Receiving and evaluating stockholder recommendations for nominees to
fill Board vacancies.
3. Recommending to full Board candidates for membership of the committees
of the Board.
4. Recommending to the full Board a director to serve as Chairman of the
Board.
A-5
27
APPENDIX "C"
COMPENSATION COMMITTEE
Responsibilities:
1. Setting salaries of the Officers of the Company
- The Company's Chief Executive Officer (the "CEO") recommends
and the Compensation Committee (the "Committee") approves
entry salary for all officers of the Company (except the CEO).
- The CEO recommends and the Committee approves changes to
salaries for all officers of the Company (except the CEO).
- The Committee recommends and the Board approves any successor
to the CEO and the entry salary when a vacancy occurs; and
changes to the salary of the CEO.
- The Committee recommends and the Board approves the entry
salary and changes to the salary of the Chairman of the Board.
2. Bonus Plans
- The Committee recommends and the Board approves any bonus
award plans.
- The CEO recommends and the Committee approves any bonus awards
to officers within the parameters of the approved plans.
3. Stock Awards
- The Committee recommends and the Board approves any stock
option or stock award plans which require shareholder
approval.
- The CEO recommends and the Committee approves any grants of
stock options and restricted stock to any recipient.
4. Senior Executive Severance Agreements
- The Committee recommends and the Board approves participants
and terms of any senior executive severance agreements.
5. Other Compensation Plans in which Officers and Directors are Eligible
to Participate
- The Committee recommends and the Board approves adoption of
plans.
- The CEO recommends and the Committee approves participant
changes within the parameters of approved plans.
- The Chief Financial Officer of the Company administers plans
as provided in the plans.
A-6