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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
HV MARINE SERVICES, INC.
ARTICLE ONE
The name of the Corporation is HV Marine Services, Inc.
ARTICLE TWO
The street address of its initial registered office in Delaware is 1209
Orange Street, Wilmington, Delaware 19805 and the name of its initial registered
agent at such address is The Corporation Trust Company.
ARTICLE THREE
The nature of the business or purpose to be conducted or promoted is to
engage in any lawful act or activities for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE FOUR
Section 1. General.
The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is 35,000,000 shares, of which
30,000,000 will be shares of common stock, par value $.01 per share ("Common
Stock"), and 5,000,000 will be shares of preferred stock, par value $.01 per
share ("Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions, of Common Stock and Preferred Stock
are as follows:
Section 2. Common Stock.
2.1 Dividend Rights. Subject to provisions of law and the preferences
of Preferred Stock and of any other stock ranking prior to Common Stock as to
dividends, the holders of Common Stock will be entitled to received dividends
when, as and if declared by the board of directors.
2.2 Voting Rights. Except as provided by law and pursuant to this
Article Four, the holders of Common Stock will have one vote for each share on
each matter submitted to a vote of the stockholders of the Corporation. Except
as otherwise provided by law, by the certificate of incorporation or by
resolution or resolutions of the board of directors providing for the issue of
any series of Preferred Stock, the holders of Common Stock will have sole voting
power.
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2.3 Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, after payment
or provisions for payment of the debts and other liabilities of the Corporation
and the preferential amounts of which the holders of any stock ranking prior to
Common Stock in the distribution of assets are entitled upon liquidation, the
holders of Common Stock and the holders of any other stock ranking on a parity
with Common Stock in the distribution of assets upon liquidation will be
entitled to share in the remaining assets of the Corporation according to their
respective interests.
Section 3. Preferred Stock.
3.1 Authority of the Board of Directors to Issue in Series. Preferred
Stock may be issued from time to time in one or more series. All shares of any
one series of Preferred Stock will be identical except as to the dates of issue
and the dates from which dividends on shares of the series issued on different
dates will cumulate, if cumulative. Authority is hereby expressly granted to the
Board of Directors to authorize the issue of one or more series of Preferred
Stock, and to fix by resolution or resolutions providing for the issue of each
such series the voting powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, of such series, to the full extent now or hereafter
permitted by law, including, but not limited to, the following:
(a) The number of shares of such series, which may
subsequently be increased, except as otherwise provided by the
resolution or resolutions of the Board of Directors providing for the
issuance of such series, or decreased, to a number not less than the
number of shares then outstanding, by resolution or resolutions of the
Board of Directors, and the distinctive designation thereof;
(b) The dividend rights of such series, the preferences, if
any, over any other class or series of stock, or of any other class or
series of stock over such series, as to dividends, the extent, if any
to which shares of such series will be entitled to participate in
dividends with shares of any other series or class of stock, whether
dividends on shares of such series will be fully, partially or
conditionally cumulative, or a combination thereof, and any
limitations, restrictions or conditions on the payment of such
dividends.
(c) The rights of such series, and the preferences, if any,
over any other class or series of stock, or of any other class or
series of stock over such series, in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation
and the extent, if any, to which shares of any such series will be
entitled to participate in such event with any other series or class of
stock;
(d) The time or times during which, the price or prices at
which, and the terms and conditions on which, the shares of such series
may be redeemed;
(e) The terms of any purchase, retirement or sinking fund
which may be provided for the shares of such series;
(f) The terms and conditions, if any, upon which the shares of
such series will
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be convertible into or exchangeable for shares of any other series,
class or classes, or any other securities, to the full extent now or
hereafter permitted by law;
(g) The voting powers, if any, of such series in addition to
the voting powers provided by law.
3.2 Limitation on Dividend. No holders of any series of Preferred Stock
will be entitled to receive any dividends thereon other than those specifically
provided for by the certificate of incorporation or the resolution or
resolutions of the board of directors providing for the issue of such series of
Preferred Stock, nor will any accumulative dividends on Preferred Stock bear any
interest.
3.3 Limitation on Liquidation Distributions. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of Preferred Stock of each series will be entitled to
receive only such amount or amounts as will have been fixed by the certificate
of incorporation or by the resolution or resolutions of the board of directors
providing for the issuance of such series. A consolidation or merger of the
Corporation with or into one or more other corporations or a sale, lease or
exchange of all or substantially all of the assets of the Corporation will not
be deemed to be a voluntary or involuntary liquidation, dissolution or winding
up, within the meaning of this article.
ARTICLE FIVE
The number of directors constituting the Board of Directors shall be
fixed from time to time as provided in the Restated Bylaws or amendments
thereto.
No more than twenty-five percent of the directors of the Corporation
may be non-United States citizens.
The Board of Directors shall be divided into three (3) classes, each
class to be as nearly equal in number as possible. The terms of office of
directors of the first class are to expire at the first annual meeting of
stockholders after their election or appointment, that of the second class is to
expire at the second annual meeting after their election or appointment, and
that of the third class is to expire at the third annual meeting after their
election or appointment. Thereafter, each director shall serve for a term ending
on the date of the third annual meeting of stockholders following the annual
meeting at which such director was elected.
This classified board provision shall not be altered or repealed
without the affirmative vote of the holders of at least 80% of the shares
entitled to vote in the election of directors. The Directors may not amend or
repeal the classified board provision.
ARTICLE SIX
The period of duration of the Corporation is perpetual.
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ARTICLE SEVEN
The initial Bylaws of the Corporation shall be adopted by its Board of
Directors. The Restated Bylaws, as effective upon the filing of this Restated
Certificate of Incorporation, may be altered, amended or repealed, or new bylaws
may be adopted by the Board of Directors, subject to the right of the
stockholders to alter and/or repeal the Restated Bylaws or adopt new bylaws and
provided that the following language of the Restated Bylaws shall only be
altered, amended, repealed or replaced by new bylaws by the affirmative vote of
the holders of at least 80% of the Corporation's capital stock entitled to vote
thereon: Section 3.1 Annual Meeting; Section 3.2 Special Meetings; Section 3.12
No Action Without Meeting; Section 4.1 Number, Qualification and Term; Section
4.2 Removal (or in each case any successor or replacement language addressing
substantially the same topic).
ARTICLE EIGHT
The Corporation shall indemnify its officers and directors under the
circumstances and to the full extent permitted by law.
ARTICLE NINE
Meetings of stockholders may be held within or without the State of
Delaware, as the Restated Bylaws may provide. The books of the Corporation may
be kept (subject to any provisions of the Delaware General Corporation Law)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the Restated Bylaws of the
Corporation.
ARTICLE TEN
The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in the Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE ELEVEN
The affirmative vote or consent of the holders of not less than 66-2/3%
of each class of the outstanding stock of the Corporation entitled to vote in
elections of directors of the Corporation is required to approve or authorize
any (i) merger or consolidation of the Corporation with any other corporation or
(ii) sale, lease, exchange or other disposition of all or substantially all of
the assets of the Corporation to any other corporation, person, or entity; or
(iii) the liquidation of the Corporation.
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ARTICLE TWELVE
Section 1. Purpose and effectiveness.
The purpose of this Article Twelve is to limit ownership and control of
shares of any class of capital stock of the Corporation by Aliens in order to
permit the Corporation and/or its Subsidiaries or Controlled Persons to conduct
their business as U.S. Maritime Companies.
Section 2. Restriction on transfers.
Any transfer, or attempted or purported transfer, of any shares of any
class of capital stock issued by the Corporation or any interest therein or
right thereof, which would result in the ownership or control by one or more
Aliens of an aggregate percentage of the shares of any class of capital stock of
the Corporation or of any interest therein or right thereof in excess of the
Permitted Percentage will, until such excess no longer exists, be void and will
be ineffective as against the Corporation and the Corporation will not
recognize, to the extent of such excess, the purported transferee as a
stockholder of the Corporation for any purpose other than the transfer of such
excess to a person who is not an Alien; provided, however, that such shares, to
the extent of such excess, may nevertheless be deemed to be Alien owned shares
for the purposes of this Article Twelve.
The Board of Directors is hereby authorized to adopt such bylaws and
resolutions, and to effect any and all other measures reasonably necessary or
desirable (consistent with applicable law and the provisions of the Certificate
of Incorporation) to fulfill the purpose and implement the provisions of this
Article Twelve, including without limitation, obtaining, as a condition
precedent to the transfer of shares on the records of the Corporation,
representations and other proof as to the identity of existing or prospective
stockholders and persons on whose behalf shares of any class of capital stock of
the Corporation or any interest therein or right thereof are or are to be held
or establishing and maintaining a dual stock certificate system under which
different forms of stock certificates, representing outstanding shares of Common
Stock or Preferred Stock of the Corporation, are issued to the holders of record
of the shares represented thereby to indicate whether or not such shares or any
interest therein or right thereof is owned or controlled by an Alien.
Section 3. Suspension of voting, dividend and distribution rights with
respect to alien owned stock.
No shares of the outstanding capital stock of the Corporation or any
class thereof determined to be in excess of the Permitted Percentage in
accordance with this Section 3 of this Article Twelve will, until such excess no
longer exists, be entitled to receive or accrue any rights with respect to any
dividends or other distributions of assets declared payable or paid to the
holders of such capital stock during such period. Furthermore, no shares in
excess of the Permitted Percentage held by or for the benefit of any Alien will
be entitled to vote with respect to any matter submitted to stockholders of the
Corporation so long as such excess exists. If Alien ownership exists. If Alien
ownership of the outstanding capital stock of the Corporation or any class
thereof is in excess of the Permitted Percentage, the shares deemed included in
such
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excess for purposes of this Section 3 of this Article Twelve will be those
Alien owned shares that the Board of Directors determines became so owned most
recently.
Section 4. Definitions.
"Alien" means (1) any person (including an individual, a partnership, a
corporation or an association) who is not a United States citizen, within the
meaning of Section 2 of the Shipping Act, 1916, as amended or as it may
hereafter be amended; (2) any foreign government or representative thereof; (3)
any corporation, the president, chief executive officer or chairman of the board
of directors of which is an Alien, or of which more than a minority of the
number of its directors necessary to constitute a quorum are Aliens; (4) any
corporation organized under the laws of any foreign government; (5) any
corporation of which 25% or greater interest is owned beneficially or of record,
or may be voted by, an Alien or Aliens, or which by any other means whatsoever
is controlled by or in which control is permitted to be exercised by an Alien or
Aliens (the Board of Directors being authorized to determine reasonably the
meaning of "control" for this purpose); (6) any partnership or association which
is controlled by an Alien or Aliens; or (7) any person (including an individual,
partnership, corporation or association) who acts as representative of or
fiduciary for any person described in clauses (1) through (6) above.
"Controlled Person" means any corporation or partnership of which the
Corporation or any Subsidiary owns or controls an interest in excess of 25%.
"Permitted Percentage" means four percent of the outstanding shares of
the capital stock of the Corporation, or any class thereof.
"Subsidiary" means any corporation more than 50% of the outstanding
capital stock of which is owned by the Corporation or any Subsidiary of the
Corporation.
"U.S. Maritime Company" means any corporation or other entity which,
directly or indirectly (1) owns or operates vessels in the United States
coastwise trade, intercoastal trade or noncontiguous domestic trade; (2) owns or
operates any vessel built with construction differential subsidies from the
United States Government (or any agency thereof); (3) is a party to an operating
differential subsidy agreement with the United States Government (or any agency
thereof) on account of ships owned, charted or operated by it; (4) owns any
vessel on which there is a preferred mortgage issued in connection with Title XI
of the Merchant Marine Act, 1936, as amended; (5) operates vessels under
agreement with the United States Government (or any agency thereof); (6)
conducts any activity, takes any action or receives any benefit which would be
adversely affected under any provision of the U.S. maritime, shipping or vessel
documentation laws by virtue of Alien ownership of its stock; or (7) maintains a
Capital Construction Fund under the provisions of Section 607 of the Merchant
Marine Act of 1936, as amended."
ARTICLE THIRTEEN
The Certificate of Incorporation of the Corporation can only be amended
or repealed by the affirmative vote of the holders of at least 66-2/3% of the
shares entitled to vote thereon unless a greater percentage is stated herein.
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In witness whereof, we have signed this Restated Certificate of
Incorporation this the ___ day of December 24, 1997.
HV MARINE SERVICES, INC.,
a Delaware corporation
By: /s/ TODD M. HORNBECK
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Todd M. Hornbeck, President
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