EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
McDERMOTT INTERNATIONAL, INC.
(as amended to February 27, 2003)
ARTICLE I
Meetings of Stockholders
Section 1. The annual and any special meetings of the stockholders shall be
held on the date and at the time and place designated in the notice of such
meetings or in a duly executed waiver of notice thereof.
Section 2. A special meeting of the stockholders may be held at any time
upon the call of the Chief Executive Officer or by order of the Board of
Directors.
Section 3. Whether or not a quorum is present at any stockholders' meeting,
the meeting may be adjourned from time to time by the vote of the holders of a
majority of the voting power of the shares of the outstanding capital stock of
the Company present in person or represented by proxy at the meeting, as they
shall determine.
Section 4. Holders of a majority of the voting power of the shares of the
outstanding capital stock of the Company entitled to vote, present in person or
represented by proxy, shall constitute a quorum for the transaction of all
business at any meeting of the stockholders.
Section 5. With respect to the proposal to be made by the Board of
Directors for approval by the stockholders of the Company at the Company's 2002
annual meeting of stockholders of a proposal to continue the Rights Agreement
dated as of October 17, 2001
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between the Company and EquiServe Trust Company, N.A., as Rights Agent, the
affirmative vote of a majority of the voting power of the shares of outstanding
capital stock of the Company present in person or represented by proxy and
entitled to vote and actually voting on the proposal at that annual meeting
shall be required for approval. In all other matters arising at stockholders'
meetings, a majority of the voting power of the shares of outstanding capital
stock of the Company present in person or represented by proxy at the meeting
shall be necessary and sufficient for the transaction of any business, except
where some larger percentage is affirmatively required by law or by the
Company's certificate of incorporation.
Section 6. At any meeting of stockholders, the chairman of the meeting may
appoint two inspectors who shall subscribe an oath or affirmation to execute
faithfully the duties of inspectors with strict impartiality and according to
the best of their ability, to canvass the votes on any matter and make and sign
a certificate of the result thereof. No candidate for the office of director
shall be appointed as such inspector with respect to the election of directors.
Such inspectors shall be appointed upon the request of the holders of ten
percent (10%) or more of the voting power of the shares of the outstanding
capital stock of the Company present and entitled to vote on such matter.
Section 7. All elections of directors shall be by ballot. The chairman of
the meeting may cause a vote by ballot to be taken upon any other matter, and
such vote by ballot shall be taken upon the request of the holders of ten
percent (10%) or more of the voting power of the shares of the outstanding
capital stock of the Company present and entitled to vote on such matter.
Section 8. The meetings of the stockholders shall be presided over by the
Chief Executive Officer, or if he is absent or unable to preside, by the
Chairman and if neither the Chief Executive Officer nor the Chairman is present
or able to preside, then by a Vice
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Chairman; if more than one Vice Chairman is present and able to preside the Vice
Chairman who shall have held such office for the longest period of time shall
preside; if neither the Chief Executive Officer nor the Chairman nor a Vice
Chairman is present and able to preside, then the President shall preside; if
none of the above is present and able to preside, then a person shall be elected
at the meeting to preside over same. The Secretary of the Company, if present,
shall act as secretary of such meetings or, if he is not present, an Assistant
Secretary shall so act; if neither the Secretary nor an Assistant Secretary is
present, then a secretary shall be appointed by the person presiding over the
meeting.
The order of business shall be as follows:
(a) Calling of meeting to order
(b) Election of chairman and the appointment of a secretary, if necessary
(c) Presentation of proof of the due calling of the meeting
(d) Presentation and examination of proxies
(e) Settlement of the minutes of the previous meeting
(f) Reports of officers and committees
(g) The election of directors, if an annual meeting, or a meeting called
for that purpose
(h) Unfinished business
(i) New business
(j) Adjournment.
Section 9. At every meeting of the stockholders, all proxies shall be
received and taken in charge of and all ballots shall be received and canvassed
by the secretary of the meeting who shall decide all questions touching the
qualification of voters, the validity of the proxies, and the acceptance or
rejection of votes, unless inspectors shall have been appointed, in which event
such inspectors shall perform such duties and decide such
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questions with respect to the matter for which they have been appointed.
Section 10. At any meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (a) by or at the
direction of the Board of Directors, or (b) by any stockholder of the Company of
record at the time of giving of the notice provided for in this Section, who
shall be entitled to vote at such meeting and who complies with the notice
procedures set forth in this Section. For business to be properly brought before
a stockholder meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Company. To be timely, a
stockholder's notice must be addressed to the attention of the Secretary and
delivered to or mailed and received at the principal executive offices of the
Company not less than 90 days nor more than 120 days prior to the first
anniversary of the preceding year's annual meeting of stockholders; provided,
however, that if the date of the annual meeting is advanced more than 30 days
prior to or delayed by more than 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the 120th day
prior to such annual meeting and not later than the close of business on the
later of the 90th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made by
the Company. The stockholder's notice shall set forth (i) the name and address
of the stockholder proposing such business and of the beneficial owner, if any,
on whose behalf the proposal or nomination is made; (ii) a representation that
the stockholder is entitled to vote at such meeting and a statement of the
number of shares of the Company which are owned by the stockholder and the
number of shares which are beneficially owned by the beneficial owner, if any;
(iii) a representation that the stockholder intends to appear in person or by
proxy at the meeting to nominate the person or persons or to propose the
business specified in the notice; and (iv) as to each person the stockholder
proposes to nominate for election or re-election as a director, the
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name and address of such person and such other information regarding such
nominee as would be required in a proxy statement filed pursuant to the rules of
the Securities and Exchange Commission had such nominee been nominated by the
Board of Directors, and a description of any arrangements or understandings
between the stockholder and such nominee and any other persons (including their
names), pursuant to which the nomination is to be made, and the written consent
of each such nominee to being named in the proxy statement as a nominee and to
serve as a director if elected; or, as to each matter the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting, and any material interest of the stockholder in such business. The
chairman of the meeting may refuse to permit any business to be brought before
an annual meeting by a stockholder not in compliance with the provisions of this
Section. Notwithstanding the foregoing provisions of this Section, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder, and with all
other applicable laws, rules and regulations, with respect to the matters set
forth in this Section.
ARTICLE II
Directors
Section 1. The business and affairs of the Company shall be managed by its
Board of Directors in accordance with the provisions of the Articles of
Incorporation. The number of Directors shall be as provided in the Articles of
Incorporation.
Section 2. Meetings of the Board of Directors may be called by the Chairman
or by the Chief Executive Officer or by a majority of the directors by giving
notice to each director.
Section 3. Meetings of the Board of Directors shall be presided over by the
Chairman, or if the Chairman so requests or is absent or unable to preside, by
the Chief
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Executive Officer; if neither the Chairman nor the Chief Executive Officer is
present and able to preside, then by a Vice Chairman; if more than one Vice
Chairman is present and able to preside, the Vice Chairman who shall have held
such office for the longest period of time shall preside; if neither the
Chairman nor the Chief Executive Officer nor a Vice Chairman is present and able
to preside, then the President shall preside; if none of the above is present
and able to preside, then one of the Directors shall be elected at the meeting
to preside over same.
Section 4. Whether or not a quorum is present at any meeting of the Board
of Directors, a majority of the directors present may adjourn the meeting from
time to time as they may determine. 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. Any business may be transacted at the adjourned
meeting which might have been transacted at the original meeting.
Section 5. Any committee of the Board of Directors shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the Company to the extent provided in the resolution by which
such committee is designated, except that no such committee shall have authority
to alter or amend the By-Laws, or to fill vacancies in either the Board of
Directors or its own membership. In the absence or disqualification of any
member of such a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Each such
committee shall meet at stated times or on notice to all by any of its own
number. It shall fix its own rules of procedure. A majority shall constitute a
quorum and the affirmative vote of a majority of those present at a meeting at
which a quorum is present shall be the act of
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such committee. Each such committee shall keep minutes of its proceedings.
Section 6. Directors shall receive as compensation for their services an
amount in addition to actual expenses incident to the attending of meetings to
be fixed by resolution of the Board of Directors. Nothing in this section shall
be construed to preclude a Director from serving the Company in any other
capacity and receiving compensation therefore.
Section 7. Beginning with the Company's 2001 annual meeting of the
stockholders, no person shall be nominated to stand for election or re-election
to the Company's Board of Directors if such person will have attained the age of
70 prior to the date of election or re-election. Any Director elected or
re-elected at or after the Company's 2001 annual meeting of stockholders who
attains the age of 70 during a term to which he or she was elected or re-elected
shall continue to serve as a Director until the first annual meeting of
stockholders immediately following his or her attainment of the age of 70, at
which time said Director shall be deemed to have resigned and retired from the
Board of Directors, except that the Board, in its sole discretion, may waive the
mandatory resignation and retirement requirement for one year only.
Section 8. A Director of this Corporation who is, under Section 411(a) of
the Employee Retirement Income Security Act of 1974 of the United States of
America, under a disability to serve as a fiduciary of an employee benefit plan,
as that term is defined in Section 3(3) of said Act shall not serve as a
fiduciary of any such employee benefit plan with respect to which the Company or
any of its subsidiaries is an employer as defined in Section 3(5) of said Act;
and, during the period of such disability, such Director shall be precluded from
acting in any manner with respect to any such plan. Any Director who is disabled
from serving as a fiduciary of an employee benefit plan under Section 411(a) of
said Act shall be requested to consent, in writing, to the applicability of this
By-Law to him.
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ARTICLE III
Officers
Section 1. The officers of this Company shall be elected annually by the
Board of Directors at its first meeting following the annual meeting of
stockholders or from time to time and shall hold office until their successors
are elected and qualify, or until their earlier death, resignation or removal.
Such officers shall consist of a Chairman of the Board of Directors, a Chief
Executive Officer, one or more Vice Chairmen of the Board of Directors, a
President, one or more Vice Presidents, a Secretary, a Treasurer and one or more
Controllers. In these By-Laws, the Chairman of the Board of Directors is
sometimes referred to as "Chairman", and the Vice Chairman or Vice Chairmen of
the Board of Directors are sometimes referred to as "Vice Chairman" or "Vice
Chairmen", respectively. The Board of Directors may in addition elect at such
meeting or from time to time one or more Assistant Secretaries and one or more
Assistant Treasurers and one or more Assistant Controllers. Any number of
offices may be held by the same person.
Section 2. The officers shall have such powers and duties as may be
provided in these By-Laws and as may be conferred upon or assigned to them by
the Board of Directors from time to time.
Section 3. The Chairman shall preside over meetings of the Board of
Directors, as stated elsewhere in these By-Laws.
Section 4. The Chief Executive Officer shall preside over meetings of the
shareholders, as stated elsewhere in these By-Laws; subject to the direction of
the Board of Directors, he shall have and exercise direct charge of and general
supervision over all business and affairs of the Company and shall perform all
duties incident to the office of the Chief Executive Officer of a corporation,
and such other duties as may be assigned to him by
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the Board of Directors.
Section 5. Each Vice Chairman of the Board of Directors shall have and
exercise such powers and perform such duties as may be conferred upon or
assigned to him by the Board of Directors or by the Chief Executive Officer.
Section 6. The President shall be the Chief Operating Officer of the
Company and shall have and exercise such powers and perform such duties as may
be conferred upon or assigned to him by the Board of Directors or by the Chief
Executive Officer.
Section 7. Each Vice President shall have and exercise such powers and
perform such duties as may be conferred upon or assigned to him by the Board of
Directors or by the Chief Executive Officer.
Section 8. Each Controller shall have and exercise such powers and perform
such duties as may be conferred upon or assigned to him by the Board of
Directors or by the Chief Executive Officer.
Section 9. The Secretary shall give proper notice of meetings of
stockholders and directors, shall be custodian of the book in which the minutes
of such meetings are kept, and shall perform such other duties as shall be
assigned to him by the Board of Directors or by the Chief Executive Officer.
Section 10. The Treasurer shall keep or cause to be kept accounts of all
monies of the company received or disbursed, shall deposit or cause to be
deposited all monies and other valuables in the name of and to the credit of the
Company in such banks and depositories as the Board of Directors shall
designate, and shall perform such other duties as shall be assigned to him by
the Board of Directors or by the Chief Executive Officer. All checks or other
instruments for the payment of money shall be signed in such a manner as the
Board of Directors may from time to time determine.
Section 11. Any officers of the Company may be removed, with or without
cause, by
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resolution adopted by the Board of Directors at a meeting called for that
purpose.
ARTICLE IV
Seals
The corporate seal of this Company shall be a circular seal with the name
of the Company around the border and the word "SEAL" in the center.
ARTICLE V
Any of these By-Laws may be amended, altered or repealed and additional
By-Laws may be adopted by the Board of Directors by the affirmative vote of a
majority of the whole Board cast at a meeting duly held, except that the vote of
two-thirds of the outstanding shares of the Company entitled to vote shall be
required to amend, alter or repeal Section 1 or Section 8 of Article II or this
Article V (as it applies to said Section 1 and 8 of Article II) of these
By-Laws.
ARTICLE VI
Indemnification
Section 1. Each person (and the heirs, executors and administrators of such
person) who is or was a director or officer of the Company shall in accordance
with Section 2 of this Article VI be indemnified by the Company against any and
all liability and reasonable expense that may be paid or incurred by him in
connection with or resulting from any actual or threatened claim, action, suit
or proceeding (whether brought by or in the right of the Company or otherwise),
civil, criminal, administrative or investigative, or in connection with an
appeal relating thereto, in which he may become involved, as a party or
otherwise, by reason of his being or having been a director or officer of the
Company or, if he shall be serving or shall have served in such capacity at the
request of the Company, a director, officer, employee or agent of another
corporation or any partnership, joint venture, trust or
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other entity whether or not he continues to be such at the time such liability
or expense shall have been paid or incurred, provided such person acted, in good
faith, in a manner he reasonably believed to be in or not opposed to the best
interest of the Company and in addition, in criminal actions or proceedings, had
no reasonable cause to believe that his conduct was unlawful. As used in this
ARTICLE VI, the terms, "liability" and "expense" shall include, but shall not be
limited to, counsel fees and disbursements and amounts of judgments, fines or
penalties against, and amounts paid in settlement by, such director or officer.
The termination of any actual or threatened claim, action, suit or proceeding,
civil, criminal, administrative, or investigative, by judgment, settlement
(whether with or without court approval), conviction or upon a plea of guilty or
nolo contendere, or its equivalent, shall not create a presumption that such
director or officer did not meet the standards of conduct set forth in this
Section 1.
Section 2. Every such director and officer shall be entitled to
indemnification under Section 1 of this ARTICLE VI with respect to any claim,
action, suit or proceeding of the character described in such Section 1 in which
he may become in any way involved as set forth in such Section 1, if (i) he has
been wholly successful on the merits or otherwise in respect thereof, or (ii)
the Board of Directors acting by a majority vote of a quorum consisting of
directors who are not parties to (or who have been wholly successful with
respect to) such claim, action, suit or proceeding, finds that such director or
officer has met the standards of conduct set forth in such Section 1 with
respect thereto, or (iii) a court determines that he has met such standards with
respect thereto, or (iv) independent legal counsel (who may be the regular
counsel of the Company) deliver to the Company their written advice that, in
their opinion, he has met such standards with respect thereto.
Section 3. If and whenever any person who is or becomes, on or after March
1, 2002, a director or officer of the Company, has become or been threatened to
become, as of
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that date or at any time thereafter, a party to any actual or threatened claim,
action, suit or proceeding of any kind that might give right to that person to
indemnification under Section 1 of this Article VI (each, a "Matter"), the
Company will advance all expenses reasonably incurred by or on behalf of that
person in connection with that Matter, provided that that person shall have
delivered an undertaking by or on behalf of that person to repay to the Company
any expenses so advanced if it is ultimately determined that that person is not
entitled to be indemnified by the Company under that Section 1 in respect of
those expenses. The Company will accept any such undertaking of any such person
without regard to the financial ability of such person to make such payment.
Notwithstanding the foregoing, this Section 3 will not require the Company to
advance expenses with respect to any Matter initiated by or on behalf of any
such person against the Company or any of its subsidiaries, whether as an
initial action or by counter or similar claim, without the prior approval of the
Board of Directors. The provisions of this Section 3 shall inure to the benefit
of the heirs, executors and administrators of any person entitled to the
benefits of this Section 3. No amendment to this Section 3, directly or by
amendment to any other provision of these By-laws, shall have any retroactive
effect with respect to any Matter arising from or based on any act or omission
to act by any person which occurs prior to the effectiveness of that amendment.
Section 4. The rights of indemnification under this ARTICLE VI shall be in
addition to any rights to which any such director or officer or any other person
may otherwise be entitled by contract or as a matter of law.