Exhibit 3.2
BY-LAWS
OF
GULF ISLAND FABRICATION, INC.
(As Amended and Restated through February 28, 2008)
SECTION 1
OFFICERS
1.1 Principal Office. The principal office of the Corporation shall be
located at 583 Thompson Road, Houma, Louisiana 70363.
1.2 Additional Offices. The Corporation may have such offices at such
other places as the Board of Directors may from time to time determine or the
business of the Corporation may require.
SECTION 2
SHAREHOLDER MEETINGS
2.1 Place of Meetings. Unless otherwise required by law or these By-laws,
all meetings of the shareholders shall be held at the principal office of the
Corporation or at such other place, within or without the State of Louisiana, as
may be designated by the board of Directors.
2.2 Annual Meetings; Notice Thereof. An annual meeting of the
shareholders shall be held each year on the date and at the time as the Board of
Directors shall designate, for the purpose of electing directors and of the
transaction of such other business as may be properly brought before the
meeting. If no annual shareholders' meeting is held for a period of eighteen
months, any shareholder may call such meeting to be held at the registered
office of the Corporation as shown on the records of the Secretary of State of
the State of Louisiana.
2.3 Special Meetings. Special meetings of the shareholders, for any
purpose or purposes, may be called by or at the direction of the Board of
Directors. Shareholders may call a special meeting of shareholders in accordance
with the applicable provisions of the Articles of Incorporation.
2.4 Notice of Meetings. Except as otherwise provided by law or the
Articles of Incorporation, the authorized person or persons calling a
shareholders' meeting shall cause written notice of the time, place and purpose
of the meeting to be given to all shareholders entitled to vote at such meeting,
at least 10 days and not more than 75 days prior to the day fixed for the
meeting. Notice of the annual meeting need not state the purpose or purposes
thereof, unless action is to be taken at the meeting as to which notice is
required by law or the By-laws. Notice of a special meeting shall state the
purpose or purposes thereof, and the business conducted at any special meeting
shall be limited to the purpose or purposes stated in the notice.
2.5 List of Shareholders. At every meeting of shareholders, a list of
shareholders entitled to vote, arranged alphabetically and certified by the
Secretary or by the agent of the Corporation having charge of transfers of
shares, showing the number and class of shares held by each such shareholder on
the record date for the meeting and confirming the number of votes per share as
to which each such shareholder is entitled, shall be produced on the request of
any shareholder.
2.6 Quorum. At all meetings of shareholders, the holders of a majority of
the total voting power shall constitute a quorum; provided, however, that this
subsection shall not have the effect of reducing the vote required to approve
any matter that may be established by law, the Articles of Incorporation or
these By-laws.
2.7 Voting. When a quorum is present at any shareholders' meeting, the
vote of the holders of a majority of the votes actually cast shall decide each
question brought before such meeting, unless the resolution of the question
requires, by express provision of law, the Articles of Incorporation or these
By-laws, a different vote or one or more separate votes by the holders of a
class or series of capital stock, in which case such express provision shall
apply and control the decision of such question. Directors shall be elected by
plurality vote.
2.8 Proxies. At any meeting of the shareholders, every shareholder having
the right to vote shall be entitled to vote in person or by proxy appointed by
an instrument in writing executed by such shareholder and bearing a date not
more than eleven months prior to the meeting, unless the instrument provides for
a longer period, but in no case will an outstanding proxy be valid for longer
than three years from the date of its execution. The person appointed as proxy
need not be a shareholder of the Corporation.
2.9 Adjournments. Adjournments of any annual or special meeting of
shareholders may be taken without new notice being given unless a new record
date is fixed for the adjourned meeting, but any meeting at which directors are
to be elected shall be adjourned only from day to day until such directors shall
have been elected.
2.10 Withdrawal. If a quorum is present or represented at a duly organized
shareholders' meeting, such meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum as fixed in Section 2.6 of these By-laws, or the refusal of any
shareholders to vote.
2.11 Lack of Quorum. If a meeting cannot be organized because a quorum has
not attended, those present may adjourn the meeting to such time and place as
they may determine, subject, however, to the provisions of Section 2.9 hereof.
In the case of any meeting called for the election of directors, those who
attend the second of such adjourned meetings, although less than a quorum as
fixed in Section 2.6 hereof, shall nevertheless be deemed to constitute a quorum
for the purpose of electing directors.
2.12 Presiding Officer. The Chairman of the Board or a person designated
by the Chairman of the Board, or in their absence a person designated by the
Board of Directors, shall preside at all shareholders' meetings.
2
2.13 Definition of Shareholder. As used in these By-laws, and unless the
context otherwise requires, the term shareholder shall mean a person who is (i)
the record holder of shares of the Corporation's common stock or any other
capital stock of the Corporation granted voting rights, or (ii) a registered
holder of any bonds, debentures or similar obligations granted voting rights by
the Corporation pursuant to La.R.S. 12:75H.
SECTION 3
DIRECTORS
3.1 Number. All of the corporate powers shall be vested in, and the
business and affairs of the Corporation shall be managed by, a Board of
Directors. Except as otherwise fixed by or pursuant to Article III(B) of the
Articles of Incorporation (as it may be duly amended from time to time) relating
to the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect additional
directors by class vote, the Board of Directors shall consist of eight natural
persons; provided that, if after the last action of the Board of Directors with
respect to nomination of directors prior to the mailing to shareholder of proxy
materials for any meeting of shareholders at which directors are to be elected,
any person or persons named therein to be nominated at the direction of the
Board of Directors becomes unable or unwilling to serve, the foregoing number of
authorized directors shall be automatically reduced by a number equal to the
number of such persons unless the Board of Directors selects a replacement
nominee or nominees. No director need be a shareholder. The Secretary shall have
the power to certify at any time as to the number of directors authorized and as
to the class to which each director has been elected or assigned.
3.2 Powers. The Board may exercise all such powers of the Corporation and
do all such lawful acts and things which are not by law, the Articles of
Incorporation or these By-laws directed or required to be done by the
shareholders.
3.3 Classes. The Board of Directors, other than those directors who may
be elected by the holders of any class or series of stock having preference over
the Common Stock as to dividends or upon liquidation (whose term of office may
be determined by the Board of Directors pursuant to Section 3.3), shall be
divided, with respect to the time during which they shall hold office, into
three classes as nearly equal in number as possible, with the initial term of
office of Class I directors expiring at the annual meeting of shareholders to be
held in 1998, of Class II Directors expiring at the next succeeding annual
meeting of shareholders and of Class III directors expiring at the second
succeeding annual meeting of shareholders, with all such directors to hold
office until their successors are elected and qualified. At each annual meeting
of shareholders, directors chosen to succeed those whose terms then expire shall
be elected to hold office for a term expiring at the annual meeting of
shareholder held in the third year following the year of their election and
until their successors are duly elected and qualified. If the Board of Directors
shall appoint any director to fill a vacancy on the Board, whether resulting
from an increase in the number of directors or otherwise, or if the shareholders
shall elect a director to fill an open seat not previously assigned to a class,
such Director shall be assigned to a class by the Board of Directors so that all
classes of directors shall be as nearly equal in number as possible, and such
Director's term shall expire at the succeeding annual meeting at which the terms
of the other Directors in that class expire. In the event of a decrease in the
number of directors, the Board of Directors may reassign the remaining directors
to classes so that all classes of directors shall be as nearly equal in number
as possible.
3
3.4 General Election. At each annual meeting of shareholders, directors
shall be elected to succeed those directors whose terms then expire. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
3.5 Vacancies. Except as otherwise provided in the Articles of
Incorporation or these By-laws, the office of a director shall become vacant if
he dies, resigns or is duly removed from office.
3.6 Filling Vacancies. Except as otherwise provided in the Articles of
Incorporation or Section 3.8 of these By-laws, any vacancy on the board
(including any vacancy resulting from an increase in the authorized number of
directors or from failure of the shareholders to elect the full number of
authorized directors) may, notwithstanding any resulting absence of a quorum of
directors, be filled by a majority vote of the Board of Directors remaining in
office, provided that the shareholder shall have the right, at any special
meeting called for such purpose prior to such action by the Board, to fill the
vacancy. A director elected pursuant to this section shall serve until the next
shareholders' meeting held for the election of directors of the class to which
he shall have been appointed and until his successor is elected and qualified.
3.7 Notice of Shareholder Nominees. Except as otherwise provided in
Section 3.8 of these By-laws, only persons who are nominated in accordance with
the procedures set forth in Article IV(E) of the Articles of Incorporation shall
be eligible for election as directors.
3.8 Directors Elected by Preferred Shareholders. Notwithstanding anything
in these By-laws to the contrary, whenever the holders of any one or more
classes or series of stock having a preference over the Common Stock as to
dividends or upon liquidation shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the provisions of the
Articles of Incorporation (as they may be duly amended from time to time) fixing
the rights and preferences of such preferred stock shall govern with respect to
the nomination, election, term, removal, vacancies or other related matters with
respect to such directors.
3.9 Compensation of Directors. Directors shall receive such compensation
for their services, in their capacity as directors, as may be fixed by
resolution of the Board of Directors; provided, however, that nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 4
MEETINGS OF THE BOARD
4.1 Place of Meetings. The meetings of the Board of Directors may be held
at such place within or without the State of Louisiana as a majority of the
directors may from time to time appoint.
4.2 Initial Meetings. Except as otherwise determined by the Board of
Directors, the first meeting of each newly-elected Board shall be held
immediately following the shareholders' meeting at which the Board, or any class
thereof, is elected and at the same place as such meeting, and no notice of such
first meeting shall be necessary for the newly-elected directors in order
legally to constitute the meeting.
4
4.3 Regular Meetings; Notice. Regular meetings of the Board may be held
at such times as the Board may form time to time determine. Notice of regular
meetings of the Board of Directors shall be given, but no special form of notice
or time of notice shall be necessary.
4.4 Special Meetings; Notice. Special meetings of the Board may be called
by or at the direction of the Chairman of the Board or the President on
reasonable notice given to each director, either personally or by telephone,
mail, telex, telecopy or any other comparable form of facsimile communication.
Special meetings shall be called by the Secretary in like manner and on like
notice on the written request of a majority of the directors and if such officer
fails or refuses, or is unable within 24 hours to call a meeting when requested,
then the directors making the request may call the meeting on two days' written
notice given to each director. The notice of a special meeting of directors need
not state it purpose or purposes, but if the notice states a purpose or purposes
and does not state a further purpose to consider such other business as may
properly come before the meeting, the business to be conducted at the special
meeting shall be limited to the purpose or purposes stated in the notice.
4.5 Waiver of Notice. Directors present at any regular or special meeting
shall be deemed to have received, or to have waived, due notice thereof,
provided that a director who participates in a meeting by telephone (as
permitted by Section 4.9 hereof) shall not be deemed to have received or waived
due notice if, at the beginning of the meeting, he objects to the transaction of
any business because the meeting is not lawfully called.
4.6 Quorum. A majority of the Board shall be necessary to constitute a
quorum for the transaction of business, and except as otherwise provided by law,
the Articles of Incorporation or these By-laws, the acts of a majority of the
directors present at a duly-called meeting at which a quorum is present shall be
the acts of the board. If a quorum is not present at any meeting of the Board of
Directors, the directors present may adjourn the meeting from time to time
without notice other than announcement at the meeting, until a quorum is
present.
4.7 Withdrawal. If a quorum was present when the meeting convened, the
directors present may continue to do business, taking action by vote of a
majority of a quorum as fixed in Section 4.6 hereof, until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum
as fixed in Section 4.6 hereof or the refusal of any director present to vote.
4.8 Action by Consent. Any action that may be taken at a meeting of the
Board, or any committee thereof, may be taken by a consent in writing signed by
all of the directors or by all members of the committee, as the case may be, and
filed with the records of proceedings of the Board or committee.
4.9 Meetings by Telephone or Similar Communication. Members of the Board
may participate at and be present at any meeting of the Board or any committee
thereof by means of conference telephone or similar communications equipment if
all persons participating in such meeting can hear and communicate with each
other.
SECTION 5
COMMITTEES OF THE BOARD
5
5.1 General. The Board may designate one or more committees, each
committee to consist of two or more of the directors of the Corporation (and one
or more directors may be named as alternate members to replace any absent or
disqualified regular members), which, to the extent provided by resolution of
the Board or these By-laws, shall have and may exercise the powers of the Board
in the management of the business and affairs of the Corporation, and may have
power to authorize the seal of the Corporation to be affixed to documents, but
no such committee shall have power or authority to amend the Articles of
Incorporation, adopt an agreement of merger, consolidation or share exchange,
adopt or recommend to the shareholders the sale, lease or exchange of all or
substantially all of the Corporation's assets, recommend to the shareholders a
dissolution of the Corporation or a revocation of dissolution, remove directors,
or amend these By-laws; and unless the resolution expressly so provides, no such
committee shall have the power or authority to declare a dividend or authorize
the issuance of stock. Such committee or committees shall have such name or
names as may be stated in these By-laws, or as may be determined, from time to
time, by the Board. Any vacancy occurring in any such committee shall be filled
by the Board, but the President may designate another director to serve on the
committee pending action by the Board. Each such member of a committee shall
hold office during the term designated by the Board.
5.2 Compensation Committee. The Board shall establish and maintain a
Compensation Committee consisting of two or more directors, each of whom (i)
shall be qualified to the extent appropriate as a "non-employee director" under
Rule 16b-3 of the Securities Exchange Commission and as an "outside director"
under Section 162(m) of the Internal Revenue Code and (ii) shall meet any
further qualifications designated by the Board. The Compensation Committee shall
review and analyze the compensation of the Corporation's executive officers;
review and provide general guidance as to compensation of the Corporation's
other managers; evaluate the performance of the Corporation's executive
officers; administer the Corporation's Long-Term Incentive Compensation Plan,
including grants thereunder; and perform such other services as may be
designated by the Board.
5.3 Audit Committee. The Board shall establish an Audit Committee
consisting of at least two directors, a majority of whom are not officers or
employees of the Corporation or any of its affiliates. The Audit Committee shall
(i) facilitate communication among the Corporation's directors, management,
independent accountants and internal auditing personnel regarding matters
relating to financial accounting, reporting and controls, (ii) assist the Board
of Directors in fulfilling its fiduciary responsibilities as to accounting
policies and reporting practices of the Corporation and all subsidiaries and the
sufficiency of auditing practices with respect thereto by, among other things,
reviewing the scope of audit coverage, including consideration of the
Corporation's accounting practices and procedures and system of internal
accounting controls and reporting to the Board with respect thereto, (iii)
operate as the Board's principal agent in ensuring the independence of the
Corporation's independent accountants, the integrity of management and the
adequacy of disclosure to shareholders, and (iv) perform such other services as
may be designated by the Board.
SECTION 6
REMOVAL OF BOARD MEMBERS
Directors may be removed in accordance with the applicable provisions of
the Articles of Incorporation.
6
SECTION 7
NOTICES
7.1 Form of Delivery. Whenever under the provisions of law, the Articles
of Incorporation or these By-laws notice is required to be given to any
shareholder or director, it shall not be construed to mean personal notice
unless otherwise specifically provided in the Articles of Incorporation or these
By-laws, but such notice may be given by mail, addressed to such shareholder or
director at his address as it appears on the records of the Corporation, with
postage thereon prepaid, or in such other manner as may be specified in these
By-laws. Notices given by mail shall be deemed to have been given at the time
they are deposited in the United States mail, and all other notices shall be
deemed to have been give upon receipt.
7.2 Waiver. Whenever any notice is required to be given by law, the
Articles of Incorporation or these By-laws, a waiver thereof in writing signed
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent thereto. In addition, notice
shall be deemed to have been given to, or waived by, any shareholder or director
who attends a meeting of shareholders or directors in person, or is represented
at such meeting by proxy, without protesting at the commencement of the meeting
the transaction of any business because the meeting is not lawfully called or
convened.
SECTION 8
OFFICERS
8.1 Designations. The officers of the Corporation shall be elected by the
directors and shall be the President, Secretary and Treasurer. The Board of
Directors may appoint a Chief Executive Officer, a Chief Operating Officer, a
Chief Accounting Officer, one or more Vice Presidents and such other officers as
it shall deem necessary. Officers shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board. To the extent permitted by law, more than one office
may be held by a single person.
8.2 Term of Office. The officers of the Corporation shall hold office at
the pleasure of the Board of Directors. Except as otherwise provided in the
resolution of the Board of Directors electing any officer, each officer shall
hold office until the first meeting of the Board of Directors after the annual
meeting of shareholders next succeeding his or her election, and until his or
her successor is elected and qualified or until his or her earlier resignation
or removal. Any officer may resign at any time upon written notice to the Board,
Chairman of the Board, President or Secretary of the Corporation. Such
resignation shall take effect at the time specified therein and acceptance of
such resignation shall not be necessary to make it effective. The Board may
remove any officer with or without cause at any time. Any such removal shall be
without prejudice to the contractual rights of such officers, if any, with the
Corporation, but the election of an officer shall not in and of itself create
contractual rights. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise may be filled for the unexpired
position of the term by the Board at any regular or special meeting.
7
8.3 The Chairman of the Board. The Board may appoint a Chairman of the
Board who shall preside at meetings of the Board of Directors and the
shareholders and perform such other duties as may be designated by the Board of
Directors or these By-laws. The Chairman of the Board shall not, solely by
virtue of such position, be an officer of the Corporation but may be designated
an officer by the Board of Directors.
8.4 The President. The President shall, unless otherwise provided by the
Board, have general and active responsibility for the management of the business
of the Corporation, shall be the chief executive and chief operating officer of
the Corporation, shall supervise the daily operations of the business of the
Corporation and shall ensure that all orders, policies and resolutions of the
Board are carried out.
8.5 The Vice Presidents. The Vice Presidents (if any) shall have such
designations and perform such duties as the President or the Board of Directors
shall prescribe.
8.6 The Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the shareholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose. He shall give,
or cause to be given, notice of all meetings of the shareholders and regular and
special meetings of the Board, and shall perform such other duties as may be
prescribed by the Board or President. He shall keep in safe custody the seal of
the Corporation, if any, and affix such seal to any instrument requiring it.
8.7 The Assistant Secretary. The Assistant Secretary shall have the same
powers and duties as the Secretary and shall perform such other duties as may be
prescribed by the Board or President.
8.8 The Treasurer. The Treasurer shall have the custody of the corporate
funds and shall keep or cause to be kept full and accurate accounts of receipts
and disbursements in books belonging to the Corporation and shall deposit all
monies and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
He shall keep a proper accounting of all receipts and disbursements and shall
disburse the funds of the Corporation only for proper corporate purposes or as
may be ordered by the Board and shall render to the President and the Board at
the regular meetings of the Board, or whenever they may require it, an account
of all his transactions as Treasurer and of the financial condition and results
of operations of the Corporation.
8
SECTION 9
STOCK
9.1 Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed by the President or a Vice President and
the Secretary or an Assistant Secretary evidencing the number and class (and
series, if any) of shares owned by him, containing such information as required
by law and bearing the seal of the Corporation. As provided in the Articles of
Incorporation, the Board of Directors may approve the use of dual forms of stock
certificates, one for issuance to U.S. citizen stockholders, and one for
issuance to non-U.S. citizen stockholders. If any stock certificate is manually
signed by a transfer agent or registrar other than the Corporation itself or an
employee of the Corporation, the signature of any such officer 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 an officer, transfer agent or registrar of the Corporation before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person or entity were an officer, transfer agent or registrar of the
Corporation on the date of issue.
9.2 Missing Certificates. The President or any Vice President may direct
a new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the Corporation's receipt of an affidavit of that fact
from the person claiming the certificate of stock to be lost, stolen or
destroyed. As a condition precedent to the issuance of a new certificate or
certificates, the officers of the Corporation shall, unless dispensed with by
the President, require the owner of such lost, stolen or destroyed certificate
or certificates, or his legal representative, to (i) give the Corporation a bond
or (ii) enter into a written indemnity agreement, in each case in an amount
appropriate to indemnify the Corporation against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
9.3 Transfers. The shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives upon
surrender and cancellation of certificates for a like number of shares. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books, provided that as
a condition precedent to the transfer of shares on the records of the
Corporation, the Corporation may require representations or other proof of the
identity and citizenship of any prospective stockholder and may restrict
transfers to non-U.S. citizens as provided in the Articles of Incorporation.
SECTION 10
DETERMINATION OF SHAREHOLDERS
For the purpose of determining shareholders entitled to notice of and to
vote at a meeting, or to receive a dividend, or to receive or exercise
subscription or other rights, or to participate in a reclassification of stock,
or in order to make a determination of shareholders for any other proper
purpose, the Board of Directors may fix in advance a record date for
determination of shareholders for such purpose, such date to be not more than 60
days and, if fixed for the purpose of determining shareholders entitled to
notice of and to vote at a meeting, not less than 10 days, prior to the date on
which the action requiring the determination of shareholders is to be taken.
9
SECTION 11
INDEMNIFICATION
11.1 Definitions. As used in this section the following terms shall have
the meanings set forth below:
(a) "Board" - the Board of Directors of the Corporation.
(b) "Claim" - any threatened, pending or completed claim, action,
suit, or proceeding, whether civil, criminal, administrative or investigative
and whether made judicially or extra-judicially, or any separate issue or matter
therein, as the context requires.
(c) "Determining Body" - (i) those members of the Board who are not
named as parties to the Claim for which indemnification is being sought
("Impartial Directors"), if there are at least three Impartial Directors, (ii) a
committee of at least three Impartial Directors appointed by the Board
(regardless whether the members of the Board of Directors voting on such
appointment are Impartial Directors) or (iii) if there are fewer than three
Impartial Directors or if the Board of Directors or the committee appointed
pursuant to clause (ii) of this paragraph so directs (regardless whether the
members thereof are Impartial Directors), independent legal counsel, which may
be the regular outside counsel of the Corporation.
(d) "Disbursing Officer" - the President of the Corporation or, if
the President is a party to the Claim for which indemnification is being sought,
any officer not a party to such Claim who is designated by the President to be
the Disbursing Officer with respect to indemnification requests related to the
Claim, which designation shall be made promptly after receipt of the initial
request for indemnification with respect to such Claim.
(e) "Expenses" - any expenses or costs, including, without
limitation, attorney's fees, judgments, punitive or exemplary damages, fines and
amounts paid in settlement.
(f) "Indemnitee" - each person who is or was a director or officer
of the Corporation.
11.2 Indemnity.
(a) To the extent such Expenses exceed the amounts reimbursed or
paid pursuant to policies of liability insurance maintained by the Corporation,
the Corporation shall indemnify each Indemnitee against any Expenses actually
and reasonably incurred by him (as they are incurred) in connection with any
Claim either against him or as to which he is involved solely as a witness or
person required to give evidence, by reason of his position (i) as a director or
officer of the Corporation, (ii) as a director or officer of any subsidiary of
the Corporation, (iii) as a fiduciary with respect to any employee benefit plan
of the Corporation, or (iv) as a director, officer, partner, employee or agent
of another corporation, partnership, joint venture, trust or other for-profit or
not-for-profit entity or enterprise, if such position is or was held at the
10
request of the Corporation, whether relating to service in such position before
or after the effective date of this Section, if he (i) is successful in his
defense of the claim on the merits or otherwise or (ii) has been found by the
Determining Body (acting in good faith) to have met the Standard of Conduct
(defined below); provided that (A) the amount otherwise payable by the
Corporation may be reduced by the Determining Body to such amount as it deems
proper if it determines that the Claim involved the receipt of a personal
benefit by Indemnitee, and (B) no indemnification shall be made in respect of
any Claim as to which Indemnitee shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
for willful or intentional misconduct in the performance of his duty to the
Corporation or to have obtained an improper personal benefit, unless, and only
to the extent that, a court shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as
the court deems proper.
(b) For purposes of this Section 11, the Standard of Conduct is met
when the conduct by an Indemnitee with respect to which a Claim is asserted was
conduct that was in good faith and that he reasonably believed to be in, or not
opposed to, the best interest of the Corporation, and, in the case of a criminal
action or proceeding, that he had no reasonable cause to believe was unlawful.
The termination of any Claim by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not meet the Standard of Conduct.
(c) Promptly upon becoming aware of the existence of any Claim as
to which he may be indemnified hereunder, Indemnitee shall notify the President
of the Corporation of the Claim and whether he intends to seek indemnification
hereunder. If such notice indicates that Indemnitee does so intend, the
President shall promptly advise the Board thereof and notify the Board that the
establishment of the Determining Body with respect to the Claim will be a matter
presented at the next regularly scheduled meeting of the Board. Such a meeting
is to be held within 90 calendar days of the date of Indemnitee's request. If a
meeting of the Board of Directors is not regularly scheduled within 120 calendar
days of such request, the President shall cause a special meeting of the Board
of Directors to be called within such period in accordance with these By-laws.
After the Determining Body has been established the President shall inform the
Indemnitee thereof and Indemnitee shall immediately provide the Determining Body
with all facts relevant to the Claim known to him. No later than the 60th day
(the "Determination Date") after its receipt of such information, together with
such additional information as the Determining Body may request of Indemnitee,
the Determining Body shall determine, and shall advise Indemnitee of its
determination, whether Indemnitee has met the Standard of Conduct.
(d) During such 60-day period, Indemnitee shall promptly inform the
Determining Body upon his becoming aware of any relevant facts not theretofore
provided by him to the Determining Body, unless the Determining Body has
obtained such facts by other means. The providing of such facts to the
Determining Body shall not begin a new 60-day period.
(e) The Determining Body shall have no authority to revoke a
determination that Indemnitee met the Standard of Conduct unless Indemnitee (i)
submits fraudulent information to the Determining Body at any time during the 60
days prior to the Determination Date or (ii) fails to comply with the provisions
of subsections (c) or (d) hereof, including without limitation Indemnitee's
obligation to submit information or documents relevant to the Claim reasonably
requested by the Determining Body prior to the Determination Date.
11
(f) In the case of any Claim not involving a proposed, threatened
or pending criminal proceeding,
(i) if Indemnitee has, in the good faith judgment of the
Determining Body, met the Standard of Conduct, the Corporation may, in its sole
discretion after notice to Indemnitee, assume all responsibility for the defense
of the Claim, and, in any event, the Corporation and the Indemnitee each shall
keep the other informed as to the progress of the defense, including prompt
disclosure of any proposals for settlement; provided that if the Corporation is
a party to the Claim and Indemnitee reasonably determines that there is a
conflict between the positions of the Corporation and Indemnitee with respect to
the Claim, then Indemnitee shall be entitled to conduct his defense, with
counsel of his choice; and provided further that Indemnitee shall in any event
be entitled at his expense to employ counsel chosen by him to participate in the
defense of the Claim; and
(ii) the Corporation shall fairly consider any proposals by
Indemnitee for settlement of the Claim. If the Corporation (A) proposes a
settlement acceptable to the person asserting the Claim, or (B) believes a
settlement proposed by the person asserting the Claim should be accepted, it
shall inform Indemnitee of the terms thereof and shall fix a reasonable date by
which Indemnitee shall respond. If Indemnitee agrees to such terms, he shall
execute such documents as shall be necessary to effect the settlement. If he
does not agree he may proceed with the defense of the Claim in any manner he
chooses, but if he is not successful on the merits or otherwise, the
Corporation's obligation to indemnify him for any Expenses incurred following
his disagreement shall be limited to the lesser of (A) the total Expenses
incurred by him following his decision not to agree to such proposed settlement
or (B) the amount the Corporation would have paid pursuant to the terms of the
proposed settlement. If, however, the proposed settlement would impose upon
Indemnitee any requirement to act or refrain from acting that would materially
interfere with the conduct of his affairs, Indemnitee may refuse such settlement
and proceed with the defense of the Claim, if he so desires, at the
Corporation's expense without regard to the limitations imposed by the preceding
sentence. In no event, however, shall the Corporation be obligated to indemnify
Indemnitee for any amount paid in a settlement that the Corporation has not
approved.
(g) In the case of a Claim involving a proposed, threatened or
pending criminal proceeding, Indemnitee shall be entitled to conduct the defense
of the claim, and to make all decisions with respect thereto, with counsel of
his choice; provided, however, that the Corporation shall not be obligated to
indemnify Indemnitee for an amount paid in settlement that the Corporation has
not approved.
(h) After notifying the Corporation of the existence of a Claim,
Indemnitee may from time to time request the Corporation to pay the Expenses
(other than judgments, fines, penalties or amounts paid in settlement) that he
incurs in pursuing a defense of the Claim prior to the time that the Determining
Body determines whether the Standard of Conduct has been met. If the Disbursing
Officer believes the amount requested to be reasonable, he shall pay to
Indemnitee the amount requested (regardless of Indemnitee's apparent ability to
repay such amount) upon receipt of an undertaking by or on behalf of Indemnitee
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation under the circumstances. If the
disbursing Officer does not believe such amount to be reasonable, the
Corporation shall pay the amount deemed by him to be reasonable and Indemnitee
may apply directly to the Determining Body for the remainder of the amount
requested.
12
(i) After the Determining Body has determined that the Standard of
Conduct was met, for so long as and to the extent that the Corporation is
required to indemnify Indemnitee under this Agreement, the provisions of
paragraph (h) shall continue to apply with respect to Expenses incurred after
such time except that (i) no undertaking shall be required of Indemnitee and
(ii) the Disbursing Officer shall pay to Indemnitee such amount of any fines,
penalties or judgments against him which have become final as the Corporation is
obligated to indemnify him.
(j) Any determination by the Corporation with respect to
settlements of a Claim shall be made by the Determining Body.
(k) The Corporation and Indemnitee shall keep confidential, to the
extent permitted by law and their fiduciary obligations, all facts and
determinations provided or made pursuant to or arising out of the operation of
this Section, and the Corporation and Indemnitee shall instruct its or his
agents and employees to do likewise.
11.3 Enforcement.
(a) The rights provided by this Section shall be enforceable by
Indemnitee in any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights under
this Section, Indemnitee shall be entitled to recover from the Corporation, and
shall be indemnified by the Corporation against, any and all Expenses actually
and reasonably incurred by him in connection with such proceeding but only if he
prevails therein. If it shall be determined that Indemnitee is entitled to
receive part but not all of the relief sought, then the Indemnitee shall be
entitled to be reimbursed for all Expenses incurred by him in connection with
such judicial adjudication if the amount to which he is determined to be
entitled exceeds 50% of the amount of his claim. Otherwise, the Expenses
incurred by Indemnitee in connection with such judicial adjudication shall be
appropriately prorated.
(c) In any judicial proceeding described in this subsection, the
Corporation shall bear the burden of proving that Indemnitee is not entitled to
any Expenses sought with respect to any Claim.
11.4 Saving Clause. If any provision of this Section is determined by a
court having jurisdiction over the matter to require the Corporation to do or
refrain from doing any act that is in violation of applicable law, the court
shall be empowered to modify or reform such provision so that, as modified or
reformed, such provision provides the maximum indemnification permitted by law,
and such provision, as so modified or reformed, and the balance of this Section,
shall be applied in accordance with their terms. Without limiting the generality
of the foregoing, if any portion of this Section shall be invalidated on any
ground, the Corporation shall nevertheless indemnify an Indemnitee to the full
extent permitted by any applicable portion of this Section that shall not have
been invalidated and to the full extent permitted by law with respect to that
portion that has been invalidated.
13
11.5 Non-Exclusivity.
(a) The indemnification and advancement of Expenses provided by or
granted pursuant to this Section shall not be deemed exclusive of any other
rights to which Indemnitee is or may become entitled under any statute, article
of incorporation, by-law, authorization of shareholders or directors, agreement,
or otherwise.
(b) It is the intent of the Corporation by this Section to
indemnify and hold harmless Indemnitee to the fullest extent permitted by law,
so that if applicable law would permit the Corporation to provide broader
indemnification rights than are currently permitted, the Corporation shall
indemnify and hold harmless Indemnitee to the fullest extent permitted by
applicable law notwithstanding that the other terms of this Section would
provide for lesser indemnification.
11.6 Successors and Assigns. This Section shall be binding upon the
Corporation, its successors and assigns, and shall inure to the benefit of the
Indemnitee's heirs, personal representatives, and assigns and to the benefit of
the Corporation, its successors and assigns.
11.7 Indemnification of Other Persons. The Corporation may indemnify any
person not covered by Sections 11.1 through 11.6 to the extent provided in a
resolution of the Board or a separate section of these By-laws.
SECTION 12
ADOPTION AND AMENDMENT OF BY-LAWS
By-laws of the Corporation may be adopted and amended as provided in the
Articles of Incorporation.
SECTION 13
MISCELLANEOUS
13.1 Dividends. Except as otherwise provided by law, the Articles of
Incorporation or these By-laws, dividends upon the stock of the Corporation may
be declared by the Board of Directors at any regular or special meeting.
Dividends may be paid in cash, property, or shares of stock, subject to the
limitations specified in the Articles of Incorporation.
13.2 Voting of Shares Owned by Corporation. Unless otherwise directed by
the Board, any shares of capital stock issued by a wholly-owned subsidiary of
the Corporation may be voted by the President of the Corporation, or by any
person authorized to do so by the President, at any shareholders' meeting of the
subsidiary (or in connection with any written consent in lieu thereof).
13.3 Fiscal Year. The Board of Directors may adopt for and on behalf of
the Corporation a fiscal or a calendar year.
13.4 Seal. The Board of Directors may adopt a corporate seal, which shall
have inscribed thereon the name of the Corporation. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise. Failure to affix the seal shall not, however, affect the validity of
any instrument.
14
13.5 Gender. All pronouns and variations thereof used in these By-laws
shall be deemed to refer to the masculine, feminine or neuter gender, singular
or plural, as the identity of the person, persons, entity or entities referred
to may require.
13.6 Control Share Acquisitions. The provisions of Sections 135 through
140.2 of the Louisiana Business Corporation Law (La.R.S. 12:135 through 140.2)
do not apply to control share acquisitions of shares of the Corporation.
15