SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
GREAT LAKES DREDGE & DOCK CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
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20-5336063
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(Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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2122 York Road
Oak Brook, Illinois 60523
(630) 574-3000
(Address of Principal Executive
Offices)
If this
form relates to the registration of a class of securities pursuant to Section
12(b) of the Exchange Act and is effective pursuant to General Instruction
A.(c), check the following box. x
If this
form relates to the registration of a class of securities pursuant to Section
12(g) of the Exchange Act and is effective pursuant to General Instruction
A.(d), check the following box. o
Securities
Act registration statement file number to which this form relates:
333-136861-01
Securities
to be registered pursuant to Section 12(b) of the Act:
Title of each class
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Name of each
exchange on which
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to be so
registered
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each class is to
be registered
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common
stock, par value $0.0001 per share
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Nasdaq Stock
Market, LLC
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Securities to be
registered pursuant to Section 12(g) of the Act: None
INFORMATION REQUIRED IN REGISTRATION
STATEMENT
Item 1. Description
of Registrants Securities to be Registered
The following description of the common stock, par
value $0.0001 per share, of Great Lakes Dredge & Dock Holdings Corp., a
Delaware corporation (Great Lakes), is qualified in its entirety by reference
to the full text of the Certificate of Incorporation and Bylaws of Great Lakes,
which are set forth as Exhibits 3.1 and 3.2 to this registration statement and
are incorporated herein by reference.
A description of Great Lakes common stock is set forth
under Description of Great Lakes Dredge & Dock Holdings Corps Capital
Stock in Great Lakes registration statement on Form S-4 (File No.
333-136861), filed with the Securities and Exchange Commission on August 23,
2006 and amended on October 13, 2006 and November 9, 2006 (the Registration
Statement).
Item 2. Exhibits
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3.1
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Amended and Restated Certificate of Incorporation of
Great Lakes Dredge & Dock Holdings Corp., effective December 26, 2006
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3.2
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Amended and Restated Bylaws of Great Lakes Dredge
& Dock Holdings Corp., effective December 26, 2006
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4.1
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Specimen Common Stock Certificate for Great Lakes
Dredge & Dock Holdings Corp. (incorporated by reference to Exhibit 4.4 of
Amendment No. 1 of the Aldabra Acquisition Corporation and Great Lakes Dredge
& Dock Holdings Corp. Registration Statement on Form S-4, filed with the
Securities and Exchange Commission on October 13, 2006)
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SIGNATURES
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has duly caused this
registration statement to be signed on its behalf by the undersigned, thereto
duly authorized.
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GREAT LAKES DREDGE & DOCK CORPORATION
(formerly known as Great Lakes Dredge & Dock
Holdings Corp.)
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Dated December 26, 2006
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By:
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/s/ Deborah A. Wensel
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Name:
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Deborah A. Wensel
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Title:
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Chief Financial Officer
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EXHIBIT INDEX
3.1
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Amended and Restated Certificate of Incorporation of
Great Lakes Dredge & Dock Holdings Corp., effective December 26, 2006
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3.2
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Amended and Restated Bylaws of Great Lakes Dredge
& Dock Holdings Corp., effective December 26, 2006
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4.1
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Specimen Common Stock Certificate for Great Lakes
Dredge & Dock Holdings Corp. (incorporated by reference to Exhibit 4.4 of
Amendment No. 1 of the Aldabra Acquisition Corporation and Great Lakes Dredge
& Dock Holdings Corp. Registration Statement on Form S-4, filed with the
Securities and Exchange Commission on October 13, 2006)
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Exhibit 3.1
AMENDED
AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GREAT
LAKES DREDGE & DOCK HOLDINGS CORP.
a Delaware corporation
ARTICLE
ONE
NAME
The name of the Corporation is Great Lakes Dredge
& Dock Holdings Corp. (the Corporation).
ARTICLE
TWO
REGISTERED OFFICE AND AGENT
The address of the Corporations registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
city of Wilmington, county of New Castle.
The name and address of the registered agent is The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801.
ARTICLE
THREE
PURPOSE
The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which corporations
may be organized under the Delaware General Corporation Law (the DGCL).
ARTICLE
FOUR
CAPITAL STOCK
Section 1. Authorized
Shares. The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is 91,000,000 shares, of which:
90,000,000 shares, par value $0.0001 per share, shall
be shares of common stock (the Common Stock); and
1,000,000 shares, par value $0.0001 per share, shall
be shares of initially undesignated preferred stock (the Preferred Stock).
Section 2. Common
Stock. Except as (i) otherwise
required by law or (ii) expressly provided in this Amended and Restated
Certificate of Incorporation (as amended from time to
time), each share of Common Stock shall have the same powers, rights
and privileges and shall rank equally, share ratably and be identical in all
respects as to all matters.
(a) Dividends. Subject to the rights of the holders of
Preferred Stock, and to the other provisions of this Amended and Restated
Certificate of Incorporation (as amended from time to time), holders of Common
Stock shall be entitled to receive equally, on a per share basis, such
dividends and other distributions in cash, securities or other property of the
Corporation as may be declared thereon by the Board of Directors of the
Corporation (the Board) from time to time out of assets or funds of
the Corporation legally available therefor.
(b) Voting Rights. At every annual or special meeting of
stockholders of the Corporation, each holder of Common Stock shall be entitled
to cast one (1) vote for each share of Common Stock standing in such holders
name on the stock transfer records of the Corporation; provided, however,
that, except as otherwise required by law, holders of Common Stock shall not be
entitled to vote on any amendment to this Amended and Restated Certificate of
Incorporation (including any certificate of designations relating to any series
of Preferred Stock) that relates solely to the terms of one or more outstanding
series of Preferred Stock if the holders of such affected series are entitled,
either separately or together as a class with the holders of one or more other
such series, to vote thereon pursuant to this Amended and Restated Certificate
of Incorporation (including any certificates of designation relating to any
series of Preferred Stock).
(c) Liquidation Rights. In the event of any liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the Corporations debts
and amounts payable upon shares of Preferred Stock entitled to a preference, if
any, over holders of Common Stock upon such dissolution, liquidation or winding
up, the remaining net assets of the Corporation shall be distributed among
holders of shares of Common Stock, ratably among such holders based on the
number of shares of Common Stock held by each such person. A merger or consolidation of the Corporation
with or into any other corporation or other entity, or a sale or conveyance of
all or any part of the assets of the Corporation (which shall not in fact
result in the liquidation of the Corporation and the distribution of assets to
its stockholders) shall not be deemed to be a voluntary or involuntary
liquidation or dissolution or winding up of the Corporation within the meaning
of this paragraph (c).
(d) Preemptive Rights. Except as may be set forth in a written
agreement to which such holder is party with the Corporation, no holder of
Common Stock shall have any preemptive rights with respect to the Common Stock
or any other securities of the Corporation, or to any obligations convertible
(directly or indirectly) into securities of the Corporation whether now or
hereafter authorized.
Section 3. Preferred
Stock. The Board is authorized,
subject to limitations prescribed by law or any exchange on which the
Corporations securities may then be listed, to provide by resolution or
resolutions for the issuance of shares of Preferred Stock in one or more
series, to establish the number of shares to be included in each such series,
and to fix the voting powers (if any), designations, powers, preferences, and
relative, participating, optional or other rights, if any, of the shares of
each such series, and any qualifications, limitations or restrictions
thereof.
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Irrespective of the provisions of Section 242(b)(2) of the DGCL, the
number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority in voting power of the stock of
the Corporation entitled to vote, without the separate vote of the holders of
the Preferred Stock as a class.
Section 4.
Definitions. Solely for the purposes of this Article Four and Article
Five, the following terms shall have the meanings ascribed below:
Affiliate shall mean, with respect to any
Person, any other Person directly or indirectly controlling, controlled by or
under common control with such first Person as of the date on which, or at any
time during the period for which, the determination of affiliation is being
made. For the purpose of this
definition, control means (i) the ownership or control of 50% or more of the
equity interest in any Person, or (ii) the ability to direct or cause the
direction of the management or affairs of a Person, whether through the direct
or indirect ownership of voting interests, by contract or otherwise.
Person means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
Subsidiary means, with respect to any Person,
any corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a limited liability company, partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that person or a combination
thereof. For purposes hereof, references
to a Subsidiary of any Person shall be given effect only at such times that
such Person has one or more Subsidiaries, and, unless otherwise indicated, the
term Subsidiary refers to a Subsidiary of the Corporation.
ARTICLE FIVE
RESTRICTIONS
ON TRANSFER AND OWNERSHIP
Section 1. Maritime Laws. It is the policy of
the Corporation that Non-U.S. Citizens should beneficially own, individually or
in the aggregate, no more than the Permitted Percentage of each class or series
of the capital stock of the Corporation. To help ensure that at no time
Non-U.S. Citizens, individually or in the aggregate, become the beneficial
owners of more than the Permitted Percentage of the issued and outstanding
shares of any class or series of capital stock of the Corporation, and to
enable the Corporation to submit any proof that it is a U.S. Citizen as
required by any applicable law or by any contract with the United States
government (or any agency thereof) or any other Person, the Corporation shall
have the power to take the actions
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prescribed in Sections
2 through 9 of this Article Five. The provisions of this Article
Five are intended to ensure that the Corporation continues to qualify as a
U.S. Citizen under the Maritime Laws so that the Corporation does not cease to
be qualified under the Maritime Laws to own and operate vessels that may engage
in dredging in the navigable waters of the United States and may transport
dredged material between points in the United States. The Board (or any duly
authorized committee thereof) is specifically authorized to make all
determinations in accordance with applicable law and this Amended and Restated
Certificate of Incorporation to implement the provisions of this Article
Five.
Section 2. Stock Certificates.
(a) To implement the policy set forth
in Section 1 of this Article Five, the Corporation shall
institute a dual stock certificate system such that: (i) each certificate
representing shares of each class or series of capital stock of the Corporation
that are beneficially owned by a U.S. Citizen shall be marked U.S. Citizen
and each certificate representing shares of each class or series of capital
stock of the Corporation that are beneficially owned by a Non-U.S. Citizen
shall be marked Non-U.S. Citizen, but with all such certificates to be
identical in all other respects and to comply with all provisions of the laws
of the State of Delaware; (ii) an application to transfer shares shall be set
forth on the back of each certificate, in which a Person seeking to take title
to the shares represented by such certificate shall apply to the Corporation to
transfer the number of shares indicated therein and shall certify as to its
citizenship and the citizenship of any beneficial owner for whom or for whose
account such Person will hold such shares; and (iii) the stock transfer records
of the Corporation may be maintained in such manner as to enable the
percentages of the shares of each class or series of the Corporations capital
stock that are beneficially owned by U.S. Citizens and by Non-U.S. Citizens to
be confirmed.
(b) A statement shall be set
forth on the face or back of each certificate representing shares of each class
or series of capital stock of the Corporation to the effect that: (i) such
shares and the beneficial ownership thereof are subject to restrictions on
transfer set forth in the Amended and Restated Certificate of Incorporation;
and (ii) the Corporation will furnish without charge to each stockholder of the
Corporation who so requests a copy of the Amended and Restated Certificate of
Incorporation.
Section 3. Transfers.
(a) Any purported
transfer of beneficial ownership of any shares of any class or series of
capital stock of the Corporation (excluding, for the avoidance of doubt, the
original issuance of such shares by the Corporation), the effect of which would
be to cause one or more Non-U.S. Citizens in the aggregate to beneficially own
shares of any class or series of capital stock of the Corporation in excess of
the Permitted Percentage for such class or series, shall be void and
ineffective, and, to the extent that the Corporation knows of such purported
transfer, neither the Corporation nor its transfer agent (if any) shall
register such purported transfer on the stock transfer records of the
Corporation and neither the Corporation nor its transfer agent (if any) shall
recognize the purported transferee thereof as a stockholder of the Corporation
for any purpose whatsoever except to the extent necessary to effect any remedy
available to the Corporation under this Article Five. In no event shall
any such registration or recognition make such
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purported transfer effective unless the Board shall have expressly and
specifically authorized the same.
(b) A citizenship
certification, and such other documentation under Section 8 of this Article
Five, may be required by the Corporation or its transfer agent (if any)
from all transferees (and from any recipient upon original issuance) of shares
of capital stock of the Corporation and, if such transferee (or recipient) is
acting as a fiduciary or nominee for a beneficial owner, with respect to such
beneficial owner, and registration of transfer (or the closing of such original
issue) shall be denied upon refusal to furnish such certificate.
Section 4. Excess
Shares. If on any date (including, without limitation, any record date)
(each, an Excess Share Date) the
number of shares of a class or series of capital stock of the Corporation
beneficially owned by Non-U.S. Citizens exceeds the Permitted Percentage with
respect to such class or series of capital stock, irrespective of the date on
which such event becomes known to the
Corporation (such shares in excess of the Permitted Percentage, the Excess Shares), then the shares of
such class or series of capital stock of the Corporation that constitute Excess Shares for purposes of this Article
Five shall be those shares that have been acquired by or become
beneficially owned by Non-U.S. Citizens, starting with the most recent
acquisition of beneficial ownership of such shares by a Non-U.S. Citizen and
including, in reverse chronological order of acquisition, all other
acquisitions of beneficial ownership of such shares by Non-U.S. Citizens from
and after the acquisition of beneficial ownership of such shares by a Non-U.S.
Citizen that first caused such Permitted Percentage to be exceeded; provided that, (i) the Corporation shall have the sole power to
determine, in the exercise of its reasonable judgment, those shares of such
class or series that constitute Excess Shares in accordance with the provisions
of this Article Five; (ii) the Corporation may, in its reasonable
discretion, rely on any reasonable documentation provided by Non-U.S. Citizens
with respect to the date of their acquisition of beneficial ownership of Excess
Shares; (iii) if the acquisition of beneficial ownership of more than one
Excess Share occurs on the same date, then the order in which such acquisitions
shall be deemed to have occurred on such date shall be determined by lot or
such shares shall be treated as Excess Shares on a pro rata basis as the
Corporation may, in its reasonable discretion, deem appropriate; (iv) Excess
Shares that result from a determination that a beneficial owner has ceased to
be a U.S. Citizen will be deemed to have been acquired, for purposes of this Article
Five, as of the date that such beneficial owner ceased to be a U.S.
Citizen; and (v) the Corporation may adjust upward to the nearest whole share
the number of shares of such class or series deemed to be Excess Shares. Any
determination made by the Corporation pursuant to this Section 4 as to
which shares of any class or series of the Corporations capital stock
constitute Excess Shares of such class or series shall be conclusive and shall
be deemed effective as of the applicable Excess Share Date for such class or
series.
Section 5. Additional Remedies for
Exceeding Permitted Percentage. In the event that (i) Section 3(a)
of this Article Five would not be effective for any reason to prevent
the transfer (a Proposed Transfer) of
beneficial ownership of any Excess Share of any class or series of the capital
stock of the Corporation to a Non-U.S. Citizen (a Proposed Transferee),
(ii) a change in the status (a Status
Change) of a U.S. Citizen to a Non-U.S. Citizen (a Disqualified
Person) causes a share of any class or series of capital stock of the
Corporation of which such U.S. Citizen is the beneficial owner immediately
prior to such change to constitute an Excess Share,
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or (iii) the original issuance by the
Corporation of a share of any class or series of capital stock of the
Corporation to a Non-U.S. Citizen (a Disqualified
Recipient) that results in such share constituting an Excess Share, then,
effective as of immediately before the consummation of such Proposed Transfer (in
the case of such Proposed Transferee) or such Status Change (in the case of
such Disqualified Person), and as of the time of issuance of such Excess Share
(in the case of such Disqualified Recipient), such Excess Share shall to the
fullest extent permitted by law be eligible for redemption by the Corporation
in accordance with Section 6 of this Article Five, and such
Non-U.S. Citizen (each, a Restricted
Person) shall neither acquire nor have any rights or interests in such
Excess Share subject to redemption.
Section 6. Redemption.
(a) Without limiting
the generality of the foregoing, in the event that the restrictions on transfer
set forth in Section 3(a) would not be effective for any reason
whatsoever (whether in the determination of the Corporation or otherwise) in
order to, or the Corporation otherwise determines in its sole discretion that
the best manner for the Corporation to, prevent the beneficial ownership by
Non-U.S. Citizens of shares of the class or series of capital stock of the
Corporation from exceeding the Permitted Percentage for such class or series,
then the Corporation, by action of the Board, in its sole discretion, shall
have the power to redeem such Excess Share, unless such redemption is not
permitted under the DGCL or other provisions of applicable law; provided that the
Corporation shall not have any obligation under this Section 6 to redeem
any one or more Excess Shares.
(b) Until such time
as any Excess Shares subject to redemption by the Corporation pursuant to this Section
6 are so redeemed by the Corporation at its option and beginning on the
first Excess Share Date for the classes or series of the Corporations capital
stock of which such Excess Shares are a part, (i) the holders of such Excess
Shares subject to redemption shall to the fullest extent permitted by law (so
long as such excess exists) not be entitled to any voting rights with respect
to such Excess Shares, and (ii) the
Corporation shall (so long as such Excess Shares exist) pay into an escrow
account dividends and any other distributions (upon liquidation or otherwise)
in respect of such Excess Shares.
Full voting rights shall be restored to any shares of a class or series
of capital stock of the Corporation that were previously deemed to be Excess
Shares, and any dividends or distributions with respect thereto that have been
previously paid into an escrow account shall be due and paid solely to the
holders of record of such shares, promptly after such time as, and to the
extent that, such shares have ceased to be Excess Shares (including as a result
of the sale of such shares to a U.S. Citizen prior to the issuance of a
Redemption Notice pursuant to Section 6(c)(iii) of this Article Five);
provided that such shares have not been already redeemed by the
Corporation at its option pursuant to this Section 6.
(c) The terms and
conditions of redemptions by the Corporation of Excess Shares of any class or
series of the Corporations capital stock under this Section 6 shall be
as follows:
(i) the
per share redemption price (the Redemption
Price) to be paid for each Excess Share shall be the sum of (A) the Fair
Market Value of such Excess Share as of the date
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of redemption of such Excess Share plus (B)
an amount equal to the amount of any dividend or any other distribution (upon
liquidation or otherwise) declared in respect of such Excess Share prior to the
date on which such Excess Share is called for redemption and which amount has
been paid into an escrow account by the Corporation pursuant to Section 6(b)
of this Article Five;
(ii) the Redemption Price shall be paid in cash (by wire
transfer or bank or cashiers check) or by the issuance of Redemption Notes, as
determined by the Board in its sole discretion;
(iii) written
notice of the date on which the Excess Shares shall be redeemed (the Redemption Date), together with
a letter of transmittal to accompany certificates representing the Excess
Shares that are surrendered for redemption (if any), shall be given either by
hand delivery or by overnight courier service or by first-class mail, postage
prepaid, to each holder of record of the Excess Shares to be redeemed, at such
holders last known address as the same appears on the stock register of the
Corporation (unless such notice is waived in writing by any such holders) (the Redemption Notice);
(iv) the Redemption Date (for purposes of determining right,
title and interest in and to the Excess Shares to be redeemed) shall be the
later of (A) the date specified in the Redemption Notice sent to the record
holders of the Excess Shares (which shall not be earlier than the date of such
notice), and (B) the date on which the Corporation shall have irrevocably
deposited or set aside a sum sufficient to pay the Redemption Price to such
record holders or the date on which the Corporation shall have paid the
Redemption Price (including, without limitation, the delivery of any applicable
Redemption Notes) to such record holders;
(v) each
Redemption Notice to each holder of record of the Excess Shares to be redeemed
shall specify (A) the Redemption Date (as determined pursuant to Section
6(c)(iv) of this Article Five)), (B) the number and the class or series of
shares of capital stock to be redeemed from such holder as Excess Shares (and,
to the extent such Excess Shares are certificated, the certificate number(s)
representing such Excess Shares), (C) the Redemption Price and the manner of
payment thereof, (D) the place where certificates for such Excess Shares (if
such Excess Shares are certificated) are to be surrendered for cancellation
against the simultaneous payment of the Redemption Price, (E) any instructions
as to the endorsement or assignment for transfer of such certificates (if any)
and the completion of the accompanying letter of transmittal, and (F) the fact
that all right, title and interest in respect of the Excess Shares to be
redeemed (including, without limitation, voting, dividend and distribution
rights) shall cease and terminate on the Redemption Date, except for the right
to receive the Redemption Price, without interest;
(vi) if a Redemption Notice has been duly sent to the record
holders of the Excess Shares to be redeemed and the Corporation has irrevocably
deposited or set aside cash consideration sufficient to pay the Redemption
Price to such record holders of such Excess Shares, then dividends shall cease
to accrue on all such Excess Shares to be redeemed, all such Excess Shares
shall no longer be deemed outstanding and all right, title and interest in
respect of such Excess Shares shall forthwith cease and terminate, except only
the right of the record holders thereof to receive the Redemption Price,
without interest;
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(vii) without
limiting clause (vi) above, on and after the Redemption Date, all right, title
and interest in respect of the Excess Shares to be redeemed by the Corporation
(including, without limitation, voting and dividend and distribution rights)
shall forthwith cease and terminate, such Excess Shares shall no longer be
deemed to be outstanding shares for the purpose of voting or determining the
total number of shares entitled to vote on any matter properly brought before
the stockholders for a vote thereon (and may be either retired or held by the
Corporation as treasury stock), and the holders of record of such Excess Shares
shall thereafter be entitled only to receive the Redemption Price, without
interest; and
(viii) upon
surrender of the certificates (if any) for any Excess Shares so redeemed in
accordance with the requirements of the Redemption Notice and the accompanying
letter of transmittal (and otherwise in proper from for transfer as specified
in the Redemption Notice) the holder of record of such Excess Shares shall be
entitled to payment of the Redemption Price. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate (or
certificates), to the extent such shares were certificated, shall be issued
representing the shares not redeemed, without cost to the holder of record.
Section 7. Citizenship
Determinations. The Corporation shall have the power to determine, in the
exercise of its reasonable judgment, the citizenship of the beneficial owners
of any class or series of the Corporations capital stock for the purposes of
this Article Five. In determining the citizenship of the beneficial owners
or their transferees or, in the case of original issuance, any recipient (and,
if such transferees or recipients are acting as fiduciaries or nominees for any beneficial owners, with respect to
such beneficial owners) of any class or series of the Corporations capital
stock, the Corporation may rely on the stock transfer records of the
Corporation and the citizenship certifications required under Section 3(b)
of this Article Five and the written statements and affidavits required
under Section 8 of this Article Five given by the beneficial
owners or their transferees, or, in the case of original issuance, any
recipients (or any beneficial owners for whom such transferees or recipients
are acting as fiduciaries or nominees) (in each case whether such certifications,
written statements or affidavits have been given on their own behalf or on
behalf of others) to prove the citizenship of such beneficial owners,
transferees or recipients (or any beneficial owners for whom such transferees
or recipients are acting as fiduciaries or nominees). The determination of the
citizenship of such beneficial owners, transferees and recipients (and any
beneficial owners for whom such transferees or recipients are acting as
fiduciaries or nominees) may also be subject to proof in such other manner as
the Corporation may deem reasonable pursuant to Section 8(b) of this Article
Five. The determination of the Corporation at any time as to the
citizenship of such beneficial owners, transferees and recipients (and any
beneficial owners for whom such transferees or recipients are acting as
fiduciaries or nominees) in accordance with the provisions of Article Five
shall be conclusive.
Section 8. Requirement to
Provide Citizenship Information.
(a) In furtherance of the policy set forth
in Section 1 of this Article Five, and without limiting any other
provision of this Article Five, the Corporation may, to the fullest
extent permitted by law, require the beneficial owners of shares of any class
or series of the Corporations capital stock to confirm their citizenship
status from time to time in accordance
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with the
provisions of this Section 8, and, as a condition to acquiring and
having beneficial ownership of shares of any class or series of capital stock
of the Corporation, every beneficial owner of any such shares must comply with
the following provisions:
(i) promptly upon
a beneficial owners acquisition of beneficial ownership of five (5%) percent
or more of the outstanding shares of any class or series of capital stock of
the Corporation after the date of filing of this Amended and Restated
Certificate of Incorporation, and at such other times as the Corporation may
determine by written notice to such beneficial owner, such beneficial owner
must provide to the Corporation a written statement or an affidavit, as
specified by the Corporation, duly signed, stating the name and address of such
beneficial owner, the number of shares of each class or series of capital stock
of the Corporation beneficially owned by such beneficial owner as of a recent
date, the legal structure of such beneficial owner, a statement as to whether
such beneficial owner is a U.S. Citizen, and such other information required by
46 C.F.R. part 355;
(ii) promptly
upon request by the Corporation, any beneficial owner must provide to the
Corporation a written statement or an affidavit, as specified by the
Corporation, duly signed, stating the name and address of such beneficial
owner, the number of shares of each class or series of capital stock of the
Corporation beneficially owned by such beneficial owner as of a recent date,
the legal structure of such beneficial owner, a statement as to whether such
beneficial owner is a U.S. Citizen, and such other information required by 46
C.F.R. part 355;
(iii) promptly upon
request by the Corporation, any beneficial owner must provide to the
Corporation a written statement or an affidavit, as specified by the
Corporation, duly signed, stating the name and address of such beneficial
owner, together with reasonable documentation of the date and time of such
beneficial owners acquisition of beneficial ownership of the shares of any
class or series of capital stock of the Corporation specified by the
Corporation in its request;
(iv) every
beneficial owner must provide, or authorize such beneficial owners broker,
dealer, custodian, depositary, nominee or similar agent with respect to the
shares of each class or series of the Corporations capital stock beneficially
owned by such beneficial owner to provide, to the Corporation such beneficial
owners address; and
(v) every
beneficial owner must provide to the Corporation, at any time such beneficial
owner ceases to be a U.S. Citizen, as promptly as practicable but in no event
less than two business days after the date such beneficial owner ceases to be a
U.S. Citizen, a written statement, duly signed, stating the name and address of
such beneficial owner, the number of shares of each class or series of capital
stock of the Corporation beneficially owned by such beneficial owner as of a
recent date, the legal structure of such beneficial owner, and a statement as
to such change in status of such beneficial owner to a Non-U.S. Citizen.
(b) The Corporation may at any time
require reasonable proof, in addition to the citizenship certifications
required under Section 3(b) of this Article Five and the written
statements and affidavits required under Section 8(a) of this Article
Five, of the citizenship of the beneficial owner or the proposed transferee
or, in the case of original issuance, the recipient (and,
9
if such
transferee or recipient is acting as a fiduciary or nominee for a beneficial
owner, with respect to such beneficial owner) of shares of any class or series
of the Corporations capital stock.
(c) In the event that (i)
the Corporation requests in writing (in which express reference is made to this
Section 8 of this Article Five) from a beneficial owner of shares
of any class or series of the Corporations capital stock a citizenship
certification required under Section 3(b) of this Article Five, a
written statement, an affidavit and/or reasonable documentation required under Section
8(a) of this Article Five, and/or additional proof of citizenship
required under Section 8(b) of this Article Five, and (ii) such
beneficial owner fails to provide the Corporation with the requested
documentation by the date set forth in such written request, then (x) the
voting rights of such beneficial owners shares of the Corporations capital
stock shall, to the fullest extent permitted by law, be suspended, and (y) any
dividends or other distributions (upon liquidation or otherwise) with respect
to such shares shall be paid into an escrow account, until such requested
documentation is submitted in form and substance reasonably satisfactory to the
Corporation, subject to the other provisions of this Article Five; provided, however, that the Corporation, acting through its
Board, shall have the power, in its sole discretion, to extend the date by
which such requested documentation must be provided and/or to waive the
application of sub-clauses (x) and/or (y) of this clause (ii) to any of the
shares of such beneficial owner in any particular instance.
(d) In the event that (i) the
Corporation requests in writing (in which express reference is made to this Section
8 of this Article Five) from a beneficial owner of, or the proposed
transferee of, or, in the case of original issuance, the recipient (and, if
such transferee or recipient is acting as a fiduciary or nominee for a
beneficial owner, with respect to such beneficial owner) of, shares of any
class or series of the Corporations capital stock a citizenship certification
required under Section 3(b) of this Article Five, a written
statement, an affidavit and/or reasonable documentation required under Section
8(a) of this Article Five, and/or additional proof of citizenship
required under Section 8(b) of this Article Five, and (ii) such
Person fails to submit the requested documentation in form and substance
reasonably satisfactory to the Corporation, subject to the other provisions of
this Article Five, by the date set forth in such written request, the
Corporation, acting through its Board, shall have the power, in its sole
discretion, to refuse to accept any application to transfer ownership of such
shares (if any) or to register such shares on the stock transfer records of the
Corporation, until such requested documentation is so submitted.
Section 9. Severability.
Each provision of this Article Five is intended to be severable from
every other provision. If any one or more of the provisions contained in this Article
Five is held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of any other provision of this Article Five
shall not be affected, and this Article Five shall be construed as if
the provisions held to be invalid, illegal or unenforceable had never been
contained herein.
Section 10. NASDAQ
Transactions. Nothing in this Article Five shall preclude the
settlement of any transaction entered into through the facilities of The Nasdaq Stock Market or any other
National Securities Exchange for so long as any class or series of the capital
stock of the Corporation is quoted for trading on The Nasdaq Stock Market or listed for trading on any
10
other National Securities Exchange.
The fact that the settlement of any transaction occurs shall not negate
the effect of any provision of this Article Five and any transferee in
such a transaction shall be subject to all of the provisions and limitations
set forth in this Article Five.
Section 11. Certain
Definitions. Solely for purposes of this Article Five, the following
terms shall have the meanings ascribed below:
A
Person shall be deemed to be the beneficial
owner of, or to beneficially
own, or to have beneficial
ownership of, shares or interests in an entity to the extent such Person
would be deemed to be the beneficial owner thereof pursuant to Rule
13d-3 promulgated by the Securities and Exchange Commission under the Exchange
Act, as such rule may be amended or supplemented from time to time, and any
successor rule to such rule, and such terms shall apply to and include the
holder of record of any such shares or interests.
Code
shall mean the Internal Revenue Code of 1986, as amended, any successor
statutes thereto, and the regulations promulgated thereunder, in each case as
amended or supplemented from time to time.
Disqualified Person shall have the meaning
ascribed to such term in Section 5(a) of this Article Five.
Disqualified Recipient shall have the meaning
ascribed to such term in Section 5(a) of this Article Five.
Excess Shares shall have the meaning
ascribed to such term in Section 4 of this Article Five.
Excess Share Date shall have the meaning
ascribed to such term in Section 4 of this Article Five.
Exchange Act shall mean the Securities
Exchange Act of 1934, as amended or supplemented from time to time.
Fair Market Value of one share of a
particular class or series of the capital stock of the Corporation as of any
date shall mean the average of the daily Market Price (as defined herein) of
one share of such capital stock for the 20 consecutive Trading Days (as defined
herein) immediately preceding such date, or, if such capital stock is not
listed or admitted for unlisted trading privileges on any National Securities
Exchange, the fair value of a share of such class or series of capital stock on
such date as determined in good faith by the Board.
Maritime Laws shall mean collectively the
Merchant Marine Act, 1920, as amended, the Shipping Act, 1916, as amended, 46
U.S.C. app. §292 and any
other statute regulating or authorizing dredging in the navigable waters of the
United States and any successor statutes thereto, and the regulations
promulgated thereunder, in each case as amended or supplemented from time to
time.
11
The Market
Price of a share of a class or series of capital stock of the Corporation
for a particular day shall mean: (A) the last reported sales price, regular
way, on such day, or, in case no sale takes place on such day, the average of
the reported closing bid and asked prices, regular way, on such day, in either
case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted for unlisted trading privileges
on the principal National Securities Exchange on which such class or series of
capital stock is then listed or admitted for unlisted trading privileges; or
(B) if such class or series of capital stock is not then listed or admitted for
unlisted trading privileges on any National Securities Exchange, the last
quoted price on such day, or, if not so quoted, the average of the closing bid
and asked prices on such day in the over-the-counter market, as reported by The
Nasdaq Stock Market or such other system then in use; or (C) if on any such day
such class or series of capital stock is not quoted by any such organization,
the average of the bid and asked prices on such day as furnished by a
professional market maker making a market in such capital stock selected by the
Corporation; or (D) if on any such day no market maker is making a market in
such capital stock, the fair value of a share of such class or series of
capital stock on such day as determined in good faith by the Board (or a duly
authorized committee thereof).
National Securities Exchange shall mean an
exchange registered with the Securities and Exchange Commission under Section
6(a) of the Exchange Act, as such section may be amended or supplemented from
time to time, and any successor to such statute, or The Nasdaq Stock Market or
any successor thereto.
Non-U.S. Citizen shall mean any Person other
than a U.S. Citizen.
Permitted Percentage shall mean, with
respect to any class or series of capital stock of the Corporation, the lesser
of (i) 22.5% of the shares of such class or series of capital stock of the
Corporation from time to time issued and outstanding, and (ii) 90% of the
maximum percentage of the issued and outstanding shares of such class or series
of capital stock of the Corporation permitted to be beneficially owned, individually
or in the aggregate, by Non-U.S. Citizens under the Maritime Laws so that the
Corporation does not cease to be qualified under the Maritime Laws to own and
operate vessels that may engage in dredging in the navigable waters of the
United States and to transport dredged material between points in the
United States.
Proposed Transfer shall have the meaning
ascribed to such term in Section 5(a) of this Article Five.
Proposed Transferee shall have the meaning
ascribed to such term in Section 5(a) of this Article Five.
Redemption Date shall have the meaning
ascribed to such term in Section 6(c)(iii) of this Article Five.
Redemption Notes shall mean interest-bearing
promissory notes of the Corporation with a maturity of not more than 10 years
from the date of issue and bearing interest at a fixed rate equal to the yield
on the U.S. Treasury Note having a maturity comparable to the
12
term of such promissory notes as published in The Wall Street Journal or comparable publication at the
time of the issuance of the promissory notes.
Redemption Notice shall have the meaning
ascribed to such term in Section 6(c)(iii) of this Article Five.
Redemption Price shall have the meaning
ascribed to such term in Section 6(c)(i) of this Article Five.
Restricted Person shall have the meaning
ascribed to such term in Section 5(a) of this Article Five.
Status Change shall have the meaning
ascribed to such term in Section 5(a) of this Article Five.
Trading Day shall mean a day on which the
principal National Securities Exchange on which shares of any class or series
of the capital stock of the Corporation are listed is open for the transaction
of business or, if such capital stock is not listed or admitted for unlisted
trading privileges on any National Securities Exchange, a day on which banking
institutions in New York City generally are open.
U.S.
Citizen shall mean a citizen of the United States within the meaning of
the Maritime Laws (as defined herein) for purposes of owning or operating
vessels in the U.S. coastwise trade.
ARTICLE
SIX
BOARD
OF DIRECTORS
Section 1. Number
of Directors. Subject to any rights
of the holders of any class or series of Preferred Stock to elect additional
directors under specified circumstances and subject to the terms of the Investor
Rights Agreement, the number of directors which shall constitute the Board of
Directors shall initially be eight (8) members and thereafter shall be
established from time to time by resolution of the Board. When used herein, the Investor Rights Agreement
means that certain Investor Rights Agreement, dated on or about December 26,
2006, by and among Aldabra Acquisition Corporation (and assigned to, and
assumed by, the Corporation in connection of the merger of Aldabra Acquisition
Corporation with and into a subsidiary of the Corporation) and certain of its
stockholders, as the same may be amended, modified,
13
supplemented or waived from time to time; a copy of such Investor
Rights Agreement shall be made available to any stockholder upon request.
Section 2. Election
and Term of Office. The directors
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote in the election of
directors; provided that, whenever the holders of any class or
series of capital stock of the Corporation are entitled to elect one or more
directors pursuant to the provisions of this Amended and Restated Certificate
of Incorporation (including, but not limited to, any duly authorized
certificate of designation), such directors shall be elected by a plurality of
the votes of such class or series present in person or represented by proxy at
the meeting and entitled to vote in the election of such directors. The directors shall be elected and shall hold
office only in this manner, except as expressly provided in Sections 2, 3
and 4 of this Article Seven.
Each director shall hold office until a successor is duly elected and
qualified or until his or her earlier death, disqualification, resignation or removal. Elections of directors need not be by written
ballot unless the Bylaws of the Corporation shall so provide. No Non-U.S. Citizen shall be qualified to
serve as a director unless the total number of directors who are Non-U.S.
Citizens equals a minority of the minimum number of directors necessary to
achieve a quorum.
Section 3. Classes
of Directors. The directors shall be
divided into three classes, designated Class I, Class II and Class III. The Board is hereby authorized to assign
members of the Board already in office to such classes at the time such
classification becomes effective by resolution of the Board. The term of the initial Class I directors
shall terminate on the date of the 2007 annual meeting; the term of the initial
Class II directors shall terminate on the date of the 2008 annual meeting; and
the term of the initial Class III directors shall termination on the date of
the 2009 annual meeting. At each
succeeding annual meeting of the stockholders, successors to the class of directors
whose term expires at that annual meeting shall be elected for a three-year
term. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the number
of directors shorten the term of any incumbent director. Notwithstanding anything in this Certifcate
of Incorporation or the Bylaws of the Corporation to the contrary, the term of
any director that, in accordance with this Amended and Restated Certificate of
Incorporation or the Bylaws of the Corporation, ceases to be qualified to serve
as a director of the Corporation shall automatically terminate as of the time
such director ceases to be qualified.
Section 4. Removal
of Directors; Vacancies. Subject to
the rights of the holders of any series of Preferred Stock then outstanding,
(a) as long as Madison Dearborn Capital Partners IV, L.P. (MDCP IV)
owns capital stock of the Corporation that possesses 25% or more of the voting
power of all capital stock of the Corporation entitled to vote generally in the
election of directors (voting together as a single class), any director may be
removed at any time for any reason upon the election of holders a majority of
the voting power of the capital stock of the Corporation entitled to vote
generally in the election of directors, and (b) from and after the date that
MDCP IV owns capital stock of the Corporation that possesses less than 25% of
the voting power of all capital stock of the Corporation entitled to vote
generally in the election of directors
14
(voting together as a single class), any director may be removed from
office at any time, but only for cause, at a meeting called for that purpose,
but only by the affirmative vote of the holders of at least 66-2/3% of the voting power of all outstanding shares of Common
Stock entitled to vote at an election of directors, voting together as a single
class. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
and vacancies created from the death, disqualification, resignation or removal
of any director shall be filled shall be filled by directors possessing a
majority of the voting power of all directors.
Section 5. Rights
of Holders of Preferred Stock. Notwithstanding
the provisions of this Article Seven, whenever the holders of one or
more series of Preferred Stock issued by the Corporation shall have the right,
voting separately or together by series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorship shall be governed by the
rights of such Preferred Stock as set forth in the certificate of designations
governing such series.
Section 6. Bylaws. The Board of Directors is expressly
authorized to adopt, amend or repeal the bylaws of the Corporation. Notwithstanding the foregoing and anything
contained in this Amended and Restated Certificate of Incorporation to the
contrary, the bylaws of the Corporation shall not be altered or amended by the
stockholders without the affirmative vote of (a) as long as MDCP IV owns 25% or
more of all capital stock of the Corporation entitled to vote generally in the
election of directors (voting together as a single class), the holders of a
majority of the voting power of all capital stock of the Corporation entitled
to vote generally in the election of directors and (b) from and after the date
that MDCP IV owns less than 25% of the capital stock of the Corporation entitled
to vote generally in the election of directors (voting together as a single
class), the holders of 66-2/3% of the voting power of all capital stock
of the Corporation entitled to vote generally in the election of directors
(voting together as a single class).
Section 7. Directors
with More Than One Vote. As long as
MDCP IV owns capital stock of the Corporation that possesses 50% or more of the
voting power of all capital stock of the Corporation entitled to vote generally
in the election of directors (voting together as a single class), MDCP IV may,
by written notice to the Corporation made within 20 business days after
election of any director to the Board (including, without limitation, any
director elected as a replacement of a director that previously had more than
one vote in matters submitted to directors), designate up to two directors of
the Corporation, each of whom must be a U.S. Citizen, to have four (4) votes in
each matter submitted to directors of the Corporation for vote and each such
director so designated by MDCP IV shall thereafter have four (4) votes in
matters submitted to the Corporation for vote until such directors removal or
resignation from the Board.
Notwithstanding the foregoing, in the event any director is so
designated, such director shall continue to retain the right to four (4) votes
in each matter submitted to directors of the Corporation upon re-election
unless and until MDCP IV shall have notified the Corporation to the contrary in
writing. Any director designated as having
four (4) votes in each matter submitted to the directors shall have four (4)
votes in each matter submitted to any committee on which such director
serves. Every reference in this Amended
and Restated Certificate of Incorporation or the Bylaws of the Corporation to a
majority or other proportion of the directors
15
or committee members shall refer to a majority or other proportion of
the votes of the directors or committee members, as applicable.
ARTICLE
EIGHT
LIMITATION OF LIABILITY
To the fullest extent permitted by the DGCL as it now
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), no director of
the Corporation shall be liable to the Corporation or its stockholders for
monetary damages arising from a breach of fiduciary duty owed to the
Corporation or its stockholders. Any
repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
ARTICLE
NINE
INDEMNIFICATION
Section 1. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved (including, without limitation,
as a witness) in any actual or threatened action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a proceeding),
by reason of the fact that he is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, limited
liability company, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an Indemnitee), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer or in any other capacity while so serving, shall be
indemnified and held harmless by the Corporation to the full extent authorized
by the DGCL, as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), or by other applicable law
as then in effect, against all expense, liability and loss (including attorneys
fees and related disbursements, judgments, fines, excise taxes or penalties
under the Employee Retirement Income Security Act of 1974, as amended from time
to time (ERISA), penalties and amounts paid or to be paid in
settlement) actually and reasonably incurred or suffered by such Indemnitee in
connection therewith, and such indemnification shall continue as to a person
who has ceased to be a director, officer, partner, member or trustee and shall
inure to the benefit of his or her heirs, executors and administrators. Each person who is or was serving as a
director or officer of a subsidiary of the Corporation shall be deemed to be
serving, or have served, at the request of the Corporation. Any indemnification (but not advancement of
expenses) under this Article Nine (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in the DGCL, as the same exists or hereafter may be amended (but, in the
case of any such amendment, only to the extent
16
that such
amendment permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such
amendment). Such determination shall be
made with respect to a person who is a director or officer at the time of such
determination (a) by a majority vote of the directors who were not parties to
such proceeding (the Disinterested Directors), even though less than a
quorum, (b) by a committee of Disinterested Directors designated by a majority
vote of Disinterested Directors, even though less than a quorum, (c) if there
are no such Disinterested Directors, or if such Disinterested Directors so direct,
by independent legal counsel in a written opinion, or (d) by the
stockholders. Notwithstanding anything
in this Article Nine to the contrary, in no event shall the Corporation
have any obligation to indemnify a director or officer of the Corporation for
any proceeding initiated by such person seeking indemnification unless such
proceeding either (i) is a proceeding to enforce such directors or officers
rights under this Article Nine or (ii) was authorized by the Board.
Section 2. Advancement of Expenses. Expenses (including attorneys fees, costs
and charges) incurred by a director or officer of the Corporation in defending
a proceeding shall be paid by the Corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf
of the director or officer to repay all amounts so advanced in the event that
it shall ultimately be determined that such director or officer is not entitled
to be indemnified by the Corporation as authorized in this Article Nine. The majority of the Disinterested Directors
or a committee thereof may, in the manner set forth above, and upon approval of
such director or officer of the Corporation, authorize the Corporations
counsel to represent such person, in any proceeding, whether or not the
Corporation is a party to such proceeding.
Section 3. Procedure for Indemnification. Any indemnification or advance of expenses
(including attorneys fees, costs and charges) under this Article Nine
shall be made promptly, and in any event within 30 days upon the written
request of the director or officer (and, in the case of advance of expenses,
receipt of a written undertaking by or on behalf of Indemnitee to repay such
amount if it shall ultimately be determined that Indemnitee is not entitled to
be indemnified therefor pursuant to the terms of this Article Nine). The right to indemnification or advances as
granted by this Article Nine shall be enforceable by the director or
officer in any court of competent jurisdiction, if the Corporation denies such
request, in whole or in part, or if no disposition thereof is made within 30
days. Such persons costs and expenses
incurred in connection with successfully establishing his/her right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses (including attorneys fees, costs and
charges) under this Article Nine where the required undertaking, if any,
has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in the DGCL, as the same exists or hereafter may
be amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), but the burden of proving such defense shall be on the
Corporation. Neither the failure of the
Corporation (including its Board of Directors, its independent legal counsel
and its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
because he/she has met the applicable standard of conduct set forth in the
DGCL, as the same exists or hereafter may be
17
amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), nor the fact that there has been an actual determination by
the Corporation (including its Board of Directors, its independent legal
counsel and its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
Section 4. Other Rights; Continuation of Right to
Indemnification. The indemnification
and advancement of expenses provided by this Article Nine shall not be
deemed exclusive of any other rights to which a person seeking indemnification
or advancement of expenses may be entitled under any law (common or statutory),
bylaw, agreement, vote of stockholders or Disinterested Directors or otherwise,
both as to action in his/her official capacity and as to action in another
capacity while holding office or while employed by or acting as agent for the
Corporation, and shall continue as to a person who has ceased to be a director
or officer, and shall inure to the benefit of the estate, heirs, executors and
administers of such person. All rights
to indemnification under this Article Nine shall be deemed to be a
contract between the Corporation and each director or officer of the
Corporation who serves or served in such capacity at any time while this Article
Nine is in effect. Any repeal or
modification of this Article Nine or any repeal or modification of
relevant provisions of the DGCL or any other applicable laws shall not in any
way diminish any rights to indemnification of such director or officer or the
obligations of the Corporation arising hereunder with respect to any proceeding
arising out of, or relating to, any actions, transactions or facts occurring
prior to the final adoption of such modification or repeal. For the purposes of this Article Nine,
references to the Corporation include all constituent corporations absorbed
in a consolidation or merger as well as the resulting or surviving corporation,
so that any person who is or was a director or officer of such a constituent
corporation or is or was serving at the request of such constituent corporation
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Article Nine, with respect to the resulting or surviving
corporation, as he would if he/she had served the resulting or surviving
corporation in the same capacity.
Section 5. Insurance. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss asserted against him or her and incurred by him or
her in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such expenses, liability or loss under the
DGCL.
Section 6. Reliance. Persons who after the date of the adoption of
this provision become or remain directors or officers of the Corporation or
who, while a director or officer of the Corporation, become or remain a
director, officer, employee or agent of a subsidiary, shall be conclusively
presumed to have relied on the rights to indemnity, advance of expenses and
other rights contained in this Article Nine in entering into or
continuing such service. The rights to
indemnification and to the advance of expenses conferred in this Article
Nine shall apply to
18
claims made against an Indemnitee arising out
of acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof.
Section 7. Savings Clause. If this Article Nine or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each person
entitled to indemnification under the first paragraph of this Article Nine
as to all expense, liability and loss (including attorneys fees and related
disbursements, judgments, fines, ERISA excise taxes and penalties, penalties
and amounts paid or to be paid in settlement) actually and reasonably incurred
or suffered by such person and for which indemnification is available to such
person pursuant to this Article Nine to the full extent permitted by any
applicable portion of this Article Nine that shall not have been
invalidated and to the full extent permitted by applicable law.
ARTICLE
TEN
ACTION BY WRITTEN CONSENT;
SPECIAL MEETINGS OF STOCKHOLDERS
The stockholders of the Corporation may not take any
action by written consent in lieu of a meeting, and must take any actions at a
duly called annual or special meeting of stockholders and the power of
stockholders to consent in writing without a meeting is specifically denied.
Special meetings of stockholders of the Corporation may be called only by the
Board of Directors pursuant to a resolution adopted by the affirmative vote of
directors holding a majority of the voting power of all directors then in
office; provided that, as long as MDCP IV owns capital stock of the
corporation possessing 25% or more of the capital stock of the corporation
entitled to vote generally in the election of directors (voting together as a
single class), a special meeting shall be called by the president upon the
written request of holders of shares entitled to cast not less than twenty-five
(25) percent of the votes at the meeting.
Notwithstanding the foregoing, the provisions of the first sentence of
this Article Ten shall not apply at any time when the Corporations
Common Stock is not registered under Section 12 of the Securities Exchange
Act of 1934, as amended, or when MDCP IV beneficially owns, capital stock of
the Corporation that possesses 25% or more of the voting power of all capital
stock of the Corporation entitled to vote generally in the election of
directors (voting together as a single class).
ARTICLE
ELEVEN
CORPORATE OPPORTUNITIES
To the maximum extent permitted from time to time
under the laws of the State of Delaware, the Corporation renounces any interest
or expectancy of the Corporation in, or in being offered an opportunity to
participate in, business opportunities that are from time to time presented to
its officers, directors or stockholders, other than those officers, directors
or stockholders who are employees of the Corporation or any of its
subsidiaries. No amendment or repeal of
this Article Eleven shall apply to or have any effect on the liability
or alleged liability of any officer, director or stockholder of the Corporation
for or with respect to any opportunities of which such officer, director, or
stockholder becomes aware prior to such amendment or repeal.
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ARTICLE
TWELVE
SECTION 203
The Corporation expressly elects to be governed by
Section 203 of the DGCL.
ARTICLE
THIRTEEN
AMENDMENT
The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Amended and Restated
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. Notwithstanding any
other provision of this Amended and Restated Certificate of Incorporation or
the Bylaws of the Corporation, and notwithstanding the fact that a lesser
percentage or separate class vote may be specified by law, this Amended and
Restated Certificate of Incorporation, the Bylaws of the Corporation or
otherwise, but in addition to any affirmative vote of the holders of any
particular class or series of the capital stock required by law, this Amended
and Restated Certificate of Incorporation, the Bylaws of the Corporation or
otherwise, the affirmative vote of the holders of (i) at least 66-2/3% of the
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
adopt any provision inconsistent with, to amend or repeal any provision of, or
to adopt a bylaw inconsistent with Article Seven, Article Eight, Article
Nine, Article Ten, Article Eleven or this Article Thirteen
of this Amended and Restated Certificate of Incorporation or (ii) at least a majority
of the voting power of all shares of the Corporation entitled to vote generally
in the election of directors, voting together as a single class, shall be
required to adopt any provision inconsistent with, to amend or repeal any
provision of, or to adopt a bylaw inconsistent with any other provision of this
Amended and Restated Certificate of Incorporation.
* * * * * *
20
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
GREAT LAKES DREDGE & DOCK HOLDINGS CORP.
A Delaware Corporation
(Effective as of December 26, 2006)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation in
the State of Delaware shall be located at 1209 Orange Street, in the city of
Wilmington, Delaware, County of New Castle.
The name of the corporations registered agent at such address shall be
The Corporation Trust Company. The
registered office and/or registered agent of the corporation may be changed
from time to time by action of the board of directors.
Section 2. Other Offices. The corporation may also have offices at such
other places, both within and without the State of Delaware, as the board of
directors may from time to time determine or the business of the corporation
may require.
ARTICLE II
MEETINGS OF
STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the stockholders shall
be held each year for the purpose of electing directors and conducting such
other proper business as may come before the meeting. The date, time and place of the annual
meeting shall be determined by the board of directors. No
person shall be nominated for election as a director at, and no business shall
transacted at, an annual meeting of stockholders, unless the proposed
nomination of such person, or the proposal of such business to be so
transacted, is (i) specified in the notice of meeting (or any supplement
thereto) given in accordance with this Section 1 at the direction of the board
of directors (or any duly authorized committee thereof), (ii) otherwise
properly brought before such meeting by or at the direction of the board of
directors (or any duly authorized committee thereof), or (iii) otherwise
properly brought before such meeting by any stockholder of the corporation (x)
who complies with the requirements set forth in the last sentence of this
Section 1 and (y) who is a stockholder of record on the date of its giving of
the
notice provided for in such last sentence and on the
record date for the determination of stockholders entitled to notice of and to
vote at such annual meeting. In addition to any other applicable requirements,
for a person to be nominated by a stockholder for election as a director, or for
any business to be proposed by a stockholder to be transacted, at an annual
meeting of stockholders, such stockholder must have given timely notice
thereof, as specified in Section 4 hereof, in proper written form, as specified
in Section 4 hereof, to the secretary of the corporation and, in the case of
any such proposal for the transaction of business, the business proposed must
constitute a proper matter for stockholder action.
Section 2. Special Meetings. Special meetings of stockholders may be called
for any purpose and may be held at such time and place, within or without the
State of Delaware, as shall be stated in a notice of meeting or in a duly
executed waiver of notice thereof. Such
meetings may be called at any time by holders of a majority of the voting power
of members of the board of directors; provided that, if not prohibited
by the corporations certificate of incorporation, as long as Madison Dearborn
Capital Partners IV, L.P. owns capital stock of the corporation possessing 25%
or more of the capital stock of the corporation entitled to vote generally in
the election of directors (voting together as a single class), a special
meeting shall be called by the president upon the written request of holders of
shares entitled to cast not less than 25% of the votes at the meeting, which
written request shall state the purpose or purposes of the meeting and shall be
delivered to the president. On such
written request, the president shall fix a date and time for such meeting
within sixty (60) days of the date requested for such meeting in such written
request. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
corporations notice of meeting (or any supplement thereto). Nominations of persons for election to the
board of directors at a special meeting of stockholders at which directors are
to be elected pursuant to the corporations notice of meeting (or supplement
thereto) may be made (1) by or at the direction of the board of directors (or a
duly authorized committee thereof) or (2) provided that the board of directors
(or a duly authorized committee thereof) has determined that directors shall be
elected at such meeting, by any stockholder of the corporation (x) who complies
with the requirements set forth in the last sentence of this Section 2 and (y)
is a stockholder of record on the date of its giving of the notice referred to
in such last sentence and on the record date for the determination of
stockholders entitled to notice of and to vote at such special meeting. In
addition to any other applicable requirements, for a person to be nominated by
a stockholder for election as a director at a special meeting of stockholders
at which directors are to be elected pursuant to the corporations notice of
meeting (or supplement thereto), such stockholder must have given timely notice
thereof, as specified in Section 4 hereof, in proper written form, as specified
in Section 4 hereof, to the secretary of the corporation.
Section 3. Place of Meetings. The board of directors may designate in the
notice of meeting any place, either within or without the State of Delaware, as
the place of meeting for any annual meeting or for any special meeting called
by the board of directors. If no
designation is made, or if a special meeting be otherwise called, the place of
meeting shall be the principal executive office of the corporation.
Section 4. Notice.
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(a) Whenever stockholders are
required or permitted to take action at a meeting, written or printed notice
stating the place, date, and time of such meeting, shall be given to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. All
such notices shall be delivered, either personally or by mail, by or at the
direction of the board of directors, the president or the secretary, and if
mailed, such notice shall be deemed to be delivered when deposited in the
United States mail, postage prepaid, addressed to the stockholder at his, her
or its address as the same appears on the records of the corporation.
(b) To be timely, a stockholders
notice referred to in Section 1 hereof shall be delivered to the secretary of
the corporation at the principal executive offices of the corporation not less
than ninety (90) days nor more than one hundred and twenty (120) days prior to
the date (the Reference Date)
which is (x) in the case of any annual meeting during the corporations fiscal
year ended December 31, 2006, October 31, 2006, and (y) in all later cases, the
first anniversary of the date on which the corporation first mailed its proxy
materials for the preceding years annual meeting; provided, however, that, in the event that
the date of the annual meeting is changed by more than thirty (30) days from
the anniversary date of the previous years meeting (to the extent applicable),
for the stockholders notice referred to in Section 1 hereof to be timely
given, such notice must be delivered not earlier than one hundred and twenty
(120) days prior to such annual meeting and not later than the close of
business on the later of (x) the ninetieth (90th) day prior to such annual
meeting or (y) the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made. Public announcement of
an adjournment of an annual meeting shall not commence a new time period (or
extend any time period) for the giving of a stockholders notice referred to in
Section 1. Notwithstanding anything in this Section 4(b) to the contrary, if
the number of directors to be elected to the board of directors at an annual
meeting is increased and there is no public announcement by the corporation
naming all of the nominees for director or specifying the size of the increased
board of directors at least one hundred (100) days prior to the applicable
Reference Date, then a stockholders notice referred to in Section 1 shall be
considered timely delivered, but only with respect to nominees for any new
positions created by such increase, if it is received by the secretary of the
corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
corporation.
(c) To be timely, a
stockholders notice referred to in Section 2 shall be delivered to the
secretary of the corporation at the principal executive offices of the
corporation not earlier than the close of business on the 120th day prior to
the date of the special meeting of stockholders at which directors are to be
elected pursuant to the corporations notice of meeting (or supplement thereto)
and not later than the close of business on the later of (x) the 90th day prior
to such special meeting or (y) the 10th day following the day on which public
announcement is first made of the date of such special meeting and of the
nominees proposed by the board of directors (or a duly authorized committee
thereof) to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
(or extend any time period) for the giving of a stockholders notice referred
to in Section 2.
(d) To be in proper written form,
a stockholders notice referred to in Section 1 or 2 must also set forth (i) in
the case of an annual meeting of stockholders, or special meeting
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of stockholders for the
election of one or more directors, as to each person whom the stockholder
proposes to nominate for election or reelection at the meeting of stockholders
as a director, (x) all information relating to such person that is required to
be disclosed in solicitations of proxies for the election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended or supplemented (the Exchange
Act), including, without limitation, such persons written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected, and (y) the citizenship, date of birth and place of birth of each such
nominee; (ii) in the case of an annual meeting of stockholders, as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the text
of the proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
the bylaws of the corporation, the language of the proposed amendment), the
reasons for conducting such business at the meeting and any material interest
in such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made (w) the name and address of such stockholder, as they appear on the
corporations books and records, and of such beneficial owner, (x) the class
and number of shares of capital stock of the corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, (y) a
representation that the stockholder is a holder of record of shares of capital
stock of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to propose such business or nomination and
(z) a representation as to whether the stockholder or the beneficial owner, if
any, intends or is part of a group which intends (1) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
outstanding shares of the corporations capital stock required to approve or
adopt the proposal or elect the nominee and/or (2) otherwise to solicit proxies
from stockholders in support of such proposal or nomination. The foregoing notice
requirements shall be deemed satisfied by a stockholder if the stockholder has
notified the corporation of his or her intention to present a proposal at an
annual meeting of stockholders in compliance with the applicable rules and
regulations promulgated under the Exchange Act and such stockholders proposal
has been included in a proxy statement that has been prepared by the
corporation to solicit proxies for such annual meeting. The corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the corporation.
(e) Except as otherwise
provided by applicable law, the certificate of incorporation or these bylaws,
the chairperson of an annual or special meeting of stockholders shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before such meeting by a stockholder was made or proposed, as the case
may be, in accordance with the procedures set forth in these bylaws and, if any
proposed nomination or business is not in compliance with these bylaws, to
declare that such defective proposal or nomination shall be disregarded. The
chairperson of an annual or special meeting of stockholders shall, if the facts
warrant, determine and declare to the meeting that any nomination or business
was not properly brought before the meeting and in accordance with the
provisions of these bylaws, and if he or she should so determine, he or she
shall so declare to the meeting, and any such nomination or business not
properly brought before the meeting shall not be made or transacted.
Notwithstanding the other provisions of this Article II, if neither the
stockholder that
4
proposed the nomination of a person for election as a
director or the transaction of certain business at the annual or special
meeting of stockholders, nor a qualified representative of the stockholder,
appears at such meeting to present such nomination or transact such business in
accordance with the stockholders notice given in accordance with Section 1 or
2, such nomination shall be disregarded, and such proposed business shall not
be transacted, notwithstanding that proxies in respect of the vote thereon may
have been received by the corporation. For purposes of this Article II, to be
considered a qualified representative of the stockholder, a person must be
authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or
electronic transmission, at the meeting of stockholders.
(f) Whenever used in these bylaws,
the term public announcement
shall mean disclosure (a) in a press release publicly released by the
corporation, provided such press release is released by the Corporation in
accordance with its customary procedures, or is reported by the Dow Jones News
Service, Associated Press or a comparable national news service, or (b) in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(g) Notwithstanding the
foregoing provisions of this Article II, a stockholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Article II. Nothing in
these bylaws shall be deemed to affect any rights (i) of stockholders to
request inclusion of proposals in the corporations proxy statement pursuant to
the applicable rules and regulations promulgated under the Exchange Act, or
(ii) of the holders of any series of preferred stock of the corporation
pursuant to any applicable provision of the certificate of incorporation.
(h) Notwithstanding
anything to the contrary contained in this Article II, to the maximum extent
permitted by law, (i) for as long as Madison Dearborn Capital Partners IV, L.P.
and its affiliates (collectively, the MDP
Affiliated Persons) collectively are the beneficial owners of at least 10%
of the outstanding shares of the common stock of the corporation, no MDP
Affiliated Person shall be subject to the notice procedures set forth in this
Article II to nominate any person for election to the Board of Directors, or to
propose any business to be considered by the stockholders, at an annual meeting
of stockholders and (ii) as long as holders of MDCP Registrable Securities (as
defined in the Investor Rights Agreement, dated on or about December 26, 2006,
by and among the Aldabra Acquisition Corporation (and assigned to the
corporation in accordance with the terms thereof), Madison Dearborn Capital
Partners IV, L.P. and other investors party thereto (as amended from time to
time, the Investor Rights Agreement) have the right to appoint Board
Representatives (as defined in the Investor Rights Agreement) in accordance
therewith, holders of a majority of MDCP Registrable Securities shall not be
subject to the notice procedures set forth in this Article II to nominate any
person for election to the Board of Directors, or to propose any business to be
considered by the stockholders, at any meeting of stockholders to ensure compliance
with the Investor Rights Agreement.
5
Section 5. Organization.
The chairperson of the board of directors shall act as chairperson of meetings
of the stockholders. The board of directors may designate any other officer or
director of the corporation to act as chairperson of any meeting in the absence
of the chairperson of the board of directors, and the board of directors may
further provide for determining who shall act as chairperson of any
stockholders meeting in the absence of the chairperson of the board of
directors and such designee. The
secretary of the corporation shall act as secretary of all meetings of the
stockholders, but in the absence of the secretary the presiding officer may
appoint any other person to act as secretary of any meeting.
Section 6. Stockholders List. The officer having charge of the stock ledger
of the corporation shall make, at least 10 days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote at such
meeting arranged in alphabetical order, showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of
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. 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.
Section 7. Quorum. The holders of a majority of the voting power
of the outstanding shares of capital stock, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders, except as
otherwise provided by statute or by the certificate of incorporation. If a quorum is not present, the holders of a
majority of the voting power of the shares present in person or represented by
proxy at the meeting, and entitled to vote at the meeting, may adjourn the
meeting to another time and/or place.
Section 8. Adjourned Meetings. When a meeting is adjourned to another time
and place, notice need not be given of the 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 which might have been transacted at the original
meeting. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. Vote Required. When a quorum is present, the affirmative
vote of the majority of the voting power of shares present in person or
represented by proxy at the meeting and entitled to vote on the subject matter
shall be the act of the stockholders, unless the question is one upon which by
express provisions of an applicable law or of the certificate of incorporation
a different vote is required, in which case such express provision shall govern
and control the decision of such question.
Section 10. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware or by the certificate of incorporation
of the corporation or any amendments thereto and subject to Section 3 of
Article VI hereof, every stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
common stock held by such stockholder.
6
Section 11. Proxies. 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 or her by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period.
Section 12. Action by Written Consent. Unless otherwise provided in the certificate
of incorporation, any action required to be taken at any annual or special
meeting of stockholders of the corporation, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken and bearing the dates of signature
of the stockholders who signed the consent or consents, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and shall be
delivered to the corporation by delivery to its registered office in the state
of Delaware, or the corporations principal place of business, or an officer or
agent of the corporation having custody of the book or books in which
proceedings of meetings of the stockholders are recorded. Delivery made to the corporations registered
office shall be by hand or by certified or registered mail, return receipt
requested.
Section 13. Conduct of Meetings. The board of directors may adopt by
resolution such rules and regulations for the conduct of any meeting of the
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the board of directors, the
chairperson of any meeting of the stockholders shall have the right and
authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairperson, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures, whether
adopted by the board of directors or prescribed by the chairperson of the
meeting, may include, without limitation, the following: (a) the establishment
of an agenda or order of business for the meeting; (b) the determination of
when the polls shall open and close for
any given matter to be voted on at the meeting; (c) rules and procedures for
maintaining order at the meeting and the safety of those present; (d)
limitations on attendance at or participation in the meeting to stockholders of
record of the Corporation, their duly authorized and constituted proxies or
such other persons as the chairperson of the meeting shall determine; (e)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (f) limitations on the time allotted to questions or comments by
participants.
Section 14. Inspectors of Elections.
(a) Preceding any meeting of the
stockholders, to the extent required by applicable law, the board of directors
by resolution or the chairperson of the board of directors, if any, or the
chief executive officer shall appoint one or more persons to act as inspectors
at the meeting and make a written report thereof. The corporation may designate
one or more alternate inspectors to replace any inspector who fails to act. In
the event no inspector or alternate inspector is able to act at a meeting of
stockholders, the chairperson of the meeting shall appoint one or more
inspectors to act at the meeting. Unless otherwise required by applicable law,
inspectors may be officers, employees or agents of the corporation. Each
inspector, before entering upon the discharge of the duties of inspector, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of such
7
inspectors ability. In addition to the duties
prescribed by applicable law, the inspectors shall (i) ascertain the number of
shares outstanding and the voting power of each, (ii) determine the shares
represented at a meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the inspectors,
and (v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspector(s) may appoint
or retain other persons or entities to assist the inspectors in the performance
of the duties of inspector.
(b) In determining the shares
represented and the validity and counting of proxies and ballots, each
inspector shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 211(e) or Section 212(c)(2) of the General Corporation Law of the State
of Delaware, any information provided pursuant to Section 211(a)(2)(B)(i) or
(iii) of the General Corporation Law of the State of Delaware, ballots, and the
regular books and records of the Corporation, except that each inspector may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers or their
nominees or a similar person which represent more votes than the holder of a
proxy is authorized by the record owner to cast or more votes than the
stockholder holds of record. If any inspector considers other reliable
information for the limited purpose permitted by this paragraph, such inspector,
at the time of the making of his or her certification referred to in Section
14(a) of this Article II, shall specify the precise information considered, the
person or persons from whom the information was obtained, when this information
was obtained, the means by which the information was obtained, and the basis
for such inspectors belief that such information is accurate and reliable.
Section 15. Remote Communications. If authorized by the board of directors in
its sole discretion, and subject to such guidelines and procedures as the board
of directors may adopt, stockholders and proxy holders not physically present
at a meeting of stockholders may, by means of remote communication: (a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of stockholders whether
such meeting is to be held at a designated place or solely by means of remote
communication; provided that, (i) the corporation shall implement
reasonable measures to verify that each person deemed present and permitted to
vote at the meeting by means of remote communication is a stockholder or
proxyholder, (ii) the corporation shall implement reasonable measures to
provide such stockholders and proxyholders a reasonable opportunity to participate
in the meeting and to vote on matters submitted to the stockholders, including
an opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings; and (iii) if any stockholder or proxyholder
votes or takes other action at the meeting by means of remote communication, a
record of such vote or other action shall be maintained by the corporation.
Section 16. Ratification.
Any transaction questioned in any stockholders derivative suit, or any other
suit to enforce alleged rights of the corporation or any of its stockholders,
on the ground of lack of authority, defective or irregular execution, adverse
interest of any director, officer or stockholder, nondisclosure, miscomputation
or the application of improper principles or practices of accounting may be
approved, ratified and confirmed before or after judgment by the board of
directors or by the holders of majority of the voting power of the capital
stock of the corporation and, if so approved, ratified or confirmed, shall have
the same force and effect as if
8
the questioned transaction had been originally duly
authorized, and said approval, ratification or confirmation shall be binding
upon the Corporation and all of its stockholders and shall constitute a bar to
any claim or execution of any judgment in respect of such questioned
transaction.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of the board of directors.
Section 2. Number, Election and Term of
Office. The
number of directors which shall constitute the first board after the date
hereof shall consist of eight (8) members.
Thereafter, the number of directors shall be established from time to
time by resolution of the board. The
directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote in the
election of directors. The directors
shall be elected in this manner at the annual meeting of the stockholders,
except as provided in the certificate of incorporation or in Sections 2, 3 and
4 of this Article III. No Non-U.S.
Citizen (for all purposes, as defined in the certificate of incorporation of
the corporation) shall be qualified to serve as a director unless the total
number of directors who are Non-U.S. Citizens equals a minority of the minimum
number of directors necessary to achieve a quorum.
Section 3. Removal and Resignation. Subject to the provisions of the corporations
certificate of incorporation, any director or the entire board of directors may
be removed at any time, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors. Whenever the holders of any class or series
are entitled to elect one or more directors by the provisions of the
corporations certificate of incorporation, the provisions of this section
shall apply, in respect to the removal without cause of a director or directors
so elected, to the vote of the holders of the outstanding shares of that class
or series and not to the vote of the outstanding shares as a whole.
Section 4. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors and vacancies
created from the death, disqualification, resignation or removal of any
director shall be filled by directors possessing a majority of the voting power
of all directors. Each director so
chosen shall hold office until a successor is duly elected and qualified or
until his or her earlier death, disqualification, resignation or removal as
herein provided.
Section 5. Annual Meetings. The annual meeting of each newly elected
board of directors shall be held without other notice than this bylaw immediately
after, and at the same place as, the annual meeting of stockholders.
Section 6. Other Meetings and Notice. Regular meetings, other than the annual
meeting, of the board of directors may be held without notice at such time and
at such place as shall from time to time be determined by resolution of the
board. Special meetings of the board of
directors
9
may be called by or at the request of the president on
at least 24 hours notice to each director, either personally, by telephone, by
mail, or by telegraph; in like manner and on like notice the president must
call a special meeting on the written request of at least a majority of the
voting power possessed by all directors.
Section 7. Quorum, Required Vote and
Adjournment.
Directors possessing a majority of the voting power of all directors
then in office shall constitute a quorum for the transaction of business. The vote of directors present at a meeting at
which a quorum is present and possessing a majority of the voting power held by
the directors present at such meeting shall be the act of the board of
directors. If a quorum shall not be
present at any meeting of the board of directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 8. Committees. The board of directors may, by resolution
passed by directors possessing a majority of the voting power held by all
directors, designate one or more committees, each committee to consist of one
or more of the directors of the corporation, which to the extent provided in
such resolution or these bylaws shall have and may exercise the powers of the
board of directors in the management and affairs of the corporation except as
otherwise limited by law. The board of
directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors. Each committee shall keep regular minutes of
its meetings and report the same to the board of directors when required. Any director appointed to a committee shall
have the same number of votes in a matter submitted to such committee as such
director would have in a matter submitted to the board of directors for
vote. Committee members possessing a
majority of the voting power of all committee members then in office shall
constitute a quorum for the transaction of business; provided, however,
that no more than a minority of such committee members constituting a quorum
may be Non-U.S. Citizens. The vote of
committee members present at a meeting at which a quorum is present and
possessing a majority of the voting power held by the committee members present
at such meeting shall be the act of the committee. Notwithstanding the provisions of this
Article III, no more than a minority of the number of committee members necessary
to constitute a quorum for the transaction of business at a meeting of the
committee (as determined in accordance with this Section 8) shall be Non-U.S.
Citizens.
Section 9. Committee Rules. Subject to Section 8 above, each committee of
the board of directors may, by vote of committee members possessing a majority
of the voting power of all committee members, fix its own rules of procedure
and shall hold its meetings as provided by such rules, except as may otherwise
be provided by a resolution of the board of directors designating such
committee.
Section 10. Communications Equipment. Members of the board of directors or any
committee thereof may participate in and act at any meeting of such board or
committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
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Section 11. Waiver of Notice and Presumption
of Assent. Any
member of the board of directors or any committee thereof who is present at a
meeting shall be conclusively presumed to have waived notice of such meeting
except when such member attends 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. Such
member shall be conclusively presumed to have assented to any action taken
unless his or her dissent shall be entered in the minutes of the meeting or
unless his or her written dissent to such action shall be filed with the person
acting as the secretary of the meeting before the adjournment thereof or shall
be forwarded by registered mail to the secretary of the corporation immediately
after the adjournment of the meeting.
Such right to dissent shall not apply to any member who voted in favor
of such action.
Section 12. Action by Written Consent. Unless otherwise restricted by the
certificate of incorporation, any action required or permitted to be taken at
any meeting of the board of directors, or of any committee thereof, may be
taken without a meeting if all members of the board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
Section 13. Organization of Meetings.
The board of directors shall elect one of its members to be chairperson of the
board of directors. The chairperson of the board of directors shall lead the
board of directors in fulfilling its responsibilities as set forth in these
bylaws, including its responsibility to oversee the performance of the
corporation, and shall determine the agenda and perform all other duties and
exercise all other powers which are or from
time to time may be delegated to him or her by the board of
directors. Meetings of the board of
directors shall be presided over by the chairperson of the board of directors,
or in his or her absence, by the chief executive officer, or in the absence of
the chairperson of the board of directors and the chief executive officer by
such other person as the board of directors may designate or the members
present may select.
Section 14. Compensation.
The directors may be paid their expenses, if any, of attendance at each meeting
of the board of directors and may be paid a fixed amount (in cash or other form
of consideration) for attendance at each meeting of the board of directors or a
stated salary as director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 15. Interested Directors.
No contract or transaction between the corporation and one or more of its
directors or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall 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
of directors or committee thereof which authorizes the contract or transaction,
or solely because his or their votes are counted for such purpose, if (i) the
material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the board of directors or
the committee, and the board of directors or 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 or their relationship or interest
and as to the contract or transaction are disclosed or are
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known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote
of the 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
of directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the board of directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be
elected by the board of directors and shall consist of a chairperson, chief
executive officer, president, chief operating officer, chief financial officer,
one or more vice-presidents, a secretary, a treasurer, and such other officers
and assistant officers as may be deemed necessary or desirable by the board of
directors; provided, however, that only U.S. Citizens (as defined
in the certificate of incorporation) may be elected as the chairperson,
president, chief executive officer or any other position which has the sole
power to dispose of vessels. Any number
of offices may be held by the same person.
No individual shall be appointed
to an officer position if the consequence of such appointment is to cause the
corporation to cease to qualify as a U.S. Citizen (as defined in the certificate
of incorporation) and, therefore, cease to be qualified under the Maritime Laws
(as defined in the certificate of incorporation) to own and operate vessels
that may engage in dredging in the navigable waters of the United States and to
transport dredged material between points in the United States.
Section 2. Election and Term of Office. The officers of the corporation shall be
elected annually by the board of directors at its first meeting held after each
annual meeting of stockholders or as soon thereafter as conveniently may be.
Section 3. Removal. Any officer or agent elected by the board of
directors may be removed by the board of directors whenever in its judgment the
best interests of the corporation would be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies. Any vacancy occurring in any office because
of death, resignation, removal, disqualification or otherwise, may be filled by
the board of directors for the unexpired portion of the term by the board of
directors then in office.
Section 5. Compensation. Compensation of all officers shall be fixed
by the board of directors, and no officer shall be prevented from receiving
such compensation by virtue of his or her also being a director of the
corporation.
Section 6. Chairperson. The
chairperson of the board of directors, if any, shall give counsel and advice to
the board of directors and the officers of the corporation on all subjects
concerning the welfare of the corporation and the conduct of its business and
shall perform such other duties as the board of directors may from time to time
determine. No person may serve as
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the chairperson unless that person is a U.S. Citizen
(as defined in the certificate of incorporation).
Section 7. President; Chief Executive Officer.
(a) The president
(or in the event the board of directors separately appoints a chief executive
officer, the person appointed as such chief executive officer) shall have
supervision, direction and control of the business and affairs of the
corporation subject to the control of the board of directors and shall see that
all orders and resolutions of the board of directors are carried into effect.
The president (or in the event the board of directors separately appoints a
chief executive officer, the person appointed as such chief executive officer)
shall report to the board of directors, shall keep the board of directors
informed concerning the affairs and conditions of the corporations business,
make such reports of the affairs of the corporation to the board of directors
as the board of directors may from time to time require, and shall perform such
other duties as the board of directors may from time to time determine. In the
event of the appointment by the board of directors of a president but no
separate chief executive officer, the powers, duties and responsibilities of
the president shall include those of the chief executive officer set forth in
these bylaws, as if the president were the chief executive officer. No person may serve as the president or chief
executive officer unless that person is a U.S. Citizen (as defined in the
certificate of incorporation).
(b) In
the event the board of directors has separately appointed a chief executive
officer and a president, the president shall report to the chief executive
officer and have such powers and duties as may be assigned to him or her from
time to time by the board of directors or the chief executive officer, and,
unless otherwise determined by the board of directors, the president, during
the absence or disability of the chief executive officer, shall have the
powers, and shall perform the duties, of the chief executive officer.
(c) The
president or the chief executive officer may sign and execute in the name of
the corporation deeds, mortgages, bonds, contracts or other instruments
authorized by the board of directors and may execute and deliver such
documents, certificates and other instruments authorized by the board of
directors, except in cases where (i) the execution and delivery thereof shall
be expressly delegated to one or more officers who do not include such officer
or, pursuant to applicable law, be required to be executed and delivered by one
or more persons who do not include such officer or (ii) the execution and
delivery thereof by such officer shall be expressly made subject by the board
of directors, or pursuant to applicable law, to the satisfaction of certain
conditions precedent (including, without limitation, that such items be jointly
executed and delivered by such officer and one or more other officers or
persons).
Section 8. Chief Operating Officer. The chief operating officer, subject to the
powers of the board of directors, shall have general and active management of
the business of the corporation under the direction of the president and the
chief executive officer; and shall see that all orders and resolutions of the
board of directors are carried into effect.
The chief operating officer shall have such other powers and perform
such other duties as the board of directors, the president or these bylaws may,
from time to time, prescribe.
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Section 9. Chief Financial Officer. The chief financial officer shall, under the
direction of the board of directors and the president, be responsible for all
financial and accounting matters and for the direction of the offices of
treasurer and controller. The chief
financial officer shall have such other powers and perform such other duties as
the board of directors, the president or these bylaws may, from time to time,
prescribe.
Section 10. Vice-Presidents. Any vice-president who is a U.S. citizen (as
defined in the certificate of incorporation) in the order determined by the
board of directors shall, in the absence or disability of the president, act
with all of the powers and be subject to all the restrictions of the
president. The vice-presidents shall
also perform such other duties and have such other powers as the board of directors,
the president or these bylaws may, from time to time, prescribe.
Section 11. The Secretary and Assistant
Secretaries.
The secretary shall attend all meetings of the board of directors, all
meetings of the committees thereof and all meetings of the stockholders and
record all the proceedings of the meetings in a book or books to be kept for
that purpose. Under the presidents
supervision, the secretary shall give, or cause to be given, all notices
required to be given by these bylaws or by law; shall have such powers and
perform such duties as the board of directors, the president or these bylaws
may, from time to time, prescribe; and shall have custody of the corporate seal
of the corporation. The secretary, or an
assistant secretary, shall have authority to affix the corporate seal to any
instrument requiring it and when so affixed, it may be attested by his or her
signature or by the signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to attest
the affixing by his or her signature.
The assistant secretary, or if there be more than one, the assistant
secretaries in the order determined by the board of directors, shall, in the
absence or disability of the secretary, perform the duties and exercise the
powers of the secretary and shall perform such other duties and have such other
powers as the board of directors, the president, or secretary may, from time to
time, prescribe.
Section 12. The Treasurer and Assistant
Treasurer. The
treasurer shall, subject to the authority of the chief financial officer, have
the custody of the corporate funds and securities; shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation;
shall deposit all monies and other valuable effects in the name and to the
credit of the corporation as may be ordered by the board of directors; shall
cause the funds of the corporation to be disbursed when such disbursements have
been duly authorized, taking proper vouchers for such disbursements; and shall
render to the president and the board of directors, at its regular meeting or
when the board of directors so requires, an account of the corporation; shall
have such powers and perform such duties as the board of directors, the president,
the chief financial officer or these bylaws may, from time to time,
prescribe. If required by the board of
directors, the treasurer shall give the corporation a bond (which shall be
rendered every six years) in such sums and with such surety or sureties as
shall be satisfactory to the board of directors for the faithful performance of
the duties of the office of treasurer and for the restoration to the
corporation, in case of death, resignation, retirement, or removal from office,
of all books, papers, vouchers, money, and other property of whatever kind in
the possession or under the control of the treasurer belonging to the
corporation. The assistant treasurer, or
if there shall be more than one, the assistant treasurers in the order
determined by the board of directors, shall in the absence or disability of the
treasurer, perform the duties and exercise the powers of
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the treasurer.
The assistant treasurers shall perform such other duties and have such
other powers as the board of directors, the president, the chief financial
officer or treasurer may, from time to time, prescribe.
Section 13. Other Officers, Assistant
Officers and Agents.
Officers, assistant officers and agents, if any, other than those whose
duties are provided for in these bylaws, shall have such authority and perform
such duties as may from time to time be prescribed by resolution of the board
of directors.
Section 14. Absence or Disability of Officers. In the case of the absence or disability of
any officer of the corporation and of any person hereby authorized to act in
such officers place during such officers absence or disability, the board of
directors may by resolution delegate the powers and duties of such officer to
any other officer or to any director, or to any other person whom it may
select.
Section 15. Books and Records. The secretary shall keep proper and usual
books and records pertaining to the business of the corporation. The books and records of the corporation
shall be kept at the principal office of the corporation or at such other
places, within or without the State of Delaware, as the secretary shall from
time to time determine.
ARTICLE V
INDEMNIFICATION OF
OFFICERS, DIRECTORS AND OTHERS
Section 1. Nature of Indemnity. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a proceeding), by reason of the fact that he or she, is or was a
director or officer, of the corporation or is or was serving at the request of
the corporation as a director, officer, employee, fiduciary, or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, shall be indemnified and held harmless by the corporation to the
fullest extent which it is empowered to do so by the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended against
all expense, liability and loss including attorneys fees actually and reasonably
incurred by such person in connection with such proceeding; provided; however,
that, except as provided in Section 2 hereof, the corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding initiated by such person only if such proceeding was authorized by
the board of directors of the corporation.
The corporation may, by action of its board of directors, provide
indemnification to employees and agents of the corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
Section 2. Procedure for Indemnification of
Directors and Officers. Any indemnification of a director or officer
of the corporation under Section 1 of this Article V or advance of
expenses under Section 5 of this Article V shall be made promptly,
and in any event within 30 days, upon the written request of the director or
officer. If a determination by the
corporation that the director or officer is entitled to indemnification
pursuant to this Article V is required, and
15
the corporation fails to respond within sixty days to
a written request for indemnity, the corporation shall be deemed to have
approved the request. If the corporation
denies a written request for indemnification or advancing of expenses, in whole
or in part, or if payment in full pursuant to such request is not made within
30 days, the right to indemnification or advances as granted by this Article V
shall be enforceable by the director or officer in any court of competent
jurisdiction. Such persons costs and
expenses incurred in connection with successfully establishing his or her right
to indemnification, in whole or in part, in any such action shall also be
indemnified by the corporation. It shall
be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the corporation to indemnify the claimant for the amount claimed, but the
burden of such defense shall be on the corporation. Neither the failure of the corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination
by the corporation (including its board of directors, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
Section 3. Article Not Exclusive. The rights to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article V shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the corporation or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by
him or her in any such capacity, whether or not the corporation would have the
power to indemnify such person against such liability under this
Article V.
Section 5. Expenses. Expenses incurred by any person described in
Section 1 of this Article V in defending a proceeding shall be paid
by the corporation in advance of such proceedings final disposition. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the board of
directors deems appropriate.
Section 6. Employees and Agents. Persons who are not covered by the foregoing
provisions of this Article V and who are or were employees or agents of
the corporation, or who are or were serving at the request of the corporation
as employees or agents of another corporation, partnership, joint venture,
trust or other enterprise, may be indemnified to the extent authorized at any
time or from time to time by the board of directors.
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Section 7. Contract Rights. The provisions of this Article V shall be
deemed to be a contract right between the corporation and each director or
officer who serves in any such capacity at any time while this Article V
and the relevant provisions of the General Corporation Law of the State of
Delaware or other applicable law are in effect, and any repeal or modification
of this Article V or any such law shall not affect any rights or
obligations then existing with respect to any state of facts or proceeding then
existing.
Section 8. Merger or Consolidation. For purposes of this Article V,
references to the corporation shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was
a director, officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this
Article V with respect to the resulting or surviving corporation as he or
she would have with respect to such constituent corporation if its separate
existence had continued.
ARTICLE VI
CERTIFICATES OF
STOCK
Section 1. Form. Unless otherwise provided by resolution of
the Board, every holder of stock in the corporation shall be entitled to have a
certificate, signed by, or in the name of the corporation by the president or a
vice-president and the secretary or an assistant secretary of the corporation,
certifying the number of shares owned by such holder in the corporation. Any or all signatures on any certificate may
be facsimiles. In case any officer or
officers who have signed, or whose facsimile signature or signatures have been
used on, any such certificate or certificates shall cease to be such officer or
officers of the corporation whether because of death, resignation or otherwise
before such certificate or certificates have been delivered by the corporation,
such certificate or certificates may nevertheless be issued and delivered as
though the person or persons who signed such certificate or certificates or
whose facsimile signature or signatures have been used thereon had not ceased
to be such officer or officers of the corporation. All certificates for shares shall be consecutively
numbered or otherwise identified. The
name of the person to whom the shares represented thereby are issued, with the
number of shares and date of issue, shall be entered on the books of the
corporation. The board of directors may
appoint a bank or trust company organized under the laws of the United States
or any state thereof to act as its transfer agent or registrar, or both in
connection with the transfer of any class or series of securities of the
corporation. The board of directors
shall have power and authority to make such rules and regulations as it may
deem necessary or proper concerning the issue, transfer and registration of
certificates for shares of stock of the corporation.
Section 2. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of
17
that fact by the person claiming the certificate of
stock to be lost, stolen, or destroyed.
When authorizing such issue of a new certificate or certificates, the
board of directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen, or destroyed
certificate or certificates, or his or her legal representative, to give the
corporation a bond sufficient to indemnify the corporation against any claim
that may be made against the corporation on account of the loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for
Stockholder Meetings.
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,
the board of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the board of directors, and which record date shall not be more than sixty nor
less than ten days before the date of such meeting. If no record date is fixed by the board of
directors, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be the close of business on the
next day 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. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
Section 4. Fixing a Record Date for Action by
Written Consent.
In order that the corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the board of
directors. If no record date has been
fixed by the board of directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no
prior action by the board of directors is required by statute, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the corporations registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been
fixed by the board of directors and prior action by the board of directors is
required by statute, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the board of directors adopts the resolution
taking such prior action.
Section 5. Fixing a Record Date for Other
Purposes. In
order that the corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment or any rights or the
stockholders entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or for the purposes of any other lawful action, the board
of directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted, and which
record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date
for determining
18
stockholders for any such purpose shall be at the
close of business on the day on which the board of directors adopts the
resolution relating thereto.
Section 6. Registered Stockholders. Prior to the surrender to the corporation of
the certificate or certificates for a share or shares of stock with a request
to record the transfer of such share or shares, the corporation may treat the
registered owner as the person entitled to receive dividends, to vote, to
receive notifications, and otherwise to exercise all the rights and powers of
an owner.
Section 7. Subscriptions for Stock. Unless otherwise provided for in the
subscription agreement, subscriptions for shares shall be paid in full at such
time, or in such installments and at such times, as shall be determined by the
board of directors. Any call made by the
board of directors for payment on subscriptions shall be uniform as to all
shares of the same class or as to all shares of the same series. In case of default in the payment of any
installment or call when such payment is due, the corporation may proceed to
collect the amount due in the same manner as any debt due the corporation.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may
be paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the certificate of
incorporation. Before payment of any
dividend, there may be set aside out of any funds of the corporation available
for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the corporation, or any other purpose and the directors may modify
or abolish any such reserve in the manner in which it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders for the
payment of money by or to the corporation and all notes and other evidences of
indebtedness issued in the name of the corporation shall be signed by such
officer or officers, agent or agents of the corporation, and in such manner, as
shall be determined by resolution of the board of directors or a duly
authorized committee thereof.
Section 3. Contracts. The board of directors may authorize any
officer or officers, or any agent or agents, of the corporation to enter into
any contract or to execute and deliver any instrument in the name of and on
behalf of the corporation, and such authority may be general or confined to
specific instances.
Section 4. Loans. The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other employee
of the corporation or of its subsidiary, including any officer or employee who
is a director of the corporation or its subsidiary, whenever, in the judgment
of the directors, such loan, guaranty or assistance may reasonably be expected
to
19
benefit the corporation. The loan, guaranty or other assistance may be
with or without interest, and may be unsecured, or secured in such manner as
the board of directors shall approve, including, without limitation, a pledge
of shares of stock of the corporation.
Nothing in this section contained shall be deemed to deny, limit or
restrict the powers of guaranty or warranty of the corporation at common law or
under any statute.
Section 5. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
Section 6. Corporate Seal. The board of directors shall provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the corporation and the words Corporate Seal, Delaware. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7. Voting Securities Owned By
Corporation.
Voting securities in any other corporation held by the corporation shall
be voted by the president, unless the board of directors specifically confers
authority to vote with respect thereto, which authority may be general or
confined to specific instances, upon some other person or officer. Any person authorized to vote securities
shall have the power to appoint proxies, with general power of substitution.
Section 8. Section Headings. Section headings in these bylaws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 9. Inconsistent Provisions. In the event that any provision of these
bylaws is or becomes inconsistent with any provision of the certificate of
incorporation, the General Corporation Law of the State of Delaware or any
other applicable law, the provision of these bylaws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
ARTICLE VIII
AMENDMENTS
In furtherance and not in
limitation of the powers conferred by the Delaware General Corporation Law and
subject to the provisions of the certificate of incorporation, the board of
directors is expressly authorized to adopt, amend and repeal these bylaws,
without the assent or vote of the stockholders, in any manner not inconsistent
with the Delaware General Corporation Law or the certificate of incorporation.
The stockholders shall also have the power to adopt, amend, supplement or
repeal these bylaws to the extent provided in the corporations certificate of
incorporation.
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