AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF DIAMOND OFFSHORE DRILLING (OVERSEAS) L.L.C.
Exhibit T3B.6
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
DIAMOND OFFSHORE DRILLING (OVERSEAS) L.L.C.
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of DIAMOND OFFSHORE DRILLING (OVERSEAS) L.L.C. (the “Company”) dated as of October 6, 2008 is executed and adopted by Diamond Offshore International Limited, a company formed and existing under the laws of the Cayman Islands (the “Member”).
W I T N E S S E T H :
WHEREAS, the Company was formed as a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. § 18-101, et seq.), as it may be amended from time to time (the “Act”); and
WHEREAS, prior to the execution and adoption of this Agreement, the business and affairs of the Company were governed by that certain Limited Liability Company Operating Agreement dated as of June 15, 2004; and
WHEREAS, the Member desires to amend and restate the Company’s Limited Liability Company Agreement in its entirety in accordance with the terms and provisions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and provisions hereinafter contained, the Member hereby agrees as follows:
ARTICLE I.
ORGANIZATIONAL AND OTHER MATTERS
SECTION 1.01. Formation. The Company was formed as a limited liability company under the provisions of the Act by the filing on October 31, 2003 of a Certificate of Conversion and a Certificate of Formation (the “Certificate of Formation”) with the Secretary of State of the State of Delaware. The rights and liabilities of the Member shall be as provided in the Act, except as is otherwise expressly provided herein.
SECTION 1.02. Name. The name of the Company shall be Diamond Offshore Drilling (Overseas) L.L.C., and the business of the Company shall be conducted under such name.
SECTION 1.03. Registered Office. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the registered office named in the Certificate of Formation of the Company or such other office as may be designated from time to time by the managers in the manner provided by law. Should the Company maintain a principal office within the State of Delaware, such registered office need not be identical to such principal office of the Company.
SECTION 1.04. Other Offices. The Company may have offices at such places both within and without the State of Delaware as the managers may from time to time determine or the business of the Company may require.
SECTION 1.05. Term. The Company shall commence as a limited liability company on the date of filing of the Certificate of Formation, and the term of the Company shall continue until the dissolution of the Company as provided by law.
SECTION 1.06. Limited Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and no member or manager of the Company shall be obligated personally for any of such debts, obligations or liabilities solely by reason of being a member or manager of the Company.
SECTION 1.07. Purpose of the Company. The Company may carry on any lawful business, purpose or activity permitted by the Act.
SECTION 1.08. Powers of the Company. The Company shall have the power to do any and all acts reasonably necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purpose and business described herein and for the protection and benefit of the Company.
ARTICLE II.
SOLE MEMBER
SECTION 2.01. Name and Address. The name and address of the sole member of the Company is Diamond Offshore International Limited, c/o Close Brothers (Cayman) Limited, Harbour Place, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
SECTION 2.02. Additional Members. No additional person or entity may be admitted to the Company as a member without the prior written consent of the Member.
SECTION 2.03. Actions of the Member. Any action required or permitted to be taken by the Member under this Agreement or the Act may be taken without a meeting, without prior notice and without a vote if a written consent setting forth the action so taken is signed by the Member.
ARTICLE III.
CAPITAL CONTRIBUTIONS
SECTION 3.01. Capital Contributions. The Member or its predecessor in interest has made an initial capital contribution of US $10,000 to the Company. The Member may make additional capital contributions to the Company from time to time as determined by the Member in its sole discretion.
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ARTICLE IV.
MANAGEMENT OF THE COMPANY BY MANAGERS
SECTION 4.01. Management of the Company. The management of the Company shall be vested in the managers. The managers shall have complete and exclusive discretion in the management and control of the affairs and business of the Company, and shall possess all powers necessary, convenient or appropriate to carrying out the purposes and business of the Company, including, without limitation, doing all things and taking all actions necessary to carry out the terms and provisions of this Agreement and delegating any or all of its powers, rights and obligations under this Agreement and appointing such officers of the Company to perform acts or services for the Company pursuant to Section 6.01 hereof.
ARTICLE V.
MANAGERS
SECTION 5.01. Managers. The managers of the Company shall be appointed by the Member, and the number of managers shall be determined from time to time by resolution of the Member. If the Member makes no such determination, the number of managers shall be two (2). Each manager shall hold office until his successor shall have been elected and qualified or until his earlier death, resignation or removal. Unless otherwise provided in the Certificate of Formation, the Member shall have the authority to fix the compensation of the managers. Unless otherwise provided in the Certificate of Formation, managers need not be holders of membership interests in the Company or residents of the State of Delaware.
SECTION 5.02. Removal. Any manager or all of the managers may be removed or replaced, with or without cause, by resolution of the Member.
SECTION 5.03. Quorum. Unless otherwise provided in the Certificate of Formation, a majority of the total number of managers shall constitute a quorum for the transaction of business of the managers and the vote of a majority of the managers present at a meeting at which a quorum is present shall be the act of the managers.
SECTION 5.04. Place of Meetings; Order of Business. The managers may hold their meetings and may have an office and keep the books of the Company, except as otherwise provided by law, in such place or places, within or without the State of Delaware, as the managers may from time to time determine.
SECTION 5.05. Regular Meetings. Regular meetings of the managers shall be held at such times and places as shall be designated from time to time by the managers. Notice of such regular meetings shall not be required.
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SECTION 5.06. Action Without a Meeting; Telephone Conference Meeting. Unless otherwise provided by the Certificate of Formation, any action required or permitted to be taken at any meeting of the managers may be taken without a meeting if all of the managers consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the managers. Such consent shall have the same force and effect as a unanimous vote at a meeting, and may be stated as such in any document or instrument filed with the Secretary of State of Delaware.
Unless otherwise provided by the Certificate of Formation, the managers may participate in a meeting of such managers by means of a telephone conference or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such meeting shall constitute presence in person at such meeting, except where a person participates in the meeting for the sole express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE VI.
OFFICERS
SECTION 6.01. Officers; Agents. The managers shall have the power to appoint any person or persons as agents (who may be referred to as officers) to act for the Company with such titles, if any, as the managers deem appropriate and to delegate to such officers or agents such of the powers as are granted to the managers hereunder. Any decision or act of an officer appointed under this Section 6.01 within the scope of the officer’s designated or delegated authority shall control and shall bind the Company. The officers or agents so appointed may have such titles as the managers shall deem appropriate, which may include (but need not be limited to) President, Executive Vice President, Vice President, Treasurer, Secretary or Controller. Unless the authority of the agent designated as the officer in question is limited by the managers, any officer so appointed shall have the same authority to act for the Company as a corresponding officer of a Delaware corporation would have to act for a Delaware corporation in the absence of a specific delegation of authority. Each officer shall hold office until his successor shall be duly elected and shall qualify or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same person, unless the Certificate of Formation provides otherwise. Unless otherwise provided in the Certificate of Formation, the managers shall have the authority to fix the compensation of officers. The managers may by vote, resolution or otherwise ratify any act previously taken by an officer or agent acting on behalf of the Company.
SECTION 6.02. Removal. Any officer or agent elected or appointed by the managers may be removed, either with or without cause, by the vote of a majority of the managers at a meeting called for the purpose, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.
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SECTION 6.03. Vacancies. Any vacancy occurring in any office of the Company may be filled by the managers.
SECTION 6.04. Powers and Duties of the President. Unless the managers otherwise determine, the President, if elected, shall have the authority to agree upon and execute all leases, contracts, powers of attorney, evidences of indebtedness and other obligations in the name of the Company; and he shall have such other powers and duties as designated in accordance with this Agreement and as from time to time may be assigned to him by the managers.
SECTION 6.05. Vice Presidents. In the absence of the President, or in the event of his inability or refusal to act, a Vice President, if elected, designated by the managers shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. In the absence of a designation by the managers of a Vice President to perform the duties of the President, or in the event of his absence or inability or refusal to act, the Vice President who is present and who is senior in terms of time as a Vice President of the Company shall so act. A Vice President may execute and deliver in the name of the Company powers of attorney, contracts and other obligations and instruments pertaining to the regular course of the duties of said office and shall have such other duties and have such other powers and authority as the managers may from time to time prescribe or assign.
SECTION 6.06. Treasurer. The Treasurer, if elected, shall have responsibility for the custody and control of all the funds and securities of the Company, and he shall have such other powers and duties as designated in this Agreement and as from time to time may be assigned to him by the managers. He shall perform all acts incident to the position of Treasurer, subject to the control of the President and the managers; and he shall, if required by the managers, give such bond for the faithful discharge of his duties in such form as the managers may require.
SECTION 6.07. Assistant Treasurers. Each Assistant Treasurer, if elected, shall have the usual powers and duties pertaining to his office, together with such other powers and duties as designated in this Agreement and as from time to time may be assigned to him by the President or the managers. The Assistant Treasurers shall exercise the powers of the Treasurer during that officer’s absence or inability or refusal to act.
SECTION 6.08. Secretary. The Secretary shall keep the minutes of all meetings of the managers and the Member (including written consents signed in lieu of such meetings) in books provided for that purpose; he shall attend to the giving and serving of all notices; he may in the name of the Company affix the seal of the Company to all contracts of the Company and attest the affixation of the seal of the Company thereto; he shall have such other powers and duties as designated in this Agreement and as from time to time may be assigned to him by the managers; and he shall in general perform all acts incident to the office of Secretary, subject to the control of the President and the managers.
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SECTION 6.09. Assistant Secretaries. Each Assistant Secretary, if elected, shall have the usual powers and duties pertaining to his office, together with such other powers and duties as designated in this Agreement and as from time to time may be assigned to him by the President or the managers. The Assistant Secretaries shall exercise the powers of the Secretary during that officer’s absence or inability or refusal to act.
SECTION 6.10. Controller. The Controller, if elected, shall in general have all the usual powers and duties incident to the office of Controller, together with such other powers and duties as designated in this Agreement and as from time to time may be assigned to him by the President or the managers.
ARTICLE VII.
EXCULPATION AND INDEMNIFICATION
SECTION 7.01. Exculpation. No manager or officer of the Company shall be liable to the Company or any Member for monetary damages arising from any actions taken, or actions failed to be taken, in his capacity as a manager or officer of the Company except for (a) liability for acts or omissions not in good faith or which involve intentional misconduct or in knowing violation of law, (b) liability with respect to any transaction from which such manager or officer derived an improper personal benefit and (c) liability arising from any breach of such manager or officer’s duty of loyalty to the Company; in each case described in items (a), (b) and (c) preceding as determined by a final, non-appealable order of a court of competent jurisdiction.
SECTION 7.02. Right to Indemnification. The Company may indemnify to the fullest extent permitted by the Act all persons whom it may indemnify pursuant thereto and in the manner prescribed thereby. The Company shall pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending any proceeding in advance of its final disposition; provided, however, that if the Act requires the payment of such expenses incurred by a current, former or proposed manager or officer in his or her capacity as a manager or officer or proposed manager or officer (and not in any other capacity in which service was or is or has been agreed to be rendered by such person while a manager or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, such expenses shall be paid by the Company in advance only upon delivery to the Company of an undertaking, by or on behalf of such indemnified person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Article or otherwise. Notwithstanding anything to the contrary in this Section 7.02, no person shall be entitled to indemnification hereunder unless it is found (in the manner described below in this Section 7.02) that, with respect to the matter for which such person seeks indemnification, such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a
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manner which he reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. The finding of the standard of conduct required above shall be made (a) by a majority vote of all of the managers who are not parties or affiliates of parties to such action, suit or proceeding even though less than a quorum, or (b) if there are no such managers, or if such managers so direct, by independent legal counsel in a written opinion or (c) by the Member (unless the Member is a party or affiliate of a party to such action, suit or proceeding).
SECTION 7.03. Indemnification of Employees and Agents. The Company may by action of its Member provide indemnification to employees, agents and certain other persons as set forth in the Certificate of Formation of the Company or as permitted by the Act, as amended from time to time.
SECTION 7.04. Non-exclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article VII shall not be exclusive of any other right which any person may have or hereafter acquire under any law (common or statutory), provision of the Certificate of Formation of the Company, this Agreement, any other agreement, a determination of the Member or disinterested managers or otherwise.
SECTION 7.05. Insurance. The Company may maintain insurance, at its expense, to protect itself and any person who is or was serving as a manager, officer, employee or agent of the Company or is or was serving at the request of the Company as a manager, officer, employee or agent of another company, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the Act.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.01. Fiscal Year. The fiscal year of the Company shall be such as established from time to time by the managers. Unless otherwise fixed by the managers, the fiscal year of the Company shall commence on January 1 and end on December 31 of each and every calendar year.
SECTION 8.02. Corporate Seal. The managers may provide a suitable seal containing the name of the Company. The Secretary shall have charge of the seal (if any). If and when so directed by the managers, duplicates of the seal may be kept and used by the Treasurer or by any Assistant Secretary or Assistant Treasurer.
SECTION 8.03. Resignations. Any manager or officer may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.
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SECTION 8.04. Facsimile Signatures. In addition to any provisions for the use of facsimile signatures specifically authorized in this Agreement, facsimile signatures of any manager or officer of the Company may be used whenever and as authorized by the managers.
SECTION 8.05. Reliance upon Books, Reports and Records. Each manager shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or reports made to the Company by any of its officers, or by an independent certified public accountant, or by an appraiser selected with reasonable care by the managers, or in relying in good faith upon other records of the Company.
SECTION 8.06. Powers of Attorney. Any manager, the President or any Vice President shall have the power and authority to execute and deliver powers of attorney and other such instruments in the name of and on behalf of the Company. The person authorized by any such power of attorney executed and delivered by either of them on behalf of the Company may exercise on behalf of the Company any and all of the rights and powers as specified in the power of attorney so authorizing such person.
SECTION 8.07. Taxes. The Company shall be treated as a disregarded entity for federal income tax purposes, and no member, manager or officer shall otherwise characterize the Company for purposes of any tax returns, statements or reports to be filed by them, their subsidiaries or affiliates.
SECTION 8.08. Amendments. The Member shall have the power to amend and repeal from time to time any of the provisions of this Agreement.
ARTICLE IX.
DISSOLUTION AND LIQUIDATION
SECTION 9.01. Effect of Dissolution. Upon dissolution, the Company shall cease carrying on its business but shall not terminate until the winding up of the affairs of the Company is completed, the assets of the Company shall have been distributed as provided below and a Certificate of Cancellation of the Company under the Act has been filed with the Secretary of State of the State of Delaware.
SECTION 9.02. Liquidation Upon Dissolution. Upon the dissolution of the Company, sole and plenary authority to effectuate the liquidation of the assets of the Company shall be vested in the managers, who shall have full power and authority to sell, assign and encumber any and all of the Company’s assets and to wind up and liquidate the affairs of the Company in an orderly and business-like manner. The proceeds of
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liquidation of the assets of the Company distributable upon a dissolution and winding up of the Company shall be applied in the following order of priority:
a. first, to the creditors of the Company, including any creditor that is a member, in the order of priority provided by law, in satisfaction of all liabilities and obligations of the Company (of any nature whatsoever, including, without limitation, fixed or contingent, matured or unmatured, legal or equitable, secured or unsecured), whether by payment or the making of reasonable provision for payment thereof; and
b. thereafter, to the Member.
SECTION 9.03. Winding Up and Certificate of Cancellation. The winding up of the Company shall be completed when all of its debts, liabilities, and obligations have been paid and discharged or reasonably adequate provision therefor has been made, and all of the remaining property and assets of the Company have been distributed to the Member. Upon the completion of the winding up of the Company, a Certificate of Cancellation of the Company shall be filed with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the Member has executed this Agreement as of the date first above written.
| DIAMOND OFFSHORE INTERNATIONAL LIMITED | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Title: | Director | |
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