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EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
GENERAL MARITIME CORPORATION
* * * * *
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT.
The undersigned, for the purpose of forming a corporation pursuant to
the provisions of the Marshall Islands Business Corporations Act (hereinafter
sometimes called the "BCA"), does hereby make, subscribe, acknowledge and file
with Registrar of Corporations this instrument for that purpose, as follows:
FIRST. The name of the corporation shall be General Maritime
Corporation.
SECOND. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may now or hereafter be organized under the
BCA.
THIRD. The registered address of the Corporation in the Marshall
Islands is [___________]. The name of the Corporation's registered agent at such
address is The Trust Company of the Marshall Islands, Inc.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is eighty million (80,000,000), of which stock five
million (5,000,000) registered shares of the par value of one cent (US$.01) per
share shall be preferred stock, and of which seventy-five million (75,000,000)
registered shares of the par value of one cent (US$.01) per share shall be
common stock.
The rights, preferences and limitations of said classes of stock are as
follows:
1. The preferred stock may be issued from time to time by the Board of
Directors as shares of one or more series of preferred stock, and the Board of
Directors is expressly authorized, prior to issuance, in the resolution or
resolutions providing for the issue of shares of each particular series, to fix
the following:
(a) The distinctive serial designation of such series which shall
distinguish it from other series;
(b) The number of shares included in such series, which number
may be increased or decreased from time to time to the extent unissued,
authorized shares of preferred stock remain available for such purpose, unless
otherwise provided by the Board of Directors in creating the series;
(c) The annual dividend rate (or method for determining such
rate) for shares of such series and the date or dates upon which such dividends
shall be payable;
(d) Whether dividends on the shares of such series shall be
cumulative, and, in the case of shares of any series having cumulative dividend
rights, the date or dates (or method for determining the date or dates) from
which dividends on the shares of such series shall be cumulative;
(e) The amount or amounts (or the method for determining the
amount or amounts) which shall be paid out of the assets of the Corporation to
the holders of the shares of such series upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(f) The price or prices (or method for determining the price or
prices) at which, the period or periods within which and the terms and
conditions upon which the shares of such series may be redeemed, in whole or in
part, at the option of the Corporation;
(g) The obligation, if any, of the Corporation to purchase or
redeem shares of such series pursuant to a sinking fund or otherwise and the
price or prices (or method for determining the price or prices) at which, the
period or periods within which and the terms and conditions upon which the
shares of such series shall be redeemed, in whole or in part, pursuant to such
obligation;
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(h) The period or periods within which and the terms and
conditions, if any, including the price or prices or the rate or rates (or
method for determining same) of conversion and the terms and conditions of any
adjustments thereof, upon which the shares of such series shall be convertible
at the option of the holder or the Corporation into shares of any class of stock
or into shares of any other series of preferred stock;
(i) The voting rights, if any, of the shares of such series in
addition to those required by law;
(j) The ranking of the shares of the series as compared with
shares of other series of preferred stock in respect of the right to receive
dividends and the right to receive payments out of the assets of the Corporation
upon voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
(k) Any other relative rights, preferences or limitations of the
shares of the series not inconsistent herewith or with applicable law.
2. No holder of common stock or of preferred stock shall be entitled as
a matter of right to subscribe for or purchase, or have any preemptive right
with respect to, any part of any new or additional issue of stock of any class
whatsoever, or of securities convertible into any stock of any class whatsoever,
whether now or hereafter authorized and whether issued for cash or other
consideration or by way of dividend.
3. Except as otherwise provided by the Board of Directors in accordance
with paragraph 1 above in respect of any series of preferred stock, all voting
rights of the Corporation shall be vested exclusively in the holders of the
common stock who shall be entitled to one vote per share.
FIFTH. The Corporation is to have perpetual existence and shall have
every power which a corporation now or hereafter organized under the BCA may
have.
SIXTH. (a) The number of directors constituting the entire Board of
Directors shall be not less than one nor more than twelve, as fixed from time to
time by the vote of not less than 66 2/3% of the entire Board of Directors;
provided, however, that the number of directors shall not be reduced so as to
shorten the term of any director at the time in office, and provided further,
that the number of directors constituting the entire Board of Directors shall be
one unless and until otherwise fixed by the vote of not less than 66 2/3% of the
entire Board of Directors. The phrase "66 2/3% of the entire Board of Directors"
as used in these Articles of Incorporation shall be deemed to refer to 66 2/3%
of the number of directors constituting the Board of Directors as provided in or
pursuant to this Section (a) of this Article Sixth, without regard to any
vacancies then existing.
(b) The Board of Directors shall be divided into three classes,
as nearly equal in number as the then total number of directors constituting the
entire Board of Directors permits, with the term of office of one or another of
the three classes expiring each year. As soon as practicable after the filing of
these Articles of Incorporation with the Registrar of Corporations responsible
for non-resident corporations, the shareholders of the Corporation shall hold an
organization meeting to divide the Board of Directors into three classes, with
the term of office of the first class to expire at the 2001 Annual Meeting of
Shareholders, the term of office of the second class to expire at the 2002
Annual Meeting of Shareholders and the term of office of the third class to
expire at the 2003 Annual Meeting of Shareholders. Commencing with the 2001
Annual Meeting of Shareholders, the directors elected at an annual meeting of
shareholders to succeed those whose terms then expire shall be identified as
being directors of the same class as the directors whom they succeed, and each
of them shall hold office until the third succeeding annual meeting of
shareholders and until such director's successor is elected and has qualified.
Any vacancies in the Board of Directors for any reason, and any created
directorships resulting from any increase in the number of directors, may be
filled by the vote of not less than 66 2/3% of the members of the Board of
Directors then in office, although less than a quorum, and any directors so
chosen shall hold office until the next election of the class for which such
directors shall have been chosen and until their successors shall be elected and
qualified. No decrease in the number of directors shall shorten the term of any
incumbent director. Notwithstanding the foregoing, and except as otherwise
required by law, whenever the holders of any one or more series of preferred
stock shall have the right, voting separately as a class, to elect one or more
directors of the Corporation, the then authorized number of directors shall be
increased by the number of directors so to be elected, and the terms of the
director or directors elected by such holders shall expire at the next
succeeding annual meeting of shareholders.
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(c) Notwithstanding any other provisions of these Articles of
Incorporation or the by-laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, these Articles of
Incorporation or the by-laws of the Corporation), any director or the entire
Board of Directors of the Corporation may be removed at any time, but only for
cause and only by the affirmative vote of the holders of 80% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) cast at a meeting of the shareholders called for that purpose.
Notwithstanding the foregoing, and except as otherwise required by law, whenever
the holders of any one or more series of preferred stock shall have the right,
voting separately as a class, to elect one or more directors of the Corporation,
the provisions of this Section (c) of this Article Sixth shall not apply with
respect to the director or directors elected by such holders of preferred stock.
(d) Directors shall be elected by a plurality of the votes cast
at a meeting of shareholders by the holders of shares entitled to vote in the
election. Cumulative voting, as defined in Division 7, Section 71(2) of the BCA,
shall not be used to elect directors.
(e) Notwithstanding any other provisions of these Articles of
Incorporation or the by-laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, these Articles of
Incorporation or the by-laws of the Corporation), the affirmative vote of the
holders of 80% or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as one class) shall be required to amend, alter, change or
repeal this Article Sixth.
SEVENTH. The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal by-laws of the Corporation by a vote of not
less than a majority of the entire Board of Directors, and the shareholders may
not make additional by-laws and may not alter or repeal any by-law.
Notwithstanding any other provisions of these Articles of Incorporation or the
by-laws of the Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, these Articles of Incorporation or the
by-laws of the Corporation), the affirmative vote of the holders of 80% or more
of the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) shall be required to amend, alter, change or repeal this Article Seventh.
EIGHTH. (a) Except as provided in this Article Eighth, special meetings
of the shareholders may be called exclusively by the Board of Directors, who
shall state the purpose or purposes of the proposed special meeting. If there is
a failure to hold the annual meeting within a period of ninety (90) days after
the date designated therefor, or if no date has been designated for a period of
thirteen (13) months after the organization of the Corporation or after its last
annual meeting, holders of not less than 10% of the shares entitled to vote in
an election of directors may, in writing, demand the call of a special meeting
in lieu of the annual meeting specifying the time thereof, which shall not be
less than two (2) nor more than three (3) months from the date of such call. The
Secretary of the Corporation upon receiving the written demand shall promptly
give notice of such meeting, or if the secretary fails to do so within five (5)
business days thereafter, any shareholder signing such demand may give such
notice. Such notice shall state the purpose or purposes of the proposed special
meeting. The business transacted at any special meeting shall be limited to the
purposes stated when the meeting is called by the Board of Directors or in the
notice of such meeting.
(b) Any action required to be taken or which may be taken at any
annual or special meeting of shareholders of the Corporation may be taken
without a meeting if a consent in writing, setting forth the action so taken, is
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof.
(c) Notwithstanding any other provisions of these Articles of
Incorporation or the by-laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, these Articles of
Incorporation or the by-laws of the Corporation), the affirmative vote of the
holders of 80% or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as one class) shall be required to amend, alter, change or
repeal this Article Eighth.
NINTH. (a) The Corporation may not engage in any Business Combination
with any Interested Shareholder for a period of three years following the time
of the transaction in which the person became an Interested Shareholder, unless:
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(1) prior to such time, the Board of Directors of the
Corporation approved either the Business Combination or the transaction which
resulted in the shareholder becoming an Interested Shareholder;
(2) upon consummation of the transaction which
resulted in the shareholder becoming an Interested Shareholder, the Interested
Shareholder owned at least 85% of the voting stock of the Corporation
outstanding at the time the transaction commenced, excluding for purposes of
determining the number of shares outstanding those shares owned (i) by persons
who are directors and also officers and (ii) employee stock plans in which
employee participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange offer;
or
(3) at or subsequent to such time, the Business
Combination is approved by the Board
of Directors and authorized at an annual or special meeting of shareholders, and
not by written consent, by the affirmative vote of at least 66 2/3% of the
outstanding voting stock that is not owned by the interested shareholder; or
(4) the shareholder became an Interested Shareholder
prior to the consummation of the
initial public offering of the Corporation's common stock under the Securities
Act of 1933.
(b)The restrictions contained in this section shall not apply
if:
(1) A shareholder becomes an Interested Shareholder
inadvertently and (i) as soon as practicable divests itself of ownership of
sufficient shares so that the shareholder ceases to be an Interested
Shareholder; and (ii) would not, at any time within the three-year period
immediately prior to a Business Combination between the Corporation and such
shareholder, have been an Interested Shareholder but for the inadvertent
acquisition of ownership; or
(2) The Business Combination is proposed prior to the
consummation or abandonment of and subsequent to the earlier of the public
announcement or the notice required hereunder of a proposed transaction which
(i) constitutes one of the transactions described in the following sentence;
(ii) is with or by a person who either was not an Interested Shareholder during
the previous three years or who became an Interested Shareholder with the
approval of the Board; and (iii) is approved or not opposed by a majority of the
members of the Board then in office (but not less than one) who were Directors
prior to any person becoming an Interested Shareholder during the previous three
years or were recommended for election or elected to succeed such Directors by a
majority of such Directors. The proposed transactions referred to in the
preceding sentence are limited to:
(i) a merger or consolidation of the Corporation
(except for a merger in respect of which, pursuant to the BCA, no vote of the
shareholders of the Corporation is required);
(ii) a sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of transactions),
whether as part of a dissolution or otherwise, of assets of the Corporation or
of any direct or indirect majority-owned subsidiary of the Corporation (other
than to any direct or indirect wholly-owned subsidiary or to the Corporation)
having an aggregate market value equal to 50% or more of either that aggregate
market value of all of the assets of the Corporation determined on a
consolidated basis or the aggregate market value of all the outstanding shares;
or
(iii) a proposed tender or exchange offer for 50%
or more of the outstanding voting shares of the Corporation.
The Corporation shall give not less than 20 days notice to all
Interested Shareholders prior to the consummation of any of the transactions
described in clause (i) or (ii) of the second sentence of this paragraph.
(c) For the purpose of this Article Ninth only, the term:
(1) "Affiliate" means a person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, another person.
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(2) "Associate," when used to indicate a relationship
with any person, means: (i) Any corporation, partnership, unincorporated
association or other entity of which such person is a director, officer or
partner or is, directly or indirectly, the owner of 20% or more of any class of
voting shares; (ii) any trust or other estate in which such person has at least
a 20% beneficial interest or as to which such person serves as trustee or in a
similar fiduciary capacity; and (iii) any relative or spouse of such person, or
any relative of such spouse, who has the same residence as such person.
(3) "Business Combination," when used in reference to
the Corporation and any Interested Shareholder of the Corporation, means:
(i) Any merger or consolidation of the
Corporation or any direct or indirect majority-owned subsidiary of the
Corporation with (A) the Interested Shareholder or any of its affiliates, or (B)
with any other corporation, partnership, unincorporated association or other
entity if the merger or consolidation is caused by the Interested Shareholder.
(ii) Any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a series of
transactions), except proportionately as a shareholder of the Corporation, to or
with the Interested Shareholder, whether as part of a dissolution or otherwise,
of assets of the Corporation or of any direct or indirect majority-owned
subsidiary of the Corporation which assets have an aggregate market value equal
to 10% or more of either the aggregate market value of all the assets of the
Corporation determined on a consolidated basis or the aggregate market value of
all the outstanding shares;
(iii) Any transaction which results in the
issuance or transfer by the Corporation or by any direct or indirect
majority-owned subsidiary of the Corporation of any shares, or any share of such
subsidiary, to the Interested Shareholder, except: (A) pursuant to the exercise,
exchange or conversion of securities exercisable for, exchangeable for or
convertible into shares, or shares of any such subsidiary, which securities were
outstanding prior to the time that the Interested Shareholder became such; (B)
pursuant to a merger with a direct or indirect wholly-owned subsidiary of the
Corporation solely for purposes of forming a holding company; (C) pursuant to a
dividend or distribution paid or made, or the exercise, exchange or conversion
of securities exercisable for, exchangeable for or convertible into shares, or
shares of any such subsidiary, which security is distributed, pro rata to all
holders of a class or series of shares subsequent to the time the Interested
Shareholder became such; (D) pursuant to an exchange offer by the Corporation to
purchase shares made on the same terms to all holders of said shares; or (E) any
issuance or transfer of shares by the Corporation; provided however, that in no
case under items (C)-(E) of this subparagraph shall there be an increase in the
Interested Shareholder's proportionate share of the any class or series of
shares;
(iv) Any transaction involving the
Corporation or any direct or indirect majority-owned subsidiary of the
Corporation which has the effect, directly or indirectly, of increasing the
proportionate share of any class or series of shares, or securities convertible
into any class or series of shares, or shares of any such subsidiary, or
securities convertible into such shares, which is owned by the Interested
Shareholder, except as a result of immaterial changes due to fractional share
adjustments or as a result of any purchase or redemption of any shares not
caused, directly or indirectly, by the Interested Shareholder; or
(v) Any receipt by the Interested
Shareholder of the benefit, directly or indirectly (except proportionately as a
shareholder of the Corporation), of any loans, advances, guarantees, pledges or
other financial benefits (other than those expressly permitted in subparagraphs
(i)-(iv) of this paragraph) provided by or through the Corporation or any direct
or indirect majority-owned subsidiary.
(4) "Control," including the terms "controlling,"
"controlled by" and "under common control with," means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a person, whether through the ownership of voting shares, by
contract or otherwise. A person who is the owner of 20 per cent. or more of the
outstanding voting shares of any corporation, partnership, unincorporated
association or other entity shall be presumed to have control of such entity, in
the absence of proof by a preponderance of the evidence to the contrary.
Notwithstanding the foregoing, a presumption of control shall not apply where
such person holds voting shares, in good faith and not for the purpose of
circumventing this provision,
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as an agent, bank, broker, nominee, custodian or trustee for one or more owners
who do not individually or as a group have control of such entity.
(5) "Interested Shareholder" means any person (other
than the Corporation and any direct or indirect majority-owned subsidiary of the
Corporation) that (i) is the owner of 15% or more of the outstanding voting
shares of the Corporation, or (ii) is an affiliate or associate of the
Corporation and was the owner of 15% or more of the outstanding voting shares of
the Corporation at any time within the three-year period immediately prior to
the date on which it is sought to be determined whether such person is an
Interested Shareholder; and the affiliates and associates of such person;
provided, however, that the term "Interested Shareholder" shall not include any
person whose ownership of shares in excess of the 15% limitation set forth
herein is the result of action taken solely by the Corporation; provided that
such person shall be an Interested Shareholder if thereafter such person
acquires additional shares of voting shares of the Corporation, except as a
result of further Company action not caused, directly or indirectly, by such
person. For the purpose of determining whether a person is an Interested
Shareholder, the voting shares of the Corporation deemed to be outstanding shall
include voting shares deemed to be owned by the person through application of
paragraph (8) below, but shall not include any other unissued shares which may
be issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
(6) "Person" means any individual, corporation,
partnership, unincorporated association or other entity.
(7) "Voting stock" means, with respect to any
corporation, shares of any class or series entitled to vote generally in the
election of directors and, with respect to any entity that is not a corporation,
any equity interest entitled to vote generally in the election of the governing
body of such entity.
(8) "Owner," including the terms "own" and "owned,"
when used with respect to any shares, means a person that individually or with
or through any of its affiliates or associates:
(i) Beneficially owns such shares, directly
or indirectly; or
(ii) Has (A) the right to acquire such
shares (whether such right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding, or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise; provided, however, that a person shall not be deemed the owner of
shares tendered pursuant to a tender or exchange offer made by such person or
any of such person's affiliates or associates until such tendered shares is
accepted for purchase or exchange; or (B) the right to vote such shares pursuant
to any agreement, arrangement or understanding; provided, however, that a person
shall not be deemed the owner of any shares because of such person's right to
vote such shares if the agreement, arrangement or understanding to vote such
shares arises solely from a revocable proxy or consent given in response to a
proxy or consent solicitation made to 10 or more persons; or
(iii) Has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting (except voting
pursuant to a revocable proxy or consent as described in item (B) of
subparagraph (ii) of this paragraph), or disposing of such shares with any other
person that beneficially owns, or whose affiliates or associates beneficially
own, directly or indirectly, such shares.
(d) Any amendment of this Article Ninth shall not be effective
until 12 months after the approval of such amendment at a meeting of the
shareholders of the Corporation and shall not apply to any Business Combination
between the Corporation and any person who became an Interested Shareholder of
the Corporation at or prior to the time of such approval.
(e) Notwithstanding any other provisions of these Articles of
Incorporation or the by-laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, these Articles of
Incorporation or the by-laws of the Corporation), the affirmative vote of the
holders of 80% or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as one class) shall be required to amend, alter, change or
repeal this Article Ninth.
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TENTH. A director of the Corporation shall not be personally liable to
the Corporation or its shareholders for monetary damages for any breach of duty
in such capacity except that the liability of a director shall not be eliminated
or limited if a judgment or other final adjudication adverse to the director
establishes that his/her acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that the director
personally gained in fact a financial profit or other advantage to which the
director was not legally entitled. If the BCA hereafter is amended to authorize
the further elimination or limitation of the liability of directors for actions
taken or omitted to be taken then the liability of a director of the
Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended BCA in
respect of actions or omissions to act which occurred during any period to which
the BCA's amended provisions pertain. Any repeal or modification of this
paragraph by the shareholders of the Corporation shall be prospective only, and
shall not adversely affect any limitation on the personal liability of the
director existing at the time of such repeal or modification.
IN WITNESS WHEREOF, General Maritime Corporation, has caused these
Amended and Restated Articles of Incorporation to be signed by Peter C.
Georgiopoulos, its President and Chief Executive Officer, and attested by
James C. Christodoulou, its Secretary, on the __ day of November, 2000.
GENERAL MARITIME CORPORATION
By /s/ Peter C. Georgiopoulos
----------------------------
Name: Peter C. Georgiopoulos
Title: President and Chief
Executive Officer
Attest:
By /s/ James C. Christodoulou
----------------------------
Name: James C. Christodoulou
Title: Secretary
