Exhibit 3.1 AMENDED AND RESTATED ARTICLES OF INCORPORATION OF CAPITAL MARITIME & TRADING CORP. UNDER SECTION 93 OF THE BUSINESS CORPORATIONS ACT, 1990, AS AMENDED OF THE REPUBLIC OF THE MARSHALL ISLANDS ARTICLE I Amendment of Original Articles (a) These Amended and Restated Articles of Incorporation of Capital Maritime & Trading Corp. (hereinafter the "Corporation") shall replace in their entirety all sections of the Articles of Incorporation of Capital Maritime & Trading Corp., filed with the Registrar of Corporations on March 10, 2005. (b) These Amended and Restated Articles of Incorporation of the Corporation have been authorised by the shareholders of the Corporation pursuant to Section 88(1) of the Republic of the Marshall Islands Business Corporations Act, 1990, as amended (the "BCA") and have been amended and restated pursuant to Section 93 of the BCA. ARTICLE II Name The name of the Corporation shall be: Capital Maritime & Trading Corp. ARTICLE III Address; Registered Agent The address of the Corporation's registered office in the Republic of the Marshall Islands shall be Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960. The name of the Corporation's registered agent at such address shall be The Trust Company of the Marshall Islands, Inc. ARTICLE IV Purpose 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 Marshall Islands Business Corporations Act. ARTICLE V Capital Stock Section 1. Authorized Capital Stock. The Corporation shall have authority to issue two classes of stock to be designated, respectively, the "Common Stock" and "Preferred Stock", in a total number of 205,000,000 shares. The Corporation shall have authority to issue 200,000,000 shares of common stock, par value $0.001 per share (the "Common Stock"), and 5,000,000 shares of preferred stock, par value $0.001 per share (the "Preferred Stock"). Exhibit 3.1 Section 2. Preferred Stock. The Board of Directors shall have the authority to establish preferred shares in one or more series and with such designations, preferences and relative, participating, optional or special rights and qualifications, limitations or restrictions as shall be stated in the resolutions providing for the issue of such preferred shares which shall be filed in accordance with Section 35 of the BCA. The powers, preferences and relative, participating, optional and other special rights of each series of preferred stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. Section 3. No Preemptive Rights. Shareholders of the Corporation shall have no conversion, redemption or preemptive rights to subscribe to any of the Corporation's securities. ARTICLE VI Directors Section 1. Board of Directors. (a) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. (b) The initial Board of Directors shall consist of seven directors. Subsequent to the establishment of the initial directors, the exact number of directors comprising the entire Board shall be not less than three nor more than twelve (subject to any rights of the holders of Preferred Stock to elect additional directors under specified circumstances) as determined from time to time by resolution adopted by the affirmative vote of a majority of the entire Board. (c) Directors shall be elected by a majority 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 Section 71(2) of the BCA, shall not be used to elect directors. (d) Until such time as the Permitted Holder shall no longer own shares representing at least forty point one percent (40.1%) of the Voting Power (the "Trigger Date"), the term of each director of the Corporation shall expire at the next annual meeting of shareholders following such director's election and until such director's successor shall have been elected and qualified. Effective on and after the Trigger Date, the term of each director shall be determined as described in Section 3, of this Article VI. As used herein, the term "Permitted Holder" shall mean any of Evangelos M. Marinakis, his spouse, his parents, his issue or issue thereof, any Estate Planning Vehicle, or a Person Controlled by any one or a group of them. As used herein, "Person" shall mean any individual, corporation, partnership, unincorporated association or other entity. As used in these Articles, the term "Control" (including the terms "Controlled By" and "Under Common Control With"), with respect to the relationship between or among two or more Persons, shall mean both (a)the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of such subject Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise, and (b)ownership, directly or indirectly, of a majority of the equity securities or equity interests of such subject Person. As used herein, the term "Estate Planning Vehicle" shall mean a trust, partnership, or Exhibit 3.1 foundation, the principal beneficiaries or partners of which may include any one or more of Evangelos M. Marinakis, his spouse, his parents, his issue, or issue thereof. As used herein, "Voting Stock" shall mean the issued and outstanding shares of any class or series. As used herein, "Voting Power" shall mean the number of votes of the Voting Stock. Section 2. Removal; Filling of Newly Created Directorships and Vacancies. (a)Prior to the Trigger Date, and subject to the rights of the holders of any series of preferred stock then outstanding, any director or the entire Board may be removed, with or without cause, by the affirmative vote of a majority of the Voting Power. Notwithstanding the foregoing, whenever holders of outstanding shares of one or more series of preferred stock are entitled to elect directors of the Corporation pursuant to the provisions contained in the resolution or resolutions of the Board providing for the establishment of any such series, any such director of the Corporation so elected may be removed in accordance with the provisions of such resolution or resolutions. (b) Prior to the Trigger Date, newly created directorships resulting from any increase in the number of directors shall be filled by the Board by the affirmative vote of a majority of the directors then in office, or by the shareholders by the affirmative vote of the holders of a majority of the Voting Power, voting together as a single class. Prior to the Trigger Date, any vacancies on the Board resulting from death, resignation, removal or other cause shall be filled by the Board by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board, or by a sole remaining director, or by the shareholders by the affirmative vote of the holders of a majority of the Voting Power. Section 3. Effect of Trigger Date. (a)Effective on and after the Trigger Date, 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 each of the three classes expiring successively each year. As soon as practicable after the Trigger Date, the shareholders of the Corporation shall hold a meeting to divide the Board of Directors into three classes, with the term of office of the first class to expire at the first Annual Meeting of Shareholders to be held after the Trigger Date, the term of office of the second class to expire at the second Annual Meeting of Shareholders to be held after the Trigger Date, and the term of office of the third class to expire at the third Annual Meeting of Shareholders. (b) Commencing with the first Annual Meeting of Shareholders to be held after the Trigger Date, 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. (c) Effective on and after the Trigger Date, 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 a majority of the members of the Board of Directors then in office, although less than a quorum, or by a sole remaining director, 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 Exhibit 3.1 expire at the next succeeding annual meeting of shareholders. (d) Effective on and after the Trigger Date, 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 not less than 66 2/3% of the Voting Power 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 subsection (d) of this Section 3, of this Article VI shall not apply with respect to the director or directors elected by such holders of preferred stock. Section 4. Advance Notice of Nominations. Subject to Section 3 of Article VII, Advance notice of nominations for the election of directors shall be given in the manner and to the extent provided in the By-laws of the Corporation. Section 5. Limitation on Director Liability. To the fullest extent that the BCA or any other law of the Republic of the Marshall Islands as it exists or as it may hereafter be amended permits the limitation or elimination of the liability of directors, no director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for actions taken in their capacity as director or officer of the Corporation, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of such director's duty of loyalty to the Corporation or its shareholders, (ii) for acts or omissions not undertaken in good faith or which involve intentional misconduct or a knowing violation of law or (iii) for any transactions from which such director derived an improper personal benefit. No amendment to or repeal of this Section 5 of this Article VI shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. ARTICLE VII Shareholder Meetings Section 1. Meetings Generally. Meetings of shareholders may be held within or without the Republic of the Marshall Islands, as the By-laws of the Corporation may provide. The books of the Corporation may be kept (subject to any provision of Marshall Islands law) outside the Republic of the Marshall Islands at such place or places as may be designated from time to time by the Board or in the By-laws of the Corporation. Section 2. Special Meetings. Until the Trigger Date, special meetings of the shareholders shall be called only (i) upon the written request of (x) the Permitted Holder or (y) the holders of not less than a majority of the Voting Power; or (ii) upon the request of a majority of the Board. Effective on and after the Trigger Date, special meetings of the shareholders shall be called only (i) upon the request of a majority of the Board; or (ii) upon the written request of the Permitted Holder. In the event that a special meeting is not called promptly following a written request for a special meeting, the Person entitled to request a special meeting pursuant to this Section 2 of this Article VII may call the special meeting. Special meetings of the shareholders may be held at such time and place as may be stated in the notice of meeting. Section 3. Advance Notice Requirements. So long as the Permitted Holder owns forty point one percent (40.1%) or more of the Voting Power, nominations and shareholder proposals by the Permitted Holder, as such, shall not be subject to the advance notice procedures of the BCA and not of the By-laws of the Corporation. Exhibit 3.1 Section 4. Amendments to this Article. Notwithstanding any other provisions of these Amended and Restated Articles of Incorporation or the By-laws of the Corporation to the contrary (and notwithstanding the fact that some lesser percentage may be specified by law), the affirmative vote of the holders of not less than 66 2/3 % of the Voting Power shall be required to amend, alter, change or repeal this Article VII. ARTICLE VIII Action by Written Consent Any action required or permitted to be taken at any annual or special meeting of the shareholders 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, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE IX By-laws 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, unless by the affirmative vote of not less than 66 2/3% of the Voting Power. Notwithstanding any other provisions of these Amended and Restated Articles of Incorporation or the By-laws of the Corporation to the contrary (and notwithstanding the fact that some lesser percentage may be specified by law), the affirmative vote of not less than 66 2/3 % of the Voting Power shall be required to amend, alter, change or repeal this Article IX. ARTICLE X Amendment of Articles Until the Trigger Date, the affirmative vote of a majority of the Voting Power (considered for this purpose as one class) shall be required to amend, alter, change or repeal these Amended Articles of Incorporation. Effective on and after the Trigger Date, the affirmative vote of not less than 80% of the Voting Power (considered for this purpose as one class) shall be required to amend, alter, change or repeal these Articles of Incorporation. ARTICLE XI Business Combinations (a) This Article XI shall be effective on and after the Trigger Date. (b) 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: (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) at or subsequent to the expiration of such three year period, the Business Combination is approved by the Board of Directors and authorized at an annual or special meeting of shareholders of the corporation, and not by written consent, by the affirmative Exhibit 3.1 vote of at least 66 2/3 % of the Voting Power that is not owned by the Interested Shareholder; or (3) the shareholder became an Interested Shareholder prior to the consummation of the initial public offering of the Corporation's common stock under the United States Securities Act of 1933. (c) The restrictions contained in this section shall not apply if: (1) A shareholder becomes an Interested Shareholder inadvertently and (A)as soon as practicable divests itself of ownership of sufficient shares so that the shareholder ceases to be an Interested Shareholder; and (B)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, after the earlier of either the public announcement or the notice, but before the consummation or abandonment, of a transaction that 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. (d) As used in this Article XI, 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. (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)any other Person 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 66 2/3 % 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; Exhibit 3.1 (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 of the Corporation, or any shares 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 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 percent 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, 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 Voting Power of the Corporation, or (ii)is an Affiliate or Associate of the Corporation and was the owner of 15% or more of the Voting Power of the Corporation at any time within the three-year period immediately prior to the date on Exhibit 3.1 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 or by any Permitted Holder; provided that such Person shall be an Interested Shareholder if thereafter such Person acquires additional shares of voting shares of the Corporation, other than as a result of further action taken by the Corporation 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 (6) 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) "Owner," including the terms "own" and "owned," when used with respect to any shares of the Corporation, 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 are 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. (e) Any amendment of this Article XI 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. (f) Notwithstanding any other provisions of these Amended and Restated Articles of Incorporation or the By-laws of the Corporation to the contrary (and notwithstanding the fact that some lesser percentage may be specified by law), the affirmative vote of not less than 66 2/3 % of the Voting Power 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 XI. Exhibit 3.1 ARTICLE XII Share Capital Under Article V, the Corporation has the authority to issue two hundred million (200,000,000) shares of Common Stock with a par value of $0.001 and five million (5,000,000) shares of Preferred Stock with par value of $ 0.001. Prior to this amendment, the Corporation was authorized to issue five hundred (500) shares of Common Stock, no par value. These shares had been issued and they were cancelled and replaced by shares of Common Stock with a par value of $0.001. Pursuant to these Amended and Restated Articles of Incorporation, the total share capital of the Corporation shall be represented exclusively by the two hundred million shares of Common Stock authorized in Article V of these Amended and Restated Articles of Incorporation. IN WITNESS WHEREOF, I, John Palios, Secretary of Capital Maritime & Trading Corp., have executed these Amended and Restated Articles of Incorporation as of this 24th day of June, 2005. /s/ John Palios ---------------------- Name: John Palios Title: Secretary
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F-1/A Filing
Capital Maritime & Trading F-1/ARegistration statement (foreign) (amended)
Filed: 24 Jun 05, 12:00am