RESTATED CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL SHIPHOLDING CORPORATION
We, the undersigned, Erik F. Johnsen and George
Denegre, being respectively the President and Secretary of
International Shipholding Corporation (the "Company"), a
corporation organized and existing under the laws of the
State of Delaware, do hereby certify as follows:
1. The name of the Company is International
Shipholding Corporation.
2. The Company's original Certificate of
Incorporation was filed with the Secretary of State of
Delaware on October 20, 1978.
3. Pursuant to Section 242 of the Delaware General
Corporation Law (the "DGCL"), an amendment to the Company's
Certificate of Incorporation to add a new Article V thereto
to provide for limitations on ownership of the Company's
capital stock by non-U.S. citizens has been duly adopted by
resolution of the Board of Directors of the Company and
approved by the holders of the Company's Common Stock
entitled to so vote on April 17, 1996.
4. Pursuant to Section 245 of the DGCL, this Restated
Certificate of Incorporation was duly adopted by the Board
of Directors of the Company and restates and integrates the
provisions of the Company's Certificate of Incorporation as
theretofore amended or supplemented, provides for the
deletion of provisions intentionally omitted in reliance
upon Section 245(c) of the DGCL, and also further amends the
Company's Certificate of Incorporation by adding a new
Article V thereto.
5. As so further amended, the text of the Restated
Certificate of Incorporation of the Company shall read in
its entirety as follows:
ARTICLE I
The name of the Company is INTERNATIONAL SHIPHOLDING
CORPORATION.
ARTICLE II
The registered office of the Company is to be located
at 1209 Orange Street in the City of Wilmington, County of
New Castle, State of Delaware. The name of its registered
agent at such address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted
or promoted is:
To carry on and conduct any and every kind of
manufacturing, distribution and service business; to
manufacture, process, fabricate, rebuild, service, purchase
or otherwise acquire, to design, invent or develop, to
import or export, and to distribute, lease, sell, assign or
otherwise dispose of and generally deal in and with raw
materials, products, goods, wares, merchandise and real and
personal property of every kind and character; and to
provide services of every kind and character.
To conduct any lawful business, to exercise any lawful
purpose and power, and to engage in any lawful act or
activity for which corporations may be organized under the
General Corporation Law of Delaware.
In general, to possess and exercise all the powers and
privileges granted by the General Corporation Law of
Delaware or by any other law of Delaware or by this
Certificate of Incorporation, together with any powers
incidental thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or
attainment of the business or purposes of the Company.
ARTICLE IV
A. General.
1. The total number of shares of stock that the
Company shall have authority to issue is eleven million
shares, of which ten million shall be common stock with a
par value of $1.00 per share (the "Common Stock") and one
million shall be preferred stock with a par value of $1.00
per share (the "Preferred Stock").
2. Shares of stock of any class now or hereafter
authorized may be issued by the Company from time to time
for such consideration (not less than the par value thereof
if there be a par value) as shall be fixed from time to time
by the Board of Directors of the Company. Any and all
shares of stock so issued for which the consideration so
fixed has been paid or delivered to the Company shall be
declared and taken to be fully paid stock and shall not be
liable to any further call or assessment thereon, and the
holders of such shares shall not be liable for any further
payments in respect of such shares. Subscriptions to, or
the purchase price of, shares of stock of the Company may be
paid for, wholly or partly, by cash, by labor done, by
personal property, or by real property or leases thereof.
In the absence of actual fraud in the transaction, the
judgment of the directors as to the value of such labor,
personal property, real estate or leases thereof shall be
conclusive.
3. Any and all right, title, interest and claim
in or to any dividends declared by the Company, whether in
cash, stock or otherwise, which are unclaimed by the
stockholder entitled thereto for a period of six years after
the close of business on the payment date, shall be and be
deemed to be extinguished and abandoned; and such unclaimed
dividends in the possession of the Company, its transfer
agents or other agents or depositaries, shall at such time
become the absolute property of the Company, free and clear
of any and all claims of any person or entity whatsoever.
4. The designation and the powers, preferences,
rights, qualifications, limitations and restrictions
applicable to the Common Stock and the Preferred Stock shall
be, or shall be determined, as hereinafter set forth.
B. Common Stock.
1. Dividend Rights. Subject to the provisions
of law and the preferences of the Preferred Stock and of any
other stock ranking prior to Common Stock as to dividends,
the holders of Common Stock will be entitled to receive
dividends when, as and if declared by the Board of
Directors.
2. Voting Rights. Except as otherwise provided
by law or pursuant to this Article IV, the holders of Common
Stock shall be entitled to one vote, in person or by proxy,
for each share held on each matter submitted to a vote of
the shareholders of the Company. Except as otherwise
provided by law, by the Certificate of Incorporation or by
resolution or resolutions of the Board of Directors
providing for the issue of any series of Preferred Stock,
the holders of Common Stock will have sole voting power.
3. Liquidation Rights. In the event of any
liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, after payment or provision
for payment of the debts and other liabilities of the
Company and the preferential amounts to which the holders of
any stock ranking prior to the Common Stock in the distribu
tion of assets are entitled upon liquidation, the holders of
the Common Stock and the holders of any other stock ranking
on a parity with the Common Stock in the distribution of
assets upon liquidation will be entitled to share in the
remaining assets of the Company according to their
respective interests.
C. Preferred Stock.
1. Authority of the Board of Directors to Issue
in Series. Preferred Stock may be issued from time to time
in one or more series. All shares of any one series of
Preferred Stock shall be identical except as to the dates of
issue and the dates from which dividends on shares of the
series issued on different dates will cumulate, if
cumulative. Authority is hereby expressly granted to the
Board of Directors to authorize the issue of one or more
series of Preferred Stock, and to fix by resolution or
resolutions providing for the issue of each such series the
voting powers, designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of such
series, to the full extent now or hereafter permitted by
law, including, but not limited to, the following:
(a) The number of shares of such series, which
may subsequently be increased, except as otherwise provided
by the resolution or resolutions of the Board of Directors
providing for the issue of such series, or decreased, to a
number not less than the number of shares then outstanding,
by resolution or resolutions of the Board of Directors, and
the distinctive designation thereof;
(b) The dividend rights of such series, the
preferences, if any, over any other class or series of
stock, or of any other class or series of stock over such se
ries, as to dividends, the extent, if any, to which shares
of such series will be entitled to participate in dividends
with shares of any other series or class of stock, whether
dividends on shares of such series will be fully, partially
or conditionally cumulative, or a combination thereof, and
any limitations, restrictions or conditions on the payment
of such dividends;
(c) The rights of such series, and the
preferences, if any, over any other class or series of
stock, or of any other class or series of stock over such se
ries, in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and
the extent, if any, to which shares of any such series will
be entitled to participate in such event with any other
series or class of stock;
(d) The time or times during which, the price or
prices at which, and the terms and conditions on which the
shares of such series may be redeemed;
(e) The terms of any purchase, retirement or
sinking funds which may be provided for the shares of such
series;
(f) The terms and conditions, if any, upon which
the shares of such series will be convertible into or
exchangeable for shares of any other series, class or
classes, or any other securities;
(g) The voting powers, if any, of such series.
2. Limitation on Dividends. No holders of any
series of Preferred Stock will be entitled to receive any
dividends thereon other than those specifically provided for
by the Certificate of Incorporation or the resolution or
resolutions of the Board of Directors providing for the
issue of such series of Preferred Stock, nor will any accu
mulated dividends on Preferred Stock bear any interest.
3. Limitation on Liquidating Distributions. In
the event of any liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary, the holders
of Preferred Stock of each series will be entitled to
receive only such amount or amounts as will have been fixed
by the Certificate of Incorporation or by the resolution or
resolutions of the Board of Directors providing for the
issue of such series. A consolidation or merger of the
Company with or into one or more other corporations or a
sale, lease or exchange of all or substantially all of the
assets of the Company will not be deemed to be a voluntary
or involuntary liquidation, dissolution or winding up,
within the meaning of this Article IV.
ARTICLE V
A. Purpose. The provisions of this Article V are
intended to assure that the Company remains in continuous
compliance with the citizenship requirements of the Merchant
Marine Act, 1920, as amended, the Merchant Marine Act, 1936,
as amended, the Shipping Act, 1916, as amended, and the
regulations promulgated thereunder, as such laws and
regulations are amended from time to time (collectively, the
"Maritime Laws"). It is the policy of the Company that Non-
Citizens should not Beneficially Own, individually or in the
aggregate, any shares of the Company's Capital Stock in
excess of the Permitted Amount. If the Board of Directors
of the Company should conclude in its sole discretion at any
time that Non-Citizens have become, or are about to become,
the Beneficial Owners, individually or in the aggregate, of
shares of Capital Stock in excess of the Permitted Amount,
the Board of Directors may by resolution duly adopted
declare that any or all of the provisions of subparagraphs
C, D and E of this Article V shall apply.
B. Definitions. For purposes of this Article V, the
following terms shall have the meanings specified below:
1. A Person shall be deemed to be the "Beneficial
Owner" of, or to "Beneficially Own," shares of Capital Stock
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
Securities Exchange Act of 1934, as such rule may be amended
from time to time.
2. "Capital Stock" shall mean any class or series of
capital stock of the Company other than any class or series
of capital stock of the Company that is permitted by the
Maritime Administration of the United States Department of
Transportation ("MARAD") to be excluded from the
determination of whether the Company is in compliance with
the citizenship requirements of the Maritime Laws.
3. "Citizen" shall mean:
(a) any individual who is a citizen of the United
States, by birth, naturalization or as otherwise authorized
by law;
(b) any corporation (i) that is organized under the
laws of the United States or of a state, territory, district
or possession thereof, (ii) not less than 75% of the capital
stock of which is Beneficially Owned by Persons who are
Citizens, (iii) whose president or chief executive officer,
chairman of the board of directors and all officers
authorized to act in the absence or disability of such
Persons are Citizens and (iv) of which more than 50% of the
number of its directors necessary to constitute a quorum are
Citizens;
(c) any partnership (i) that is organized under the
laws of the United States or of a state, territory, district
or possession thereof, (ii) all general partners of which
are Citizens and (iii) not less than a 75% interest in which
is Beneficially Owned by Persons who are Citizens;
(d) any association or limited liability company (i)
that is organized under the laws of the United States or of
a state, territory, district or possession thereof, (ii)
whose president or chief executive officer (or the Person
serving in an equivalent position), chairman of the board of
directors (or equivalent position) and all Persons
authorized to act in the absence or disability of such
Persons are Citizens, (iii) not less than a 75% interest in
which or 75% of the voting power of which is Beneficially
Owned by Citizens and (iv) of which more than 50% of the
number of its directors (or the Persons serving in
equivalent positions) necessary to constitute a quorum are
Citizens;
(e) any joint venture (if not an association,
corporation or partnership) (i) that is organized under the
laws of the United States or of a state, territory, district
or possession thereof and (ii) all co-venturers of which are
Citizens; and
(f) any trust (i) that is domiciled in and existing
under the laws of the United States or of a state,
territory, district or possession thereof, (ii) the trustee
of which is a Citizen and (iii) of which not less than a 75%
of the beneficial interests in both income and principal are
held for the benefit of Citizens.
4. "Non-Citizen" shall mean any Person other than a
Citizen.
5. "Permitted Amount" shall mean shares of Capital
Stock that, individually or in the aggregate (a) have Voting
Power not in excess of 23% of Total Voting Power or (b)
constitute not more than 23% of the total number of the
issued and outstanding shares of Capital Stock; provided
that, if the Maritime Laws are amended to change the amount
of Capital Stock that a Non-Citizen may own or have the
power to vote, then the Permitted Amount shall be changed to
a percentage that is two percentage points less than the
percentage that would cause the Company to be no longer
qualified under the Maritime Laws, after giving effect to
such amendment, as a Citizen qualified to (i) engage in
coastwise trade, (ii) participate in MARAD's Title XI or
comparable financing programs, or (iii) participate in
operating differential subsidies or similar programs.
6. "Person" shall mean an individual, partnership,
corporation, limited liability company, trust, joint venture
or other entity.
7. "Total Voting Power" shall mean the total number
of votes that may be cast by all outstanding shares of
Capital Stock having Voting Power.
8. "Voting Power" shall mean the power to vote with
respect to the election of the Company's directors.
C. Restrictions on Transfer.
1. Any transfer, or attempted or purported transfer,
of any shares of the Capital Stock of the Company or any
interest therein or right thereof, that would result in the
Beneficial Ownership by Non-Citizens, individually or in the
aggregate, of shares of Capital Stock in excess of the
Permitted Amount will, until such excess no longer exists,
be void and ineffective as against the Company and the
Company will not recognize, with respect to those shares
that caused the Permitted Amount to be exceeded, the
purported transferee as a stockholder of the Company for any
purpose other than the transfer by the purported transferee
of such excess to a person who is not a Non-Citizen or to
the extent necessary to effect any other remedy available to
the Company under this Article V.
2. The Board of Directors is hereby authorized to
effect any and all measures necessary or desirable
(consistent with applicable law and the provisions of this
Certificate of Incorporation) to fulfill the purpose and
implement the provisions of this Article V, including
without limitation, obtaining, as a condition to recording
the transfer of shares on the stock records of the Company,
affidavits or other proof as to the citizenship of existing
or prospective stockholders on whose behalf shares of the
Capital Stock of the Company or any interest therein or
right thereof are or are to be held, or establishing and
maintaining a dual stock certificate system under which
different forms of stock certificates representing
outstanding shares of the Capital Stock of the Company are
issued to Citizens or Non-Citizens.
D. Suspension of Voting, Dividend and Distribution
Rights with Respect to Excess Shares. If any shares of
Capital Stock in excess of the Permitted Amount are
Beneficially Owned by Non-Citizens, individually or in the
aggregate, any such excess shares determined in accordance
with this subparagraph D (the "Excess Shares"), shall, until
such excess no longer exists, not be entitled to (1) receive
any dividends or distributions of assets declared payable or
paid to the holders of the Capital Stock of the Company
during such period or (2) vote with respect to any matter
submitted to a vote of the stockholders of the Company, and
such Excess Shares shall not be deemed to be outstanding for
purposes of determining the vote required on any matter
properly submitted to a vote of the stockholders of the
Company. At such time as the Permitted Amount is no longer
exceeded, full voting rights shall be restored to any shares
previously deemed to be Excess Shares, and any dividends or
distributions with respect thereto that have been withheld
shall be due and paid to the holders of such shares. If the
number of shares of Capital Stock Beneficially Owned by Non-
Citizens is in excess of the Permitted Amount, the shares
deemed to be Excess Shares for purposes of this Article V
will be those shares Beneficially Owned by Non-Citizens that
the Board of Directors determines became so Beneficially
Owned most recently, and such determination shall be
conclusive.
E. Redemption of Excess Shares. The Company shall
have the power, but not the obligation, to redeem Excess
Shares subject to the following terms and conditions:
1. The per share redemption price (the "Redemption
Price") to be paid for the Excess Shares to be redeemed
shall be the sum of (a) the average closing sales price of
the Capital Stock and (b) any dividend or distribution
declared with respect to such shares prior to the date such
shares are called for redemption hereunder but which has
been withheld by the Company pursuant to subparagraph D. As
used herein, the term "average closing sales price" shall
mean the average of the closing sales prices of the Capital
Stock on the New York Stock Exchange during the 10 trading
days immediately prior to the date the notice of redemption
is given; except that, if the Capital Stock is not traded on
the New York Stock Exchange then the closing sales prices of
the Capital Stock on any other national securities exchange
selected by the Company on which such Capital Stock is
listed, and if not listed on any national securities
exchange, the closing sales prices as quoted on the Nasdaq
National Market, and if not so quoted, the mean between the
representative bid and ask prices as quoted by Nasdaq or
another generally recognized reporting system, on each of
such 10 trading days, and if not so quoted, as may be
determined in good faith by the Board of Directors.
2. The Redemption Price may be paid in cash or by
delivery of a promissory note of the Company, at the
election of the Company. Any such promissory note shall
have a maturity of not more than 10 years from the date of
issuance and shall bear interest at the rate equal to the
then current coupon rate of a 10-year Treasury note as such
rate is published in The Wall Street Journal or comparable
publication.
3. A notice of redemption shall be given by first
class mail, postage prepaid, mailed not less than 10 days
prior to the redemption date to each holder of record of the
shares to be redeemed, at such holder's address as the same
appears on the stock records of the Company. Each such
notice shall state (a) the redemption date, (b) the number
of shares of Capital Stock to be redeemed from such holder,
(c) the Redemption Price, and the manner of payment thereof,
(d) the place where certificates for such shares are to be
surrendered for payment of the Redemption Price, and (e)
that dividends on the shares to be redeemed will cease to
accrue on such redemption date.
4. From and after the redemption date, dividends on
the shares of Capital Stock called for redemption shall
cease to accrue and such shares shall no longer be deemed to
be outstanding and all rights of the holders thereof as
stockholders of the Company (except the right to receive
from the Company the Redemption Price) shall cease. Upon
surrender of the certificates for any shares so redeemed in
accordance with the requirements of the notice of redemption
(properly endorsed or assigned for transfer if the notice
shall so state), such shares shall be redeemed by the
Company at the Redemption Price. In case fewer than all
shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the shares not
redeemed without cost to the holder thereof.
5. Such other terms and conditions as the Board of
Directors may reasonably determine.
ARTICLE VI
In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized at any regular or special meeting thereof,
without stockholder approval:
1. To make By-laws for the Company, and to amend,
alter or repeal any By-laws.
2.
2. To authorize and cause to be executed mortgages and
liens upon the real and personal property of the Company.
3. To authorize the borrowing of money; the issuance of
bonds, notes, debentures and other obligations or evidences of
indebtedness of the Company, secured or unsecured, and the
inclusion of provisions as to redeemability and convertibility
into shares of stock of the Company or otherwise.
4. To authorize the purchase or other acquisition of
shares of stock of the Company or any of its bonds, debentures,
notes or other securities or evidences of indebtedness.
5. To determine from time to time whether and to what
extent, and at what times and places, and under what conditions
and regulations, the accounts and books of the Company, or any of
them, shall be open to the inspection of the stockholders; and no
stockholder shall have any right to inspect any account book or
document of the Company, except as conferred by statute or
authorized by the Board of Directors, or by resolution of the
stockholders.
6. To set apart out of the funds of the Company available
for dividends a reserve or reserves for any proper purposes and
to abolish any such reserve in the manner in which it was
created.
7. To designate one or more committees, each committee to
consist of two or more directors of the Company. Any such
committee, to the extent provided in the resolution or in the By-
laws of the Company, shall have and may exercise the power of the
Board of Directors in the management of the business and affairs
of the Company, and may authorize the seal of the Company to be
affixed to all papers which may require it. The Board of
Directors may designate one or more of the directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of the committee; provided,
however, the By-laws may provide that in the absence or
disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member.
8. To provide indemnification to the full extent permitted
by Delaware law.
ARTICLE VII
The number of directors of the Company shall be fixed from
time to time by, or in the manner provided in, its By-laws and
may be increased or decreased as therein provided. Election of
directors need not be by ballot unless the By-laws so provide.
The directors of the Company shall be elected annually by the
stockholders and shall hold office until their respective
successors are duly elected and qualified. The By-laws may
prescribe the number of directors necessary to constitute a
quorum.
ARTICLE VIII
Meetings of stockholders may be held within or without the
State of Delaware, as the By-laws may provide. The books of the
Company may be kept (subject to any provisions contained in the
statutes) outside the State of Delaware at such place or places
as may be designated from time to time by the Board of Directors
or in the By-laws of the Company. Any corporate action upon
which a vote of stockholders is required or permitted may be
taken without a meeting and vote of stockholders with the written
consent of stockholders having not less than a majority of the
total number of votes entitled to be cast upon the action, or
such larger percentage required by statute, if a meeting were
held. Prompt notice shall be given to all stockholders of the
taking of corporate action without a meeting by less than
unanimous written consent.
ARTICLE IX
The Company reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorpora
tion, in the manner now or hereafter prescribed by statute, and
all rights conferred upon stockholders herein are granted subject
to this reservation.
ARTICLE X
No director shall be personally liable to the Company or its
stockholders for monetary damages for any breach of fiduciary
duty by such director as a director, except (i) for breach of the
director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the Delaware General Corporation Law,
or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this
Article X shall apply to or have any effect on the liability or
alleged liability of any director of the Company for or with
respect to any acts or omissions of such director occurring prior
to such amendment or repeal.
____________________________________________
6. This Restated Certificate of Incorporation shall
be effective upon its filing with the Secretary of State of
Delaware pursuant to Section 103 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, International Shipholding Corporation
has caused this certificate to be signed by Erik F. Johnsen, its
President and attested by George Denegre, its Secretary, this
17th day of April, 1996.
INTERNATIONAL SHIPHOLDING CORPORATION
BY:/S/ Erik F. Johnsen, President
______________________________________
Erik F. Johnsen, President
CORPORATE SEAL
ATTEST:
BY: /S/George Denegre, Secretary
_________________________________________
George Denegre, Secretary