AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
QUINTANA MARITIME LIMITED
UNDER SECTION 93 OF THE BUSINESS CORPORATIONS ACT
The undersigned, Paul J. Cornell, Chief Financial Officer of Quintana Maritime
Limited (the "Corporation"), a corporation incorporated under the laws of the
Republic of the Marshall Islands, for the purpose of amending and restating the
Articles of Incorporation of the Corporation pursuant to Section 93 of the
Business Corporations Act, hereby certifies that:
1. The name of the Corporation is: QUINTANA MARITIME LIMITED.
2. The Articles of Incorporation of the Corporation were filed with the
Registrar of Corporations as of the 13th day of January, 2005.
3. These Amended and Restated Articles of Incorporation amend and restate and
integrate the Articles of Incorporation of the Corporation.
4. The Articles of Incorporation of the Corporation are hereby amended and
restated in their entirety to read as follows:
A. The name of the Corporation shall be:
QUINTANA MARITIME LIMITED
B. Purpose: The purpose of the Corporation is to engage in any lawful act
or activity which corporations now or hereafter organized under the
Marshall Islands Business Corporations Act (the "BCA") may engage.
C. Registered Address: The registered address of the Corporation in the
Marshall Islands is Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro, Marshall Islands MH96960. The name of the Corporation's registered
agent at such address is The Trust Company of the Marshall Islands, Inc.
D. Authorized Capital Stock: The aggregate number of shares of stock that
the Corporation shall have authority to issue is one hundred ten million
(110,000,000), consisting of common stock and preferred stock.
(i) Number of Shares of Common Stock. The aggregate number of shares
of common stock that the Corporation is authorized to issue is one hundred
million (100,000,000) registered shares with a par value of United States
one cent (U.S. $.01) per share (the "Common Stock").
(ii) Number of Shares of Preferred Stock. The aggregate number of
shares of preferred stock that the Corporation is authorized to issue is
ten million (10,000,000)
1
registered shares with a par value of United States one cent (U.S. $.01)
per share (the "Preferred Stock").
E. Classes and Characteristics of the Shares.
(i) Preferred Stock. The shares of Preferred Stock may be issued from
time to time in one or more series. The Board of Directors is hereby vested
with authority to fix by resolution or resolutions the designations and the
powers, preferences and relative, participating, optional or other rights
and qualifications, limitations or restrictions thereon, including without
limitation, the dividend rate, conversion rights, redemption price and
liquidation preference, of such series of Preferred Stock, and to fix the
number of shares constituting any such series, and to increase or decrease
the number of shares of any series of Preferred Stock (but not below the
number of shares thereof then outstanding). In case the number of shares of
any series shall be decreased, the shares constituting such decrease shall
resume the status of undesignated shares of Preferred Stock.
(ii) Common Stock. The following is a statement of the preferences,
limitations and relative rights of the Common Stock of the Corporation:
(a) Except as otherwise provided by law, the provisions of these
Articles of Incorporation shall not be modified, revised, altered or
amended, repealed or rescinded in whole or in part, without the approval of
a majority of the votes entitled to be cast by the holders of the Common
Stock; provided, however, that with respect to any proposed amendment of
these Articles of Incorporation (including any statement setting forth a
copy of a resolution of the Board of Directors relating to the issuance of
any series of Preferred Stock executed, acknowledged, and filed in
accordance with section 5 of the BCA) which would alter or change the
powers, preferences or special rights of any series of Preferred Stock so
as to affect them adversely, the approval of a majority of the votes
entitled to be cast by the holders of the series affected by the proposed
amendment, voting separately as a class, shall be obtained in addition to
the approval of a majority of the votes entitled to be cast by the holders
of the Common Stock as herein provided. Any increase or decrease (but not
below the number of shares then outstanding) in the authorized number of
shares of any class or classes of stock of the Corporation or creation,
authorization or issuance of any securities convertible into, or warrants,
options or similar rights to purchase, acquire or receive, shares of any
such class or classes of stock shall be deemed not to affect adversely the
powers, preferences or special rights of the shares of Preferred Stock.
(b) In the event of any voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Corporation, subject to the
rights, if any, of the holders of any outstanding series of Preferred Stock
or any class or series of stock having a preference over or the right to
participate with the Common Stock with respect to the distribution of
assets of the Corporation upon such dissolution, liquidation or winding up
of the Corporation, the remaining assets and funds of the Corporation shall
be distributed pro rata to the holders of Common Stock. For purposes of
this Section E(ii)(b), the voluntary sale, conveyance, lease, exchange or
transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
assets of the Corporation or a consolidation or merger of the Corporation
with one or more other corporations or other Persons (whether or not the
Corporation is the corporation surviving such consolidation or merger)
shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary. For purposes hereof "Person" shall mean an
individual, corporation, partnership, limited liability company, trust,
unincorporated organization, or other legal entity.
(c) Each holder of record of Common Stock shall have one vote for
each share of Common Stock which is outstanding in his, her or its name on
the books of the Corporation and which is entitled to vote. In the election
of directors, each stockholder shall be entitled to cast for any one
candidate no greater number of votes than the number of shares held by such
stockholder; no stockholder shall be entitled to cumulate votes on behalf
of any candidate. Common stockholders of the Corporation shall not have
preemptive rights.
(d) Except as otherwise required by law, holders of any series of
Preferred Stock, shall be entitled only to such voting rights, if any, as
shall expressly be granted thereto by these Articles of Incorporation
(including any statement setting forth a copy of a resolution of the Board
of Directors relating to the issuance of such series executed,
acknowledged, and filed in accordance with section 5 of the BCA).
(e) Subject to applicable law and rights, if any, of the holders
of any outstanding series of Preferred Stock or any class or series of
stock having preference over or the right to participate with the Common
Stock with respect to the payment of dividends, dividends may be declared
and paid on the Common Stock at such times and in such amounts as the Board
of Directors in its discretion shall determine.
(iii) Record Holders. The Corporation shall be entitled to treat the
Person in whose name any share of its stock is registered as the owner
thereof for all purposes and shall not be bound to recognize any equitable
or other claim to, or interest in, such share on the part of any other
Person, whether or not the Corporation shall have notice thereof, except as
expressly provided by applicable law.
F. Corporate Power: The Corporation shall have every power which a
corporation now or hereafter organized under the BCA may have, including
the right to amend, rescind or repeal any provision contained in these
Articles of Incorporation in the manner now or hereafter prescribed by
statute, and all rights conferred on stockholders herein are granted
subject to this reservation.
G. Election of Directors: Elections of directors need not be by written
ballot unless the bylaws of the Corporation shall so provide.
H. Indemnification and Limitation of Director Liability:
(i) Indemnification. The Corporation shall indemnify and hold harmless
its directors and officers, and persons serving at the request of the
Corporation as a director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust
or other enterprise (collectively, another "Enterprise"), where such person
is made party or threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that the person is
or was a director or officer of the Corporation or serving as a director,
officer, employee, trustee or agent of another Enterprise at the request of
the Corporation, in each case to the fullest extent permitted under the BCA
as the same exists or may hereafter be amended, against all expense,
liability and loss (including attorneys' fees, judgments, fines, and
amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith.
(ii) Limitation of Director Liability. To the fullest extent permitted
by the BCA as the same exists or may hereafter be amended, a director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director.
(iii) Amendments. If the BCA is amended after the date of the filing
of these Articles of Incorporation to authorize corporate action further
eliminating or limiting the personal liability of directors or permitting
indemnification to a fuller extent, then the liability of a director of the
Corporation shall be eliminated or limited, and indemnification shall be
extended, in each case to the fullest extent permitted by the BCA, as so
amended from time to time. No repeal or modification of this Section H by
the stockholders shall adversely affect any right or protection of a
director of the Corporation existing by virtue of this Section H at the
time of such repeal or modification.
I. Certain Fiduciary Duties:
(i) Certain Acknowledgments. In recognition and anticipation of the
facts that (i) the directors, officers and/or employees of First Reserve,
of AMCI, of Quintana, and of their respective Affiliates may serve as
directors and/or officers of the Corporation, (ii) First Reserve, AMCI,
Quintana and their Affiliates engage and may continue to engage in the same
or similar activities or related lines of business as those in which the
Corporation, directly or indirectly, may engage and/or other business
activities that overlap with or compete with those in which the
Corporation, directly or indirectly, may engage, and (iii) the Corporation
and Affiliated Companies thereof may engage in material business
transactions with First Reserve, AMCI, Quintana and their respective
Affiliates and that the Corporation is expected to benefit therefrom, the
provisions of this Section I are set forth to regulate and define the
conduct of certain affairs of the Corporation as they may involve First
Reserve, AMCI, Quintana, their Affiliates, their and their Affiliates'
officers and directors, and the powers, rights, duties and liabilities of
the Corporation and its officers, directors and stockholders in connection
therewith.
(ii) Competition and Corporate Opportunities. None of First Reserve,
AMCI, Quintana or any of their respective Affiliates (collectively, the
"Interested Parties") shall have any duty to refrain from engaging directly
or indirectly in the same or similar business activities or lines of
business as the Corporation or any of its Affiliated Companies. Except with
respect to an Express Opportunity, as defined in Section I(iii)
below, the Corporation renounces any interest or expectancy of the
Corporation or any of its Affiliated Companies in, or in being offered an
opportunity to participate in, any potential transaction or matter which
may be a corporate opportunity for both an Interested Party and the
Corporation or any of its Affiliated Companies, and therefore such
Interested Party shall have no duty to communicate or offer such corporate
opportunity to the Corporation or any of its Affiliated Companies and shall
not be liable to the Corporation or its stockholders for breach of any
fiduciary duty as a stockholder of the Corporation solely by reason of the
fact that such Interested Party pursues or acquires such corporate
opportunity for itself, directs such corporate opportunity to another
person, or does not communicate information regarding such corporate
opportunity to the Corporation.
(iii) Allocation of Corporate Opportunities. Except as provided
elsewhere in this Section I(iii), the Corporation hereby renounces any
interest or expectancy of the Corporation or any of its Affiliated
Companies in, or in being offered an opportunity to participate in, any
potential transaction or matter which may be a corporate opportunity for
both the Corporation or any of its Affiliated Companies, on the one hand,
and any Interested Party, on the other hand, about which a director or
officer of the Corporation who is also a director or officer of First
Reserve, AMCI, Quintana or any of their respective Affiliates acquires
knowledge. Notwithstanding the immediately preceding sentence, the
Corporation does not renounce any interest or expectancy of the Corporation
or any of its Affiliated Companies in, or in being offered an opportunity
to participate in, any potential transaction or matter which may be a
corporate opportunity for both the Corporation or any of its Affiliated
Companies, on the one hand, and any Interested Party, on the other hand,
and about which a director or officer of the Corporation who is also a
director or officer of First Reserve, AMCI, Quintana or any of their
respective Affiliates acquires knowledge, if such opportunity is expressly
offered to such person in writing solely in, and as a direct result of, his
or her capacity as a director or officer of the Corporation (an "Express
Opportunity"). Any director or officer of the Corporation that fails to
offer an opportunity to the Corporation in accordance with this Section
I(iii) shall not have committed thereby any breach of fiduciary duty of
such director or officer to the Corporation and its stockholders.
(iv) Certain Matters Deemed Not Corporate Opportunities. In addition
to and notwithstanding the foregoing provisions of this Section I, the
Corporation renounces any interest or expectancy of the Corporation or any
of its Affiliated Companies in, or in being offered an opportunity to
participate in, any business opportunity that the Corporation is not
permitted to undertake under the terms of Section I or that the Corporation
is not financially able or contractually permitted or legally able to
undertake, or that is, from its nature, not in the line of the
Corporation's business or is of no practical advantage to it or that is one
in which the Corporation has no interest or reasonable expectancy.
(v) Certain Definitions. For purposes of this Section I:
"Affiliate" means with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person. For
purposes of the foregoing definition, the term "controls," "is controlled
by," or "is under common control with" means the power to direct or cause
the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Affiliated Company" in respect of the Corporation shall mean any
company controlled by the Corporation.
"AMCI" means AMCI Acquisition II, LLC.
"AMCI Affiliates" shall mean the present and future Affiliates of
AMCI.
"First Reserve" means FR X Offshore, L.P., First Reserve Corporation,
each investment fund managed or advised, directly or indirectly, by First
Reserve Corporation (including funds formed after the date hereof), and any
subsidiaries, Affiliates, or direct or indirect general partners of any of
the foregoing entities, including without limitation FR X Offshore GP,
L.P.; FR X Offshore GP Limited; First Reserve Fund X, L.P.; First Reserve
GP X, L.P.; and First Reserve GP X, Inc.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Quintana" shall mean Quintana Maritime Partners, L.P.
"Quintana Affiliates" shall mean the present and future Affiliates of
Quintana.
(vi) Termination. The provisions of this Section I shall have no
further force or effect (a) for First Reserve at such time as First Reserve
shall first cease to be the beneficial owner, directly or indirectly, in
the aggregate, of Common Stock representing five percent (5%) or more of
the votes entitled to be cast by the holders of all the then outstanding
shares of Common Stock; (b) for AMCI, at such time AMCI and the AMCI
Affiliates shall first cease to be the beneficial owner, directly or
indirectly, in the aggregate, of Common Stock representing five percent
(5%) or more of the votes entitled to be cast by the holders of all the
then outstanding shares of Common Stock; and (c) for Quintana, at such time
Quintana and the Quintana Affiliates shall first cease to be the beneficial
owner, directly or indirectly, in the aggregate, of Common Stock
representing five percent (5%) or more of the votes entitled to be cast by
the holders of all the then outstanding shares of Common Stock; provided,
however, that any such termination shall not terminate the effect of such
provisions with respect to (i) any agreement between the Corporation or an
Affiliated Company thereof and any Interested Party that was entered into
before such time or any transaction entered into in the performance of such
agreement, whether entered into before or after such time, or (ii) any
transaction or agreement entered into between the Corporation or an
Affiliated Company thereof and any interested Party.
(vii) Amendment of this Section. Notwithstanding anything to the
contrary elsewhere contained in the Corporation's Articles of
Incorporation, the affirmative vote of the holders of at least ninety
percent (90%) of the combined voting power of all shares of Common Stock
then outstanding, voting together as a single class, shall be required to
alter, amend or repeal, or to adopt any provision inconsistent with, this
Section I.
(viii) Deemed Notice. Any person or entity purchasing or otherwise
acquiring any interest in any shares of the Corporation shall be deemed to
have notice and to have consented to the provisions of this Section I.
(ix) Severability. The invalidity or unenforceability of any
particular provision, or part of any provision, of this Section I shall not
affect the other provisions or parts hereof, and this Section I shall be
construed in all respects as if such invalid or unenforceable provisions or
parts were omitted.
J. Power of the Board of Directors and Shareholders Regarding Bylaws: In
furtherance and not in limitation of the powers conferred by statute, the
board of directors and shareholders of the Corporation shall have the
authority to adopt, amend, rescind or repeal the bylaws of the Corporation
in any manner not inconsistent with the laws of the Marshall Islands.
K. Corporate Existence: Corporate existence began upon filing these
Articles of Incorporation with the Registrar of Corporations.
5. Prior to the date hereof the Company has not issued any bearer shares.
Pursuant to these Amended and Restated Articles of Incorporation the aggregate
number of shares which the Corporation shall have authority to issue is
increased from five hundred (500) registered and/or bearer shares of no par
value to one hundred million (100,000,000) registered shares of common stock of
the par value of United States one cent (U.S. $.01) per share and ten million
(10,000,000) registered preferred shares of the par value of United States one
cent (U.S. $.01) per share. Each of the five hundred (500) registered shares of
common stock without par value presently issued and outstanding shall be changed
to one (1) share of common stock of the par value of United States one cent
(U.S. $.01) per share.
6. These Amended and Restated Articles of Incorporation were duly adopted in
accordance with Section 93 of the Business Corporations Act. These Amended and
Restated Articles of Incorporation were duly authorized by written consent of
the Board of Directors and the sole Shareholder of the Corporation.
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IN WITNESS WHEREOF, I have executed these Amended and Restated Articles of
Incorporation on this 29th day of June, 2005.
QUINTANA MARITIME LIMITED
By: /s/ Paul J. Cornell
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Name: Paul J. Cornell
Title: Chief Executive Officer