AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RAND ACQUISITION CORPORATION
Rand Acquisition Corporation, a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
A. The name of the Corporation is Rand Acquisition Corporation. The
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on June 2, 2004 and was previously
amended on June 11, 2004. The original name of the Corporation was GRAND SLAM
ACQUISITION CORPORATION.
B. Pursuant to Sections 216, 242 and 245 of the General Corporation Law of
the State of Delaware, the Amended and Restated Certificate of Incorporation has
been duly adopted by the majority of the stockholders of the Corporation voting
at a special meeting duly held, and restates and integrates and further amends
the provisions of the Certificate of Incorporation of the Corporation, but not
the Certificates of Designation of any series of Preferred Stock of the
Corporation.
C. The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated in its entirety to read as follows:
FIRST. The name of the corporation is RAND LOGISTICS, INC. (hereinafter
sometimes referred to as the "Corporation").
SECOND. The registered office of the Corporation is to be located at 615
S. DuPont Hwy., Kent County, Dover, Delaware. The name of its registered agent
at that address is National Corporate Research, Ltd.
THIRD. The purpose of the Corporation shall be to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law ("GCL").
FOURTH. The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is 51,000,000, of which 50,000,000
shares shall be Common Stock, par value of $.0001 per share, and 1,000,000
shares shall be Preferred Stock, par value of $.0001 per share.
A. Preferred Stock. The Board of Directors is expressly granted authority
to issue shares of the Preferred Stock, in one or more series, and to fix for
each such series such voting powers, full or limited, and such designations,
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series (a "Preferred Stock Designation") and as
may be permitted by the GCL. The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the voting
power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors (the "Voting
Stock"), voting together as a single class, without a separate vote of the
holders of the Preferred Stock, or any series thereof, unless a vote of any such
holders is required pursuant to any Preferred Stock Designation.
B. Common Stock. Except as otherwise required by law or as otherwise
provided in any Preferred Stock Designation, the holders of the Common Stock
shall exclusively possess all voting power and each share of Common Stock shall
have one vote.
FIFTH. The Board of Directors shall be divided into three classes: Class
A, Class B and Class C. The number of directors in each class shall be as nearly
equal as possible. At the first election of directors by the incorporator, the
incorporator shall elect a Class C director for a term expiring at the
Corporation's third Annual Meeting of Stockholders. The Class C director shall
then elect additional Class A, Class B and Class C directors. The directors in
Class A shall be elected for a term expiring at the first Annual Meeting of
Stockholders, the directors in Class B shall be elected for a term expiring at
the second Annual Meeting of Stockholders and the directors in Class C shall be
elected for a term expiring at the third Annual Meeting of Stockholders.
Commencing at the first Annual Meeting of Stockholders, and at each annual
meeting thereafter, directors elected to succeed those directors whose terms
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election. Except as the GCL may
otherwise require, in the interim between annual meetings of stockholders or
special meetings of stockholders called for the election of directors and/or the
removal of one or more directors and the filling of any vacancy in that
connection, newly created directorships and any vacancies in the Board of
Directors, including unfilled vacancies resulting from the removal of directors
for cause, may be filled by the vote of a majority of the remaining directors
then in office, although less than a quorum (as defined in the Corporation's
Bylaws), or by the sole remaining director. All directors shall hold office
until the expiration of their respective terms of office and until their
successors shall have been elected and qualified. A director elected to fill a
vacancy resulting from the death, resignation or removal of a director shall
serve for the remainder of the full term of the director whose death,
resignation or removal shall have created such vacancy and until his successor
shall have been elected and qualified.
SIXTH. The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
A. Election of directors need not be by ballot unless the by-laws of the
Corporation so provide.
B. The Board of Directors shall have the power, without the assent or vote
of the stockholders, to make, alter, amend, change, add to or repeal the by-laws
of the Corporation as provided in the by-laws of the Corporation.
C. The directors in their discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
the vote of the holders of a majority of the stock of the Corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid and binding upon the Corporation and upon all the
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stockholders as though it had been approved or ratified by every stockholder of
the Corporation, whether or not the contract or act would otherwise be open to
legal attack because of directors' interests, or for any other reason.
D. In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation; subject, nevertheless, to the provisions of the statutes of
Delaware, of this Certificate of Incorporation, and to any by-laws from time to
time made by the stockholders; provided, however, that no by-law so made shall
invalidate any prior act of the directors which would have been valid if such
by-law had not been made.
SEVENTH.
A. Purpose and Authorization.
1. The provisions of this Article SEVENTH are intended to assure that the
Corporation remains in continuous compliance with the citizenship requirements
of the Shipping Act, 1916, the Merchant Marine Act, 1920 and the Merchant Marine
Act, 1936, all 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 Corporation that Non-Citizens should not
Beneficially Own, individually or in the aggregate, any shares of the
Corporation's Capital Stock in excess of the Permitted Amount. If the Board of
Directors of the Corporation should conclude in its sole discretion at any time
that Non-Citizens have become, or are expected 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, E and F of this Article
SEVENTH shall apply.
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 Amended and Restated Certificate of Incorporation) to fulfill
the purpose and implement the provisions of this Article SEVENTH, including
without limitation, amending the By-Laws of the Corporation and establishing,
amending or eliminating procedures from time to time that are consistent with
the By-Laws that provide for, including without limitation, (i) obtaining, as a
condition to recording the transfer of shares on the stock records of the
Corporation, affidavits or other proof as to the citizenship of existing or
prospective stockholders on whose behalf shares of the Capital Stock of the
Corporation or any interest therein or right thereof are or are to be held, and
(ii) establishing and maintaining a dual stock certificate system under which
different forms of stock certificates representing outstanding shares of the
Capital Stock of the Corporation are issued to Citizens or Non-Citizens.
B. Definitions. For purposes of this Article SEVENTH, 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.
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2. "Capital Stock" shall mean any class or series of capital stock of the
Corporation other than any class or series of capital stock of the Corporation
that is permitted by the Maritime Administration of the United States Department
of Transportation ("MarAd") to be excluded from the determination of whether the
Corporation is in compliance with the citizenship requirements of the Maritime
Laws.
3. "Capital Stock Register" shall mean the official and conclusive list of
Beneficial Ownership of Capital Stock maintained in the Corporation's books and
records or by a transfer agent duly authorized by the Corporation.
4. "Certificate" shall mean any written or electronic representation of
ownership of Capital Stock of the Corporation.
5. "Citizen" shall mean:
(a) any individual who is a citizen of the United States, by birth,
naturalization, as a derivative citizen or as otherwise authorized by law and
who is (x) free and clear of any trust or fiduciary obligation in favor of, or
control, directly or indirectly, by, Non-Citizens and (y) not employed by or
financially dependent on a Non-Citizen which is affiliated or associated in any
manner with the Corporation;
(b) any corporation
(i) that is organized or incorporated under the laws of the United
States, or of a state of the United States or a political
subdivision thereof, Guam, Puerto Rico, the Virgin Islands, American
Samoa, the District of Columbia, the Northern Mariana Islands, or
any other territory or possession of the United States (each a
"State"),
(ii) of which title to not less than 75% of its stock interest is
beneficially owned by and vested in Persons who are Citizens, as
defined under the relevant clause (a)-(g) of this definition of
"Citizen," free and clear of any trust or fiduciary obligation of
any Non-Citizens,
(iii) of which not less than 75% of the voting power of the stock of
such corporation entitled to vote is beneficially owned by and
vested in Citizens, as defined under the relevant clause (a)-(g) of
this definition of "Citizen," free from any contract or
understanding through which it is arranged that such voting power
may be exercised directly or indirectly on behalf of Non-Citizens,
(iv) of which there are no other means by which direct or indirect
control is conferred upon or permitted to be exercised by
Non-Citizens,
(v) whose chief executive officer (by whatever title), chairman of
the board of directors and all officers authorized to act in the
absence or disability of such Persons or otherwise dispose of or
control any vessel are Citizens, and
(vi) of which not more than a minority of the number of directors
(or equivalent Persons) necessary to constitute a quorum are
Non-Citizens;
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(c) any partnership
(i) that is organized under the laws of the United States or of a
State,
(ii) all general partners of which are Citizens, as defined under
the relevant clause (a)-(g) of this definition of "Citizen,"
(iii) of which not less than a 75% equity interest and voting power
is beneficially owned by Persons who are Citizens, as defined under
the relevant clause (a)-(g) of this definition of "Citizen," free
and clear of any trust or fiduciary obligation in favor of any
Non-Citizens and free from any contract or understanding through
which it is arranged that such voting power may be exercised
directly or indirectly on behalf of Non-Citizens, and
(iv) of which there are no other means by which direct or indirect
control is conferred upon or permitted to be exercised by
Non-Citizens;
(d) any association
(i) that is organized under the laws of the United States or of a
State,
(ii) of which 100% of the members are Citizens, as defined under the
relevant clause (a)-(g) of this definition of "Citizen,"
(iii) whose chief executive officer (by whatever title), chairman of
the board of directors (or equivalent committee or body) and all
Persons authorized to act in the absence or disability of such
Persons or otherwise dispose of or control any vessel are citizens
of the United States,
(iv) of which not less than 75% of the interest and voting power of
such association is beneficially owned by Citizens, free and clear
of any trust or fiduciary obligation in favor' of any Non-Citizens,
and free from any contract or understanding through which it is
arranged that such voting power may be exercised directly or
indirectly on behalf of Non-Citizens,
(v) of which not more than a minority of the number of directors (or
equivalent Persons) necessary to constitute a quorum are
Non-Citizens, and
(vi) of which there are no other means by which direct or indirect
control is conferred upon or permitted to be exercised by
Non-Citizens;
(e) any limited liability company
(i) that is organized under the laws of the United States or of a
State,
(ii) of which 75% of the members are Citizens,
(iii) of which not less than 75% of the membership interest is
beneficially owned by Persons who are Citizens, as defined under the
relevant clause (a)-(g) of this definition of "Citizen,"
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(iv) whose chief executive officer (by whatever title), chairman of
the board of directors (or equivalent committee or body) and all
Persons authorized to act in the absence or disability of such
Persons or otherwise dispose of or control any vessel are citizens
of the United States,
(v) of which not less than 75% of the voting power of such company
entitled to vote is vested in Citizens, free and clear of any trust
or fiduciary obligation, in favor of or on behalf of any
Non-Citizens, and free from any contract or understanding through
which it is arranged that such voting power may be exercised
directly or indirectly on behalf of Non-Citizens,
(vi) of which the managing member or manager (or equivalent Person),
if such company's management is delegated to a single manager or
managing member pursuant to its organizational agreement, is a
citizen of the United States, or, if such company's management is
conferred by its organizational agreement on several managers, a
management committee or board of directors (or equivalent governing
body), each manager having general management authority is a citizen
of the United States and not more than a minority of the number of
management committee members or directors (or equivalent Persons)
necessary to constitute a quorum of such governing body are
Non-Citizens, and
(vii) of which there are no other means by which direct or indirect
control is conferred upon or permitted to be exercised by
Non-Citizens;
(viii) of which Non-Citizens do not have authority within a
management group, whether through veto power, combined voting, or
otherwise, to exercise control over the limited liability company;
(f) 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,
(ii) of which 100% of the members are, or 100% of the equity is
beneficially owned by Citizens, as defined under the relevant clause
(a)-(g) of this definition of "Citizen," free and clear of any trust
or fiduciary obligation in favor of any Non-Citizens, and
(iii) of which there are no other means by which direct or indirect
control is conferred upon or permitted to be exercised by
Non-Citizens; and
(g) any trust
(i) that is domiciled in and existing under the laws of the United
States or a State,
(ii) all of the trustees of which are Citizens, as defined under the
relevant clause (a)-(g) of this definition of "Citizen,"
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(iii) of which not less than 75% of the equity interest is owned by
Citizens, as defined under the relevant clause (a)-(g) of this
definition of "Citizen,"
(iv) of which each beneficiary with an enforceable interest in the
trust is a Citizen, as defined under the relevant clause (a)-(g) of
this definition of "Citizen,"
(v) of which there are no other means by which direct or indirect
control is conferred upon or permitted to be exercised by
Non-Citizens;
all as further defined in Subpart C (Sections 67.30-67.47) of Title 46 of
the Code of Federal Regulations, as amended, modified or supplemented.
6. "Non-Citizen" shall mean any Person other than a Citizen.
7. "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 Corporation 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.
8. "Person" shall mean an individual, partnership, corporation, limited
liability company, trust, joint venture or other entity.
9. "Record Holder" shall mean any Person whose name appears on the Capital
Stock Register as an owner, beneficial or otherwise, of Capital Stock.
10. "Total Voting Power" shall mean the total number of votes that may be
cast by all outstanding shares of Capital Stock having Voting Power.
11. "Voting Power" shall mean the power to vote with respect to the
election of the Corporation's directors.
C. Restrictions on Transfer.
1. Any transfer, or attempted or purported transfer, of any shares of the
Capital Stock of the Corporation 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
Corporation and the Corporation will not recognize, with respect to those shares
that caused the Permitted Amount to be exceeded, the purported transferee as a
stockholder of the Corporation for any purpose other than the transfer by the
purported transferee of such excess to a person who is a Citizen or to the
extent necessary to effect any other remedy available to the Corporation under
this Article SEVENTH.
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2. Each Record Holder and Beneficial Owner shall advise the Corporation in
writing of any change in such Record Holder's or Beneficial Owner's citizenship
status.
D. Dual Stock Certificate System.
1. The Corporation may institute a "Dual Stock Certificate System" such
that (i) each Certificate representing Capital Stock that is Beneficially Owned
by a Citizen shall be marked "Citizen" and each Certificate representing Capital
Stock that is Beneficially Owned by a Non-Citizen shall be marked "Non-Citizen,"
but with all such Certificates to be identical in all other respects and to
comply with all provisions of the Delaware Act; (ii) to the extent necessary to
enable the Corporation to submit any proof of citizenship required by law or by
contract with the United States government (or any agency thereof), the
Corporation may require the Record Holders and the Beneficial Owners of such
Capital Stock to confirm their citizenship status from time to time, and voting
rights and distributions payable with respect to Capital Stock held by such
Record Holder or Beneficially Owned by such Beneficial Owner may, in the
discretion of the Board of Directors, be withheld until confirmation of such
citizenship status is received; and (iii) the Capital Stock Register of the
Corporation shall be maintained in such manner as to enable the percentage of
Capital Stock that is Beneficially Owned by Non-Citizens and by Citizens to be
confirmed.
2. Beneficial Owners of Certificates bearing notation as Non-Citizen and
Citizen shall have in all respects the same corporate status and corporate
rights regarding Capital Stock of the same class or series, share for share,
except that transfers of the Certificates bearing the Citizen notation to
Non-Citizens shall be restricted as herein provided and violations of the
provisions of this Article SEVENTH shall be dealt with in the manner set forth
herein.
3. The Board of Directors is authorized to take such other ministerial
actions or make such interpretations as it may deem necessary or advisable in
order to implement this Dual Stock Certificate System in a manner consistent
with the policies set forth in this Article SEVENTH.
E. 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 E (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 Corporation during such period or (2)
vote with respect to any matter submitted to a vote of the stockholders of the
Corporation, 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 Corporation. 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 SEVENTH 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.
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F. Redemption Of Excess Shares. The Corporation 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 Corporation pursuant to
subparagraph E. As used herein, the term "average closing sales price" shall
mean the average of the closing sales prices of the Capital Stock on a national
securities exchange on which the stock is traded or listed during the 10 trading
days immediately prior to the date the notice of redemption is given; except
that, if the Capital Stock is not so traded or quoted, the average closing sales
price shall 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 Corporation, at the election of the Corporation. 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 Corporation. 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 Corporation (except the right to receive from the
Corporation 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 Corporation 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.
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EIGHTH. A. 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, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
GCL is amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the GCL, as so amended. Any repeal or modification of this paragraph A by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation with respect to events occurring
prior to the time of such repeal or modification.
B. The Corporation, to the full extent permitted by Section 145 of the
GCL, as amended from time to time, shall indemnify all persons whom it may
indemnify pursuant thereto. Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding for which such officer or director may
be entitled to indemnification hereunder shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized hereby.
NINTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
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IN WITNESS WHEREOF, Rand Acquisition Corporation has caused this Amended
and Restated Certificate of Incorporation to be executed by Carol Zelinski, its
Secretary thereunto duly authorized, this 3rd day of March, 2006.
RAND ACQUISITION CORPORATION
/s/ Carol Zelinski
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Carol Zelinski
Secretary