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As filed with the Securities and Exchange Commission on April 7, 2010
Registration Statement No. 333-165754
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM F-3/A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NAVIOS MARITIME HOLDINGS INC.
(Exact name of registrant as specified in its charter)
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Republic of Marshall Islands
(State or other jurisdiction of
incorporation or organization)
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4412
(Primary Standard Industrial
Classification Code Number)
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98-0384348
(I.R.S. Employer
Identification Nr.) |
Navios Maritime Holdings Inc.
85 Akti Miaouli Street\Piraeus, Greece 185 38
(011) +30-210-4595000
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Trust Company of the Marshall Islands, Inc.
Trust Company Complex, Ajeltake Island
P.O. Box 1405
Majuro, Marshall Islands MH96960
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With a copy to:
Todd E. Mason, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
The Chrysler Center
666 Third Avenue
New York, New York 10017
(212) 935-3000
Approximate date of commencement of proposed sale to the public: From time to time after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b)
under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective
amendment thereto that shall become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to General
Instruction I.C. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. o
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary
to delay its effective date until the company shall file a further amendment which specifically
states that this Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a), shall determine.
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Amount of |
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Aggregate |
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Registration |
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Title of each Class of Securities to be Registered(1) |
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Offering Price(2)(3) |
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Fee |
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Common Stock, $0.0001 par value per share |
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(4 |
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(5 |
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Preferred Stock |
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(4 |
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(5 |
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Warrants |
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(4 |
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(5 |
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Debt Securities |
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(4 |
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(5 |
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Total |
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$ |
500,000,000 |
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$ |
23,830.50 |
(5)* |
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Previously paid. |
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(1) |
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There are being registered hereunder such indeterminate number of shares of common stock, such indeterminate number of shares of preferred stock, such indeterminate number of
warrants to purchase common stock, and such indeterminate number of debt securities as shall have an aggregate initial offering price not to exceed $500,000,000. If any debt
securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate
initial offering price not to exceed $500,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be
sold separately or as units with other securities registered hereunder. The securities registered also include such indeterminate amounts and numbers of common stock as may be
issued upon conversion of preferred stock or pursuant to the antidilution provisions of any such securities. The securities registered also include such indeterminate amounts
and numbers of common stock as may be issued upon exercise of warrants or pursuant to the antidilution provisions of any such securities. The securities registered also
include such indeterminate amounts and numbers of common stock and debt securities as may be issued upon conversion of or exchange for debt securities that provide for
conversion or exchange, upon exercise of warrants or pursuant to the anti-dilution provisions of any such securities. |
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(2) |
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In United States dollars or the equivalent thereof in any other currency, currency unit or units, or composite currency
or currencies. |
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(3) |
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The proposed maximum per unit and aggregate offering prices per class of security will be determined from time to time
by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder. |
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(4) |
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Not required to be included in accordance with General Instruction II.F of Form F-3. |
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(5) |
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Pursuant to Rule 457(p) under the Securities Act of 1933, as amended, unused filing fees of
$11,819.50 have already been paid with respect to unsold
securities that were previously registered pursuant to a Registration Statement on Form F-3 (333-141872)
filed on April 4, 2007, and are being offset against
the filing fee due for this registration statement. |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 8. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Articles of Incorporation, our Bylaws and under Section 60 of the Marshall Islands
Business Corporations Act (BCA), we may indemnify anyone who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of the corporation) whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise.
A limitation on the foregoing is the statutory proviso (also found in our Bylaws) that, in
connection with such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct
was unlawful.
Further, under Section 60 of the BCA and our Bylaws, the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of no contest, or its
equivalent, does not, of itself, create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
In addition, under Section 60 of the BCA and under our Bylaws, a corporation may indemnify any
person who was or is a party, or is threatened to be made a party, to any threatened, pending, or
completed action or suit by or in the right of the corporation to procure judgment in its favor by
reason of the fact that he is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise. Such indemnification may be made against expenses
(including attorneys fees) actually and reasonably incurred such person or in connection with the
defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the corporation. Again, this
is provided that no indemnification may be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Further, and as provided by both our Bylaws and Section 60 of the BCA, when a director or
officer of a corporation has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in the foregoing instances, or in the defense of a related claim,
issue or matter, he will be indemnified against expenses (including attorneys fees) actually and
reasonably incurred by him in connection with such matter.
Likewise, pursuant to our Bylaws and Section 60 of the BCA, expenses (our Bylaws specifically
includes attorneys fees in expenses) incurred in defending a civil or criminal action, suit or
proceeding by an officer or director may be paid in advance of the final disposition of the action,
suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to
repay such amount if it is ultimately determined that he is not entitled to indemnification. The
Bylaws further provide that with respect to other employees, such expenses may be paid on the terms
and conditions, if any, as the Board may deem appropriate.
Both Section 60 of the BCA and our Bylaws further provided that the foregoing indemnification
and advancement of expenses are not exclusive of any other rights to which those seeking
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indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his official capacity
and/or as to action in another capacity while holding office.
Under both Section 60 of the BCA and our Bylaws, we also have the power to purchase and
maintain insurance on behalf of any person who is or was a director or officer of the corporation
or is or was serving at the request of the corporation as a director or officer against any
liability asserted against him and incurred by him in such capacity regardless of whether the
corporation would have the power to indemnify him against such liability under the foregoing.
Under Section 60 of the BCA (and as provided in our Bylaws), the indemnification and
advancement of expenses provided by, or granted under the foregoing continue with regard to a
person who has ceased to be a director, officer, employee or agent and inure to the benefit of his
heirs, executors and administrators unless otherwise provided when authorized or ratified.
Additionally, under Section 60 of the BCA and our Bylaws, the indemnification and advancement of
expenses provided by, or granted under the foregoing continue with regard to a person who has
ceased to be a director, officer, employee or agent and inure to the benefit of his heirs,
executors and administrators unless otherwise provided when authorized or ratified.
In addition to the above, our Bylaws provide that references to us includes constituent
corporations, and defines other enterprises to include employee benefit plans, fines to
include excise taxes imposed on a person with respect to an employee benefit plan, and further
defines the term serving at the request of the corporation.
Our Articles of Incorporation set out a much abbreviated version of the foregoing and make
reference to the provisions of the Bylaws.
Such limitation of liability and indemnification does not affect the availability of equitable
remedies. In addition, we have been advised that in the opinion of the SEC, indemnification for
liabilities arising under the Securities Act is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 9. EXHIBITS
(a) Exhibits.
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Exhibit |
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Description of Document |
5.1
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Opinion of Reeder & Simpson P.C regarding legality of the
shares being registered (filed herewith) |
23.1
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Consent of PricewaterhouseCoopers S.A. (Previously filed) |
23.2
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Consent of Reeder & Simpson P.C. (included in Exhibit
5.1 to this Registration Statement on Form F-3). |
24.1
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Power of Attorney (Previously filed). |
ITEM 10. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a)
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To file, during any period in which offers or sales are being made, a post-effective amendment to
this registration statement: |
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
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ii. |
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To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective
registration statement. |
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iii. |
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To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; |
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Provided, however, That paragraphs (a)1(i) and (a)(1)(ii) of this section do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement. |
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Provided however, That: |
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Paragraphs
(a)(1)(i) and
(a)(1)(ii) of this
section do not
apply if the
registration
statement is on
Form S-8, and the
information
required to be
included in a
post-effective
amendment by those
paragraphs is
contained in
reports filed with
or furnished to the
Commission by the
registrant pursuant
to section 13 or
section 15(d) of
the Securities
Exchange Act of
1934 that are
incorporated by
reference in the
registration
statement; and |
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B. |
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Paragraphs
(a)(1)(i),
(a)(1)(ii) and
(a)(1)(iii) of this
section do not
apply if the
registration
statement is on
Form S-3 or Form
F-3 and the
information
required to be
included in a
post-effective
amendment by those
paragraphs is
contained in
reports filed with
or furnished to the
Commission by the
registrant pursuant
to section 13 or
section 15(d) of
the Securities
Exchange Act of
1934 that are
incorporated by
reference in the
registration
statement, or is
contained in a form
of prospectus filed
pursuant to Rule
424(b) that is part
of the registration
statement. |
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That, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof. |
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3. |
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To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering. |
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That, for the purpose of determining liability under the Securities Act of 1933
to any purchaser: |
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If the registrant is relying on Rule 430B: |
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Each prospectus filed by the
registrant pursuant to Rule
424(b)(3) shall be deemed to be part
of the registration statement as of
the date the filed prospectus was
deemed part of and included in the
registration statement; and |
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B. |
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Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5),
or (b)(7) as part of a registration
statement in reliance on Rule 430B
relating to an |
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offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information
required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date
such form of prospectus is first used after
effectiveness or the date of the first contract of
sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a
new effective date of the registration statement
relating to the securities in the registration
statement to which that prospectus relates, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a
registration statement or prospectus that is part of
the registration statement or made in a document
incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part
of the registration statement will, as to a purchaser
with a time of contract of sale prior to such
effective date, supersede or modify any statement that
was made in the registration statement or prospectus
that was part of the registration statement or made in
any such document immediately prior to such effective
date; or |
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ii. |
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If the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule
430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as
of the date it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date
of first use. |
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in Piraeus, Greece on April 7, 2010.
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NAVIOS MARITIME HOLDINGS INC.
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By: |
/s/ Angeliki Frangou
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Name: |
Angeliki Frangou |
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Title: |
Chairman and Chief Executive Officer |
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By: |
/s/ George Achniotis
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Name: |
George Achniotis |
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Title: |
Chief Financial Officer |
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by each of the following persons in the capacities indicated on April 7, 2010.
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Signature |
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Title(s) |
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Date |
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/s/ Angeliki Frangou
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Chief Executive Officer
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April 7, 2010 |
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Angeliki Frangou
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(principal executive officer) |
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/s/ George Achniotis
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Chief Financial Officer
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April 7, 2010 |
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George Achniotis
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(principal financial and
accounting officer) |
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/s/ Angeliki Frangou
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Chairman of the Board
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April 7, 2010 |
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Angeliki Frangou
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Director
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April 7, 2010 |
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Ted C. Petrone
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Director
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April 7, 2010 |
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Vasiliki Papaefthymiou
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Director
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April 7, 2010 |
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Spyridon Magoulas
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Signature |
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Title(s) |
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Date |
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Director
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April 7, 2010 |
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John Stratakis
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Director
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April 7, 2010 |
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Allan Shaw
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By executing her name hereto, Angeliki Frangou is signing this document on behalf of persons indicated above pursuant to the powers of attorney duly executed by such persons and filed with the Securities and Exchange Commission. |
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By:
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/s/ Angeliki Frangou |
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Angeliki Frangou |
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Authorized Representative
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned
representative in the United States, has signed this registration statement in the City of Newark,
State of Delaware, on April 7, 2010.
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PUGLISI & ASSOCIATES |
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By: |
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/s/ DONALD J. PUGLISI |
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Name:
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Donald J. Puglisi |
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Title:
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Managing Director |
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