Table of Contents
As filed with the Securities and
Exchange Commission on June 21, 2011
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, DC 20549
Washington, DC 20549
Form F-4
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
NAVIOS MARITIME HOLDINGS
INC.
NAVIOS MARITIME FINANCE II (US)
INC.
(Exact name of registrant as
specified in its charter)
| Republic of Marshall Islands | 4412 | 98-0384348 | ||
| Delaware | 33-1219789 | |||
|
(State or other jurisdiction
of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
SEE TABLE OF ADDITIONAL
REGISTRANT GUARANTORS
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 registrant’s
principal executive offices)
Angeliki Frangou
Chairman and Chief Executive
Officer
85 Akti Miaouli Street
Piraeus, Greece 185 38
(011) +30-210-4595000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
Stuart
Gelfond, Esq.
Vasiliki
Tsaganos, Esq.
Fried, Frank, Harris,
Shriver & Jacobson LLP
One New York Plaza
New York, New York
10004-1980
(212) 859-8000
Vasiliki (Villy)
Papaefthymiou
General Counsel and
Secretary
Navios Maritime Holdings
Inc.
85 Akti Miaouli Street
Piraeus 185 38, Greece
Approximate date of commencement of proposed exchange
offer: As soon as practicable after the effective
date of this Registration Statement.
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
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(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If applicable, place an X in the box to designate the
appropriate rule provision relied upon in conducting this
transaction:
Exchange Act
Rule 13e-4(i)(Cross-Border
Issuer Tender
Offer) o
Exchange Act
rule 14d-1(d)(Cross-Border
Third-Party Tender
Offer) o
CALCULATION
OF REGISTRATION FEE
|
Proposed Maximum |
Proposed Maximum |
Amount of |
||||||||||||||||||
|
Title of Each Class of |
Amount to be |
Offering |
Aggregate |
Registration |
||||||||||||||||
| Securities to be Registered | Registered | Price per Note(1) | Offering Price | Fee | ||||||||||||||||
|
81/8% Senior
Notes due 2019
|
$ | 350,000,000 | 100 | % | $ | 350,000,000 | $ | 40,635 | ||||||||||||
|
Guarantees of
81/8% Senior
Notes due 2019
|
$ | 350,000,000 | (2) | (2) | (2) | |||||||||||||||
|
Total Registration Fee
|
— | — | — | $ | 40,635 | |||||||||||||||
| (1) | Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(f) under the Securities Act. |
| (2) | No separate filing fee is required pursuant to Rule 457(n) under the Securities Act. |
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant 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, as amended, or until the
Registration Statement shall become effective on such date as
the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
Table of Contents
TABLE OF
ADDITIONAL REGISTRANT GUARANTORS
|
State or Other |
||||
|
Jurisdiction of |
||||
|
Exact Name of Registrant as |
Incorporation or |
I.R.S. Employer |
||
|
Specified in its Charter(1)
|
Organization | Identification Number | ||
|
Faith Marine Ltd.
|
Liberia | 98-1006677 | ||
|
Vector Shipping Corporation
|
Marshall Islands | 66-0742469 | ||
|
Aramis Navigation Inc.
|
Marshall Islands | 98-0645621 | ||
|
Ducale Marine Inc.
|
Marshall Islands | 98-0633431 | ||
|
Highbird Management Inc.
|
Marshall Islands | 98-0633432 | ||
|
Floral Marine Ltd.
|
Marshall Islands | 98-0628840 | ||
|
Red Rose Shipping Corp.
|
Marshall Islands | 98-0628836 | ||
|
Ginger Services Co.
|
Marshall Islands | 98-0609514 | ||
|
Quena Shipmanagement Inc.
|
Marshall Islands | 98-0599808 | ||
|
Astra Maritime Corporation
|
Marshall Islands | 98-0599803 | ||
|
Primavera Shipping Corporation
|
Marshall Islands | 98-0599806 | ||
|
Pueblo Holdings Ltd.
|
Marshall Islands | 98-0594673 | ||
|
Beaufiks Shipping Corporation
|
Marshall Islands | 75-3269445 | ||
|
Rowboat Marine Inc.
|
Marshall Islands | 75-3269444 | ||
|
Corsair Shipping Ltd.
|
Marshall Islands | 75-3269443 | ||
|
Pharos Navigation S.A.
|
Marshall Islands | 98-0563832 | ||
|
Sizzling Ventures Inc.
|
Liberia | 98-0563838 | ||
|
Shikhar Ventures S.A.
|
Liberia | 98-0563837 | ||
|
Taharqa Spirit Corp.
|
Marshall Islands | 98-0563839 | ||
|
Rheia Associates Co.
|
Marshall Islands | 98-0563834 | ||
|
Rumer Holding Ltd.
|
Marshall Islands | 98-0563835 | ||
|
Kleimar N.V.
|
Belgium | 98-0386679 | ||
|
NAV Holdings Limited
|
Malta | 98-0386684 | ||
|
Navios Corporation
|
Marshall Islands | 13-3023670 | ||
|
Anemos Maritime Holdings Inc.
|
Marshall Islands | 98-0418747 | ||
|
Navios Shipmanagement Inc.
|
Marshall Islands | 98-0418748 | ||
|
Aegean Shipping Corporation
|
Marshall Islands | 47-0938383 | ||
|
Arc Shipping Corporation
|
Marshall Islands | 98-0386672 | ||
|
Magellan Shipping Corporation
|
Marshall Islands | 98-0386681 | ||
|
Ionian Shipping Corporation
|
Marshall Islands | 98-0418750 | ||
|
Apollon Shipping Corporation
|
Marshall Islands | 98-0418751 | ||
|
Herakles Shipping Corporation
|
Marshall Islands | 98-0418752 | ||
|
Achilles Shipping Corporation
|
Marshall Islands | 51-0495540 | ||
|
Kypros Shipping Corporation
|
Marshall Islands | 51-0795616 | ||
|
Hios Shipping Corporation
|
Marshall Islands | 51-0495614 | ||
|
Meridian Shipping Enterprises Inc.
|
Marshall Islands | 98-0386683 | ||
|
Mercator Shipping Corporation
|
Marshall Islands | 98-0386682 | ||
|
Horizon Shipping Enterprises Corporation
|
Marshall Islands | 98-0386677 | ||
|
Star Maritime Enterprises Corporation
|
Marshall Islands | 98-0386685 | ||
|
Navios Handybulk Inc.
|
Marshall Islands | 98-0156162 | ||
|
Navios International Inc.
|
Marshall Islands | 98-0163555 | ||
|
Nostos Shipmanagement Corp.
|
Marshall Islands | 66-0715101 | ||
|
Portorosa Marine Corp.
|
Marshall Islands | 66-0715102 | ||
|
White Narcissus Marine S.A.
|
Panama | 75-3252951 | ||
|
Hestia Shipping Ltd.
|
Malta | 98-0386676 | ||
|
Kleimar Ltd.
|
Marshall Islands | 75-3268633 | ||
|
Navimax Corporation
|
Marshall Islands | 06-1624242 | ||
|
Aquis Marine Corp.
|
Marshall Islands | 66-0751682 | ||
|
Navios Tankers Management Inc.
|
Marshall Islands | 42-1771241 |
| (1) | The address for each of the additional registrant guarantors is 85 Akti Miaouli Street, Piraeus, Greece 185 38. |
Table of Contents
|
The
information in this prospectus is not complete and may be
changed. We may not sell these securities or consummate the
exchange offer until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus
is not an offer to sell or exchange these securities and it is
not soliciting an offer to acquire or exchange these securities
in any jurisdiction where the offer, sale or exchange is not
permitted. |
SUBJECT TO COMPLETION, DATED
JUNE 21, 2011
PROSPECTUS
Navios Maritime Holdings
Inc.
Navios Maritime Finance II
(US) Inc.
Exchange Offer for
$350,000,000
81/8% Senior
Notes due 2019
We are offering to exchange up to $350,000,000 of our
81/8% senior
notes due 2019, which will be registered under the Securities
Act of 1933, as amended, for up to $350,000,000 of the
outstanding
81/8% senior
notes due 2019 which we issued on January 28, 2011. We are
offering to exchange the exchange notes for the outstanding
notes to satisfy our obligations contained in the registration
rights agreement that we entered into when the outstanding notes
were sold pursuant to Rule 144A and Regulation S under
the Securities Act. We refer to the outstanding senior notes
collectively as “the outstanding notes,” the senior
notes which will be registered under the Securities Act
collectively as “the exchange notes” and the
outstanding notes and the exchange notes collectively as
“the notes.” The terms of the exchange notes are
identical to the terms of the outstanding notes, except that the
transfer restrictions, registration rights and additional
interest provisions relating to the outstanding notes do not
apply to the exchange notes.
The exchange offer will expire at 5:00 p.m., New York City
time
on ,
2011, unless we extend it.
Broker-dealers receiving exchange notes in exchange for
outstanding notes acquired for their own account through
market-making or other trading activities must acknowledge that
they will deliver this prospectus in any resale of the exchange
notes. The letter of transmittal states that by so acknowledging
and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an “underwriter” within the
meaning of the Securities Act. This prospectus, as it may be
amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of the exchange notes
received in exchange for outstanding notes where such
outstanding notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities.
We have agreed that, for a period of 210 days after the
expiration date of the exchange offer, we will make this
prospectus available to any broker-dealer for use in connection
with any such resale. See “Plan of Distribution.”
You should consider carefully the “Risk Factors”
beginning on page 20 of this prospectus.
Neither the Securities and Exchange Commission, or the SEC,
nor any state securities commission has approved or disapproved
of these securities or passed upon the accuracy or adequacy of
this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus
is ,
2011.
You should rely only on the information contained in this
prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with
different or inconsistent information, you should not rely on
it. This prospectus does not constitute an offer to sell, or
solicitation of an offer to buy, to any person in any
jurisdiction in which such an offer to sell or solicitation
would be unlawful. You should assume that the information
appearing in this prospectus is accurate only as of the date on
the front cover of this prospectus.
TABLE OF
CONTENTS
Table of Contents
ABOUT
THIS PROSPECTUS
As used in this prospectus, unless the context indicates
otherwise:
| • | References to “the company,” “Navios Holdings,” “we,” “our” and “us,” refer to Navios Maritime Holdings Inc. and its subsidiaries. | |
| • | References to the “Co-Issuer” are to Navios Maritime Finance II (US) Inc., our wholly owned subsidiary incorporated in Delaware that was formed solely for the purpose of serving as a co-issuer and guarantor of our debt securities and that does not have any material assets or operations. | |
| • | References to “Navios Logistics” are to Navios South American Logistics Inc., our unrestricted South American subsidiary that did not guarantee the notes described in this prospectus. | |
| • | References to “Navios Partners” are to Navios Maritime Partners L.P, a separate New York Stock Exchange-listed limited partnership formed by us in August 2007. We own a 27.1% interest in Navios Partners as of the date of this prospectus, which includes a 2% general partner interest. Navios Partners did not guarantee the notes described in this prospectus. | |
| • | References to “Navios Acquisition” are to Navios Maritime Acquisition Corporation, a separate New York Stock Exchange-listed company formed by us in March 2008. We own 45% of the outstanding voting stock as of the date of this prospectus. Navios Acquisition did not guarantee the notes described in this prospectus. |
Unless otherwise indicated, all dollar references in this
prospectus are to U.S. dollars and financial information
presented in this prospectus that is derived from financial
statements incorporated by reference is prepared in accordance
with accounting principles generally accepted in the United
States.
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC.
This summary highlights the material information contained
elsewhere in this prospectus or in other documents incorporated
by reference in this prospectus. As an investor or prospective
investor you should carefully read the risk factors and the more
detailed information that is included elsewhere in this
prospectus or is contained in the documents incorporated by
reference into this prospectus.
ii
Table of Contents
INCORPORATION
BY REFERENCE
The Securities and Exchange Commission, or the SEC, allows us to
“incorporate by reference” information contained in
documents we file with them, which means that we can disclose
important information to you by referring you to those
documents. The information incorporated by reference is
considered to be part of this prospectus, and later information
that we file with the SEC, to the extent that we identify such
information as being incorporated by reference into this
prospectus, will automatically update and supersede this
information. Information set forth in this prospectus supersedes
any previously filed information that is incorporated by
reference into this prospectus. We incorporate by reference into
this prospectus the following information and documents:
| • | our annual report on Form 20-F/A for the fiscal year ended December 31, 2010, dated June 20, 2011 (SEC File No. 001-33311) and as it may be amended from time to time; | |
| • | our current reports on Form 6-K filed on April 12, 2011, May 24, 2011, May 24, 2011 and May 25, 2011; | |
| • | all future filings on Form 20-F and Form 6-K we make under the Securities Exchange Act of 1934, as amended, after the date of this prospectus and prior to the effectiveness of this prospectus; and | |
| • | any future filings on Form 20-F and Form 6-K we make under the Securities Exchange Act of 1934, as amended, after the effectiveness of this prospectus and prior to the termination of the exchange offer. |
You may request a copy of these filings, at no cost, by
writing or calling us at the following address and phone
number:
VASILIKI (VILLY) PAPAEFTHYMIOU
SECRETARY
NAVIOS MARITIME HOLDINGS INC.
85 AKTI MIAOULI STREET
PIRAEUS 185 38, GREECE
TELEPHONE: +30-210-4595000
SECRETARY
NAVIOS MARITIME HOLDINGS INC.
85 AKTI MIAOULI STREET
PIRAEUS 185 38, GREECE
TELEPHONE: +30-210-4595000
To ensure timely delivery, please make your request as soon
as practicable and, in any event, no later
than ,
which is five business days prior to the expiration of the
exchange offer.
You should rely only on the information contained in this
prospectus or to which we have referred you. We have not
authorized any person to provide you with different information.
We are offering to exchange the outstanding notes for exchange
notes only in jurisdictions where offers and sales are
permitted. The information in this document may only be accurate
on the date of this document.
iii
Table of Contents
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in “Summary,” under the caption
“Risk Factors,” and elsewhere in this prospectus
constitute “forward-looking statements.” These
forward-looking statements are not historical facts, but rather
are based on our current expectations, estimates and projections
about our business, our plans, objectives of management for
future operations, our industry, and our beliefs and
assumptions. Our forward-looking statements include information
regarding future supply, demand and pricing dynamics,
descriptions of global demand for commodities, drybulk capacity
and newbuildings, freight rates, our business and acquisition
strategy, our ability to continue to charter-in vessels at
favorablerates and obtain favorable purchase options, and our
ability to operate at low costs in the future. Words including
“may,” “could,” “would,”
“will,” “anticipates,” “expects,”
“intends,” “plans,” “projects,”
“believes,” “seeks,” “estimates”
and similar expressions are intended to identify forward-looking
statements. These statements are not guarantees of future
performance and are subject to certain risks, uncertainties and
other factors, some of which are beyond our control, are
difficult to predict and could cause actual results to differ
materially from those expressed or forecasted in the
forward-looking statements. We caution you not to place undue
reliance on these forward-looking statements, which reflect our
management’s view only as of the date of this prospectus.
We are not obligated to update these statements or publicly
release the result of any revisions to them to reflect events or
circumstances after the date of this prospectus or to reflect
the occurrence of unanticipated events. For purposes of the
information contained in this prospectus, when we state that a
risk, uncertainty or problem may, could or would have “a
material adverse effect on our business” or words to that
effect, we mean that the risk, uncertainty or problem may, could
or would have a material adverse effect on the business, results
of operations, financial condition, cash flow or prospects of
our company.”
In addition to the factors and matters described in this
prospectus, including under “Risk Factors,” important
factors that, in our view, could cause actual results to differ
materially from those discussed in the forward-looking
statements include:
| • | the effects of our substantial indebtedness and the covenants and limitations contained in the agreements governing such indebtedness; | |
| • | our ability to service debt obligations and our ability to incur additional indebtedness to fund the acquisitions of additional vessels; | |
| • | the strength of world economies, particularly in the Asia Pacific region; | |
| • | the cyclical nature of the international drybulk shipping industry; | |
| • | changes in the market values of our vessels and the vessels for which we have purchase options; | |
| • | the effect of short-term decreases in shipping rates and the difference between our charter-in rates and the rates we obtain when we charter-out the vessels; | |
| • | general market conditions, including fluctuations in charterhire rates and vessel values; | |
| • | significant changes in vessel performance, including increased vessel breakdowns; | |
| • | changes in demand for drybulk commodities and in the drybulk shipping industry; | |
| • | an inability to expand relationships with existing customers and obtain new customers; | |
| • | changes in production or demand for the types of drybulk products that are transported by our vessels; | |
| • | compliance risks associated with trade sanctions; | |
| • | dependence upon significant customers; | |
| • | changes in our operating expenses, including but not limited to changes in crew salaries, insurance, provisions, repairs, maintenance and overhead expenses, bunker prices and drydocking costs; | |
| • | planned capital expenditures; | |
| • | fluctuations in performance of outstanding operations; |
iv
Table of Contents
| • | the effect of trading and hedging activities in freight, tonnage and Forward Freight Agreements; | |
| • | changes to governmental rules and regulations or actions taken by regulatory authorities; | |
| • | potential liability from pending or future litigation; | |
| • | general domestic and international political conditions, including wars, acts of piracy and terrorism; | |
| • | fluctuations in currencies and interest rates; | |
| • | potential disruption of shipping routes due to accidents, political or terrorist events; | |
| • | the ability of our contract counterparties to fulfill their obligations to us; | |
| • | uncertainty about continued access to favorable time charters as a result of longstanding relationships with Japanese shipowners; | |
| • | the ability of shipyards to deliver vessels on a timely basis; | |
| • | the ability of our vessels to pass classification inspection; | |
| • | customers’ increasing emphasis on environmental and safety concerns; | |
| • | the aging of our vessels and resultant increases in operation costs; | |
| • | the loss of any customer or charter or vessel; | |
| • | damage to our vessels; | |
| • | our capacity to manage our expanding business; | |
| • | insurance coverage of our shipping-specific risks; | |
| • | our participation in protection and indemnity associations subjecting us to calls or premiums based on the records of other members; | |
| • | retention of key members of our senior management team; | |
| • | certain risks through our direct and indirect investments in Navios Maritime Partners L.P., including risks related to our ability to receive cash distributions and being deemed an investment company under the Investment Company Act of 1940; and | |
| • | our possible liability for United States income tax. |
You should read this prospectus completely and with the
understanding that actual future results may be materially
different from expectations. All forward-looking statements made
in this prospectus are qualified by these cautionary statements.
These forward-looking statements are made only as of the date of
this prospectus, and we do not undertake any obligation, other
than as may be required by law, to update or revise any
forward-looking statements to reflect changes in assumptions,
the occurrence of unanticipated events, changes in future
operating results over time or otherwise.
v
Table of Contents
ENFORCEABILITY
OF CIVIL LIABILITIES AND
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Navios Maritime Holdings Inc. is incorporated under the laws of
the Republic of the Marshall Islands, and our subsidiaries are
incorporated under the laws of Delaware, the Republic of the
Marshall Islands, Malta, Belgium, Luxembourg, Liberia, Panama,
Uruguay, Argentina, Brazil and certain other countries other
than the United States, and we conduct operations in countries
around the world. Several of our directors, officers and the
experts named in this prospectus reside outside the United
States. In addition, a substantial portion of our assets and the
assets of the directors, officers and experts are located
outside the United States. As a result, it may not be possible
for you to serve legal process within the United States upon us
or any of these persons. It may also not be possible for you to
enforce, both in and outside the United States, judgments you
may obtain in United States courts against us or these persons
in any action, including actions based upon the civil liability
provisions of U.S. federal or state securities laws.
Furthermore, there is substantial doubt that the courts of such
jurisdictions would enter judgments in original actions brought
in those courts predicated on U.S. federal or state
securities laws. See “Risk Factors — “We are
incorporated in the Republic of the Marshall Islands, which does
not have a well-developed body of corporate law” and
“We, and certain of our officers and directors, may be
difficult to serve with process as we are incorporated in the
Republic of the Marshall Islands and such persons may reside
outside of the United States.” ”
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable.
We have obtained directors’ and officers’ liability
insurance against any liability asserted against such person
incurred in the capacity of director or officer or arising out
of such status, whether or not we would have the power to
indemnify such person.
vi
Table of Contents
PROSPECTUS
SUMMARY
The following is only a summary. We urge you to read the
entire prospectus, including the more detailed financial
statements, notes to the financial statements and other
information incorporated by reference from our other filings
with the SEC. An investment in our securities involves risks.
Therefore, carefully consider the information provided under the
heading “Risk Factors” beginning on page 20.
Business
Overview
We are a large global, vertically integrated seaborne shipping
and logistics company focused on the transport and transshipment
of drybulk commodities, including iron ore, coal and grain. We
manage the technical and commercial operations of our owned
fleet, Navios Acquisition and Navios Partners’ fleet, and
commercially manage our chartered-in fleet. We charter our
vessels to a diversified group of high-quality companies or
their affiliate entities, such as Cargill International SA,
COSCO Bulk Carriers Ltd., Mitsui O.S.K. Lines Ltd., Oldendorff
Carriers GmbH & Co. and STX Pan Ocean Co. The Navios
business was established by the United States Steel Corporation
in 1954, and we believe that we have built strong brand equity
through 57 years of experience working with raw materials
producers, agricultural traders and exporters, and industrial
end-users. We control, through a combination of vessel ownership
and long-term time chartered-in vessels, approximately
5.8 million dwt in drybulk tonnage, making us one of the
largest independent drybulk operators in the world.
Our current “core fleet” refers to drybulk vessel
operations (excluding Navios Partners, Navios Acquisition and
Navios Logistics) including the newbuildings to be delivered and
the employment profile of the vessels. The current “core
fleet” consists of 55 vessels totaling
5.8 million dwt. The employment profile of the fleet as of
June 17, 2011 is reflected in the tables under “Our
Fleet” below. The 42 vessels in current operation
aggregate approximately 4.6 million dwt and have an average
age of 4.9 years. Of the 42 vessels currently in
operation, we own a total of 28 vessels, comprised of 14
modern Ultra Handymax (50,000-59,000 dwt), three Panamax
(70,000-83,000 dwt) and 11 Capesize (over 100,000 dwt) vessels.
We also time charter-in and commercially manage a total of
27 vessels, comprised of five Ultra-Handymax, two
Handysize, 11 Panamax and nine Capesize vessels under long-term
time charters, 14 of which are currently in operation, with the
remaining 13 scheduled for delivery on various dates through
December 2013. We have options to acquire 15 of the 27 time
chartered-in vessels. We have, at various times over the last
four years, deployed over 50 vessels at any one time,
including those in our core fleet.
The vessels in our core fleet are significantly younger than the
world drybulk fleet and have an average age of approximately
4.9 years compared to an industry average of 13 years,
according to Drewry Shipping Consultants Ltd., or Drewry. We
believe our large, modern fleet, coupled with our long operating
history, allows us to charter-out our vessels for longer periods
of time and to high quality counterparties. Our active vessels
(excluding Kleimar, N.V. (“Kleimar”) vessels allocated
to CoA contracts) are currently chartered-out with an average
remaining charter period of 3.1 years. Navios Holdings has
currently fixed 93.4%, 57.6% and 39.0% of its 2011, 2012 and
2013 available days, respectively, of its fleet (excluding
vessels, which are utilized to fulfill voyage charter or CoAs),
representing contracted fees (net of commissions), based on
contracted charter rates from its current charter agreement of
$304.4 million, $218.0 million and
$168.8 million, respectively. Although these fees are based
on contractual charter rates, any contract is subject to
performance by the counterparties and us. Additionally, the
level of these fees would decrease depending on the
vessels’ off-hire days to perform periodic maintenance. The
average contractual daily charter-out rate for the core fleet
(excluding vessels which are utilized to fulfill voyage charter
or CoAs) is $26,335, $28,778 and $32,415 for 2011, 2012 and
2013, respectively. The average daily charter-in rate for the
active long-term charter-in vessels (excluding vessels which are
utilized to fulfill voyage charter or CoAs) for 2011 is $10,562.
We have grown our owned fleet from six vessels as of
August 25, 2005 to 28 vessels as of June 17,
2011, an increase of almost 366.7%. As of June 17, 2011, we
had purchase options on 15 of our 27 chartered-in vessels. We
regularly evaluate the acquisition of additional vessels and
shipping businesses and are currently in discussions regarding
several of such acquisitions, any of which could be material.
We are able to operate our owned fleet at costs below the
industry average for vessels of a similar type through our
in-house technical management and the efficiencies derived from
our modern fleet. Further, through the strategic commercial
management of our fleet, we fix the employment for our vessels
in the following ways: long-term charters, short-term charters,
spot charters, and the use of CoAs. This integrated management
approach maximizes the utilization
1
Table of Contents
of our vessels and provides for contracted revenues and
operating visibility. Through our contracted revenues and
operating expenses that we believe are approximately 31% below
the industry average for vessels of similar type, we anticipate
we are able to improve the stability and predictability of our
cash flows. For the year ended December 31, 2010, and for
the three months ended March 31, 2011, our consolidated
revenue was $679.9 million and $181.8 million,
respectively. Our guarantor subsidiaries accounted for
approximately $458.4 million and $112.3 million of our
total revenue, for the year ended December 31, 2010 and the
three months ended March 31, 2011, respectively.
Our
Fleet
Fleet
Growth
Since August 2005, we have grown our owned fleet from six
vessels to 28 vessels as of June 17, 2011, an increase
of almost 366.7%.
The following tables present certain information related to our
fleet as of June 17, 2011 (excluding the fleet of Navios
Partners, Navios Acquisition and Navios Logistics).
Owned
Vessels
|
Charter-out |
Profit |
Expiration |
||||||||||||||||||
|
Vessels
|
Type
|
Built | DWT | Rate(1) | Share(*) | Date(2) | ||||||||||||||
|
Navios Ionian
|
Ultra Handymax | 2000 | 52,067 | 13,726 | No | 09/18/2012 | ||||||||||||||
|
Navios Celestial
|
Ultra Handymax | 2009 | 58,063 | 17,550 | No | 01/24/2012 | ||||||||||||||
|
Navios Vector
|
Ultra Handymax | 2002 | 50,296 | 14,725 | No | 12/27/2011 | ||||||||||||||
|
Navios Horizon
|
Ultra Handymax | 2001 | 50,346 | 36,100 | No | 07/24/2012 | ||||||||||||||
|
Navios Herakles
|
Ultra Handymax | 2001 | 52,061 | 16,150 | No | 07/02/2011 | ||||||||||||||
|
Navios Achilles
|
Ultra Handymax | 2001 | 52,063 | 25,521 | (7) |
65%/$20,000 after March 2012 |
12/17/2013 | |||||||||||||
|
Navios Meridian
|
Ultra Handymax | 2002 | 50,316 | 14,250 | No | 03/17/2012 | ||||||||||||||
|
Navios Mercator
|
Ultra Handymax | 2002 | 53,553 | 21,660 | (7) | 08/01/2011 | ||||||||||||||
| 29,783 | (7) |
65%/$20,000 after March 2012 |
01/12/2015 | |||||||||||||||||
|
Navios Arc
|
Ultra Handymax | 2003 | 53,514 | 14,725 | No | 10/13/2011 | ||||||||||||||
|
Navios Hios
|
Ultra Handymax | 2003 | 55,180 | 13,300 | No | 09/21/2011 | ||||||||||||||
|
Navios Kypros
|
Ultra Handymax | 2003 | 55,222 | 20,778 | 50%/$19,000 | 01/28/2014 | ||||||||||||||
|
Navios Ulysses
|
Ultra Handymax | 2007 | 55,728 | 31,281 | No | 10/12/2013 | ||||||||||||||
|
Navios Vega
|
Ultra Handymax | 2009 | 58,792 | 15,751 | No | 05/23/2013 | ||||||||||||||
|
Navios Astra
|
Ultra Handymax | 2006 | 53,468 | 15,533 | No | 12/11/2011 | ||||||||||||||
|
Navios Magellan
|
Panamax | 2000 | 74,333 | 22,800 | No | 03/26/2012 | ||||||||||||||
|
Navios Star
|
Panamax | 2002 | 76,662 | 16,958 | No | 11/27/2012 | ||||||||||||||
|
Navios Asteriks
|
Panamax | 2005 | 76,801 | — | — | |||||||||||||||
|
Navios Bonavis
|
Capesize | 2009 | 180,022 | 47,400 | No | 06/29/2014 | ||||||||||||||
|
Navios Happiness
|
Capesize | 2009 | 180,022 | 52,345 | (7) |
50%/$32,000 after March 2012 |
07/24/2014 | |||||||||||||
|
Navios Lumen
|
Capesize | 2009 | 180,661 | 19,500 | (6) | Yes | 08/14/2011 | |||||||||||||
| 29,250 | (6) | Yes | 02/14/2012 | |||||||||||||||||
| 39,830 | (6) | Yes | 12/10/2012 | |||||||||||||||||
| 43,193 | (6) | Yes | 12/10/2013 | |||||||||||||||||
| 42,690 | (6) | Yes | 12/10/2016 | |||||||||||||||||
| 39,305 | (6) | Yes | 12/10/2017 | |||||||||||||||||
|
Navios Stellar
|
Capesize | 2009 | 169,001 | 36,974 | (9) | No | 12/22/2016 | |||||||||||||
|
Navios Phoenix
|
Capesize | 2009 | 180,242 | 27,075 | No | 12/10/2011 | (8) | |||||||||||||
2
Table of Contents
|
Charter-out |
Profit |
Expiration |
||||||||||||||||||
|
Vessels
|
Type
|
Built | DWT | Rate(1) | Share(*) | Date(2) | ||||||||||||||
|
Navios Antares
|
Capesize | 2010 | 169,059 | 37,590 | (9) | No | 01/19/2015 | |||||||||||||
| 45,875 | (9) | No | 01/19/2018 | |||||||||||||||||
|
Navios Buena Ventura
|
Capesize | 2010 | 179,132 | 29,356 | 50%/$38,500 | 10/28/2020 | ||||||||||||||
|
Navios Etoile
|
Capesize | 2010 | 179,234 | 29,356 |
50% in excess of $38,500 |
12/02/2020 | ||||||||||||||
|
Navios Bonheur
|
Capesize | 2010 | 179,259 | 27,888 | (7) |
50%/$32,000 after March 2012 |
12/16/2013 | |||||||||||||
| 25,025 | (7) | 12/16/2022 | ||||||||||||||||||
|
Navios Altamira
|
Capesize | 01/2011 | 179,165 | 24,674 | No | 01/27/2021 | ||||||||||||||
|
Navios Azimuth
|
Capesize | 02/2011 | 179,169 | 26,469 | (7) |
50%/$34,500 after March 2012 |
02/13/2023 | |||||||||||||
Long-term
Chartered-in Vessels
|
Purchase |
Charter-out |
Expiration |
||||||||||||||||||||
|
Vessels
|
Type
|
Built | DWT | Option(3) | Rate(1) | Date(2) | ||||||||||||||||
|
Navios Primavera
|
Ultra Handymax | 2007 | 53,464 | Yes | 14,919 | 10/06/2011 | ||||||||||||||||
|
Navios Armonia
|
Ultra Handymax | 2008 | 55,100 | No | 13,300 | 10/22/2011 | ||||||||||||||||
|
Navios Orion
|
Panamax | 2005 | 76,602 | No | 49,400 | 12/14/2012 | ||||||||||||||||
|
Navios Titan
|
Panamax | 2005 | 82,936 | No | 19,000 | 11/09/2012 | ||||||||||||||||
|
Navios Altair
|
Panamax | 2006 | 83,001 | No | 19,238 | 11/23/2011 | ||||||||||||||||
|
Navios Esperanza
|
Panamax | 2007 | 75,200 | No | 14,513 | 02/19/2013 | ||||||||||||||||
|
Torm Antwerp
|
Panamax | 2008 | 75,250 | No | — | |||||||||||||||||
|
Golden Heiwa
|
Panamax | 2007 | 76,662 | No | — | |||||||||||||||||
|
Beaufiks
|
Capesize | 2004 | 180,181 | Yes | — | |||||||||||||||||
|
Rubena N
|
Capesize | 2006 | 203,233 | No | — | |||||||||||||||||
|
SC Lotta
|
Capesize | 2009 | 170,500 | No | — | |||||||||||||||||
|
Formosabulk Brave
|
Capesize | 2001 | 170,000 | No | — | |||||||||||||||||
|
Phoenix Beauty
|
Capesize | 2010 | 169,150 | No | — | |||||||||||||||||
|
King Ore
|
Capesize | 2010 | 176,800 | No | — | |||||||||||||||||
Vessels
to be Delivered
|
Delivery |
Purchase |
|||||||||||||
|
Vessels
|
Type
|
Date | Option | DWT | ||||||||||
|
Navios Serenity
|
Handysize | 10/2011 | Yes | (4) | 34,718 | |||||||||
|
Navios TBN
|
Handysize | 09/2012 | Yes | (4) | 34,718 | |||||||||
|
Navios Koyo
|
Capesize | 12/2011 | Yes | 181,000 | ||||||||||
|
Kleimar TBN
|
Capesize | 07/2012 | Yes | 180,000 | ||||||||||
|
Navios TBN
|
Capesize | 12/2013 | Yes | 180,000 | ||||||||||
|
Navios TBN
|
Ultra Handymax | 02/2012 | Yes | 61,000 | ||||||||||
|
Navios TBN
|
Ultra Handymax | 05/2013 | Yes | 61,000 | ||||||||||
|
Navios TBN
|
Ultra Handymax | 10/2013 | Yes | 61,000 | ||||||||||
|
Navios Marco Polo
|
Panamax | 12/2011 | Yes | 80,000 | ||||||||||
|
Navios TBN
|
Panamax | 01/2013 | Yes | 82,100 | ||||||||||
|
Navios TBN
|
Panamax | 07/2013 | Yes | (4) | 80,500 | |||||||||
|
Navios TBN
|
Panamax | 09/2013 | Yes | (4) | 80,500 | |||||||||
|
Navios TBN
|
Panamax | 11/2013 | Yes | (4) | 80,500 | |||||||||
3
Table of Contents
| (1) | Daily rate net of commissions. | |
| (2) | Expected redelivery basis midpoint of full redelivery period. | |
| (3) | Generally, Navios Holdings may exercise its purchase option after three to five years of service. | |
| (4) | Navios Holdings holds the initial 50% purchase option on each vessel. | |
| (5) | Profit share based on applicable Baltic TC Average exceeding $/day rates listed. | |
| (6) | Year eight optional (option to Navios Holdings) included in the table above. Profit sharing = 100% to Navios Holdings until net daily rate of $44,850 and becomes 50/50 thereafter. | |
| (7) | Amount represents daily net rate of insurance proceeds following the default of the original charterer. The contracts for these vessels have been temporarily suspended and the vessels have been re-chartered to third parties for variable charter periods. Upon completion of the suspension period, the contracts with the original charterers will resume at amended terms. The obligations of our insurers are reduced by an amount equal to the mitigation charter hire revenues earned under the contracts with third parties and/or the original charterer or the applicable deductibles for any idle periods. The Company has filed claims for all unpaid amounts by the original charterer in respect of the employment of the vessels in the corporate rehabilitation proceedings. The disposition of these claims will be determined by the court at a future date. | |
| (8) | Subject to COA of $45,500 per day for the remaining period until first quarter of 2015. | |
| (9) | Amount represents daily rate of insurance proceeds following the default of the original charterer. These vessels have been rechartered to third parties for variable charter periods. Obligations of the insurer are reduced by an amount equal to the mitigation charter hire revenues earned under these contracts and the applicable deductibles under the insurance policy. |
Competitive
Advantages
We believe that the following strengths allow us to maintain a
competitive advantage within the drybulk segment of the
international shipping market.
Large, Diverse Fleet of Modern Vessels. Our
fleet consists of 42 active vessels, plus 13 vessels that
are contracted for future delivery, bringing our total
controlled fleet to 55 vessels aggregating approximately
5.8 million dwt and making us one of the largest
independent drybulk operators in the world. Our core fleet is
comprised of modern Handysize, Ultra-Handymax, Panamax and
Capesize vessels with an average age of 4.9 years compared
to an industry average age of 13 years, according to
Drewry. We believe our modern and diverse fleet provides us with
certain operational advantages, including more efficient cargo
operations, lower insurance and vessel maintenance costs, higher
levels of fleet productivity and an efficient operating cost
structure. The diversity of our fleet profile enables us to
serve our customers in both major and minor bulk trades and
ensures the company is not overly exposed to any one drybulk
asset class for its revenues. Our modern fleet provides us a
competitive advantage in the time charter market, where vessel
age and quality are of significant importance in competing for
business.
High-Quality Counterparties. We charter our
vessels to a diversified group of high-quality companies or
their affiliate entities such as Cargill International SA, COSCO
Bulk Carriers Ltd., Mitsui O.S.K. Lines Ltd., Oldendorff
Carriers GmbH & Co. and STX Pan Ocean Co. We continue
to build and develop strong relationships with our
counterparties and have maintained consistent relationships with
our top counterparties.
Operating Visibility Through Contracted
Revenues. Our vessels are chartered out with an
average remaining charter period of 3.1 years as of
June 17, 2011, and we believe our existing charter coverage
provides us with predictable, contracted revenues and operating
visibility. As of June 17, 2011, we have charters covering
93.4% of available days in 2011, 57.6% of available days in 2012
and 39.0% of available days in 2013 (excluding vessels which are
allocated to CoAs) representing contracted fees (net of
commissions), based on contracted charter rates from our current
charter agreements of $304.4 million, $218.0 million
and $168.8 million, respectively. Payment of these
contracted fees has been insured through a “AA+” rated
governmental agency of a European Union member state, which
provides that if the charterer goes into payment default, the
insurer will reimburse us for the charter payments under the
terms of the policy (subject to applicable deductibles and other
customary limitations for such
4
Table of Contents
insurance) for the remaining term of the charter-out contract.
Depending on market conditions, we will continue to enter into
long-term time charters as vessels become available for
employment.
Proven Access to Low-Cost, Long-Term Charter-In Vessels and
Purchase Options. Given our long history and
brand recognition, we have developed relationships with many of
the largest trading houses in Japan, such as Marubeni
Corporation and Mitsui & Co. Through these
relationships, we have obtained low-cost, long-term charter-in
contracts. Many of these contracts have historically contained
options to extend time charters as well as options to purchase
the vessel. The purchase options require no initial outlay of
capital to build the vessel and shift the construction risk to
the charter counterparty. Since these options can be exercised
over a number of years, they provide us the flexibility of
purchasing a vessel if market conditions are attractive. In
addition, chartering-in vessels is a low-cost alternative for
expanding our fleet and, historically, we have been able to
charter-in vessels at attractive rates relative to our
charter-out rates. As of June 17, 2011, the average
contractual daily charter-out rates for the core fleet
(excluding vessels which are allocated to CoAs) are $26,335,
$28,778 and $32,415 for 2011, 2012 and 2013, respectively. The
average daily charter-in rate for the active long term
charter-in vessels (excluding vessels which are allocated to
CoAs) for 2011 is $10,562.
Strong Vessel Sourcing Relationships and Innovative Capital
Markets Financing Strategies. We have taken
advantage of the disruptions in the capital markets during 2009
and 2010 to acquire and finance vessels using our own equity at
favorable prices. We believe that our ability to use our
mandatorily convertible preferred stock continues to be a
competitive advantage as we have been able to issue convertible
preferred stock with a conversion price significantly above the
then current market price of our common stock while engaging in
transactions that are accretive to our existing shareholders.
Furthermore, our strong relationships within the shipping
industry, including with shipyards and maritime lenders, provide
us with opportunities to acquire vessels at significant
discounts from companies facing economic difficulties or
undergoing financial restructuring.
Low-Cost, Efficient Operation with In-House Technical
Management. Our operating efficiencies allow us
to maintain operating expenses that we believe are, as of
March 31, 2011, approximately 31% below the industry
average for vessels of a similar type. We employ our own
in-house technical management team which oversees every step of
technical management, from the construction of the vessels in
Japan and South Korea to subsequent shipping operations
throughout the life of a vessel, including the superintendence
of maintenance, repairs, drydocking and crewing, thereby
providing efficiency and transparency in our owned fleet
operation. This allows us to proactively monitor our
vessels’ performance and conduct in-transit repairs to
lower our operational costs.
Experienced Management Team and Strong
Brand. Our management team is well respected in
the drybulk sector and the shipping industry, and has a strong
track record of operational experience. The key members of our
management team have on average over 20 years of experience
in the shipping industry. Since August 25, 2005, our
management team has grown our owned fleet by almost 366.7% to
28 vessels as of June 17, 2011. In addition, the
Navios brand has 57 years of history in the drybulk sector
and has a well established reputation for reliability and
performance. We believe that our well respected management team
and strong brand present us with market opportunities not
afforded to other drybulk carriers.
Business
Strategy
Our strategy is to generate predictable and growing cash flow
through the following:
Maximize Fleet Utilization and
Profitability. The shipping industry uses fleet
utilization to measure a company’s efficiency in finding
suitable employment for its vessels and minimizing the days its
vessels are off-hire. For the year ended December 31, 2010
and the three months ended March 31, 2011, we had an
average utilization of 99.5% and 98.7%, respectively, which we
believe is one of the highest fleet utilization rates in the
industry.
Specifically, our strategy of maximizing vessel utilization is
implemented as follows:
| • | The operation of time charters, whereby the vessel is hired out for a predetermined period but without any specification as to voyages to be performed, with the ship owner being responsible for operating costs and the charterer for voyage costs; |
5
Table of Contents
| • | The operation of voyage charters or spot fixtures for the carriage of a single cargo from load port to discharge port; and | |
| • | The use of CoAs, under which Navios Holdings contracts to carry a given quantity of cargo between certain load and discharge ports within a stipulated time frame, but does not specify in advance which vessels, will be used to perform the voyages. |
We believe we are one of relatively few major owners and
operators of vessels that implement these various strategies.
Enhance Operating Visibility With Conservative, Long-term
Charter Out Strategy. Our long term charter
strategy offers operating visibility, builds upon the stability
of our cash flows and minimizes our exposure to the more
volatile short term market for drybulk shipping. As of
June 17, 2011, we have significant charter coverage with
our fleet chartered out for 93.4% of available days in 2011,
57.6% of available days in 2012 and 39.0% of available days in
2013 (excluding vessels which are allocated to CoAs).
Continue to Operate Our Owned Vessels
Efficiently. Through our in-house technical
management, we will continue to focus on implementing best
practices to derive efficiencies from the operation of our owned
fleet and focus on reducing our operating costs per owned
vessel. By focusing on preventative maintenance and proactively
monitoring our vessels’ performance, we are able to limit
the days of off-hire for our vessels. For the three months ended
March 31, 2011, we had a total of 35 days of off-hire
for our owned fleet.
Pursue an Appropriate Balance Between Vessel Ownership and a
Long-Term Chartered-In Fleet. We control, through
a combination of vessel ownership and long-term time
chartered-in vessels, approximately 5.8 million dwt in
drybulk tonnage, making us one of the largest independent
drybulk operators in the world. We will selectively seek to
expand the size of our fleet to increase our cash flow and
profitability. We will continue to charter-in additional
tonnage, depending on market conditions, exercise the purchase
options on certain chartered-in vessels and, purchase secondhand
vessels or shipping companies to increase the number of vessels
we own and control. Our ability to charter-in vessels at
favorable rates affords us a low-cost alternative to add
additional shipping capacity without the capital expenditures
required by new vessel acquisitions. In addition, through our
purchase options on certain of our chartered-in vessels, we are
able to determine when is the most commercially opportune time
to own or charter-in vessels and, if we so choose, we are able
to purchase vessels at lower purchase prices than the current
market values. We intend to monitor development in the sales and
purchase market to maintain the appropriate balance between
owned and long-term time chartered-in vessels.
Capitalize on Our Established Reputation. We
have an established reputation for maintaining high standards of
performance, reliability, and safety. We believe our reputation
and commercial relationships enable us to obtain favorable
long-term time charters, enter into the freight market, increase
our short-term tonnage capacity to several times the capacity of
our fleet and obtain access to cargo freight opportunities
through CoA arrangements not readily available to other industry
participants. We will continue to leverage our reputation to
obtain favorable charter-in and vessel acquisition terms, as
reflected in the purchase options contained in many of our
long-term charter-in contracts.
Strategically Pursue Acquisition
Opportunities. We emphasize continued growth in
our fleet, through purchases of additional vessels, chartered-in
vessels and through business acquisitions. We continue to expand
our fleet through the exercise of purchase options.
Capitalize on Market Intelligence. Our
experience in the industry and active involvement in the spot
based, short-term and long-term charter markets and the market
for forward freight agreements, or FFAs, provide us real-time
access to market intelligence. Given the cyclical and volatile
nature of the drybulk shipping market, we have raised the
commercial sophistication of our business model in recent years
by using market intelligence to make more informed decisions in
managing our fleet. In addition, we believe that our South
American logistics business provides us a unique level of market
intelligence through the operations of our dry and liquid port
terminals in the Hidrovia region and our direct interaction with
many of the region’s leading international grain and
commodity houses.
6
Table of Contents
Businesses
We Own Interests In
We own substantial equity interests in Navios Logistics, Navios
Acquisition and Navios Partners. Navios Logistics owns and
operates vessels, barges and push boats located mainly in
Argentina, the largest bulk transfer and storage port facility
in Uruguay, and an upriver liquid port facility located in
Paraguay. Navios Acquisition is a publicly traded corporation
that owns and operates crude, product and chemical tanker
vessels. Navios Partners is a publicly traded master limited
partnership that owns and operates Capesize, Panamax and
Ultra-Handymax drybulk vessels under medium and long-term
charters.
Navios
South American Logistics Inc.
On January 1, 2008, we formed a South American logistics
business through the combination of our existing port operations
in Uruguay with the Horamar Group, a barge and upriver port
business that specializes in the transportation and storage of
liquid cargoes and the transportation of dry bulk cargoes in
South America. Navios Logistics owns and operates vessels,
barges and push boats located mainly in Argentina, the largest
bulk transfer and storage port facility in Uruguay, and an
upriver liquid port facility located in Paraguay. We intend to
continue growing our South American logistics business by
opportunistically acquiring assets complementary to its port
terminal and storage facilities. Currently, we own approximately
63.8% of the outstanding common stock of Navios Logistics. We
have been evaluating a number of strategic alternatives for
Navios Logistics, including Navios Logistics becoming an
independent business; while there can be no certainty as to
timing, Navios Holdings could decide to pursue these strategic
alternatives as early as 2011.
Navios Logistics is also subject to risks unique to its
business. It is exposed to the risks of doing business in many
different, and often less developed emerging market countries.
Navios Logistics’ operations are performed in countries
that are historically less developed and stable than the United
States. Some of the risks Navios Logistics is exposed to by
operating in these countries include political and economic
instability, changing economic policies and conditions, war and
civil disturbances and the imposition of or unexpected adverse
changes in foreign laws and regulatory requirements.
Navios Logistics is an unrestricted subsidiary under the
indentures governing our existing notes and will be an
unrestricted subsidiary under the exchange notes and therefore
will not be a guarantor of the notes.
Navios Logistics accounted for approximately $44.4 million,
or 24.4%, of our total revenue and approximately
$2.1 million income of our net loss, in each case for the
three months ended March 31, 2011, as compared to
approximately $36.2 million, or 23.4%, of our total revenue
and approximately $1.2 million loss of our net income, in
each case for the three months ended March 31, 2010.
Navios Logistics accounted for approximately
$188.0 million, or 27.7%, of our total revenue and
approximately $5.6 million or 3.8%, of our net income, in
each case for the year ended December 31, 2010, as compared
to approximately $138.9 million, or 23.2%, of our total
revenue and approximately $5.4 million, or 8.0%, of our net
income, in each case for the year ended December 31, 2009.
For further information, see “Risk Factors — The
notes will be effectively subordinated to the obligations of our
current non-guarantor subsidiaries, which include our
unrestricted subsidiaries, and any future non-guarantor
subsidiaries.”
Navios
Maritime Acquisition Corporation
On July 1, 2008, Navios Holdings completed the initial
public offering (“IPO”) of units in Navios Acquisition
(NYSE: NNA), a blank check company. In this offering, Navios
Acquisition sold 25,300,000 units for an aggregate purchase
price of $253.0 million. Simultaneously with the completion
of the IPO, Navios Holdings purchased private placement warrants
of Navios Acquisition for an aggregate purchase price of
$7.6 million. Prior to the IPO, Navios Holdings had
purchased 8,625,000 sponsor units for a total consideration of
$25,000, of which an aggregate of 290,000 units were
transferred to Navios Holdings’ officers and directors and
an aggregate of 2,300,000 sponsor units were returned to Navios
Acquisition and cancelled upon receipt. Each unit consists of
one share of Navios Acquisition’s common stock and one
warrant.
7
Table of Contents
On May 25, 2010, after its special meeting of stockholders,
Navios Acquisition announced the approval of (a) the
acquisition of 13 vessels (11 product tankers and two
chemical tankers, and options to purchase two additional product
tankers) for an aggregate purchase price of $457.7 million
pursuant to the terms and conditions of an acquisition agreement
(the “Acquisition Agreement”) by and between Navios
Acquisition and Navios Holdings and (b) certain amendments
to Navios Acquisition’s amended and restated articles of
incorporation.
Following the consummation of the transactions described in the
Acquisition Agreement, Navios Holdings was released from all
debt and equity commitments for the above vessels and Navios
Acquisition reimbursed Navios Holdings for equity payments made
prior to the stockholders’ meeting under the purchase
contracts for the vessels, plus all associated payments
previously made by Navios Holdings amounting to
$76.5 million.
Navios Holdings has purchased 6,337,551 shares of Navios
Acquisition’s common stock for $63.2 million in open
market purchases. Moreover, on May 28, 2010, certain
shareholders of Navios Acquisition redeemed
10,021,399 shares pursuant to redemption rights granted in
the IPO upon de-“SPAC”-ing. As of May 28, 2010,
following these transactions, Navios Holdings owned
12,372,551 shares, or 57.3%, of the outstanding common
stock of Navios Acquisition. On that date, Navios Holdings
acquired control over Navios Acquisition, and consequently
concluded a business combination had occurred and consolidated
the results of Navios Acquisition from that date until
March 30, 2011.
On March 30, 2011, Navios Holdings completed the Navios
Acquisition Share Exchange whereby Navios Holdings exchanged
7,676,000 shares of Navios Acquisition’s common stock
it held for 1,000 shares of non-voting Series C
preferred stock of Navios Acquisition pursuant to an Exchange
Agreement entered into on March 30, 2011 between Navios
Acquisition and Navios Holdings. The fair value of the exchange
was $30.5 million, which was based on the share price of
the publicly traded common shares of Navios Acquisition on
March 30, 2011. Following the Navios Acquisition Share
Exchange, Navios Holdings’ ownership of the outstanding
voting stock of Navios Acquisition decreased to 45% and Navios
Holdings no longer controls a majority of the voting power of
Navios Acquisition. From that date onwards, Navios Acquisition
is considered as an affiliate entity of Navios Holdings and is
not a controlled subsidiary of the Company, and the investment
in Navios Acquisition is now accounted for under the equity
method due to the Company’s significant influence over
Navios Acquisition. Navios Acquisition will be accounted for
under the equity method of accounting based on Navios
Holdings’ 53.7% economic interest in Navios Acquisition,
since the preferred stock is considered in-substance common
stock for accounting purposes.
On March 30, 2011, based on the equity method, the Company
recorded an investment in Navios Acquisition of
$103.3 million, which represents the fair value of the
common stock and Series C preferred stock that was held by
Navios Holdings on such date. On March 30, 2011, the
Company calculated a loss on change in control of
$35.3 million, which is equal to the fair value of the
Company’s investment in Navios Acquisition of
$103.3 million less the Company’s 53.7% interest in
Navios Acquisition’s net assets on March 30, 2011.
Navios Acquisition is an owner and operator of tanker vessels
focusing in the transportation of petroleum products (clean and
dirty) and bulk liquid chemicals.
Navios
Maritime Partners L.P.
On August 7, 2007, we formed Navios Maritime Partners L.P.
(NYSE: NMM) under the laws of the Republic of the Marshall
Islands. Navios GP L.L.C. (the “General Partner”), our
wholly owned subsidiary and an unrestricted subsidiary and not a
guarantor under the indenture related to the notes, was also
formed on that date to act as the general partner of Navios
Partners and to receive a 2% general partner interest, which
gives us a 2% indirect interest in Navios Partners and all of
Navios Partners’ incentive distribution rights through our
ownership of the General Partner. Navios Partners is an
international owner and operator of six Capesize, one
Ultra-Handymax and 11 Panamax vessels engaged in the seaborne
transportation services of a wide range of drybulk commodities
including iron ore, coal, grain and fertilizer which are
chartered under long-term time charters. We currently own a
27.1% direct interest in Navios Partners, including a 2% general
partner interest, in the form of common units (9.9%),
subordinated units (13.5%) and subordinated series A units
(1.8%). The operations of Navios Partners are managed by Navios
ShipManagement Inc. (the “Manager”), our wholly-owned
subsidiary, from its offices in Piraeus, Greece. In connection
with Navios Partners’ IPO, we entered into (a) a
management agreement with Navios Partners pursuant to which the
Manager provides Navios Partners commercial and technical
management services;
8
Table of Contents
(b) an administrative services agreement with the Manager
pursuant to which the Manager provides Navios Partners
administrative services and is in turn reimbursed for reasonable
costs and expenses; and (c) an omnibus agreement with
Navios Partners, governing, among other things, when we and
Navios Partners may compete against each other as well as rights
of first offer on certain drybulk carriers. Pursuant to the
omnibus agreement that we entered into with Navios Partners in
connection with the closing of its IPO, we generally agreed not
to acquire or own Panamax or Capesize drybulk carriers under
time charters of three or more years without the consent of an
independent committee of Navios Partners. We also agreed to
offer to Navios Partners the opportunity to purchase vessels
from us when such vessels are fixed under charters of three or
more years. However, the omnibus agreement was amended in June
2009 to release us for two years from restrictions on acquiring
vessels from third parties. In addition to those vessels which
we are required to offer to Navios Partners under the omnibus
agreement, as amended, we may voluntarily offer certain vessels
to Navios Partners. Navios Partners paid a quarterly cash
distribution of $0.415, $0.42, $0.42, $0.43 and $0.43 for the
three month periods ended March 31, 2010, June 30,
2010, September 30, 2010, December 31, 2010 and
March 31, 2011, respectively. Since its formation through
March 31, 2011, we have received $56.6 million in
distributions from Navios Partners.
Corporate
Ownership and Structure
The Navios business was established by United States Steel
Corporation in 1954 for the transportation of its iron ore
requirements. On August 25, 2005, International Shipping
Enterprises, Inc., or ISE, acquired all of the outstanding
shares of Navios Holdings’ common stock and merged with and
into Navios Holdings, with Navios Holdings surviving. Navios
Holdings maintains offices in Piraeus, Greece, Antwerp, Belgium,
Norwalk, Connecticut, Montevideo, Uruguay, Buenos Aires,
Argentina, Asuncion, Paraguay and Corumba, Brazil. On
January 1, 2008, Navios Holdings formed a South American
logistics business, Navios Logistic, through the combination of
our Nueva Palmira port operations with a barge and upriver port
businesses that specializes in the transportation and storage of
liquid cargoes and the transportation of drybulk cargoes in
South America.
Our common stock is listed on the New York Stock Exchange under
the ticker symbol “NM.”
We maintain our principal executive offices at 85 Akti Miaouli
Street, Piraeus 185 38, Greece. Our telephone number at that
address is +30-210-4595000. Our website address is
www.navios.com. The information on our website is not a
part of this prospectus.
9
Table of Contents
Corporate
Structure
The chart below summarizes our ownership and corporate structure
as of June 17, 2011.
10
Table of Contents
Summary
of the Exchange Offer
On January 28, 2011, we sold $350,000,000 aggregate
principal amount of
81/8% senior
notes due 2019, or the outstanding notes, in a transaction
exempt from registration under the Securities Act of 1933, as
amended (the “Securities Act”). We are conducting this
exchange offer to satisfy our obligations contained in the
registration rights agreement that we entered into in connection
with that sale. You should read the discussion under the
headings “The Exchange Offer” and “Description of
Notes” for further information regarding the exchange notes
to be issued in the exchange offer.
| Securities Offered | Up to $350,000,000 aggregate principal amount of 8 1/8% senior notes due 2019 registered under the Securities Act (the “exchange notes”). The terms of the exchange notes offered in the exchange offer are identical to those of the outstanding notes, except that the transfer restrictions, registration rights and additional interest provisions relating to the outstanding notes do not apply to the exchange notes. | |
| The Exchange Offer | We are offering exchange notes in exchange for a like principal amount of our outstanding notes. The exchange notes are being offered only in exchange for the 81/8% senior notes due 2019 that we issued on January 28, 2011, and not for any other notes. | |
| You may tender your outstanding notes for exchange notes by following the procedures described under the heading “The Exchange Offer.” | ||
| Tenders; Expiration Date; Withdrawal | The exchange offer will expire at 5:00 p.m., New York City time, on , 2011, unless we extend it. You may withdraw any outstanding notes that you tender for exchange at any time prior to the expiration of this exchange offer. See “The Exchange Offer — Terms of the Exchange Offer” for a more complete description of the tender and withdrawal period. | |
| Conditions to the Exchange Offer | The exchange offer is not subject to any conditions, other than that: | |
|
• the exchange offer does not violate any applicable
law or applicable interpretations of the staff of the SEC;
|
||
|
• the outstanding notes are validly tendered in
accordance with the exchange offer; and
|
||
|
• there is no action or proceeding instituted or
threatened in any court or by any governmental agency that in
our judgment would reasonably be expected to impair our ability
to proceed with the exchange offer.
|
||
| The exchange offer is not conditioned upon any minimum aggregate principal amount of outstanding notes being tendered in the exchange. | ||
| Procedures for Tendering Outstanding Notes | To participate in this exchange offer, you must properly complete and duly execute a letter of transmittal, which accompanies this prospectus, and transmit it, along with all other documents required by such letter of transmittal, to the exchange agent on or before the expiration date at the address provided on the cover page of the letter of transmittal. | |
| In the alternative, you can tender your outstanding notes by book-entry delivery following the procedures described in this prospectus, |
11
Table of Contents
| whereby you will agree to be bound by the letter of transmittal and we may enforce the letter of transmittal against you. | ||
| If a holder of outstanding notes desires to tender such notes and the holder’s outstanding notes are not immediately available, or time will not permit the holder’s outstanding notes or other required documents to reach the exchange agent before the expiration date, or the procedure for book-entry transfer cannot be completed on a timely basis, a tender may be effected pursuant to the guaranteed delivery procedures described in this prospectus. | ||
| See “The Exchange Offer — Procedures for Tendering.” | ||
| U.S. Federal Tax Considerations | Your exchange of outstanding notes for exchange notes to be issued in the exchange offer will not result in any gain or loss to you for United States federal income tax purposes. See “Certain U.S. Federal Tax Considerations” for a summary of United States federal income tax consequences of the purchase, ownership and disposition of the exchange notes and the exchange of the outstanding notes for the exchange notes. | |
| Use of Proceeds | We will not receive any cash proceeds from the exchange offer. | |
| Exchange Agent | Wells Fargo Bank, National Association under the indenture governing the notes, is serving as exchange agent in connection with the exchange offer. The address and telephone number of the exchange agent are set forth under the heading “The Exchange Offer — Exchange Agent.” | |
| Consequences of Failure to Exchange Your Outstanding Notes | Outstanding notes not exchanged in the exchange offer will continue to be subject to the restrictions on transfer that are described in the legend on the outstanding notes. In general, you may offer or sell your outstanding notes only if they are registered under, or offered or sold under an exemption from, the Securities Act and applicable state securities laws. We do not currently intend to register the outstanding notes under the Securities Act. If your outstanding notes are not tendered and accepted in the exchange offer, it may become more difficult for you to sell or transfer your outstanding notes. | |
| Resales of the Exchange Notes | Based on interpretations of the staff of the SEC, we believe that you may offer for sale, resell or otherwise transfer the exchange notes that we issue in the exchange offer without complying with the registration and prospectus delivery requirements of the Securities Act if: | |
|
• you acquire the exchange notes issued in the
exchange offer in the ordinary course of your business;
|
||
|
• you are not participating, do not intend to
participate, and have no arrangement or undertaking with anyone
to participate, in the distribution of the exchange notes issued
to you in the exchange offer; and
|
||
|
• you are not an “affiliate” of our company,
as that term is defined in Rule 405 of the Securities Act.
|
||
| If any of these conditions are not satisfied and you transfer any exchange notes issued to you in the exchange offer without delivering |
12
Table of Contents
| a proper prospectus or without qualifying for a registration exemption, you may incur liability under the Securities Act. We will not be responsible for, or indemnify you against, any liability you incur. | ||
| Any broker-dealer that acquires exchange notes in the exchange offer for its own account in exchange for outstanding notes which it acquired through market-making or other trading activities must acknowledge that it will deliver this prospectus when it resells or transfers any exchange notes issued in the exchange offer. See “Plan of Distribution” for a description of the prospectus delivery obligations of broker-dealers. |
13
Table of Contents
Summary
of The Exchange Notes
The summary below describes the principal terms of the exchange
notes. Certain of the terms and conditions described below are
subject to important limitations and exceptions. The
“Description of Notes” section of this prospectus
contains more detailed descriptions of the terms and conditions
of the exchange notes.
| Issuers | Navios Maritime Holdings Inc. and Navios Maritime Finance II (US) Inc. | |
| Notes offered | $350,000,000 aggregate principal amount of 81/8% Senior Notes due 2019. | |
| Maturity | The exchange notes will mature on February 15, 2019. | |
| Interest payment dates | We will pay interest on the exchange notes semi-annually on February 15 and August 15 of each year, beginning August 15, 2011. | |
| Ranking | The exchange notes will be the senior unsecured obligations of Navios Maritime Holdings Inc. and Navios Maritime Finance II (US) Inc. Each of our direct and indirect subsidiaries that guarantee our existing notes will guarantee the exchange notes offered hereby. The exchange notes will rank: | |
|
• equal in right of payment to all of our existing and
future unsecured obligations that are not, by their terms,
expressly subordinated in right of payment to the exchange notes;
|
||
|
• senior in right of payment to all existing and
future obligations that are, by their terms, expressly
subordinated in right of payment to the exchange notes;
|
||
|
• effectively subordinated to all existing and future
secured obligations, including our existing senior secured notes
due 2017, and other secured obligations, to the extent of the
value of the assets securing such obligations; and
|
||
|
• effectively subordinated to all indebtedness of our
non-guarantor subsidiaries.
|
||
| As of March 31, 2011, Navios Maritime Holdings Inc. and the subsidiary guarantors had approximately $1,308.4 million of indebtedness outstanding, including $938.4 million of secured indebtedness, which is senior to the exchange notes, and our non-guarantor subsidiaries had approximately $126.0 million of indebtedness outstanding, which is structurally senior to the exchange notes. | ||
| Our non-guarantor subsidiaries accounted for approximately $221.5 million, or 32.6%, of our total revenue, approximately $1,553.0 million, or 42.2%, of our total assets and approximately $957.1 million, or 40.6%, of our total liabilities, in each case for the year ended December 31, 2010. As of March 31, 2011, our non-guarantor subsidiaries accounted for approximately $69.5 million, or 38.2%, of our total revenue, approximately $542.0 million, or 18.9%, of our total assets and approximately $209.1 million, or 12.2%, of our total liabilities. | ||
| As of March 30, 2011, Navios Acquisition is no longer a consolidated subsidiary and our consolidated statement of operations for March 31, 2011 includes results for Navios Acquisition only through March 30, |
14
Table of Contents
| 2011. From that date onwards, Navios Acquisition is considered as an affiliate entity of Navios Holdings and is not a controlled subsidiary of the Company, and the investment in Navios Acquisition is now accounted for under the equity method due to the Company’s significant influence over Navios Acquisition. | ||
| See footnote 25 to our audited consolidated financial statements for the year ended December 31, 2010 and footnote 15 to our unaudited consolidated financial statements for the three months ended March 31, 2011 (in which the financial information for our “non-guarantor subsidiaries” includes information for Navios Acquisition and Navios Logistics, as applicable) incorporated by reference in this prospectus. | ||
| Guarantees | On the issue date, the exchange notes will be fully and unconditionally guaranteed, jointly and severally, by all of our direct and indirect subsidiaries that guarantee the existing notes, which excludes certain subsidiaries that have been or will be designated as “unrestricted subsidiaries.” Each wholly owned material subsidiary that we create or acquire following the issue date will also be required to guarantee the exchange notes unless such subsidiary has been designated as an “unrestricted subsidiary” or is a securitization subsidiary. See “Description of Notes — Certain Covenants — Designation of Restricted and Unrestricted Subsidiaries — Subsidiary Guarantees.” | |
| Optional redemption | We may redeem the exchange notes in whole or in part, at our option, at any time (1) before February 15, 2015, at a redemption price equal to 100% of the principal amount plus the applicable make-whole premium described under “Description of Notes — Optional Redemption” plus accrued and unpaid interest, if any, and (2) on or after February 15, 2015, at the redemption prices listed under “Description of Notes — Optional Redemption” plus accrued and unpaid interest, if any. | |
| Equity offering optional redemption | In addition, at any time before February 15, 2014, we may redeem up to 35% of the aggregate principal amount of the exchange notes with the net proceeds of an equity offering at 108.125% of the principal amount of the exchange notes, plus accrued and unpaid interest, if any, so long as at least 65% of the originally issued aggregate principal amount of the exchange notes remains outstanding after such redemption. See “Description of Notes — Optional Redemption.” | |
| Change of control | Upon the occurrence of certain change of control events, you will have the right, as a holder of the exchange notes, to require us to repurchase some or all of your exchange notes at 101% of their face amount, plus accrued and unpaid interest to the repurchase date. See “Description of Notes — Repurchase at the Option of Holders — Change of Control.” | |
| Certain covenants | Navios Maritime Holdings Inc. and Navios Maritime Finance II (US) Inc. issued the exchange notes under an indenture. The indenture governing the exchange notes contain covenants that, among other things, limit the ability of Navios Maritime Holdings Inc. and its restricted subsidiaries to: | |
|
• incur additional indebtedness or issue certain
preferred stock;
|
15
Table of Contents
|
• pay dividends on, redeem or repurchase our capital
stock or make other restricted payments and investments;
|
||
|
• create certain liens;
|
||
|
• transfer or sell assets;
|
||
|
• enter into certain transactions with our affiliates;
|
||
|
• merge, consolidate or sell all or substantially all
of our properties and assets; and
|
||
|
• create or designate unrestricted subsidiaries.
|
||
| These restrictions and prohibitions are subject to a number of important qualifications and exceptions. See “Description of Notes — Certain Covenants.” | ||
| Risk factors | You should consider carefully all of the information set forth in this prospectus and, in particular, the information under the heading “Risk Factors” before participating in the exchange offer. |
For more complete information about the exchange notes, see the
“Description of Notes” section of this prospectus.
16
Table of Contents
Selected
Consolidated Historical Financial Data
The following table sets forth selected consolidated historical
financial data for our business. This information is qualified
by reference to, and should be read in conjunction with, our
consolidated financial statements and notes thereto, as well as
the sections entitled, “Operating and Financial Review and
Prospects” which are incorporated by reference herein from
our Annual Report on
Form 20-F/A
for the fiscal year ended December 31, 2010 and our Report
on
Form 6-K
reporting results for the quarter ended March 31, 2011. The
selected historical financial information and operating results
for the years ended December 31, 2010, 2009 and 2008 and
the consolidated balance sheet data as of December 31, 2010
and 2009 have been derived from our audited consolidated
financial statements incorporated by reference herein from our
Annual Report on
Form 20-F/A
for the fiscal year ended December 31, 2010. The
consolidated statement of operations data for the years ended
December 31, 2007 and 2006, and the balance sheet data as
of December 31, 2008, 2007 and 2006, have been derived from
our audited financial statements which are not incorporated by
reference into this prospectus. The selected consolidated
historical financial data for the three-month periods ended
March 31, 2011 and 2010 have been derived from our
unaudited financial statements incorporated by reference herein
from our Report on
Form 6-K
reporting results for the quarter ended March 31, 2011. In
the opinion of management, unaudited financial statements
presented include all adjustments, consisting of normal
recurring adjustments, necessary for a fair statement of the
results for the periods presented. Where necessary, comparative
figures have been reclassified to conform to changes in
presentation in the current year.
The historical results included below and elsewhere in this
prospectus are not necessarily indicative of our future
performance.
|
Three Months Ended |
||||||||||||||||||||||||||||
| March 31, | Year Ended December 31, | |||||||||||||||||||||||||||
| 2011 | 2010 | 2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||||||||
| (Unaudited) | ||||||||||||||||||||||||||||
| (In thousands of U.S. dollars) | ||||||||||||||||||||||||||||
|
Statement of Income Data
|
||||||||||||||||||||||||||||
|
Revenue
|
$ | 181,772 | $ | 154,369 | $ | 679,918 | $ | 598,676 | $ | 1,246,062 | $ | 758,420 | $ | 205,375 | ||||||||||||||
|
Time charter, voyage and logistics business expenses
|
(59,114 | ) | (76,501 | ) | (286,136 | ) | (313,496 | ) | (1,034,435 | ) | (557,573 | ) | (84,225 | ) | ||||||||||||||
|
Direct vessel expenses
|
(34,018 | ) | (20,044 | ) | (97,531 | ) | (71,796 | ) | (58,425 | ) | (27,892 | ) | (19,863 | ) | ||||||||||||||
|
General and administrative expenses
|
(12,774 | ) | (12,193 | ) | (58,604 | ) | (43,897 | ) | (37,047 | ) | (23,058 | ) | (15,057 | ) | ||||||||||||||
|
Depreciation and amortization
|
(33,321 | ) | (24,941 | ) | (101,793 | ) | (73,885 | ) | (57,062 | ) | (31,900 | ) | (37,129 | ) | ||||||||||||||
|
Gain on sale of assets/gain on sale of subsidiary
|
— | 24,383 | 55,432 | 20,785 | 27,817 | 167,511 | ||||||||||||||||||||||
|
Interest income/expense and finance cost, net
|
(29,437 | ) | (21,409 | ) | (102,380 | ) | (61,919 | ) | (41,375 | ) | (40,270 | ) | (43,597 | ) | ||||||||||||||
|
(Loss)/gain on derivatives
|
(385 | ) | (1,838 | ) | 4,064 | 375 | 8,092 | 25,100 | 20,322 | |||||||||||||||||||
|
(Loss)/gain on change in control
|
(35,325 | ) | — | 17,742 | — | — | — | — | ||||||||||||||||||||
|
Loss on bond extinguishment
|
(21,199 | ) | — | — | — | — | — | — | ||||||||||||||||||||
|
Other income and expense, net
|
(975 | ) | (3,799 | ) | (5,614 | ) | (14,666 | ) | (6,921 | ) | 3,185 | (5,431 | ) | |||||||||||||||
|
(Loss)/income before equity in net earnings of affiliated
companies
|
(44,776 | ) | 18,027 | 105,098 | 40,177 | 46,706 | 273,523 | 20,395 | ||||||||||||||||||||
|
Equity in net earnings of affiliated companies
|
7,015 | 11,584 | 40,585 | 29,222 | 17,431 | 1,929 | 674 | |||||||||||||||||||||
|
(Loss)/income before taxes
|
(37,761 | ) | 29,611 | 145,683 | 69,399 | 64,137 | 275,452 | 21,069 | ||||||||||||||||||||
|
Income taxes
|
904 | 768 | (414 | ) | 1,565 | 56,113 | (4,451 | ) | — | |||||||||||||||||||
|
Net (loss)/income
|
(36,857 | ) | 30,379 | 145,269 | 70,964 | 120,250 | 271,001 | 21,069 | ||||||||||||||||||||
|
Less: Net loss/(income) attributable to the noncontrolling
interest
|
(1,273 | ) | 922 | 488 | (3,030 | ) | (1,723 | ) | — | — | ||||||||||||||||||
|
Preferred stock dividends of subsidiary
|
(27 | ) | — | — | — | — | — | — | ||||||||||||||||||||
|
Preferred stock dividends attributable to the noncontrolling
interest
|
12 | — | — | — | — | — | — | |||||||||||||||||||||
|
Net (loss)/income attributable to Navios Holdings common
stockholders
|
(38,145 | ) | 31,301 | 145,757 | 67,934 | 118,527 | 271,001 | 21,069 | ||||||||||||||||||||
|
Less: Incremental fair value of securities offered to induce
warrants exercise
|
— | — | — | — | — | (4,195 | ) | — | ||||||||||||||||||||
|
(Loss)/income available to Navios Holdings common
shareholders
|
$ | (38,145 | ) | $ | 31,301 | $ | 145,757 | $ | 67,934 | $ | 118,527 | $ | 266,806 | $ | 21,069 | |||||||||||||
17
Table of Contents
|
Three Months Ended |
||||||||||||||||||||||||||||
| March 31, | Year Ended December 31, | |||||||||||||||||||||||||||
| 2011 | 2010 | 2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||||||||
| (Unaudited) | ||||||||||||||||||||||||||||
| (In thousands of U.S. dollars) | ||||||||||||||||||||||||||||
|
Balance Sheet Data (at period end)
|
||||||||||||||||||||||||||||
|
Current assets, including cash
|
$ | 317,185 | $ | 487,442 | $ | 349,965 | $ | 427,680 | $ | 505,409 | $ | 848,245 | $ | 195,869 | ||||||||||||||
|
Total assets
|
2,869,951 | 2,959,962 | 3,676,767 | 2,935,182 | 2,253,624 | 1,971,004 | 944,783 | |||||||||||||||||||||
|
Current liabilities, including current portion of long term debt
|
205,396 | 192,105 | 201,603 | 196,080 | 271,532 | 450,491 | 108,979 | |||||||||||||||||||||
|
Total long term debt, including current portion
|
1,434,479 | 1,586,406 | 2,075,910 | 1,622,706 | 887,715 | 614,049 | 568,062 | |||||||||||||||||||||
|
Navios Holdings’ stockholders’ equity
|
1,020,781 | 972,063 | 1,059,583 | 925,480 | 805,820 | 769,204 | 274,216 | |||||||||||||||||||||
|
Other Financial Data
|
||||||||||||||||||||||||||||
|
Net cash provided by/(used in) operating activities
|
54,933 | 24,032 | 182,490 | 216,451 | (28,388 | ) | 128,075 | 56,432 | ||||||||||||||||||||
|
Net cash (used in)/provided by investing activities
|
(133,566 | ) | 58,736 | (129,769 | ) | (802,538 | ) | (452,637 | ) | (16,451 | ) | (111,463 | ) | |||||||||||||||
|
Net cash provided by/(used in) financing activities
|
51,383 | (45,781 | ) | (19,244 | ) | 626,396 | 187,082 | 216,285 | 116,952 | |||||||||||||||||||
|
Book value per common share
|
10.04 | 9.63 | 10.43 | 9.17 | 8.02 | 7.23 | 4.42 | |||||||||||||||||||||
|
Ratio of earnings to fixed charges(1)
|
— | 1.61 | 1.75 | 1.41 | 1.17 | 2.48 | 1.31 | |||||||||||||||||||||
|
Cash dividends per common share
|
0.07 | 0.06 | 0.24 | 0.27 | 0.38 | 0.24 | 0.25 | |||||||||||||||||||||
|
Cash dividends per preferred share
|
49.32 | 94.79 | 345.52 | 52.35 | — | — | — | |||||||||||||||||||||
|
Cash paid for common stock dividend declared
|
7,241 | 6,060 | 24,107 | 27,154 | 28,588 | 26,023 | 15,382 | |||||||||||||||||||||
|
Cash paid for preferred stock dividend declared
|
418 | 975 | 2,930 | 429 | — | — | — | |||||||||||||||||||||
| (1) The ratio of earnings to fixed charges is calculated as follows: | ||||||||||||||||||||||||||||
| March 31, | December 31, | |||||||||||||||||||||||||||
| 2011 | 2010 | 2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||||||||
|
Earnings:
|
||||||||||||||||||||||||||||
|
(a) pre-tax income (loss) from continuing operations before
adjustment for income or loss from equity investees
|
(44,776 | ) | 18,027 | 105,098 | 40,177 | 46,706 | 273,523 | 20,395 | ||||||||||||||||||||
|
(b) fixed charges
|
44,156 | 38,675 | 170,047 | 145,103 | 353,672 | 185,719 | 67,700 | |||||||||||||||||||||
|
(c) amortization of capitalized interest
|
— | — | — | — | — | — | — | |||||||||||||||||||||
|
(d) distributed income of equity investees
|
6,126 | 5,377 | 22,197 | 18,944 | 13,250 | 678 | 583 | |||||||||||||||||||||
|
(e) share of pre-tax losses of equity investees for which
charges arising from guarantees are included in fixed charges
|
— | — | — | — | — | — | — | |||||||||||||||||||||
|
Less:
|
||||||||||||||||||||||||||||
|
(a) Interest capitalized
|
— | — | — | — | — | — | — | |||||||||||||||||||||
|
(b) preference security dividend requirements of
consolidated subsidiaries
|
(27 | ) | — | — | — | — | — | — | ||||||||||||||||||||
|
(c) noncontrolling interest in pre-tax income of
subsidiaries that have not incurred fixed charges
|
— | — | — | — | — | — | — | |||||||||||||||||||||
|
Total
|
5,479 | 62,079 | 297,342 | 204,224 | 413,628 | 459,920 | 88,678 | |||||||||||||||||||||
18
Table of Contents
| March 31, | December 31, | |||||||||||||||||||||||||||
| 2011 | 2010 | 2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||||||||
|
Fixed charges:
|
||||||||||||||||||||||||||||
|
(a) Interest expensed and capitalized
|
32,462 | 21,086 | 105,565 | 68,790 | 51,438 | 49,287 | 39,425 | |||||||||||||||||||||
|
(b) amortization of debt expense and discount or premium
and capitalized expenses related to indebtedness
|
1,331 | 1,614 | 11,752 | 6,682 | 2,077 | 1,856 | 8,004 | |||||||||||||||||||||
|
(c) an estimate of the interest within rental expense
|
10,336 | 15,975 | 52,730 | 69,631 | 300,157 | 134,576 | 20,271 | |||||||||||||||||||||
|
(d) preference security dividend requirements of
consolidated subsidiaries
|
27 | — | — | — | — | — | — | |||||||||||||||||||||
|
Total
|
44,156 | 38,675 | 170,047 | 145,103 | 353,672 | 185,719 | 67,700 | |||||||||||||||||||||
|
Earnings to fixed charges
|
(A | ) | 1.61 | 1.75 | 1.41 | 1.17 | 2.48 | 1.31 | ||||||||||||||||||||
|
(A) Additional pre-tax income from continuing operations
before adjustment for income or loss from equity investees of
$38,677 would be necessary to generate a ratio of earnings to
fixed charges of 1.00.
|
||||||||||||||||||||||||||||
19
Table of Contents
RISK
FACTORS
You should carefully consider the risk factors set forth
below and the other information included in or incorporated by
reference into this prospectus before deciding to participate in
the exchange offer. The risks described below are not the only
risks that we face. Additional risks and uncertainties not
currently known to us or that we currently deem to be immaterial
may also impair our business operations. Any of these risks may
have a material adverse effect on our business, financial
condition, results of operations and cash flows. In such a case,
you may lose all or part of your investment in the exchange
notes.
Risks
Relating to the Notes and our Business
We
have substantial debt and may incur substantial additional debt,
which could adversely affect our financial health and our
ability to obtain financing in the future, react to changes in
our business and make payments on the notes.
As of March 31, 2011, Navios Holdings and its consolidated
subsidiaries had $1,434.5 million in aggregate principal
amount of debt outstanding of which $370.0 million was
unsecured. We also have up to $30.0 million available to us
under our existing credit facilities.
Our substantial debt could have important consequences to
holders of the notes. Because of our substantial debt:
| • | our ability to obtain additional financing for working capital, capital expenditures, debt service requirements, vessel or other acquisitions or general corporate purposes and our ability to satisfy our obligations with respect to the notes may be impaired in the future; | |
| • | a substantial portion of our cash flow from operations must be dedicated to the payment of principal and interest on our indebtedness, thereby reducing the funds available to us for other purposes; | |
| • | we will be exposed to the risk of increased interest rates because our borrowings under our senior secured credit facility will be at variable rates of interest; | |
| • | it may be more difficult for us to satisfy our obligations to our lenders and noteholders, resulting in possible defaults on and acceleration of such indebtedness; | |
| • | we may be more vulnerable to general adverse economic and industry conditions; | |
| • | we may be at a competitive disadvantage compared to our competitors with less debt or comparable debt at more favorable interest rates and that, as a result, we may be better positioned to withstand economic downturns; | |
| • | our ability to refinance indebtedness may be limited or the associated costs may increase; and | |
| • | our flexibility to adjust to changing market conditions and ability to withstand competitive pressures could be limited, or we may be prevented from carrying out capital spending that is necessary or important to our growth strategy and efforts to improve operating margins or our business. |
Despite
our current indebtedness levels, we and our subsidiaries may be
able to incur substantially more debt, including secured debt.
This could further exacerbate the risks associated with our
substantial indebtedness.
We and our subsidiaries may be able to incur substantial
additional indebtedness in the future. The agreements governing
our senior secured credit facilities and the indentures
governing our existing notes, including the exchange notes, do
not fully prohibit us or our subsidiaries from doing so. As of
March 31, 2011, Navios Holdings and its consolidated
subsidiaries had $1,434.5 million in aggregate principal
amount of debt outstanding of which $1,064.5 million was
secured. Such secured indebtedness and any other secured
indebtedness permitted under our senior secured credit facility
and the indentures would be effectively senior to the notes to
the extent of the value of the assets securing such
indebtedness, as would all indebtedness of non-guarantor
subsidiaries. We also may incur new indebtedness in connection
with our exercise of purchase options on vessels. If new debt is
added to our current
20
Table of Contents
debt levels, the related risks that we now face would increase
and we may not be able to meet all our debt obligations,
including the repayment of the notes. In addition, the
indentures governing our existing notes, including the exchange
notes, do not prevent us from incurring obligations that do not
constitute indebtedness as defined therein.
The
agreements and instruments governing our debt will contain
restrictions and limitations that could significantly impact our
ability to operate our business and adversely affect the holders
of the notes.
Our senior secured credit facilities, the indentures governing
our existing notes, the outstanding notes and the exchange
notes, impose certain operating and financial restrictions on
us. These restrictions may limit our ability to:
| • | incur guarantees or additional indebtedness; | |
| • | create liens on its assets; | |
| • | make investments; | |
| • | engage in mergers and acquisitions; | |
| • | pay dividends or redeem capital stock; | |
| • | make capital expenditures; | |
| • | engage in certain FFA trading activities; | |
| • | change the management of its vessels or terminate the management agreements we have relating to each vessel; | |
| • | enter into long-term charter arrangements without the consent of the lender; and | |
| • | sell any of our vessels. |
Therefore, we will need to seek permission from our lenders in
order to engage in some corporate and commercial actions that we
believe would be in the best interest of our business, and a
denial of permission may make it difficult for us to
successfully execute our business strategy or effectively
compete with companies that are not similarly restricted. Our
lenders’ interests may be different from our interests or
the interests of the holders of the notes, and we cannot
guarantee that we will be able to obtain our lenders’
permission when needed. This may prevent us from taking actions
that are in our best interest. Any future credit agreement may
include similar or more restrictive provisions.
Our senior secured credit facilities contain requirements that
the value of the collateral provided pursuant to the senior
secured credit facilities must be equal or exceed by a certain
percentage the amount of outstanding borrowings under senior
secured credit facilities and that we maintain a minimum
liquidity level. In addition, our senior secured credit
facilities contain similar restrictive covenants as those
contained in the indentures. It is an event of default under our
senior secured credit facility if such covenants are not
complied with or if Ms. Angeliki Frangou, our Chairman and
Chief Executive Officer, ceases to hold a minimum percentage of
the issued stock, does not remain actively involved in the
operating business, or ceases to be our Chief Executive Officer.
Our ability to comply with the covenants and restrictions
contained in our senior secured credit facilities and the
indentures governing our notes may be affected by economic,
financial and industry conditions and other factors beyond our
control. Any default under the agreements governing our
indebtedness, including a default under our senior secured
credit facilities, that is not waived by the required lenders,
and the remedies sought by the holders of such indebtedness,
could prevent us from paying principal, premium, if any, and
interest on the notes and substantially decrease the market
value of the notes. If we are unable to repay debt, lenders
having secured obligations, such as the lenders under our senior
secured credit facilities, could proceed against that debt. In
any such case, we may be unable to borrow under our senior
secured credit facilities and may not be able to repay the
amounts due under our senior secured credit facilities and the
notes. This could have serious consequences to our financial
condition and results of operations and could cause us to become
bankrupt or insolvent. Our ability to comply with these
covenants in future periods will also depend substantially on
the value of our assets, our charter rates, our success at
21
Table of Contents
keeping our costs low and our ability to successfully implement
our overall business strategy. Any future credit agreement or
amendment may contain similar or more restrictive covenants.
The
market values of our vessels, which have declined from
historically high levels, may fluctuate significantly, which
could cause us to breach covenants in our credit
facilities.
Factors that influence vessel values include:
| • | prevailing level of charter rates; | |
| • | number of newbuilding deliveries; | |
| • | number of vessels scrapped or otherwise removed from the total fleet; | |
| • | changes in environmental and other regulations that may limit the useful life of vessels; | |
| • | changes in global drybulk commodity supply and demand; | |
| • | types and sizes of vessels; | |
| • | development of and increase in use of other modes of transportation; | |
| • | cost of vessel construction; | |
| • | cost of newbuilding vessels; | |
| • | governmental or other regulations; and | |
| • | general economic and market conditions affecting the shipping industry. |
If the market values of our owned vessels decrease, we may
breach covenants contained in our secured credit facilities. If
we breach such covenants and are unable to remedy any relevant
breach, our lenders could accelerate our debt and foreclose on
that debt. Any loss of vessels would significantly decrease our
ability to generate positive cash flow from operations and,
therefore, service our debt. In addition, if the book value of a
vessel is impaired due to unfavorable market conditions, or a
vessel is sold at a price below its book value, we would incur a
loss.
In addition, as vessels grow older, they generally decline in
value. We will review our vessels for impairment whenever events
or changes in circumstances indicate that the carrying amount of
the assets may not be recoverable. We review certain indicators
of potential impairment, such as undiscounted projected
operating cash flows expected from the future operation of the
vessels, which can be volatile for vessels employed on
short-term charters or in the spot market. Any impairment
charges incurred as a result of declines in charter rates would
negatively affect our financial condition and results of
operations. In addition, if we sell any vessel at a time when
vessel prices have fallen and before we have recorded an
impairment adjustment to our financial statements, the sale may
be at less than the vessel’s carrying amount on our
financial statements, resulting in a loss and a reduction in
earnings.
Our
ability to generate the significant amount of cash needed to pay
interest and principal and otherwise service our debt and our
ability to refinance all or a portion of our indebtedness or
obtain additional financing depends on many factors, many of
which may be beyond our control.
Our ability to make scheduled payments on, or to refinance our
obligations under, our debt, including our existing notes, the
outstanding notes and the exchange notes, will depend on our
financial and operating performance, which, in turn, will be
subject to prevailing economic and competitive conditions and to
the financial and business factors, many of which may be beyond
our control.
We will use cash to pay the principal and interest on our debt,
including the notes. These payments limit funds otherwise
available for working capital, capital expenditures, vessel
acquisitions and other purposes. As a result of these
obligations, our current liabilities may exceed our current
assets. We may need to take on additional debt as we expand our
fleet, which could increase our ratio of debt to equity. The
need to service our debt may limit funds available for other
purposes and our inability to service debt in the future could
lead to acceleration of our debt and foreclosure on our owned
vessels.
22
Table of Contents
Our senior secured credit facilities mature on various dates
through September 2021. In addition, borrowings under the senior
secured credit facilities have amortization requirements prior
to final maturity. As a result, we may be required to refinance
any outstanding amounts under these facilities prior to the
scheduled maturity of the notes. We cannot assure you that we
will be able to refinance any of our indebtedness or obtain
additional financing, particularly because of our anticipated
high levels of indebtedness and the indebtedness incurrence
restrictions imposed by the agreements governing our
indebtedness, as well as prevailing market conditions. We could
face substantial liquidity problems and might be required to
dispose of material assets or operations to meet our
indebtedness service and other obligations.
Our senior secured credit facilities and the indentures
governing our existing notes, the outstanding notes and the
exchange notes do, and any future indebtedness may, restrict our
ability to dispose of assets and use the proceeds from any such
dispositions. If we do not reinvest the proceeds of asset sales
in our business (in the case of asset sales of non-collateral
with respect to such indebtedness ) or in new vessels or other
related assets that are mortgaged in favor of the lenders under
our senior secured credit facilities (in the case of assets
sales of collateral securing), we may be required to use the
proceeds to repurchase senior indebtedness other than the notes.
We cannot assure you we will be able to consummate any asset
sales, or if we do, what the timing of the sales will be or
whether the proceeds that we realize will be adequate to meet
indebtedness service obligations when due.
Most of our senior secured credit facilities require that we
maintain loan to collateral value ratios in order to remain in
compliance with the covenants set forth therein. If the value of
such collateral falls below such required level, we would be
required to either prepay the loans or post additional
collateral to the extent necessary to bring the value of the
collateral as compared to the aggregate principal amount of the
loan back to the required level. We cannot assure you that we
will have the cash on hand or the financing available to prepay
the loans or have any unencumbered assets available to post as
additional collateral. In such case, we would be in default
under such credit facility and the collateral securing such
facility would be subject to foreclosure by the applicable
lenders.
Moreover, certain of our senior secured credit facilities may be
secured by vessels that are under construction pursuant to
shipbuilding contracts. Because we would rely on these
facilities to finance the scheduled payments as they come due
under the shipbuilding contracts, it is possible that any
default under such a facility would result, in the absence of
other available funds, in default by us under the associated
shipbuilding contract. In such a case, our rights in the related
newbuild would be subject to foreclosure by the applicable
creditor. In addition, a payment default under a shipbuilding
contract would give the shipyard the right to terminate the
contract without any further obligation to finish construction
and may give it rights against us for having failed to make the
required payments.
The
notes are unsecured and structurally subordinated to the rights
of our and the guarantors’ existing and future secured
creditors.
The indentures governing the existing notes, the outstanding
notes and the exchange notes, permit us to incur a significant
amount of secured indebtedness, including indebtedness under our
senior secured credit facilities and indebtedness to be used for
acquisitions of vessels and businesses. The substantial majority
of our debt has been and will continue to be secured debt used
to purchase vessels. Indebtedness under our senior secured
credit facilities is secured by mortgages on all our vessels
owned by our wholly-owned vessel subsidiaries. The notes are
unsecured and therefore do not have the benefit of such
collateral. Accordingly, the notes are effectively subordinated
to all such secured indebtedness. If an event of default occurs
under our senior secured credit facilities or under future
secured indebtedness, the senior secured lenders will have a
prior right to our assets mortgaged in their favor, to the
exclusion of the holders of our existing notes, the outstanding
notes and the exchange notes, even if we are in default under
the notes. In that event, our assets and the assets of the
subsidiary guarantors would first be used to repay in full all
indebtedness and other obligations secured by them (including
all amounts outstanding under our senior secured credit
facilities), resulting in all or a portion of our assets being
unavailable to satisfy the claims of the holders of the notes
and other unsecured indebtedness. Therefore, in the event of any
distribution or payment of our assets in any foreclosure,
dissolution,
winding-up,
liquidation, reorganization, or other bankruptcy proceeding,
holders of notes will participate in our remaining assets
ratably with all holders of our unsecured indebtedness that is
deemed to be of the same class as such notes, and potentially
with all of our other general creditors, based upon the
respective amounts owed to each holder or creditor. In any of
the foregoing events, we cannot assure you that there will be
sufficient assets to pay amounts due on the notes. As a result,
holders of notes may receive less, ratably, than holders of
secured indebtedness.
23
Table of Contents
The
notes are effectively subordinated to the obligations of our
current non-guarantor subsidiaries, which include our
unrestricted subsidiaries, and any future non-guarantor
subsidiaries.
The existing notes, the outstanding and the exchange the notes,
are not guaranteed by certain of our subsidiaries, including
Navios Logistics. Navios Logistics and certain of our other
subsidiaries are also unrestricted subsidiaries and therefore
are not subject to any of the covenants under the indenture
governing the notes. Unrestricted subsidiaries may, among other
things, incur without limitation additional indebtedness and
liens, make investments and acquisitions, and sell assets or
stock. In addition, we will be able to sell unrestricted
subsidiaries, or distribute unrestricted subsidiaries or the
proceeds from a sale of any of their assets or stock to
stockholders, or enter into merger, joint venture or other
transactions involving them, or any combination of the
foregoing, without restrictions. Payments on the existing notes,
the outstanding notes and the exchange notes, are only required
to be made by us and the subsidiary guarantors. Accordingly,
claims of holders of the notes will be, and claims of the
existing notes are, structurally subordinated to the claims of
creditors of our non-guarantor subsidiaries (which will include
any subsidiary that is designated as an “unrestricted
subsidiary” or is a securitization subsidiary, in each case
in accordance with the indentures, and any future subsidiaries
that are not wholly-owned by us), including trade creditors. We
may also be able to create future non-guarantor subsidiaries or
unrestricted subsidiaries under the indentures. All obligations
of our non-guarantor subsidiaries, including trade payables,
will have to be satisfied before any of the assets of such
subsidiary would be available for distribution, upon liquidation
or otherwise, to us or a subsidiary guarantor. Our non-guarantor
subsidiaries accounted for approximately $221.5 million, or
32.6%, of our total revenue, approximately
$1,553.0 million, or 42.2%, of our total assets and
approximately $957.1 million, or 40.6%, of our total
liabilities, in each case for the year ended December 31,
2010. As of March 31, 2011, our non-guarantor subsidiaries
accounted for approximately $69.5 million, or 38.2%, of our
total revenue, approximately $542.0 million, or 18.9%, of
our total assets and approximately $209.1 million, or
12.2%, of our total liabilities. Navios Acquisition was an
unrestricted subsidiary on the issue date of the outstanding
notes. As of March 30, 2011, Navios Acquisition is no
longer a consolidated subsidiary and our consolidated statement
of operations for March 31, 2011 includes results for
Navios Acquisition only through March 30, 2011. From that
date onwards, Navios Acquisition is considered as an affiliate
entity of Navios Holdings and is not a controlled subsidiary of
the Company, and the investment in Navios Acquisition is now
accounted for under the equity method due to the Company’s
significant influence over Navios Acquisition. See footnote 25
to our audited consolidated financial statements for the year
ended December 31, 2010 and footnote 15 to our unaudited
consolidated financial statements for the three months ended
March 31, 2011 (in which the financial information for our
“non-guarantor subsidiaries” includes information for
Navios Acquisition and Navios Logistics, as applicable)
incorporated by reference in this prospectus.
We may
be unable to raise funds necessary to finance the change of
control repurchase offer required by the indenture governing the
notes.
If we experience specified changes of control, we would be
required to make an offer to repurchase all of the existing
notes, the outstanding notes and the exchange notes (unless
otherwise redeemed) at a price equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the
repurchase date. The occurrence of specified events that would
constitute a change of control will constitute a default under
our senior secured credit facilities. There are also change of
control events that would constitute a default under the senior
secured credit facilities that would not be a change of control
under the indenture. In addition, our senior secured credit
facilities prohibit the purchase of the notes by us in the event
of a change of control, unless and until such time as the
indebtedness under our senior secured credit facilities is
repaid in full. As a result, following a change of control
event, we would not be able to repurchase notes unless we first
repay all indebtedness outstanding under our senior secured
credit facilities and any of our other indebtedness that
contains similar provisions, or obtain a waiver from the holders
of such indebtedness to permit us to repurchase the existing
notes, the outstanding notes and the exchange notes. We may be
unable to repay all of that indebtedness or obtain a waiver of
that type. Any requirement to offer to repurchase outstanding
notes may therefore require us to refinance our other
outstanding debt, which we may not be able to do on commercially
reasonable terms, if at all. In addition, our failure to
purchase the existing notes, the outstanding notes and the
exchange notes, after a change of control in accordance with the
terms of the indentures would constitute an event of default
under the indentures, which in turn would result in a default
under our senior secured credit facilities. See
“Description of Notes.”
24
Table of Contents
Our inability to repay the indebtedness under our senior secured
credit facilities would also constitute an event of default
under the indentures governing the existing notes, the
outstanding notes and the exchange notes, which could have
materially adverse consequences to us and to the holders of the
notes. In the event of a change of control, we cannot assure you
that we would have sufficient assets to satisfy all of our
obligations under our senior credit facility and the existing
notes, the outstanding notes and the exchange notes. Our future
indebtedness may also require such indebtedness to be
repurchased upon a change of control.
An
increase in interest rates would increase the cost of servicing
our debt and could reduce our profitability.
Our debt under our senior secured credit facility bears interest
at variable rates. We may also incur indebtedness in the future
with variable interest rates. As a result, an increase in market
interest rates would increase the cost of servicing our debt and
could materially reduce our profitability and cash flows. The
impact of such an increase would be more significant for us than
it would be for some other companies because of our substantial
debt.
If the
recent volatility in LIBOR continues, it could affect our
profitability, earnings and cash flow.
LIBOR has recently been volatile, with the spread between LIBOR
and the prime lending rate widening significantly at times.
These conditions are the result of the recent disruptions in the
international credit markets. Because the interest rates borne
by our outstanding indebtedness fluctuate with changes in LIBOR,
if this volatility were to continue, it would affect the amount
of interest payable on our debt, which in turn, could have an
adverse effect on our profitability, earnings and cash flow.
Furthermore, interest in most loan agreements in our industry
has been based on published LIBOR rates. Recently, however,
lenders have insisted on provisions that entitle the lenders, in
their discretion, to replace published LIBOR as the base for the
interest calculation with their
cost-of-funds
rate. Such provisions could significantly increase our lending
costs, which would have an adverse effect on our profitability,
earnings and cash flow.
The
international nature of our operations may make the outcome of
any bankruptcy proceedings difficult to predict.
We are incorporated under the laws of the Republic of the
Marshall Islands and our subsidiaries are also incorporated
under the laws of the Marshall Islands, the Republic of Liberia,
Malta and certain other countries other than the United States,
and we conduct operations in countries around the world.
Consequently, in the event of any bankruptcy, insolvency or
similar proceedings involving us or one of our subsidiaries,
bankruptcy laws other than those of the United States could
apply. We have limited operations in the United States. If we
become a debtor under the United States bankruptcy laws,
bankruptcy courts in the United States may seek to assert
jurisdiction over all of our assets, wherever located, including
property situated in other countries. There can be no assurance,
however, that we would become a debtor in the United States or
that a United States bankruptcy court would be entitled to, or
accept, jurisdiction over such bankruptcy case or that courts in
other countries that have jurisdiction over us and our
operations would recognize a United States bankruptcy
court’s jurisdiction if any other bankruptcy court would
determine it had jurisdiction.
Our
being subject to certain fraudulent transfer and conveyance
statutes may have adverse implications for the holders of the
notes.
Fraudulent transfer and insolvency laws may void, subordinate or
limit the notes and the guarantees.
Marshall
Islands
Navios Maritime Holdings Inc. and some of the guarantors as of
the issue date are organized under the laws of the Republic of
the Marshall Islands. While the Republic of the Marshall Islands
does not have a bankruptcy statute or general statutory
mechanism for insolvency proceedings, a Marshall Islands court
could apply general U.S. principles of fraudulent
conveyance, discussed below, in light of the provisions of the
Marshall Islands Business Corporations Act, or the BCA,
restricting the grant of guarantees without a corporate purpose.
In such
25
Table of Contents
case, a Marshall Islands court could void or subordinate the
notes or the guarantees, including for the reasons a United
States court could void or subordinate a guarantee as described
below.
United
States
Federal and state fraudulent transfer and conveyance statutes
may apply to the issuance of the notes and the incurrence of the
guarantees, particularly any future guarantees of any
U.S. subsidiaries we might create. Under U.S. federal
bankruptcy law and comparable provisions of U.S. state
fraudulent transfer or conveyance laws, if any such law would be
deemed to apply, which may vary from state to state, the notes
or the guarantees could be voided as a fraudulent transfer or
conveyance if (1) we or any of the guarantors, as
applicable, issued the notes or incurred the guarantees with the
intent of hindering, delaying or defrauding creditors or
(2) we or any of the guarantors, as applicable, received
less than reasonably equivalent value or fair consideration in
return for either issuing the notes or incurring the guarantees
and, in the case of (2) only, one of the following is also
true at the time thereof:
| • | we or any of the guarantors, as applicable, were insolvent or rendered insolvent by reason of the issuance of the notes or the incurrence of the guarantees; | |
| • | the issuance of the notes or the incurrence of the guarantees left us or any of the guarantors, as applicable, with an unreasonably small amount of capital to carry on the business; | |
| • | we or any of the guarantors intended to, or believed that we or such guarantor would, incur debts beyond our or such guarantor’s ability to pay as they mature; or | |
| • | we or any of the guarantors was a defendant in an action for money damages, or had a judgment for money damages docketed against us or such guarantor if, in either case, after final judgment, the judgment is unsatisfied. |
If a court were to find that the issuance of the notes or the
incurrence of the guarantee was a fraudulent transfer or
conveyance, the court could void the payment obligations under
the notes or such guarantee or further subordinate the notes or
such guarantee to presently existing and future indebtedness of
ours or of the related guarantor, or require the holders of the
notes to repay any amounts received with respect to such
guarantee. In the event of a finding that a fraudulent transfer
or conveyance occurred, you may not receive any repayment on the
notes. Further, the voidance of the notes could result in an
event of default with respect to our and our subsidiaries’
other debt that could result in acceleration of such debt.
As a general matter, value is given for a transfer or an
obligation if, in exchange for the transfer or obligation,
property is transferred or an antecedent debt is secured or
satisfied. A debtor will generally not be considered to have
received value in connection with a debt offering if the debtor
did not substantially benefit directly or indirectly from the
transaction. In that regard, a debtor will generally not be
considered to have received value if the proceeds of a debt
offering were used to make a dividend payment or otherwise
retire or redeem equity securities issued by the debtor.
We cannot be certain as to the standards a court would use to
determine whether or not we or the guarantors were solvent at
the relevant time or, regardless of the standard that a court
uses, that the issuance of the guarantees would not be further
subordinated to our or any of our guarantors’ other debt.
Generally, however, an entity would be considered insolvent if,
at the time it incurred indebtedness:
| • | the sum of its debts, including contingent liabilities, was greater than the fair saleable value of all its assets; or | |
| • | the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or | |
| • | it could not pay its debts as they become due. |
Greece
If Navios Maritime Holdings Inc. or any of the guarantors files
a petition for bankruptcy in Greece, Greek bankruptcy law will
apply.
26
Table of Contents
Under Greek law, upon a court declaration of bankruptcy, all the
assets of the bankrupt party are placed under the control of a
receiver to be held for the benefit of all creditors. After a
court declaration of a bankruptcy, the bankrupt party may,
following an application to, and approval by the bankruptcy
court, continue to manage its assets with the cooperation of a
receiver. In addition, certain transactions occurring prior to
the declaration of bankruptcy may be found by the court to be
null and void by operation of law, or may be declared null and
void by the court after an examination of the merits of
particular transactions if they are executed by the bankrupt
party during the so-called “suspect period.” The
suspect period is the time between the day of discontinuance of
payments, which is determined by the Greek court and may predate
the declaration of bankruptcy by up to two years, and the date
of the declaration of bankruptcy.
Transactions that will be declared null and void by operation of
law are:
| • | Any unilateral act by the bankrupt party having the effect of reducing its assets (including, without limitation, making donations, waiving debts, and granting interest-free loans) and making any payments other than in cash or commercial paper during the suspect period or ten days prior to the commencement of such period; and | |
| • | Any mortgage or pledge of any asset of the bankrupt party granted during the suspect period as security for a previous debt. |
The court will declare transactions in the above two categories
null and void without taking into consideration any arguments
from the parties to such transactions.
Certain other transactions entered into up to five
(5) years prior to the entry into bankruptcy may be
declared null and void by the bankruptcy court if it is
concluded by the court that they were entered into with a
malicious intent (dolus) to prevent creditors from satisfying
their bona fide claims.
Moreover, the Greek court may declare any payments or
transactions (including the issuance of notes or guarantees)
during the suspect period null and void if the person who
transacted with the bankrupt party knew that the latter was in a
state of discontinuance of payments and if such payments or
transactions were harmful to the creditors of the bankrupt party.
Belgium
Pursuant to Belgian law, a company can only carry out
transactions which serve the company’s best interest. Since
the group interest is not recognized, each company should be
considered as an individual entity. Accordingly, a Belgian
company should not grant a guarantee and encumber its own assets
for obligations of other companies, whether parent or affiliated
companies, unless it can demonstrate that this serves its
corporate interest. Even if the granting of the guarantee is not
in the corporate interest of the company, the guarantee will, in
principle, remain valid. If however the beneficiary of the
guarantee knew (or reasonably should have known) that the
guarantee was against the corporate interest, the guarantee
could be declared null and void. The final decision as to
whether the corporate interest test has been met is a question
of fact and will ultimately be made by a court.
In case bankruptcy proceedings are opened in Belgium, Belgian
law will apply. Under Belgian law, in general, all the assets of
the bankrupt party are placed under the control of a receiver.
The bankrupt debtor is considered to be deprived of the powers
of administration over its assets as of midnight on the day of
the bankruptcy order. All payments and acts by the bankrupt
debtor as of the day of the bankruptcy order are not enforceable
against the body of creditors.
Pursuant to Article 5 of the Council Regulation (EC) No
1346/2000 of May 29, 2000 on insolvency proceedings (the
“Insolvency Regulation”), the opening of insolvency
proceedings shall not affect the rights in rem of
creditors or third parties in respect of tangible or intangible
assets, moveable or immoveable assets belonging to the bankrupt
debtor within the territory of another member state of the
European Union (the “EU”) (with the exception of
Denmark) at the time of the opening of the bankruptcy
proceedings. Actions for voidness, voidability or
unenforceability of legal acts detrimental to all the creditors
are, however not precluded.
The commercial court could render (and will sometimes be obliged
to render) certain acts of the bankrupt company unenforceable
against the body of creditors. Certain acts must or can be
declared unenforceable if they
27
Table of Contents
were performed by the company at a time when it had already
ceased its payments, i.e. during the “suspect period”.
The day of cessation of payments is assumed to be the date on
which the company is declared bankrupt. This date can however be
brought back by a court order at the request of the bankruptcy
trustee or of any interested third party, up to 6 months
before the date of the bankruptcy order, provided that sound and
objective circumstances show unmistakably that the debtor had
already ceased such payments before the date of the adjudication
of bankruptcy. In case a company was
wound-up
more than 6 months before the bankruptcy order, the date of
cessation of payments can be brought back to the date of its
(factual or legal)
winding-up
if the
winding-up
was done to the prejudice of its creditors. The following
actions will be declared unenforceable against the body of
creditors if performed during the suspect period:
(i) Disposition of assets by the bankrupt debtor without
consideration as well as any acts or agreements whereby the
value of the assets
and/or
services rendered by the bankrupt debtor is substantially higher
than the received consideration;
(ii) Payments made by the bankrupt debtor other than in
cash or negotiable paper; such as bills of exchange or cheques;
(iii) Payments for unmatured debts; and
(iv) Granting of security interests for antecedent debt.
Even principally enforceable preference rights and mortgages
which are subject to registration and inscription can be
declared unenforceable if they were registered and inscribed
during the suspect period and more than 15 days have passed
between the deed establishing the preference right and the date
of registration.
The court can also declare other acts unenforceable if they took
place during the suspect period and if the third party was aware
of the cessation of payments by the company. Finally, any acts
or payments, whenever performed, that are to the fraudulent
detriment of the creditors, can be declared unenforceable
(actio pauliana).
Moreover, as a general rule of law, Article 1167 of the
Belgian Civil Code allows a creditor to have a court nullify any
contract between its debtor and a third party which was made
with the fraudulent intent to take assets out of the
creditors’ reach.
Pursuant to the Insolvency Regulation and thus within an EU
context, Belgian rules relating to the voidness, voidability or
unenforceability of legal acts detrimental to all the creditors
shall, however, not apply where the person who benefited from
such act provides proof that:
(i) the said act is subject to the law of another EU member
state (other than Denmark); and
(ii) that law does not allow any means of challenging that
act in the relevant case.
Other
Jurisdictions
The laws of the other jurisdictions in which guarantors may be
organized may also limit the ability of such guarantors to
guarantee debt of a parent company. These limitations arise
under various provisions or principles of corporate law which
include provisions requiring a subsidiary guarantor to receive
adequate corporate benefit from the financing, rules governing
preservation of share capital, thin capitalization and
fraudulent transfer principles. In certain of these
jurisdictions, the guarantees will contain language limiting the
amount of debt guaranteed so that the applicable local law
restrictions will not be violated. Accordingly, if you were to
enforce the guarantees in such jurisdictions, your claims may be
limited. Furthermore, although we believe that the guarantees of
such guarantors are enforceable (subject to local law
restrictions), a third party creditor may challenge these
guarantees and prevail in court. We can provide no assurance
that the guarantees will be enforceable.
You
should not expect the Co-Issuer to participate in servicing the
interest and principal obligations under the exchange
notes.
The Co-Issuer is our wholly-owned subsidiary that was formed
solely for the purpose of serving as a co-issuer and guarantor
of our debt securities. The Co-Issuer was capitalized only with
a minimal amount of common equity and did not receive any
proceeds from the issuance of the outstanding notes. The
Co-Issuer does not have (and is not
28
Table of Contents
permitted to have) any assets (other than its equity capital),
operations, revenues or debt (other than as a Co-Issuer of the
notes, a guarantor of the 2017 Notes and a co-obligor or
guarantor of other indebtedness permitted to be incurred by the
terms of the indenture). As a result, noteholders should not
expect the Co-Issuer to participate in servicing the interest
and principal obligations under the exchange notes.
There
is currently no market for the exchange notes. We cannot assure
you that an active trading market will develop for the exchange
notes.
The exchange notes offered hereby are new securities for which
there presently is no established market. Although the initial
purchasers have informed us that they currently intend to make a
market in the exchange notes, the initial purchasers are not
obligated to do so and any such market making may be
discontinued at any time without notice. In addition, such
market making activity may be limited during the pendency of the
exchange offer or the effectiveness of a shelf registration
statement in lieu thereof. Accordingly, we cannot give you any
assurance as to the development or liquidity of any market for
the exchange notes. We do not intend to apply for listing of the
exchange notes, on any other securities exchange.
Even if a trading market for the exchange notes does develop,
you may not be able to sell your notes at a particular time, if
at all, or you may not be able to obtain the price you desire
for your exchange notes. Historically, the market for
non-investment grade debt has been subject to disruptions that
have caused substantial fluctuations in the price of securities.
If the exchange notes are traded after their initial issuance,
they may trade at a discount from their initial offering price
depending on many factors, including prevailing interest rates,
the market for similar securities, our credit rating, the
interest of securities dealers in making a market for the notes,
the price of any other securities we issue, our performance,
prospects, operating results and financial condition, as well as
of other companies in our industry.
The liquidity of, and trading market for the exchange notes also
may be adversely affected by general declines in the market or
by declines in the market for similar securities. Such declines
may adversely affect such liquidity and trading markets
independent of our financial performance and prospects.
Your
failure to tender outstanding notes in the exchange offer may
affect their marketability.
If outstanding notes are tendered for exchange and accepted in
the exchange offer, the trading market, if any, for the
untendered and tendered but unaccepted outstanding notes will be
adversely affected. Your failure to participate in the exchange
offer will substantially limit, and may effectively eliminate,
opportunities to sell your outstanding notes in the future. We
issued the outstanding notes in a private placement exempt from
the registration requirements of the Securities Act.
Accordingly, you may not offer, sell or otherwise transfer your
outstanding notes except in compliance with the registration
requirements of the Securities Act and any other applicable
securities laws, or pursuant to an exemption from the securities
laws, or in a transaction not subject to the securities laws. If
you do not exchange your outstanding notes for exchange notes in
the exchange offer, or if you do not properly tender your
outstanding notes in the exchange offer, your outstanding notes
will continue to be subject to these transfer restrictions after
the completion of the exchange offer. In addition, after the
completion of the exchange offer, you will no longer be able to
obligate us to register the outstanding notes under the
Securities Act.
Risks
Associated with the Shipping Industry and Our
Operations
The
cyclical nature of the international drybulk shipping industry
may lead to decreases in charter rates and lower vessel values,
which could adversely affect our results of operations and
financial condition.
The shipping business, including the dry cargo market, is
cyclical in varying degrees, experiencing severe fluctuations in
charter rates, profitability and, consequently, vessel values.
For example, during the period from January 1, 2005 to
December 31, 2010, the Baltic Exchange’s Panamax time
charter average daily rates experienced a low of $3,537 and a
high of $94,977. Additionally, during the period from
January 1, 2009 to June 7, 2011, the Baltic
Exchange’s Capesize time charter average daily rates
experienced a low of $4,567 and a high of $93,197 and the Baltic
Exchange Dry Index experienced a low of 772 points and a high of
4,661 points. Navios Holdings
29
Table of Contents
anticipates that the future demand for its drybulk carriers and
drybulk charter rates will be dependent upon demand for imported
commodities, economic growth in the emerging markets, including
the Asia Pacific region, India, Brazil and Russia, and in the
rest of the world, seasonal and regional changes in demand and
changes to the capacity of the world fleet. Recent adverse
economic, political, social or other developments have decreased
demand and prospects for growth in the shipping industry and
thereby could reduce revenue significantly. A decline in demand
for commodities transported in drybulk carriers or an increase
in supply of drybulk vessels could cause a further decline in
charter rates, which could materially adversely affect our
results of operations and financial condition. If we sell a
vessel at a time when the market value of our vessels has
fallen, the sale may be at less than the vessel’s carrying
amount, resulting in a loss.
The demand for vessels has generally been influenced by, among
other factors:
| • | global and regional economic conditions; | |
| • | developments in international trade; | |
| • | changes in seaborne and other transportation patterns, such as port congestion and canal closures; | |
| • | weather and crop yields; | |
| • | armed conflicts, acts of piracy and terrorist activities; | |
| • | political developments; and | |
| • | embargoes and strikes. |
The supply of vessel capacity has generally been influenced by,
among other factors:
| • | the number of vessels that are in or out of service; | |
| • | the scrapping rate of older vessels; | |
| • | port and canal traffic and congestion; | |
| • | the number of newbuilding deliveries; and | |
| • | vessel casualties. |
Our
international activities increase the compliance risks
associated with economic and trade sanctions imposed by the
United States, the European Union and other
jurisdictions.
Our international operations could expose us to trade and
economic sanctions or other restrictions imposed by the United
States or other governments or organizations, including the
United Nations, the European Union and its member countries.
Under economic and trading sanctions laws, governments may seek
to impose modifications to business practices, and modifications
to compliance programs, which may increase compliance costs, and
may subject us to fines, penalties and other sanctions.
In recent months, the scope of sanctions imposed against the
government of Iran and persons engaging in certain activities or
doing certain business with and relating to Iran has been
expanded by a number of jurisdictions, including the United
States, the European Union and Canada. In particular, the United
States has enacted new legislation which imposed new sanctions
that specifically restrict shipping refined petroleum into Iran
(the tankers of our affiliate, Navios Maritime Acquisition
Corporation have called on ports in Iran but do not engage in
the activities specifically identified by these sanctions).
There has also been an increased focus on economic and trade
sanctions enforcement that has led recently to a significant
number of penalties being imposed against shipping companies.
We are monitoring developments in the United States, the
European Union and other jurisdictions that maintain sanctions
programs, including developments in implementation and
enforcement of such sanctions programs. Expansion of sanctions
programs, embargoes and other restrictions in the future
(including additional designations of countries subject to
sanctions), or modifications in how existing sanctions are
interpreted or enforced, could prevent the tankers of our
affiliate from calling on ports in sanctioned countries or could
limit their
30
Table of Contents
cargoes. If any of the risks described above materialize, it
could have a material adverse impact on our business and results
of operations.
The
economic slowdown in the Asia Pacific region has markedly
reduced demand for shipping services and has decreased shipping
rates, which could adversely affect our results of operations
and financial condition.
Currently, China, India, Japan, other Pacific Asian economies
and India are the main driving force behind the development in
seaborne drybulk trades and the demand for drybulk carriers.
Reduced demand from such economies has driven decreased rates
and vessel values. A further negative change in economic
conditions in any Asian Pacific country, but particularly in
China or Japan, as well as India, may have a material adverse
effect on our business, financial condition and results of
operations, as well as our future prospects, by reducing demand
and the resultant charter rates. In particular, in recent years,
China has been one of the world’s fastest growing economies
in terms of gross domestic product. Furthermore, the economic
uncertainty in the United States, the European Union, and other
countries may deepen the economic slowdown in China, among
others.
Our financial condition and results of operations, as well as
our future prospects, would likely be adversely affected by an
economic downturn in any of these countries as such downturn
would likely translate into reduced demand for shipping services
and lower shipping rates industry-wide. As a result, our
operating results would be further materially affected.
Disruptions
in world financial markets and the resulting governmental action
in the United States and in other parts of the world could have
a material adverse impact on our ability to obtain financing
required to acquire vessels or new businesses. Furthermore, such
a disruption would adversely affect our results of operations,
financial condition and cash flows.
The United States and other parts of the world are exhibiting
volatile economic trends and were recently in a recession.
Despite signs of recovery, the outlook for the world economy
remains uncertain. For example, the credit markets worldwide and
in the U.S. have experienced significant contraction,
de-leveraging and reduced liquidity, and the U.S. federal
government, state governments and foreign governments have
implemented and are considering a broad variety of governmental
action
and/or new
regulation of the financial markets. Securities and futures
markets and the credit markets are subject to comprehensive
statutes, regulations and other requirements. The Securities and
Exchange Commission (the “SEC”), other regulators,
self-regulatory organizations and exchanges are authorized to
take extraordinary actions in the event of market emergencies,
and may effect changes in law or interpretations of existing
laws. Recently, a number of financial institutions have
experienced serious financial difficulties and, in some cases,
have entered bankruptcy proceedings or are in regulatory
enforcement actions. The uncertainty surrounding the future of
the credit markets in the U.S. and the rest of the world
has resulted in reduced access to credit worldwide. Due to the
fact that we would possibly cover all or a portion of the cost
of any new vessel acquisition with debt financing, such
uncertainty, combined with restrictions imposed by our current
debt, could hamper our ability to finance vessels or new
business acquisitions.
The March 2011 natural disaster in Japan and its currently
uncertain resultant effects, including nuclear uncertainty may
also have a significant impact on the regional and world
economies. With the third largest economy in the world, an
extended period of recovery for Japan and its economy could
decrease oil imports to that country. Our financial condition
and results of operations, as well as our future prospects,
would likely be adversely affected by an economic downturn in
any of these countries as such downturn would likely translate
into reduced demand for shipping services and lower shipping
rates industry-wide. As a result, our operating results would be
further materially adversely affected. We could face risks
attendant to changes in economic environments, changes in
interest rates, and instability in certain securities markets,
among other factors. Major market disruptions and the
uncertainty in market conditions and the regulatory climate in
the U.S. and worldwide could adversely affect our business
or impair our ability to borrow amounts under any future
financial arrangements. The current market conditions may last
longer than we anticipate. These recent and developing economic
and governmental factors could have a material adverse effect on
our results of operations, financial condition or cash flows.
31
Table of Contents
When
our contracts expire, we may not be able to successfully replace
them.
The process for concluding contracts and longer term time
charters generally involves a lengthy and intensive screening
and vetting process and the submission of competitive bids. In
addition to the quality and suitability of the vessel, medium
and longer term shipping contracts tend to be awarded based upon
a variety of other factors relating to the vessel operator,
including:
| • | environmental, health and safety record; | |
| • | compliance with regulatory industry standards; | |
| • | reputation for customer service, technical and operating expertise; | |
| • | shipping experience and quality of ship operations, including cost-effectiveness; | |
| • | quality, experience and technical capability of crews; | |
| • | the ability to finance vessels at competitive rates and overall financial stability; | |
| • | relationships with shipyards and the ability to obtain suitable berths; | |
| • | construction management experience, including the ability to procure on-time delivery of new vessels according to customer specifications; | |
| • | willingness to accept operational risks pursuant to the charter, such as allowing termination of the charter for force majeure events; and | |
| • | competitiveness of the bid in terms of overall price. |
As a result of these factors, when our contracts including our
long-term charters expire, we cannot assure you that we will be
able to replace them promptly or at all or at rates sufficient
to allow us to operate our business profitably, to meet our
obligations, including payment of debt service to our lenders,
or to pay dividends. Our ability to renew the charter contracts
on our vessels on the expiration or termination of our current
charters, or, on vessels that we may acquire in the future, the
charter rates payable under any replacement charter contracts,
will depend upon, among other things, economic conditions in the
sectors in which our vessels operate at that time and the
financial sector, changes in the supply and demand for vessel
capacity and changes in the supply and demand for the
transportation of commodities as described above.
However, if we are successful in employing our vessels under
longer-term time charters, our vessels will not be available for
trading in the spot market during an upturn in the market cycle,
when spot trading may be more profitable. If we cannot
successfully employ our vessels in profitable charter contracts,
our results of operations and operating cash flow could be
materially adversely affected.
We
depend upon significant customers for part of our revenues. The
loss of one or more of these customers could adversely affect
our financial performance.
We have derived a significant part of our revenue from a number
of charterers. During the fiscal year ended December 31,
2010 and the three-month period ended March 31, 2011, none
of our customers accounted for more than 10% of the
Company’s revenue. During the fiscal year ended
December 31, 2009, we derived approximately 13.2% of our
gross revenues from one charterer.
If one or more of our customers is unable to perform under one
or more charters with us and we are not able to find a
replacement charter, or if a customer exercises certain rights
to terminate the charter, we could suffer a loss of revenues
that could materially adversely affect our business, financial
condition and results of operations.
We could lose a customer or the benefits of a time charter if,
among other things:
| • | the customer fails to make charter payments because of its financial inability, disagreements with us or otherwise; |
32
Table of Contents
| • | the customer terminates the charter because we fail to deliver the vessel within a fixed period of time, the vessel is lost or damaged beyond repair, there are serious deficiencies in the vessel or prolonged periods of off-hire, default under the charter; or | |
| • | the customer terminates the charter because the vessel has been subject to seizure for more than a specified number of days. |
We may
employ vessels on the spot market and thus expose ourselves to
risk of losses based on short-term decreases in shipping
rates.
We periodically employ some of our vessels on a spot basis. The
spot charter market is highly competitive and freight rates
within this market are highly volatile, while longer-term
charter contracts provide income at pre-determined rates over
more extended periods of time. We cannot assure you that we will
be successful in keeping our vessels fully employed in these
short-term markets, or that future spot rates will be sufficient
to enable such vessels to be operated profitably. A significant
decrease in spot market rates or our inability to fully employ
our vessels by taking advantage of the spot market would result
in a reduction of the incremental revenue received from spot
chartering and adversely affect results of operations, including
our profitability and cash flows, with the result that our
ability to pay debt service and dividends could be impaired.
We are
subject to certain credit risks with respect to our
counterparties on contracts, and the failure of such
counterparties to meet their obligations could cause us to
suffer losses on such contracts and thereby decrease
revenues.
We charter-out our vessels to other parties, who pay us a daily
rate of hire. We also enter into contracts of affreightment, or
COAs pursuant to which we agree to carry cargoes, typically for
industrial customers, who export or import drybulk cargoes.
Additionally, we enter into Forward Freight Agreements, or
(“FFAs”), parts of which are traded
over-the-counter.
We also enter into spot market voyage contracts, where we are
paid a rate per ton to carry a specified cargo on a specified
route. The FFAs and these contracts and arrangements subject us
to counterparty credit risks at various levels. If the
counterparties fail to meet their obligations, we could suffer
losses on such contracts which could materially adversely affect
our financial condition and results of operations. In addition,
after a charterer defaults on a time charter, we would have to
enter into charters at lower rates. It is also possible that we
would be unable to secure a charter at all. If we re-charter the
vessel at lower rates or not at all, our financial condition and
results of operations could be materially adversely affected.
We have insured our charter-out contracts through a
“AA+” rated governmental agency of a European Union
member state, which provides that if the charterer goes into
payment default, the insurer will reimburse us for the charter
payments under the terms of the policy (subject to applicable
deductibles and other customary limitations for such insurance).
In January 2011, Korea Line Corporation (“KLC”) filed
for receivership, which is a reorganization under South Korean
bankruptcy law. Navios Holdings has reviewed the matter in
concert with the credit default insurers, as five vessels of its
core fleet are chartered out to KLC. The contracts for these
vessels have been temporarily suspended and the vessels have
been rechartered to third paties for variable charter periods.
Upon completion of the suspension period, the contracts with the
original charterers will resume at amended terms. The
obligations of the insurer are reduced by an amount equal to the
mitigation charter hire revenues earned under the contracts with
third parties
and/or the
original charterers or the applicable deductibles for any idle
periods. The Company has filed claims for all unpaid amounts by
KLC in respect of the employment of the five vessels in the KLC
corporate rehabilitation proceedings. The disposition of these
claims will be determined by the Korean Court at a future date.
Trading
and complementary hedging activities in freight, tonnage and
FFAs subject us to trading risks, and we may suffer trading
losses which could adversely affect our financial condition and
results of operations.
Due to drybulk shipping market volatility, success in this
shipping industry requires constant adjustment of the balance
between chartering-out vessels for long periods of time and
trading them on a spot basis. A long-term contract to charter a
vessel might lock us into a profitable or unprofitable situation
depending on the direction of
33
Table of Contents
freight rates over the term of the contract. We seek to manage
and mitigate that risk through trading and complementary hedging
activities in freight, tonnage and FFAs. We are exposed to
market risk in relation to our FFAs and could suffer substantial
losses from these activities in the event that our expectations
are incorrect. We trade FFAs with an objective of both
economically hedging the risk on the fleet, specific vessels or
freight commitments and taking advantage of short-term
fluctuations in market prices. There can be no assurance that we
will be able at all times to successfully protect ourselves from
volatility in the shipping market. We may not successfully
mitigate our risks, leaving us exposed to unprofitable
contracts, and may suffer trading losses resulting from these
hedging activities.
In our hedging and trading activities, we focus on short-term
trading opportunities in which there are adequate liquidity in
order to limit the risk we are taking. There can be no assurance
we will be successful in limiting our risk, that significant
price spikes will not result in significant losses, even on
short-term trades, that liquidity will be available for our
positions, or that all trades will be done within our risk
management policies. Any such risk could be significant. In
addition, the performance of our trading activities can
significantly increase the variability of our operating
performance in any given period and could materially adversely
affect our financial condition. The FFA market has experienced
significant volatility in the past few years and, accordingly,
recognition of the changes in the fair value of FFAs has caused,
and could in the future cause significant volatility in earnings.
We are
subject to certain operating risks, including vessel breakdowns
or accidents, that could result in a loss of revenue from the
affected vessels and which in turn could have an adverse effect
on our results of operations or financial
condition.
Our exposure to operating risks of vessel breakdown and
accidents mainly arises in the context of our owned vessels. The
rest of our core fleet is chartered-in under time charters and,
as a result, most operating risks relating to these time
chartered vessels remain with their owners. If we pay hire on a
chartered-in vessel at a lower rate than the rate of hire it
receives from a
sub-charterer
to whom we have chartered out the vessel, a breakdown or loss of
the vessel due to an operating risk suffered by the owner will,
in all likelihood, result in our loss of the positive spread
between the two rates of hire. Although we maintain insurance
policies (subject to deductibles and exclusions) to cover us
against the loss of such spread through the sinking or other
loss of a chartered-in vessel, we cannot assure you that we will
be covered under all circumstances or that such policies will be
available in the future on commercially reasonable terms.
Breakdowns or accidents involving our vessels and losses
relating to chartered vessels which are not covered by insurance
would result in a loss of revenue from the affected vessels
adversely affecting our financial condition and results of
operations.
We are
subject to various laws, regulations and conventions, including
environmental and safety laws that could require significant
expenditures both to maintain compliance with such laws and to
pay for any uninsured environmental liabilities including any
resulting from a spill or other environmental
incident.
The shipping business and vessel operation are materially
affected by government regulation in the form of international
conventions, national, state and local laws, and regulations in
force in the jurisdictions in which vessels operate, as well as
in the country or countries of their registration. Governmental
regulations, safety or other equipment standards, as well as
compliance with standards imposed by maritime self-regulatory
organizations and customer requirements or competition, may
require us to make capital and other expenditures. Because such
conventions, laws and regulations are often revised, we cannot
predict the ultimate cost of complying with such conventions,
laws and regulations, or the impact thereof on the fair market
price or useful life of our vessels. In order to satisfy any
such requirements, we may be required to take any of our vessels
out of service for extended periods of time, with corresponding
losses of revenues. In the future, market conditions may not
justify these expenditures or enable us to operate our vessels,
particularly older vessels, profitably during the remainder of
their economic lives. This could lead to significant asset write
downs. In addition, violations of environmental and safety
regulations can result in substantial penalties and, in certain
instances, seizure or detention of our vessels.
Additional conventions, laws and regulations may be adopted that
could limit our ability to do business, require capital
expenditures or otherwise increase our cost of doing business,
which may materially adversely affect our operations, as well as
the shipping industry generally. For example, in various
jurisdictions legislation has been enacted, or is under
consideration, that would impose more stringent requirements on
air pollution and water
34
Table of Contents
discharges from our vessels. For example, the International
Maritime Organization (“IMO”) periodically proposes
and adopts amendments to revise the International Convention for
the Prevention of Pollution from Ships (“MARPOL”),
such as the recent revision to Annex VI. The revised
Annex VI implements a phased reduction of the sulfur
content of fuel beginning in 2010 and allows for stricter sulfur
limits in designated emission control areas (“ECAs”).
Thus far, ECAs have been formally adopted for the Baltic Sea,
the North Sea and the coasts of North America, but more ECAs,
including the proposed ECA for the U.S. Caribbean, could be
added. In addition, the IMO, the U.S. and states within the
U.S. have proposed or implemented requirements relating to
the management of ballast water to prevent the harmful effects
of foreign invasive species.
The operation of vessels is also affected by the requirements
set forth in the International Safety Management
(“ISM”) Code. The ISM Code requires shipowners and
bareboat charterers to develop and maintain an extensive
“Safety Management System” that includes the adoption
of a safety and environmental protection policy setting forth
instructions and procedures for safe vessel operation and
describing procedures for dealing with emergencies. The failure
of a shipowner or bareboat charterer to comply with the ISM Code
may subject such party to increased liability, may decrease
available insurance coverage for the affected vessels, and may
result in a denial of access to, or detention in, certain ports.
We operate a fleet of product and chemical tankers that are
subject to national and international laws governing pollution
from such vessels. Several international conventions impose and
limit pollution liability from vessels. An owner of a tanker
vessel carrying a cargo of “persistent oil” as defined
by the International Convention for Civil Liability for Oil
Pollution Damage (the “CLC”) is subject under the
convention to strict liability for any pollution damage caused
in a contracting state by an escape or discharge from cargo or
bunker tanks. This liability is subject to a financial limit
calculated by reference to the tonnage of the ship, and the
right to limit liability may be lost if the spill is caused by
the shipowner’s intentional or reckless conduct. Liability
may also be incurred under the CLC for a bunker spill from the
vessel even when she is not carrying such cargo, but is in
ballast.
When a tanker is carrying clean oil products that do not
constitute “persistent oil” that would be covered
under the CLC, liability for any pollution damage will generally
fall outside the CLC and will depend on other international
conventions or domestic laws in the jurisdiction where the
spillage occurs. The same principle applies to any pollution
from the vessel in a jurisdiction which is not a party to the
CLC. The CLC applies in over 100 jurisdictions around the world,
but it does not apply in the United States, where the
corresponding liability laws such as the Oil Pollution Act of
1990 (The “OPA”) discussed below, are particularly
stringent.
For vessel operations not covered by the CLC, including those
operated under our fleet, at present, international liability
for oil pollution is governed by the International Convention on
Civil Liability for Bunker Oil Pollution Damage (the
“Bunker Convention”). In 2001, the IMO adopted the
Bunker Convention, which imposes strict liability on shipowners
for pollution damage and response costs incurred in contracting
states caused by discharges, or threatened discharges, of bunker
oil from all classes of ships not covered by the CLC. The Bunker
Convention also requires registered owners of ships over a
certain size to maintain insurance to cover their liability for
pollution damage in an amount equal to the limits of liability
under the applicable national or international limitation
regime, including liability limits calculated in accordance with
the Convention on Limitation of Liability for Maritime Claims
1976, as amended ( the “1976 Convention”), discussed
in more detail in the following paragraph. The Bunker Convention
became effective in contracting states on November 21, 2008
and as of May 5, 2011 was in effect in 58 states. In
non-contracting states, liability for such bunker oil pollution
typically is determined by the national or other domestic laws
in the jurisdiction where the spillage occurs.
The CLC and Bunker Convention also provide vessel owners a right
to limit their liability. The CLC includes its own liability
limits and the Bunker Convention incorporates the 1976
Convention referenced above. The 1976 Convention is the most
widely applicable international regime limiting maritime
pollution liability. Rights to limit liability under the 1976
Convention are forfeited where a spill is caused by a
shipowner’s intentional or reckless conduct. Certain
jurisdictions have ratified the IMO’s Protocol of 1996 to
the 1976 Convention, referred to herein as the “Protocol of
1996.” The Protocol of 1996 provides for substantially
higher liability limits in those jurisdictions than the limits
set forth in the 1976 Convention. Finally, some jurisdictions,
such as the United States, are not a party to either the 1976
Convention or the Protocol of 1996, and, therefore, a
shipowner’s rights to limit liability for maritime
pollution in such jurisdictions may be uncertain.
35
Table of Contents
Environmental legislation in the United States merits particular
mention as it is in many respects more onerous than
international laws, representing a high-water mark of regulation
with which ship owners and operators must comply, and of
liability likely to be incurred in the event of non-compliance
or an incident causing pollution. Such regulation may become
even stricter if laws are changed as a result of the May 2010
Deepwater Horizon oil spill in the Gulf of Mexico. In the United
States, the OPA establishes an extensive regulatory and
liability regime for the protection and cleanup of the
environment from cargo and bunker oil spills from vessels,
including tankers. The OPA covers all owners and operators whose
vessels trade in the United States, its territories and
possessions or whose vessels operate in United States waters,
which includes the United States’ territorial sea and its
200 nautical mile exclusive economic zone. Under the OPA, vessel
owners, operators and bareboat charterers are “responsible
parties” and are jointly, severally and strictly liable
(unless the spill results solely from the act or omission of a
third party, an act of God or an act of war) for all containment
and clean-up
costs and other damages arising from discharges or substantial
threats of discharges, of oil from their vessels. In response to
the 2010 Deepwater Horizon oil incident in the Gulf of Mexico,
the U.S. House of Representatives passed and the
U.S. Senate considered but did not pass a bill to
strengthen certain requirements of the OPA; similar legislation
may be introduced in the 112th Congress.
In addition to potential liability under the federal OPA, vessel
owners may in some instances incur liability on an even more
stringent basis under state law in the particular state where
the spillage occurred. For example, California regulations
prohibit the discharge of oil, require an oil contingency plan
be filed with the state, require that the ship owner contract
with an oil response organization and require a valid
certificate of financial responsibility, all prior to the vessel
entering state waters.
In the last decade, the EU has become increasingly active in the
field of regulation of maritime safety and protection of the
environment. In some areas of regulation the EU has introduced
new laws without attempting to procure a corresponding amendment
to international law. Notably, the EU adopted in 2005 a
directive, as amended in 2009, on ship-source pollution,
imposing criminal sanctions for pollution not only where
pollution is caused by intent or recklessness (which would be an
offence under MARPOL), but also where it is caused by
“serious negligence.” The concept of “serious
negligence” may be interpreted in practice to be little
more than ordinary negligence. The directive could therefore
result in criminal liability being incurred in circumstances
where it would not be incurred under international law. Criminal
liability for a pollution incident could not only result in us
incurring substantial penalties or fines, but may also, in some
jurisdictions, facilitate civil liability claims for greater
compensation than would otherwise have been payable.
We maintain insurance coverage for each owned vessel in our
fleet against pollution liability risks in the amount of
$1.0 billion in the aggregate for any one event. The
insured risks include penalties and fines as well as civil
liabilities and expenses resulting from accidental pollution.
However, this insurance coverage is subject to exclusions,
deductibles and other terms and conditions. If any liabilities
or expenses fall within an exclusion from coverage, or if
damages from a catastrophic incident exceed the aggregate
liability of $1.0 billion for any one event, our cash flow,
profitability and financial position would be adversely impacted.
Climate
change and government laws and regulations related to climate
change could negatively impact our financial
condition.
Regarding climate change in particular, we are and will be,
directly and indirectly, subject to the effects of climate
change and may, directly or indirectly, be affected by
government laws and regulations related to climate change. A
number of countries have adopted or are considering the adoption
of, regulatory frameworks to reduce greenhouse gas emissions. In
the U.S., the United States Environmental Protection Agency
(U.S. EPA) has declared greenhouse gases to be dangerous
pollutants and has issued greenhouse gas reporting requirements
for emissions sources in certain industries (which do not
include the shipping industry). The U.S. EPA is also
considering petitions to regulate greenhouse gas emissions from
marine vessels.
The IMO has announced its intention to develop limits on
greenhouse gases from international shipping and is working on
technical and operational measures to reduce emissions. In
addition, while the emissions of greenhouse gases from
international shipping are not subject to the Kyoto Protocol to
the United Nations Framework Convention on Climate Change, which
requires adopting countries to implement national programs to
reduce
36
Table of Contents
greenhouse gas emissions, such standards are currently under
consideration by the IMO. The European Union announced in April
2007 that it planned to expand the European Union emissions
trading scheme by adding vessels, and a proposal from the
European Commission is expected if no global regime for
reduction of seaborne emissions has been agreed by the end of
2011. We cannot predict with any degree of certainty what
effect, if any, possible climate change and government laws and
regulations related to climate change will have on our
operations, whether directly or indirectly. While we believe
that it is difficult to assess the timing and effect of climate
change and pending legislation and regulation related to climate
change on our business, we believe that climate change,
including the possible increase in severe weather events
resulting from climate change, and government laws and
regulations related to climate change may affect, directly or
indirectly, (i) the cost of the vessels we may acquire in
the future, (ii) our ability to continue to operate as we
have in the past, (iii) the cost of operating our vessels,
and (iv) insurance premiums, deductibles and the
availability of coverage. As a result, our financial condition
could be negatively impacted by significant climate change and
related governmental regulation, and that impact could be
material.
We are
subject to vessel security regulations and will incur costs to
comply with recently adopted regulations and may be subject to
costs to comply with similar regulations which may be adopted in
the future in response to terrorism.
Since the terrorist attacks of September 11, 2001, there
have been a variety of initiatives intended to enhance vessel
security. On November 25, 2002, the Maritime Transportation
Security Act of 2002, or MTSA, came into effect. To implement
certain portions of the MTSA, in July 2003, the U.S. Coast
Guard issued regulations requiring the implementation of certain
security requirements aboard vessels operating in waters subject
to the jurisdiction of the United States. Similarly, in December
2002, amendments to the International Convention for the Safety
of Life at Sea, or SOLAS, created a new chapter of the
convention dealing specifically with maritime security. The new
chapter went into effect in July 2004, and imposes various
detailed security obligations on vessels and port authorities,
most of which are contained in the newly created ISPS Code.
Among the various requirements are:
| • | on-board installation of automatic information systems, or AIS, to enhance vessel-to-vessel and vessel-to-shore communications; | |
| • | on-board installation of ship security alert systems; | |
| • | the development of vessel security plans; and | |
| • | compliance with flag state security certification requirements. |
Furthermore, additional security measures could be required in
the future which could have a significant financial impact on
us. The U.S. Coast Guard regulations, intended to be
aligned with international maritime security standards, exempt
non-U.S. vessels
from MTSA vessel security measures, provided such vessels had on
board, by July 1, 2004, a valid International Ship Security
Certificate, or ISSC, that attests to the vessel’s
compliance with SOLAS security requirements and the ISPS Code.
We have implemented and will continue implement the various
security measures addressed by the MTSA, SOLAS and the ISPS Code
and take measures for the vessels to attain compliance with all
applicable security requirements within the prescribed time
periods. Although management does not believe these additional
requirements will have a material financial impact on our
operations, there can be no assurance that there will not be an
interruption in operations to bring vessels into compliance with
the applicable requirements and any such interruption could
cause a decrease in charter revenues. The cost of vessel
security measures has also been affected by dramatic escalation
in recent years in the frequency and seriousness of acts of
piracy against ships, notably off the coast of Somalia,
including the Gulf of Aden and Arabian Sea area which could have
a significant financial impact on us.
The cost of vessel security measures has also been affected by
dramatic escalation in recent years in the frequency and
seriousness of acts of piracy against ships, notably off the
coast of Somalia, including the Gulf of Aden and Arabian Sea
area. Attacks of this kind have commonly resulted in vessels and
their crews being detained for several months, and being
released only on payment of large ransoms. Substantial loss of
revenue and other costs may be incurred as a result of such
detention. So far as practicable we insure against these losses
but the risk remains of uninsured losses which could
significantly affect our business. Costs are incurred in taking
additional security
37
Table of Contents
measures in accordance with Best Management Practices to Deter
Piracy, notably those contained in the BMP3 industry standard. A
number of flag states have signed the 2009 New York Declaration,
which expresses commitment to Best Management Practices in
relation to piracy and calls for compliance with them as an
essential part of compliance with the ISPS Code.
Acts
of piracy on ocean-going vessels have increased recently in
frequency and magnitude, which could adversely affect our
business.
The shipping industry has historically been affected by acts of
piracy in regions such as the South China Sea and the Gulf of
Aden. In 2009 and continuing through 2011, acts of piracy saw a
steep rise, particularly off the coast of Somalia in the Gulf of
Aden. There are several examples of the increase in piracy such
as in November 2008 when the M/V Sirius Star, a crude oil tanker
which was not affiliated with us, was captured by pirates in the
Indian Ocean while carrying crude oil estimated to be worth
approximately $100 million. More recently, in April 2010,
the M/V Samho Dream, another crude oil tanker not affiliated
with us, was captured off the Somali coast while carrying
approximately $170 million in crude oil. In December 2009,
the Navios Apollon, one of Navios Maritime Partners L.P.
(“Navios Partners”) vessels, was seized by pirates
800 miles off the coast of Somalia while transporting
fertilizer from Tampa, Florida to Rozi, India and was released
on February 27, 2010. If these piracy attacks result in
regions (in which our vessels are deployed) being characterized
by insurers as “war risk” zones or Joint War Committee
(JWC) “war and strikes” listed areas, premiums payable
for such insurance coverage could increase significantly and
such insurance coverage may be more difficult to obtain. Crew
costs, including those due to employing onboard security guards,
could increase in such circumstances. In addition, while we
believe the charterer remains liable for charter payments when a
vessel is seized by pirates, the charterer may dispute this and
withhold charter hire until the vessel is released. A charterer
may also claim that a vessel seized by pirates was not
“on-hire” for a certain number of days and it is
therefore entitled to cancel the charter party, a claim that we
would dispute. We may not be adequately insured to cover losses
from these incidents, which could have a material adverse effect
on us. In addition, detention hijacking as a result of an act of
piracy against our vessels, or an increase in cost, or
unavailability of insurance for our vessels, could have a
material adverse impact on our business, financial condition,
results of operations and cash flows. Acts of piracy on
ocean-going vessels have recently increased in frequency, which
could adversely affect our business and operations.
Our
operations expose us to global political risks, such as wars and
political instability that may interfere with the operation of
our vessels causing a decrease in revenues from such
vessels.
We are an international company and conduct our operations
primarily outside the United States. Changing economic,
political and governmental conditions in the countries where we
are engaged in business or where our vessels are registered will
affect us. In the past, political conflicts, particularly in the
Persian Gulf, resulted in attacks on vessels, mining of
waterways and other efforts to disrupt shipping in the area. For
example, in October 2002, the vessel Limburg, which was not
affiliated with us, was attacked by terrorists in Yemen. Acts of
terrorism and piracy have also affected vessels trading in
regions such as the South China Sea. Following the terrorist
attack in New York City on September 11, 2001, and the
military response of the United States, the likelihood of future
acts of terrorism may increase, and our vessels may face higher
risks of being attacked in the Middle East region and
interruption of operations causing a decrease in revenues. In
addition, continuing conflicts and recent developments in
North Africa and the Middle East and future hostilities or
other political instability in regions where our vessels trade
could affect our trade patterns and adversely affect our
operations by causing delays in shipping on certain routes or
making shipping impossible on such routes, thereby causing a
decrease in revenues.
In addition, a government could requisition title or seize our
vessels during a war or national emergency. Requisition of title
occurs when a government takes a vessel and becomes the owner. A
government could also requisition our vessels for hire, which
would result in the government’s taking control of a vessel
and effectively becoming the charterer at a dictated charter
rate. Requisition of one or more of our vessels would have a
substantial negative effect on us as we would potentially lose
all revenues and earnings from the requisitioned vessels and
permanently lose the vessels. Such losses might be partially
offset if the requisitioning government compensated us for the
requisition.
38
Table of Contents
A
failure to pass inspection by classification societies could
result in one or more vessels being unemployable unless and
until they pass inspection, resulting in a loss of revenues from
such vessels for that period and a corresponding decrease in
operating cash flows.
The hull and machinery of every commercial vessel must be
classed by a classification society authorized by its country of
registry. The classification society certifies that a vessel is
safe and seaworthy in accordance with the applicable rules and
regulations of the country of registry of the vessel and with
SOLAS. Our owned fleet is currently enrolled with Nippon Kaiji
Kiokai, Bureau Veritas, Lloyd’s Register and American
Bureau of Shipping.
A vessel must undergo an annual survey, an intermediate survey
and a special survey. In lieu of a special survey, a
vessel’s machinery may be on a continuous survey cycle,
under which the machinery would be surveyed periodically over a
five-year period.
Our vessels are on special survey cycles for hull inspection and
continuous survey cycles for machinery inspection. Every vessel
is also required to be drydocked every two to three years for
inspection of the underwater parts of such vessel.
If any vessel fails any annual survey, intermediate survey or
special survey, the vessel may be unable to trade between ports
and, therefore, would be unemployable, potentially causing a
negative impact on our revenues due to the loss of revenues from
such vessel until she is able to trade again.
Rising
crew costs may adversely affect our profits.
Crew costs are a significant expense for us. Recently, the
limited supply of and increased demand for well-qualified crew,
due to the increase in the size of the global shipping fleet,
has created upward pressure on crewing costs, which we generally
bear under our period, time and spot charters. Increases in crew
costs may adversely affect our profitability.
The
shipping industry has inherent operational risks that may not be
adequately covered by our insurance.
The operation of ocean-going vessels in international trade is
inherently risky. Although we carry insurance for our fleet
covering risks commonly insured against by vessel owners and
operators, such as hull and machinery insurance, war risks
insurance and protection and indemnity insurance (which include
environmental damage and pollution insurance), all risks may not
be adequately insured against, and any particular claim may not
be paid. We do not currently maintain off-hire insurance, which
would cover the loss of revenue during extended vessel off-hire
periods, such as those that occur during an unscheduled
drydocking due to damage to the vessel from accidents.
Accordingly, any extended vessel off-hire, due to an accident or
otherwise, could have a material adverse effect on our business.
Any claims covered by insurance would be subject to deductibles,
and since it is possible that a large number of claims may be
brought, the aggregate amount of these deductibles could be
material.
We may be unable to procure adequate insurance coverage at
commercially reasonable rates in the future. For example, more
stringent environmental regulations have led in the past to
increased costs for, and in the future may result in the lack of
availability of, insurance against risks of environmental damage
or pollution. A catastrophic oil spill or marine disaster could
exceed our insurance coverage, which could harm our business,
financial condition and operating results. Changes in the
insurance markets attributable to terrorist attacks may also
make certain types of insurance more difficult for us to obtain.
In addition, the insurance that may be available to us in the
future may be significantly more expensive than our existing
coverage.
Even if our insurance coverage is adequate to cover our losses,
we may not be able to timely obtain a replacement vessel in the
event of a loss. Furthermore, in the future, we may not be able
to obtain adequate insurance coverage at reasonable rates for
our fleet. Our insurance policies also contain deductibles,
limitations and exclusions which can result in significant
increased overall costs to us.
39
Table of Contents
Because
we obtain some of our insurance through protection and indemnity
associations, we may also be subject to calls, or premiums, in
amounts based not only on our own claim records, but also on the
claim records of all other members of the protection and
indemnity associations.
We may be subject to calls, or premiums, in amounts based not
only on our claim records but also on the claim records of all
other members of the protection and indemnity associations
through which we receive insurance coverage for tort liability,
including pollution-related liability. Our payment of these
calls could result in significant expenses to us, which could
have a material adverse effect on our business, results of
operations and financial condition and our ability to pay
interest on, or the principal of, the senior notes.
Maritime
claimants could arrest our vessels, which could interrupt our
cash flow.
Crew members, suppliers of goods and services to a vessel,
shippers of cargo, and other parties may be entitled to a
maritime lien against a vessel for unsatisfied debts, claims or
damages against such vessel. In many jurisdictions, a maritime
lien holder may enforce its lien by arresting a vessel through
foreclosure proceedings. The arrest or attachment of one or more
of our vessels could interrupt our cash flow and require us to
pay large sums of funds to have the arrest lifted. We are not
currently aware of the existence of any such maritime lien on
our vessels.
In addition, in some jurisdictions, such as South Africa, under
the “sister ship” theory of liability, a claimant may
arrest both the vessel which is subject to the claimant’s
maritime lien and any “associated” vessel, which is
any vessel owned or controlled by the same owner. Claimants
could try to assert “sister ship” liability against
one vessel in our fleet for claims relating to another ship in
the fleet.
The
risks and costs associated with vessels increase as the vessels
age.
The costs to operate and maintain a vessel in operation increase
with the age of the vessel. The average age of the vessels in
our fleet is 4.9 years, and most drybulk vessels have an
expected life of approximately 25 years. In some instances,
charterers prefer newer vessels that are more fuel efficient
than older vessels. Cargo insurance rates also increase with the
age of a vessel, making older vessels less desirable to
charterers as well. Governmental regulations, safety or other
equipment standards related to the age of the vessels may
require expenditures for alterations or the addition of new
equipment to our vessels and may restrict the type of activities
in which these vessels may engage. We cannot assure you that, as
our vessels age, market conditions will justify those
expenditures or enable us to operate our vessels profitably
during the remainder of their useful lives. If we sell vessels,
we may have to sell them at a loss, and if charterers no longer
charter-out vessels due to their age, our earnings could be
materially adversely affected.
If we
fail to manage our planned growth properly, we may not be able
to expand our fleet successfully, which may adversely affect our
overall financial position.
We have grown our fleet and business significantly since August
2005. We intend to continue to expand our fleet in the future.
Our growth will depend on:
| • | locating and acquiring suitable vessels; | |
| • | identifying reputable shipyards with available capacity and contracting with them for the construction of new vessels; | |
| • | integrating any acquired vessels successfully with our existing operations; | |
| • | enhancing our customer base; | |
| • | managing our expansion; and | |
| • | obtaining required financing, which could include debt, equity or combinations thereof. |
40
Table of Contents
Additionally, the marine transportation and logistics industries
are capital intensive, traditionally using substantial amounts
of indebtedness to finance vessel acquisitions, capital
expenditures and working capital needs. If we finance the
purchase of our vessels through the issuance of debt securities,
it could result in:
| • | default and foreclosure on our assets if our operating cash flow after a business combination or asset acquisition were insufficient to pay our debt obligations; | |
| • | acceleration of our obligations to repay the indebtedness even if we have made all principal and interest payments when due if the debt security contained covenants that required the maintenance of certain financial ratios or reserves and any such covenant was breached without a waiver or renegotiation of that covenant; | |
| • | our immediate payment of all principal and accrued interest, if any, if the debt security was payable on demand; and | |
| • | our inability to obtain additional financing, if necessary, if the debt security contained covenants restricting our ability to obtain additional financing while such security was outstanding. |
In addition, our business plan and strategy is predicated on
buying vessels in a distressed market at what we believe is near
the low end of the cycle in what has typically been a cyclical
industry. However, there is no assurance that shipping rates and
vessels asset values will not sink lower, or that there will be
an upswing in shipping costs or vessel asset values in the
near-term or at all, in which case our business plan and
strategy may not succeed in the near-term or at all. Growing any
business by acquisition presents numerous risks such as
undisclosed liabilities and obligations, difficulty experienced
in obtaining additional qualified personnel and managing
relationships with customers and suppliers and integrating newly
acquired operations into existing infrastructures. We may not be
successful in growing and may incur significant expenses and
losses.
Although
we have long-standing relationships with certain Japanese ship
owners that provide us access to very competitive contracts, we
cannot assure you that we will always be able to maintain such
relationships or that such contracts will continue to be
available in the future.
We have long-standing relationships with certain Japanese ship
owners that give us access to time charters that are currently
at favorable rates and that, in some cases, include options to
purchase the vessels at favorable prices relative to the current
market. We cannot assure you that we will have such
relationships indefinitely. In addition, there is no assurance
that Japanese ship owners will generally make contracts
available on the same or substantially similar terms in the
future.
Unrealized
losses of “available for sale” securities may
negatively affect our results of operations in the
future.
As part of the consideration received from the sale of the
Navios Hope to Navios Partners in July 2008, the Company
received 3,131,415 common units of Navios Partners (14.4% of the
then-outstanding units of Navios Partners).
On March 18, 2010, Navios Holdings sold the Navios Aurora
II, a 2009 South Korean-built Capesize vessel with a capacity of
169,031 deadweight tons, or dwt, to Navios Partners for
$110.0 million. Out of the $110.0 million purchase
price, $90.0 million was paid in cash and the remaining
amount was paid through the receipt of 1,174,219 common units of
Navios Partners.
On November 15, 2010, Navios Holdings sold to Navios
Partners the vessels Navios Melodia and Navios Fulvia, two
2010-built Capesize vessels, for a total consideration of
$177.0 million of which $162.0 million was paid in
cash and the remaining in 788,370 common units of Navios
Partners.
On May 19, 2011, Navios Holdings sold the Navios Luz, a
2010 built Capesize vessel of 179,144 dwt, and the Navios
Orbiter, a 2004 built Panamax vessel of 76,602 dwt, to Navios
Partners for a total consideration of $130.0 million, of
which $120.0 million is payable in cash and
$10.0 million is payable in newly issued common units of
Navios Partners. A portion of the cash proceeds amounting to
$57.7 million was used to fully repay the outstanding loans
associated with the vessels.
41
Table of Contents
All of the common units that the Company received from the sale
of the vessels described above to Navios Partners are
accounted for under guidance for
available-for-sale
securities (the “AFS Securities”). Accordingly,
unrealized gains and losses on these securities are reflected
directly in equity unless an unrealized loss is considered
“other-than-temporary”
in which case it is transferred to the statements of income. The
Company has no other types of AFS Securities.
As of March 31, 2011, December 31, 2010 and
December 31, 2009, the carrying amounts of the AFS
Securities were $103.6 million, $99.1 million and
$46.3 million, respectively, and the unrealized holding
gains/(losses) related to these AFS Securities included in
“Accumulated Other Comprehensive Income/(Loss)” were
$37.1 million, $32.6 million, $15.2 million and
$(22.6) million as of March 31, 2011 and
December 31, 2010, 2009 and 2008, respectively. On
June 30, 2009, the Company recognized in earnings realized
losses amounting to $13.8 million following the common
units’ market value being less than their acquisition price
for a consecutive period of 12 months. Therefore, this
decline was considered as
other-than-temporary
impairment (“OTTI”). Management evaluates securities
for OTTI on a quarterly basis. Consideration is given to
(1) the length of time and the extent to which the fair
value has been less than cost, (2) the financial condition
and near-term prospects of Navios Partners, and (3) the
intent and ability of the Company to retain its investment in
Navios Partners for a period of time sufficient to allow for any
anticipated recovery in fair value.
As of March 31, 2011, market valuation of these securities
had increased. If the fair value of these AFS Securities
declines below their June 30, 2009 value and our OTTI
analysis indicates such write down to be necessary, the
potential future impairment charges may have a material adverse
impact on our results of operations in the period recognized.
The
smuggling of drugs or other contraband onto our vessels may lead
to governmental claims against us.
We expect that our vessels will call in ports in South America
and other areas where smugglers attempt to hide drugs and other
contraband on vessels, with or without the knowledge of crew
members. To the extent our vessels are found with contraband,
whether inside or attached to the hull of our vessel and whether
with or without the knowledge of any of our crew, we may face
governmental or other regulatory claims which could have an
adverse effect on our business, results of operations, cash
flows, financial condition and ability to pay dividends.
Our
vessels may be subject to unbudgeted periods of off-hire, which
could materially adversely affect our business, financial
condition and results of operations.
Under the terms of the charter agreements under which our
vessels operate, or are expected to operate in the case of the
newbuilding, when a vessel is “off-hire,” or not
available for service or otherwise deficient in its condition or
performance, the charterer generally is not required to pay the
hire rate, and we will be responsible for all costs (including
the cost of bunker fuel) unless the charterer is responsible for
the circumstances giving rise to the lack of availability. A
vessel generally will be deemed to be off-hire if there is an
occurrence preventing the full working of the vessel due to,
among other things:
| • | operational deficiencies; | |
| • | the removal of a vessel from the water for repairs, maintenance or inspection, which is referred to as drydocking; | |
| • | equipment breakdowns; | |
| • | delays due to accidents or deviations from course; | |
| • | occurrence of hostilities in the vessel’s flag state or in the event of piracy; | |
| • | crewing strikes, labor boycotts, certain vessel detentions or similar problems; or | |
| • | our failure to maintain the vessel in compliance with its specifications, contractual standards and applicable country of registry and international regulations or to provide the required crew. |
42
Table of Contents
Our
Chairman and Chief Executive Officer holds approximately 23% of
our common stock and will be able to exert considerable
influence over our actions; her failure to own a significant
amount of our common stock or to be our Chief Executive Officer
would constitute a default under our secured credit
facilities.
Ms. Angeliki Frangou owns approximately 23% of the
outstanding shares of our common stock, and has filed a
Schedule 13D indicating that she intends, subject to market
conditions, to purchase in total $20.0 million of our
common stock (as of March 31, 2011, she had purchased
approximately $10.0 million in value of our common stock).
As the Chairman, Chief Executive Officer and a significant
stockholder, she has the power to exert considerable influence
over our actions and the outcome of matters on which our
stockholders are entitled to vote including the election of
directors and other significant corporate actions. The interests
of Ms. Frangou may be different from our stockholders’
interests and your interests. Furthermore, if Ms. Frangou
ceases to hold a minimum of 20% of our common stock, does not
remain actively involved in the business, or ceases to be our
Chief Executive Officer, then we will be in default under our
secured credit facilities.
The
loss of key members of our senior management team could disrupt
the management of our business.
We believe that our success depends on the continued
contributions of the members of our senior management team,
including Ms. Angeliki Frangou, our Chairman, Chief
Executive Officer and principal stockholder. The loss of the
services of Ms. Frangou or one of our other executive
officers or senior management members could impair our ability
to identify and secure new charter contracts, to maintain good
customer relations and to otherwise manage our business, which
could have a material adverse effect on our financial
performance and our ability to compete.
Certain
of our directors, officers, and principal stockholders are
affiliated with entities engaged in business activities similar
to those conducted by us which may compete directly with us,
causing such persons to have conflicts of
interest.
Some of our directors, officers and principal stockholders have
affiliations with entities that have similar business activities
to those conducted by us. Certain of our directors are also
directors of other shipping companies and they may enter similar
businesses in the future. These other affiliations and business
activities may give rise to certain conflicts of interest in the
course of such individuals’ affiliation with us. Although
we do not prevent our directors, officers and principal
stockholders from having such affiliations, we use our best
efforts to cause such individuals to comply with all applicable
laws and regulations in addressing such conflicts of interest.
Our officers and employee directors devote their full time and
attention to our ongoing operations, and our non-employee
directors devote such time as is necessary and required to
satisfy their duties as directors of a public company.
Because
we generate all of our revenues in U.S. dollars but incur a
portion of our expenses in other currencies, exchange rate
fluctuations could cause us to suffer exchange rate losses,
thereby increasing expenses and reducing income.
We engage in worldwide commerce with a variety of entities.
Although our operations may expose us to certain levels of
foreign currency risk, our transactions are predominantly
U.S. dollar-denominated at the present. Additionally, our
South American subsidiaries transact a nominal amount of their
operations in Uruguayan pesos, Paraguayan Guaranies, Argentinean
pesos and Brazilian Reales, whereas our wholly owned vessel
subsidiaries and the vessel management subsidiary transact a
nominal amount of their operations in Euros; however, all of the
subsidiaries’ primary cash flows are
U.S. dollar-denominated. In 2010, approximately 27.1% of
our expenses were incurred in currencies other than
U.S. dollars. Transactions in currencies other than the
functional currency are translated at the exchange rate in
effect at the date of each transaction. Expenses incurred in
foreign currencies against which the U.S. dollar falls in
value can increase, thereby decreasing our income. For example,
during the year ended December 31, 2010, the value of the
U.S. dollar increased by approximately 8.2% as compared to
the Euro. A greater percentage of our transactions and expenses
in the future may be denominated in currencies other than
U.S. dollar. As part of our overall risk management policy,
we attempt to hedge these risks in exchange rate fluctuations
from time to time. We may not always be successful in such
hedging activities and, as a result, our operating results could
suffer as a result of non-hedged losses incurred as a result of
exchange rate fluctuations.
43
Table of Contents
We are
incorporated in the Republic of the Marshall Islands, which does
not have a well-developed body of corporate law.
Our corporate affairs are governed by our amended and restated
articles of incorporation and by-laws and by the Marshall
Islands Business Corporations Act, or BCA. The provisions of the
BCA are intended to resemble provisions of the corporation laws
of a number of states in the United States. However, there have
been few judicial cases in the Republic of the Marshall Islands
interpreting the BCA. The rights and fiduciary responsibilities
of directors under the law of the Republic of the Marshall
Islands are not as clearly established as the rights and
fiduciary responsibilities of directors under statutes or
judicial precedent in existence in certain
U.S. jurisdictions. Stockholder rights may differ as well.
The BCA does specifically incorporate the non-statutory law, or
judicial case law, of the State of Delaware and other states
with substantially similar legislative provisions. Accordingly,
you may have more difficulty protecting your interests in the
face of actions by management, directors or controlling
stockholders than you would in the case of a corporation
incorporated in the State of Delaware or other
U.S. jurisdictions.
We,
and certain of our officers and directors, may be difficult to
serve with process as we are incorporated in the Republic of the
Marshall Islands and such persons may reside outside of the
United States.
We are a corporation organized under the laws of the Republic of
the Marshall Islands. Several of our directors and officers are
residents of Greece or other
non-U.S. jurisdictions.
Substantial portions of the assets of these persons are located
in Greece or other
non-U.S. jurisdictions.
Thus, it may not be possible for investors to affect service of
process upon us, or our
non-U.S. directors
or officers, or to enforce any judgment obtained against these
persons in U.S. courts. Also, it may not be possible to
enforce U.S. securities laws or judgments obtained in
U.S. courts against these persons in a
non-U.S. jurisdiction.
Being
a foreign private issuer exempts us from certain SEC
requirements.
We are a foreign private issuer within the meaning of rules
promulgated under the Securities Exchange Act of 1934, as
amended, or the Exchange Act. As such, we are exempt from
certain provisions applicable to United States public companies
including:
| • | the rules under the Exchange Act requiring the filing with the SEC of quarterly reports on Form 10-Q or current reports on Form 8-K; | |
| • | the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations in respect of a security registered under the Exchange Act; | |
| • | the provisions of Regulation FD aimed at preventing issuers from making selective disclosures of material information; and | |
| • | the sections of the Exchange Act requiring insiders to file public reports of their stock ownership and trading activities and establishing insider liability for profits realized from any “short-swing” trading transaction (i.e., a purchase and sale, or sale and purchase, of the issuer’s equity securities within less than six months). |
Because of these exemptions, investors are not afforded the same
protections or information generally available to investors
holding shares in public companies organized in the United
States.
We may
require additional financing to acquire vessels or business or
to exercise vessel purchase options, and such financing may not
be available.
In the future, we may be required to make substantial cash
outlays to exercise options or to acquire vessels or business
and will need additional financing to cover all or a portion of
the purchase prices. We intend to cover the cost of such items
with new debt collateralized by the vessels to be acquired, if
applicable, but there can be no assurance that we will generate
sufficient cash or that debt financing will be available.
Moreover, the covenants in our senior secured credit facility,
our indentures or other debt, may make it more difficult to
obtain such financing by imposing restrictions on what we can
offer as collateral.
44
Table of Contents
Risks
Relating to Navios South American Logistics Inc. (“Navios
Logistics”)
Navios
Logistics business can be affected by adverse weather
conditions, effects of climate change and other factors beyond
its control, that can affect production of the goods Navios
Logistics transports and store as well as the navigability of
the river system on which Navios Logistics
operates.
A significant portion of our subsidiary Navios Logistics, is
derived from the transportation, handling and storage of
soybeans and other agricultural products produced in the
Hidrovia region. Any drought or other adverse weather
conditions, such as floods, could result in a decline in
production of these products, which would likely result in a
reduction in demand for Navios Logistics’ services. This
would, in turn, negatively impact its results of operations and
financial condition. Furthermore, Navios Logistics’ fleet
operates in the Parana and Paraguay Rivers, and any changes
adversely affecting navigability of either of these rivers, such
as changes in the depth of the water or the width of the
navigable channel, could, in the short-term, reduce or limit its
ability to effectively transport cargo on the rivers. For
example, Navios Logistics was adversely affected by the decline
in soybean production associated with the drought experienced
mainly in the first quarter of 2009, throughout the main soybean
growing areas of the Hidrovia. Low water levels, which began
during the fourth quarter of 2008 and extended into 2009, also
affected the volume carried. The possible effects of climate
change, such as floods, droughts or increased storm activity,
could similarly affect the demand for its services or its
operations.
A prolonged drought, the possible effects of climate change, or
other turn of events that is perceived by the market to have an
impact on the region, the navigability of the Parana or Paraguay
Rivers or Navios Logistics business in general may, in the
short-term, result in a reduction in the market value of its
ports, barges and pushboats that operate in the region. These
barges and pushboats are designed to operate in wide and
relatively calm rivers, of which there are only a few in the
world. If it becomes difficult or impossible to operate
profitably Navios Logistics’ barges and pushboats in the
Hidrovia and Navios Logistics is forced to sell them to a third
party located outside of the region, there is a limited market
in which we would be able to sell these vessels, and accordingly
it may be forced to sell them at a substantial loss.
Navios
Logistics industry has inherent operational risks that may not
be adequately covered by its insurance.
The operation of vessels in international and regional trade is
inherently risky. Although Navios Logistics carries insurance
for its fleet covering risks commonly insured against by vessel
owners and operators, such as hull and machinery insurance, war
risks insurance and protection and indemnity insurance, all
risks may not be adequately insured against, any particular
claim may not be paid and any indemnification paid due to the
occurrence of a casualty covered by its policies may not be
sufficient to entirely compensate Navios Logistics for the
damages suffered. Navios Logistics does not currently maintain
loss of hire or defense insurance. Navios Logistics also does
not maintain off-hire insurance, which would cover the loss of
revenue during extended vessel off-hire periods, such as those
that occur during an unscheduled drydocking due to damage to the
vessel from accidents. Furthermore, Navios Logistics does not
maintain strike insurance, which would protect it from loss of
revenue due to labor disruptions. Accordingly, any extended
vessel off-hire, due to an accident, labor disruption or other
reason, could have a material adverse effect on its business.
Any claims covered by insurance would be subject to deductibles,
and since it is possible that a large number of claims may be
brought, the aggregate amount of these deductibles could be
material.
Navios Logistics may be unable to procure adequate insurance
coverage for its fleet or port terminals at commercially
reasonable rates in the future. For example, more stringent
environmental regulations have led in the past to increased
costs for, and in the future may result in the lack of
availability of, insurance against risks of environmental damage
or pollution. A catastrophic oil spill or marine disaster could
exceed its insurance coverage, which could harm its business,
financial condition and operating results. Changes in the
insurance markets attributable to terrorist attacks may also
make certain types of insurance more difficult for Navios
Logistics to obtain. In addition, the insurance that may be
available to it in the future may be significantly more
expensive than its existing coverage.
Even if Navios Logistics’ insurance coverage is adequate to
cover its losses, it may not be able to timely obtain a
replacement vessel or other asset in the event of a loss.
Furthermore, in the future, Navios Logistics may not be
45
Table of Contents
able to obtain adequate insurance coverage at reasonable rates
for its fleet and port terminals. Navios Logistics’
insurance policies also contain deductibles, limitations and
exclusions, which can result in significant increased overall
costs to Navios Logistics.
Navios
Logistics is an international company that is exposed to the
risks of doing business in many different, and often less
developed and emerging market countries.
Navios Logistics is an international company and conduct all of
its operations outside of the United States, and expects to
continue doing so for the foreseeable future. These operations
are performed in countries that are historically less developed
and stable than the United States, such as Argentina, Brazil,
Bolivia, Paraguay and Uruguay. Some of the other risks Navios
Logistics is generally exposed to through its operations in
emerging markets include among others:
| • | political and economic instability, changing economic policies and conditions, and war and civil disturbances; | |
| • | recessions in economies of countries in which Navios Logistics has business operations; | |
| • | frequent government interventions into the country’s economy, including changes to monetary,fiscal and credit policy; | |
| • | the imposition of additional withholding, income or other taxes, or tariffs or other restrictions on foreign trade or investment, including currency exchange controls and currency repatriation limitations; | |
| • | the modification of Navios Logistics status or the rules and regulations relating to the international tax-free trade zone in which it operates its dry port; | |
| • | the imposition of executive and judicial decisions upon Navios Logistics vessels by the different governmental authorities associated with some of these countries; | |
| • | the imposition of or unexpected adverse changes in foreign laws or regulatory requirements; | |
| • | longer payment cycles in foreign countries and difficulties in collecting accounts receivable; | |
| • | difficulties and costs of staffing and managing Navios Logistics foreign operations; and | |
| • | acts of terrorism. |
These risks may result in unforeseen harm to Navios Logistics
business and financial condition. Also, some of Navios Logistics
customers are headquartered in South America, and a general
decline in the economies of South America, or the
instability of certain South American countries and economies,
could adversely affect it.
Navios Logistics business in emerging markets requires to
respond to rapid changes in market conditions in these
countries. Navios Logistics overall success in international
markets depends, in part, upon its ability to succeed in
different legal, regulatory, economic, social and political
conditions. Navios Logistics may not continue to succeed in
developing and implementing policies and strategies that will be
effective in each location where it does business. Furthermore,
the occurrence of any of the foregoing factors may have a
material adverse effect on its business and results of
operations.
With respect to Argentina, the Argentine economy has experienced
significant volatility in recent decades. Although general
economic conditions in Argentina have recovered significantly
during recent years, there is uncertainty as to whether this
growth is sustainable. The global economic crisis of 2008 has
led to a sudden economic decline, accompanied by political and
social unrest, inflationary and Peso depreciation pressures and
lack of consumer and investor confidence. Future government
policies to preempt, or in response to, social unrest may
include expropriation, nationalization, forced renegotiation or
modification of existing contracts, suspension of the
enforcement of creditors’ rights, new taxation policies,
and changes in laws and policies affecting foreign trade. Such
policies could destabilize the country and adversely and
materially affect the Argentine economy, and thereby Navios
Logistics business, results of operations and financial
condition.
46
Table of Contents
Argentina has very limited access to foreign financing resulting
from a default, several restructurings, and a series of payment
suspensions over the past decade. Due to the lack of access to
the international capital markets, the Argentine government
continues to use the Argentine Central Bank’s
foreign-currency reserves for the payment of Argentina’s
current debt, the reduction of which may weaken Argentina’s
ability to overcome economic deterioration in the future.
Without access to international private financing, Argentina may
not be able to finance its obligations, and financing from
multilateral financial institutions may be limited or not
available. This could also inhibit the ability of the Argentine
Central Bank to adopt measures to curb inflation and could
adversely affect Argentina’s economic growth and public
finances.
With respect to Brazil, the Brazilian economy has experienced
significant volatility in recent decades, characterized by
periods of low or negative growth, high and variable levels of
inflation and currency devaluation. Historically, Brazil’s
political situation has influenced the performance of the
Brazilian economy, and political crises have affected the
confidence of investors and the general public. Future
developments in policies of the Brazilian government
and/or the
uncertainty of whether and when such policies and regulations
may be implemented, all of which are beyond Navios
Logistics’ control, could have a material adverse effect on
it. Additionally, the Brazilian government frequently implements
changes to the Brazilian tax regime, including changes in
prevailing tax rates and the imposition of temporary taxes,
which may affect Navios Logistics.
The
governments of Argentina, Bolivia, Brazil, Paraguay and Uruguay
have entered into a treaty that commits each of them to
participate in a regional initiative to integrate the
region’s economies. There is no guarantee that such an
initiative will be successful or that each of the governments
involved in the initiative will follow through on its intentions
to participate and if such regional initiative is unsuccessful,
it could have a material adverse impact on Navios Logistics
results of operations.
The governments of Argentina, Bolivia, Brazil, Paraguay and
Uruguay have entered into a treaty that commits each of them to
participate in a regional initiative to integrate the
region’s economies, a central component of which is water
transportation in the Hidrovia. Although Navios Logistics
believes that this regional initiative of expanding navigation
on the Hidrovia river system will result in significant economic
benefits, there is no guarantee that such an initiative will
ultimately be successful, that each country will follow through
on its intention to participate, or that the benefits of this
initiative will match its expectations of continuing growth in
the Hidrovia or reducing transportation costs. If the regional
initiative is unsuccessful, Navios Logistics results of
operations could be materially and adversely affected.
Changes
in rules and regulations with respect to cabotage or their
interpretation in the markets in which Navios Logistics operates
could have a material adverse effect on our results of
operations.
In the markets in which Navios Logistics currently operates, in
cabotage or regional trades, it is subject to restrictive rules
and regulations on a region by region basis. Navios Logistics
operations currently benefit from these rules and regulations or
their interpretation. For instance, preferential treatment is
extended in Argentine cabotage for Argentine flagged vessels or
foreign flagged vessels operated by local established operators
with sufficient Argentine tonnage under one to three years’
licenses, including Navios Logistics Argentine cabotage vessels.
Changes in cabotage rules and regulations or in their
interpretation may have an adverse effect on our current or
future cabotage operations, either by becoming more restrictive
(which could result in limitations to the utilization of some of
our vessels in those trades) or less restrictive (which could
result in increased competition in these markets).
Risks
Relating to Navios Maritime Acquisition Corporation
Navios
Acquisition has a limited operating history and you will have a
limited basis on which to evaluate its ability to achieve its
business objectives. Navios Acquisition may not operate
profitably in the future.
Navios Acquisition is a company with limited consolidated
operating results to date. Accordingly, you will have a limited
basis upon which to evaluate its ability to achieve its business
objectives. Navios Acquisition has completed its initial public
offering on July 1, 2008. Pursuant to the Acquisition
Agreement dated April 8, 2010 and approved by its
stockholders on May 25, 2010, Navios Acquisition completed
the acquisition of 13 vessels
47
Table of Contents
(11 product tankers and two chemical tankers) referred to
as the Product and Chemical Tanker Acquisition. Three of the
13 vessels were delivered in the second, third and fourth
quarter of 2010 and a fourth was delivered in the first quarter
of 2011, with the remaining vessels under the Acquisition
Agreement scheduled to be delivered in the future. The vessels
acquired with the Product and Chemical Tanker Acquisition have
no operating history, and the four vessels delivered in the
second, third and fourth quarters of 2010 and the first quarter
of 2011 have been chartered since their respective delivery. On
September 10, 2010, Navios Acquisition completed the
acquisition of seven very large crude carriers, referred to as
the VLCC Acquisition, with six vessels already operating and the
last vessel delivered on June 8, 2011. On October 26,
2010, Navios Acquisition entered into agreement to acquire two
vessels scheduled for delivery in the fourth quarter of 2011.
Navios Acquisitions’ historical financial statements do not
fully reflect the consolidated operating results of the
acquisitions it has completed or the vessels it has not yet
acquired.
Delays
in deliveries of Navios Acquisition newbuild vessels, or its
decision to cancel, or its inability to otherwise complete the
acquisitions of any newbuildings Navios Acquisition may decide
to acquire in the future, could harm its operating results and
lead to the termination of any related charters.
Navios Acquisition’s newbuilding vessels, as well as any
newbuildings it may contract to acquire or order in the future,
could be delayed, not completed or cancelled, which would delay
or eliminate its expected receipt of revenues under any charters
for such vessels. The shipbuilder or third party seller could
fail to deliver the newbuilding vessel or any other vessels it
acquires or orders, or it could cancel a purchase or a
newbuilding contract because the shipbuilder has not met its
obligations, including its obligation to maintain agreed refund
guarantees in place for Navios Acquisition’s benefit. For
prolonged delays, the customer may terminate the time charter.
Navios Acquisitions’ receipt of newbuildings could be
delayed, cancelled, or otherwise not completed because of:
| • | quality or engineering problems or failure to deliver the vessel in accordance with the vessel specifications; | |
| • | changes in governmental regulations or maritime self-regulatory organization standards; | |
| • | work stoppages or other labor disturbances at the shipyard; | |
| • | natural disasters and their effects; | |
| • | bankruptcy or other financial or liquidity problems of the shipbuilder; | |
| • | a backlog of orders at the shipyard; | |
| • | political or economic disturbances in the country or region where the vessel is being built; | |
| • | weather interference or catastrophic event, such as a major earthquake or fire; | |
| • | shortages of or delays in the receipt of necessary construction materials, such as steel; and | |
| • | its inability to finance the purchase of the vessel. |
If delivery of any newbuild vessel acquired, or any vessel
Navios Acquisition’s contract to acquire in the future is
materially delayed, it could materially adversely affect its
results of operations and financial condition.
Navios
Acquisition relies on its technical managers to provide
essential services to its vessels and run the
day-to-day
operations of its vessels.
Pursuant to technical management agreements, which involve
overseeing the construction of a vessel, as well as subsequent
shipping operations throughout the life of a vessel, Navios
Acquisition’s current technical manager provides services
essential to the business of its vessels, including vessel
maintenance, crewing, purchasing, shipyard supervision,
insurance and assistance with vessel regulatory compliance. The
current technical manager of the VLCC vessels, an affiliate of
the seller of such vessels, is a technical ship management
company that has provided technical management to the acquired
VLCC vessels prior to the consummation of the acquisition. This
technical manager will continue to provide such services for an
interim period subsequent to the closing of the VLCC
Acquisition, after which the technical management of Navios
Acquisition’s fleet is expected to be provided
48
Table of Contents
directly by a subsidiary of Navios Holdings. However, in the
event Navios Holdings does not obtain the required vetting
approvals, it will not be able to take over technical
management. Navios Acquisition’s operational success and
ability to execute its strategy will depend significantly upon
the satisfactory performance of these services by the current
technical manager, and, subsequently, by the Navios
Holdings’ subsidiary. The failure of either of these
technical managers to perform these services satisfactorily
and/or the
failure of the Navios Holdings’ subsidiary to garner the
approvals necessary to become Navios Acquisition’s
technical manager for the VLCC vessels could have a material
adverse effect on Navios Acquisition’s business, financial
condition and results of operations.
The
cyclical nature of the tanker industry may lead to volatility in
charter rates and vessel values, which could materially
adversely affect Navios Acquisitions future
earnings.
Oil has been one of the world’s primary energy sources for
a number of decades. The global economic growth of previous
years had a significant impact on the demand for oil and
subsequently on the oil trade and shipping demand. However,
during the second half of 2008 and throughout 2009, the
world’s economies experienced a major economic slowdown
with effects that are ongoing, the duration of which is very
difficult to forecast and which has, and is expected to continue
to have, a significant impact on world trade, including the oil
trade. If the tanker market, which has historically been
cyclical, is depressed in the future, our earnings and available
cash flow may be materially adversely affected. Our ability to
employ Navios Acquisition vessels profitably will depend upon,
among other things, economic conditions in the tanker market.
Fluctuations in charter rates and tanker values result from
changes in the supply and demand for tanker capacity and changes
in the supply and demand for liquid cargoes, including petroleum
and petroleum products.
Historically, the crude oil markets have been volatile as a
result of the many conditions and events that can affect the
price, demand, production and transport of oil, including
competition from alternative energy sources. Decreased demand
for oil transportation may have a material adverse effect on our
revenues, cash flows and profitability. The factors affecting
the supply and demand for tankers are outside of Navios
Acquisition’s control, and the nature, timing and degree of
changes in industry conditions are unpredictable. The current
global financial crisis has intensified this unpredictability.
The factors that influence demand for tanker capacity include:
| • | demand for and supply of liquid cargoes, including petroleum and petroleum products; | |
| • | developments in international trade; | |
| • | waiting days in ports; | |
| • | changes in oil production and refining capacity and regional availability of petroleum refining capacity; | |
| • | environmental and other regulatory developments; | |
| • | global and regional economic conditions; | |
| • | the distance chemicals, petroleum and petroleum products are to be moved by sea; | |
| • | changes in seaborne and other transportation patterns, including changes in distances over which cargo is transported due to geographic changes in where oil is produced, refined and used; | |
| • | competition from alternative sources of energy; | |
| • | armed conflicts and terrorist activities; | |
| • | political developments; and | |
| • | embargoes and strikes. |
The factors that influence the supply of tanker capacity include:
| • | the number of newbuilding deliveries; | |
| • | the scrapping rate of older vessels; |
49
Table of Contents
| • | port or canal congestion; | |
| • | the number of vessels that are used for storage or as floating storage offloading service vessels; | |
| • | the conversion of tankers to other uses, including conversion of vessels from transporting oil and oil products to carrying drybulk cargo and the reverse conversion; | |
| • | availability of financing for new tankers; | |
| • | the phasing out of single-hull tankers due to legislation and environmental concerns; | |
| • | the price of steel; | |
| • | the number of vessels that are out of service; | |
| • | national or international regulations that may effectively cause reductions in the carrying capacity of vessels or early obsolescence of tonnage; and | |
| • | environmental concerns and regulations. |
Furthermore, the extension of refinery capacity in India and the
Middle East up to 2011 is expected to exceed the immediate
consumption in these areas, and an increase in exports of
refined oil products is expected as a result. Historically, the
tanker markets have been volatile as a result of the many
conditions and factors that can affect the price, supply and
demand for tanker capacity. The recent global economic crisis
may further reduce demand for transportation of oil over long
distances and supply of tankers that carry oil, which may
materially affect our future revenues, profitability and cash
flows.
Navios Acquisition’s current order book for tanker vessels
represents a significant percentage of the existing fleet. An
over-supply of tanker capacity may result in a reduction of
charter hire rates. If a reduction in charter rates occurs,
Navios Acquisition may only be able to charter its vessels at
unprofitable rates or it may not be able to charter these
vessels at all, which could lead to a material adverse effect on
its results of operations.
Charter
rates in the crude oil, product and chemical tanker sectors of
the seaborne transportation industry in which Navios Acquisition
operates have significantly declined from historically high
levels in 2008 and may remain depressed or decline further in
the future, which may adversely affect our
earnings.
Charter rates in the crude oil, product and chemical tanker
sectors have significantly declined from historically high
levels in 2008 and may remain depressed or decline further. For
example, the Baltic Dirty Tanker Index declined from a high of
2,347 in July 2008 to 453 in mid-April 2009, which represents a
decline of approximately 81%. As of June 7, 2011, it stood
at 745. The Baltic Clean Tanker Index fell from 1,509 in the
early summer of 2008 to 345 in April 2009, or approximately 77%.
It has since rallied to 677 as of June 7, 2011. Of note is
that Chinese imports of crude oil have steadily increased from
3 million barrels per day in 2008 to about 5.4 million
barrels per day in April 2011. If the tanker sector of the
seaborne transportation industry, which has been highly
cyclical, is depressed in the future at a time when Navios
Acquisition may want to sell a vessel, its earnings and
available cash flow may be adversely affected. Navios
Acquisition cannot assure you that it will be able to
successfully charter its vessels in the future at rates
sufficient to allow Navios Acquisition to operate its business
profitably or to meet its obligations, including payment of debt
service to our lenders. Navios Acquisition’s ability to
renew the charters on vessels that Navios Acquisition may
acquire in the future, the charter rates payable under any
replacement charters and vessel values will depend upon, among
other things, economic conditions in the sector in which its
vessels operate at that time, changes in the supply and demand
for vessel capacity and changes in the supply and demand for the
seaborne transportation of energy resources and commodities.
Spot
market rates for tanker vessels are highly volatile and are
currently at relatively low levels historically and may further
decrease in the future, which may adversely affect our earnings
in the event that Navios Acquisition’s vessels are
chartered in the spot market.
Navios Acquisition intends to deploy at least some of its
vessels in the spot market. Although spot chartering is common
in the product and chemical tanker sectors, product and chemical
tanker charter hire rates are highly
50
Table of Contents
volatile and may fluctuate significantly based upon demand for
seaborne transportation of crude oil and oil products and
chemicals, as well as tanker supply. The world oil demand is
influenced by many factors, including international economic
activity; geographic changes in oil production, processing, and
consumption; oil price levels; inventory policies of the major
oil and oil trading companies; and strategic inventory policies
of countries such as the United States and China. The successful
operation of Navios Acquisition’s vessels in the spot
charter market depends upon, among other things, obtaining
profitable spot charters and minimizing, to the extent possible,
time spent waiting for charters and time spent traveling unladen
to pick up cargo. Furthermore, as charter rates for spot
charters are fixed for a single voyage that may last up to
several weeks, during periods in which spot charter rates are
rising, Navios Acquisition will generally experience delays in
realizing the benefits from such increases.
The spot market is highly volatile, and, in the past, there have
been periods when spot rates have declined below the operating
cost of vessels. Currently, charter hire rates are at relatively
low rates historically and there is no assurance that the crude
oil, product and chemical tanker charter market will recover
over the next several months or will not continue to decline
further.
Navios Acquisition’s six
on-the-water
VLCC vessels are contractually committed to time charters, with
the remaining terms of these charters expiring during the period
from and including 2014 through 2025. The newbuilding VLCC
delivered on June 8, 2011, is operating on a charter that
expires during 2026. Although time charters generally provide
reliable revenue, they will also limit the portion of Navios
Acquisition’s fleet available for spot market voyages.
Navios Acquisition is not permitted to unilaterally terminate
the charter agreements of the VLCC vessels due to upswings in
the tanker industry cycle, when spot market voyages might be
more profitable. Navios Acquisition may also decide to sell a
vessel in the future. In such a case, should Navios Acquisition
sell a vessel that is committed to a long-term charter, it may
not be able to realize the full charter free fair market value
of the vessel during a period when spot market charters are more
profitable than the charter agreement under which the vessel
operates. Navios Acquisition may re-charter the VLCC vessels on
long-term charters or charter them in the spot market upon
expiration or termination of the vessels’ current charters.
If Navios Acquisition is not able to employ the VLCC vessels
profitably under time charters or in the spot market, its
results of operations and operating cash flow may suffer.
Any
decrease in shipments of crude oil from the Arabian Gulf or West
Africa may materially adversely affect our financial
performance.
The demand for VLCC oil tankers derives primarily from demand
for Arabian Gulf and West African crude oil, which, in turn,
primarily depends on the economies of the world’s
industrial countries and competition from alternative energy
sources. A wide range of economic, social and other factors can
significantly affect the strength of the world’s industrial
economies and their demand for Arabian Gulf and West African
crude oil.
Among the factors that could lead to a decrease in demand for
exported Arabian Gulf and West African crude oil are:
| • | increased use of existing and future crude oil pipelines in the Arabian Gulf or West African regions; | |
| • | a decision by the Organization of the Petroleum Exporting Countries (“OPEC”) to increase its crude oil prices or to further decrease or limit their crude oil production; | |
| • | armed conflict or acts of piracy in the Arabian Gulf or West Africa and political or other factors; | |
| • | increased oil production in other regions, such as Russia and Latin America; and | |
| • | the development and the relative costs of nuclear power, natural gas, coal and other alternative sources of energy. |
Any significant decrease in shipments of crude oil from the
Arabian Gulf or West Africa may materially adversely affect our
financial performance.
51
Table of Contents
Eight
of the vessels Navios Acquisition has acquired are second-hand
vessels, and may acquire more
second-hand
vessels in the future. The acquisition and operation of such
vessels may result in increased operating costs and vessel
off-hire, which could materially adversely affect our
earnings.
Two of the LR1 product tanker vessels and six of the VLCC
vessels that Navios Acquisition has acquired are second-hand
vessels, and may acquire more second-hand vessels in the future.
Navios Acquisition’s inspection of second-hand vessels
prior to purchase does not provide it with the same knowledge
about their condition and cost of any required or anticipated
repairs that it would have had if these vessels had been built
for and operated exclusively by it. Generally, Navios
Acquisition will not receive the benefit of warranties on
second-hand vessels.
In general, the costs to maintain a vessel in good operating
condition increase with the age of the vessel. Due to
improvements in engine technology, older vessels are typically
less fuel efficient and more costly to maintain than more
recently constructed vessels. Cargo insurance rates increase
with the age of a vessel, making older vessels less desirable to
charterers.
Governmental regulations, safety or other equipment standards
related to the age of vessels may require expenditures for
alterations or the addition of new equipment, to its vessels and
may restrict the type of activities in which the vessels may
engage or the geographic regions in which we may operate. Navios
Acquisition cannot predict what alterations or modifications
Navios Acquisition’s vessels may be required to undergo in
the future. As Navios Acquisition’s vessels age, market
conditions may not justify those expenditures or enable it to
operate its vessels profitably during the remainder of their
useful lives.
Although Navios Acquisition has considered the age and condition
of the vessels in budgeting for operating, insurance and
maintenance costs, it may encounter higher operating and
maintenance costs due to the age and condition of these vessels,
or any additional vessels it acquires in the future. The age of
some of the VLCC vessels may result in higher operating costs
and increased vessel off-hire periods relative to Navios
Acquisition’s competitors that operate newer fleets, which
could have a material adverse effect on its results of
operations.
Navios
Acquisition’s growth depends on continued growth in demand
for crude oil, refined petroleum products (clean and dirty) and
bulk liquid chemicals and the continued demand for seaborne
transportation of such cargoes.
Navios Acquisition’s growth strategy focuses on expansion
in the crude oil, product and chemical tanker sectors.
Accordingly, its growth depends on continued growth in world and
regional demand for crude oil, refined petroleum (clean and
dirty) products and bulk liquid chemicals and the transportation
of such cargoes by sea, which could be negatively affected by a
number of factors, including:
| • | the economic and financial developments globally, including actual and projected global economic growth; | |
| • | fluctuations in the actual or projected price of crude oil, refined petroleum (clean and dirty) products or bulk liquid chemicals; | |
| • | refining capacity and its geographical location; | |
| • | increases in the production of oil in areas linked by pipelines to consuming areas, the extension of existing, or the development of new, pipeline systems in markets we may serve, or the conversion of existing non-oil pipelines to oil pipelines in those markets; | |
| • | decreases in the consumption of oil due to increases in its price relative to other energy sources, other factors making consumption of oil less attractive or energy conservation measures; | |
| • | availability of new, alternative energy sources; and | |
| • | negative or deteriorating global or regional economic or political conditions, particularly in oil-consuming regions, which could reduce energy consumption or its growth. |
The refining and chemical industries may respond to the economic
downturn and demand weakness by reducing operating rates and by
reducing or cancelling certain investment expansion plans,
including plans for additional refining capacity, in the case of
the refining industry. Continued reduced demand for refined
petroleum
52
Table of Contents
(clean and dirty) products and bulk liquid chemicals and the
shipping of such cargoes or the increased availability of
pipelines used to transport refined petroleum (clean and dirty)
products, would have a material adverse effect on its future
growth and could harm its business, results of operations and
financial condition.
Navios
Acquisition’s growth depends on its ability to obtain
customers, for which it faces substantial competition. In the
highly competitive VLCC shipping industry, Navios Acquisition
may not be able to compete for charters with new entrants or
established companies with greater resources, which may
adversely affect its results of operations.
Navios Acquisition employs the VLCC vessels in the highly
competitive product and chemical tanker sectors of the shipping
industry that is capital intensive and fragmented. Competition
arises primarily from other vessel owners, including major oil
companies as well as independent tanker companies, some of whom
have substantially greater resources and experience than it.
Competition for the chartering of VLCCs can be intense and
depends on price, location, size, age, condition and the
acceptability of the vessel and its managers to the charterers.
Such competition has been enhanced as a result of the downturn
in the shipping industry, which has resulted in an excess supply
of vessels and reduced charter rates.
Medium- to long-term time charters and bareboat charters have
the potential to provide income at pre-determined rates over
more extended periods of time. However, the process for
obtaining longer term time charters and bareboat charters is
highly competitive and generally involves a lengthy, intensive
and continuous screening and vetting process and the submission
of competitive bids that often extends for several months. In
addition to the quality, age and suitability of the vessel,
longer term shipping contracts tend to be awarded based upon a
variety of other factors relating to the vessel operator.
Competition for the transportation of refined petroleum products
(clean and dirty) and bulk liquid chemicals can be intense and
depends on price, location, size, age, condition and
acceptability of the vessel and its managers to the charterers.
In addition to having to meet the stringent requirements set out
by charterers, it is likely that Navios Acquisition will also
face substantial competition from a number of competitors who
may have greater financial resources, stronger reputations or
experience than it does when it tries to recharter its vessels.
It is also likely that it will face increased numbers of
competitors entering into the crude oil product and chemical
tanker sectors, including in the ice class sector. Increased
competition may cause greater price competition, especially for
medium- to long-term charters. Due in part to the highly
fragmented markets, competitors with greater resources could
operate larger fleets through consolidations or acquisitions
that may be able to offer better prices and fleets than Navios
Acquisition’s.
As a result of these factors, Navios Acquisition may be unable
to obtain customers for medium- to long-term time charters or
bareboat charters on a profitable basis, if at all. Even if
Navios Acquisition is successful in employing its vessels under
longer term time charters or bareboat charters, Navios
Acquisition’s vessels will not be available for trading in
the spot market during an upturn in the product and chemical
tanker market cycle, when spot trading may be more profitable.
If Navios Acquisition cannot successfully employ its vessels in
profitable time charters its results of operations and operating
cash flow could be adversely affected.
Future
increases in vessel operating expenses, including rising fuel
prices, could materially adversely affect our business,
financial condition and results of operations.
Under Navios Acquisition’s time charter agreements, the
charterer is responsible for substantially all of the voyage
expenses, including port and canal charges and fuel costs and is
generally responsible for vessel operating expenses. Vessel
operating expenses are the costs of operating a vessel,
primarily consisting of crew wages and associated costs,
insurance premiums, management fees, lubricants and spare parts
and repair and maintenance costs. In particular, the cost of
fuel is a significant factor in negotiating charter rates. As a
result, an increase in the price of fuel beyond our expectations
may adversely affect its profitability. The price and supply of
fuel is unpredictable and fluctuates based on events outside its
control, including geopolitical developments, supply and demand
for oil, actions by members of OPEC and other oil and gas
producers, war, terrorism and unrest in oil producing countries
and regions, regional production patterns and environmental
concerns and regulations.
53
Table of Contents
Navios Acquisition receives a daily rate for the use of its
vessels, which is fixed through the term of the applicable
charter agreement. Its charter agreements do not provide for any
increase in the daily hire rate in the event that
vessel-operating expenses increase during the term of the
charter agreement. The charter agreements for the six
on-the-water
VLCC vessels expire during the period from and including 2014
through 2025 and the VLCC newbuilding delivered on June 8,
2011 is operating under a charter agreement that expires in
2026. Because of the long-term nature of these charter
agreements, incremental increases in Navios Acquisition’s
vessel operating expenses over the term of a charter agreement
will effectively reduce Navios Acquisition’s operating
income and, if such increases in operating expenses are
significant, adversely affect its business, financial condition
and results of operations.
The
crude oil, product and chemical tanker sectors are subject to
seasonal fluctuations in demand and, therefore, may cause
volatility in our operating results.
The crude oil, product and chemical tanker sectors of the
shipping industry have historically exhibited seasonal
variations in demand and, as a result, in charter hire rates.
This seasonality may result in
quarter-to-quarter
volatility in our operating results. The product and chemical
tanker markets are typically stronger in the fall and winter
months in anticipation of increased consumption of oil and
natural gas in the northern hemisphere. In addition,
unpredictable weather patterns in these months tend to disrupt
vessel scheduling and supplies of certain commodities. As a
result, revenues are typically weaker during the fiscal quarters
ended June 30 and September 30, and, conversely, typically
stronger in fiscal quarters ended December 31 and March 31.
Navios Acquisition’s operating results, therefore, may be
subject to seasonal fluctuations.
The
current global economic downturn may negatively impact Navios
Acquisition’s business.
In recent years, there has been a significant adverse shift in
the global economy, with operating businesses facing tightening
credit, weakening demand for goods and services, deteriorating
international liquidity conditions, and declining markets. Lower
demand for tanker cargoes as well as diminished trade credit
available for the delivery of such cargoes may create downward
pressure on charter rates. If the current global economic
environment persists or worsens, we may be negatively affected
in the following ways:
| • | Navios Acquisition may not be able to employ its vessels at charter rates as favorable to Navios Acquisition as historical rates or operate such vessels profitably. | |
| • | The market value of its vessels could decrease significantly, which may cause Navios Acquisition to recognize losses if any of its vessels are sold or if their values are impaired. In addition, such a decline in the market value of its vessels could prevent Navios Acquisition from borrowing under its credit facilities or trigger a default under one of their covenants. | |
| • | Charterers could have difficulty meeting their payment obligations to us. |
If the contraction of the global credit markets and the
resulting volatility in the financial markets continues or
worsens that could have a material adverse impact on its results
of operations, financial condition and cash flows.
The
employment of Navios Acquisition’s vessels could be
adversely affected by an inability to clear the oil majors’
risk assessment process, and could be in breach of its charter
agreements with respect to the VLCC vessels.
The shipping industry, and especially the shipment of crude oil,
refined petroleum products (clean and dirty) and bulk liquid
chemicals, has been, and will remain, heavily regulated. The
so-called “oil majors” companies, such as Exxon Mobil,
BP p.l.c., Royal Dutch Shell plc. Chevron, ConocoPhillips and
Total S.A. together with a number of commodities traders,
represent a significant percentage of the production, trading
and shipping logistics (terminals) of crude oil and refined
products worldwide. Concerns for the environment have led the
oil majors to develop and implement a strict ongoing due
diligence process when selecting their commercial partners. This
vetting process has evolved into a sophisticated and
comprehensive risk assessment of both the vessel operator and
the vessel, including physical ship inspections, completion of
vessel inspection questionnaires performed by
54
Table of Contents
accredited inspectors and the production of comprehensive risk
assessment reports. In the case of term charter relationships,
additional factors are considered when awarding such contracts,
including:
| • | office assessments and audits of the vessel operator; | |
| • | the operator’s environmental, health and safety record; | |
| • | compliance with the standards of the International Maritime Organization (the “IMO”), a United Nations agency that issues international trade standards for shipping; | |
| • | compliance with heightened industry standards that have been set by several oil companies; | |
| • | shipping industry relationships, reputation for customer service, technical and operating expertise; | |
| • | shipping experience and quality of ship operations, including cost-effectiveness; | |
| • | quality, experience and technical capability of crews; | |
| • | the ability to finance vessels at competitive rates and overall financial stability; | |
| • | relationships with shipyards and the ability to obtain suitable berths; | |
| • | construction management experience, including the ability to procure on-time delivery of new vessels according to customer specifications; | |
| • | willingness to accept operational risks pursuant to the charter, such as allowing termination of the charter for force majeure events; and | |
| • | competitiveness of the bid in terms of overall price. |
Under the terms of Navios Acquisition’s charter agreements,
its charterers require that these vessels and the technical
manager are vetted and approved to transport oil products by
multiple oil majors. Navios Acquisition’s failure to
maintain any of its vessels to the standards required by the oil
majors could put us in breach of the applicable charter
agreement and lead to termination of such agreement, and could
give rise to impairment in the value of its vessels.
Should Navios Acquisition not be able to successfully clear the
oil majors’ risk assessment processes on an ongoing basis,
the future employment of its vessels, as well as its ability to
obtain charters, whether medium- or long-term, could be
adversely affected. Such a situation may lead to the oil
majors’ terminating existing charters and refusing to use
its vessels in the future, which would adversely affect its
results of operations and cash flows.
Charterers
may terminate or default on their obligations to Navios
Acquisition, which could materially adversely affect its results
of operations and cash flow, and breaches of the charters may be
difficult to enforce.
The loss of any of Navios Acquisition’s customers, a
customer’s failure to perform under any of the applicable
charters, a customer’s termination of any of the applicable
charters, the loss of any of its vessels or a decline in
payments under the charters could have a material adverse effect
on its business, results of operations and financial condition.
In addition, the charterers of the VLCC vessels are based in,
and have their primary assets and operations in, the
Asia-Pacific region, including the People’s Republic of
China. The charter agreements for the VLCC vessels are governed
by English law and provide for dispute resolution in English
courts or London-based arbitral proceedings. There can be no
assurance that we would be able to enforce any judgments against
these charterers in jurisdictions where they are based or have
their primary assets and operations.
Even after a charter contract is entered, charterers may
terminate charters early under certain circumstances. The events
or occurrences that will cause a charter to terminate or give
the charterer the option to terminate the charter generally
include a total or constructive total loss of the related
vessel, the requisition for hire of the related vessel or the
failure of the related vessel to meet specified performance
criteria. In addition, the ability of a charterer to perform its
obligations under a charter will depend on a number of factors
that are beyond its control. These factors may include general
economic conditions, the condition of the product and chemical
tanker sectors of the shipping industry, the charter rates
received for specific types of vessels and various operating
expenses. There can
55
Table of Contents
be no assurance that Navios Acquisition would be able to enforce
any judgments against these charterers in jurisdictions where
they are based or have their primary assets and operations. In
addition, Navios Acquisition is exploring the possibility of
participating in the credit risk insurance currently available
to Navios Holdings. Navios Holdings has insured its
charter-out contracts through a “AA+” rated
governmental agency of a European Union member state, which
provides that if the charterer goes into payment default, the
insurer will reimburse it for the charter payments under the
terms of the policy (subject to applicable deductibles and other
customary limitations for such insurance). While Navios
Acquisition may seek to benefit from such insurance, no
assurance can be provided that will qualify for or choose to
obtain this insurance.
Navios Acquisition cannot predict whether its charterers will,
upon the expiration of their charters, re-charter its vessels on
favorable terms or at all. If Navios Acquisition’s
charterers decide not to re-charter its vessels, it may not be
able to re-charter them on terms similar to its current charters
or at all. In the future, may also employ its vessels on the
spot charter market, which is subject to greater rate
fluctuation than the time charter market.
If Navios Acquisition receives lower charter rates under
replacement charters or are unable to re-charter all of its
vessels, its results of operations and financial condition could
be materially adversely affected.
If
Navios Acquisition experienced a catastrophic loss and its
insurance is not adequate to cover such loss, it could lower its
profitability and be detrimental to operations.
The ownership and operation of vessels in international trade is
affected by a number of inherent risks, including mechanical
failure, personal injury, vessel and cargo loss or damage,
business interruption due to political conditions in foreign
countries, hostilities, piracy, terrorism, labor strikes
and/or
boycotts, adverse weather conditions and catastrophic marine
disaster, including environmental accidents and collisions. All
of these risks could result in liability, loss of revenues,
increased costs and loss of reputation. Navios Acquisition
maintains hull and machinery insurance, protection and indemnity
insurance, which include environmental damage and pollution and
war risk insurance, consistent with industry standards, against
these risks on its vessels and other business assets. However,
Navios Acquisition cannot assure you that will be able to insure
against all risks adequately, that any particular claim will be
paid out of its insurance, or that Navios Acquisition will be
able to procure adequate insurance coverage at commercially
reasonable rates in the future.
Navios
Acquisition may not have adequate insurance to compensate for
damage to or loss of its vessels, which may have a material
adverse effect on its financial condition and results of
operation.
Navios Acquisition’s insurers also require to pay certain
deductible amounts, before they will pay claims, and insurance
policies may contain limitations and exclusions, which, although
we believe will be standard for the shipping industry, may
nevertheless increase its costs and lower our profitability.
Additionally, any increase in environmental and other
regulations may also result in increased costs for, or the lack
of availability of, insurance against the risks of environmental
damage, pollution and other claims. Navios Acquisition’s
inability to obtain insurance sufficient to cover potential
claims or the failure of insurers to pay any significant claims
could lower its profitability and be detrimental to its
operations.
Furthermore, even if insurance coverage is adequate to cover its
losses, Navios Acquisition may not be able to timely obtain a
replacement ship in the event of a loss. Navios Acquisition may
also be subject to calls, or premiums, in amounts based not only
on its own claim records but also the claim records of all other
members of the protection and indemnity associations through
which Navios Acquisition receive indemnity insurance coverage
for tort liability. In addition, its protection and indemnity
associations may not have enough resources to cover claims made
against them. Navios Acquisition’s payment of these calls
could result in significant expenses to it, which could reduce
its cash flows and place strains on its liquidity and capital
resources.
Labor
interruptions and problems could disrupt our
business.
Certain of Navios Acquisition’s vessels are manned by
masters, officers and crews that are employed by third parties.
If not resolved in a timely and cost-effective manner,
industrial action or other labor unrest could prevent or hinder
its operations from being carried out normally and could have a
material adverse effect on its business, results of operations,
cash flow and financial condition.
56
Table of Contents
The
indemnity may be inadequate to cover any damages.
The Securities Purchase Agreement for the VLCC vessels has a cap
on indemnity obligations, subject to certain exceptions, of
$58.7 million. Although Navios Acquisition performed
substantial due diligence with respect to the VLCC Acquisition,
there can be no assurance that there will not be undisclosed
liabilities or other matters not discovered in the course of
such due diligence and the $58.7 million indemnity may be
inadequate to cover these or other damages related to breaches
of such agreement. In addition, as there are approximately
1,378,122 shares available in escrow, of which some or all
may be returnable to Navios Acquisition under the terms of the
indemnity, it may be difficult to enforce an arbitration award
for any damages in excess of such amount.
A
large proportion of the revenue from the VLCC vessels is derived
from a Chinese state-owned company, and changes in the economic
and political environment in China or in Chinese relations with
other countries could adversely affect Navios Acquisition’s
ability to continue this customer relationship.
DOSCO, a wholly owned subsidiary of the Chinese state-owned
COSCO, charters four of the seven VLCC vessels (including the
newbuilding). Changes in political, economic and social
conditions or other relevant policies of the Chinese government,
such as changes in laws, regulations or export and import
restrictions, could restrict DOSCO’s ability to continue
its relationship with it. If DOSCO becomes unable to perform
under its charter agreements with it, Navios Acquisition could
suffer a loss of revenue that could materially adversely affect
its business, financial condition, and results of operations. In
addition, it may have limited ability in Chinese courts to
enforce any awards for damages that it may suffer if DOSCO were
to fail to perform its obligations under its charter agreements.
One of
the vessels is subject to a mutual sale provision between the
subsidiary that owns the vessel and the charterer of the vessel,
which, if exercised, could reduce the size of Navios
Acquisition’s fleet and reduce our future
revenue.
The Shinyo Ocean is subject to a mutual sale provision whereby
Navios Acquisition or the charterer can request the sale of the
vessel provided that a price can be obtained that is at least
$3,000,000 greater than the agreed depreciated value of the
vessel as set forth in the charter agreement. If this provision
is exercised, it may not be able to obtain a replacement vessel
for the price at which the vessel is sold. In such a case, the
size of its fleet would be reduced and it may experience a
reduction in it future revenue.
Navios
Holdings has limited recent experience in the crude oil, product
and chemical tanker sectors.
Navios Tankers Management Inc., a wholly owned subsidiary of
Navios Holdings, oversees the commercial and administrative
management of its entire fleet and the technical management of a
portion of its fleet. Navios Holdings is a vertically-integrated
seaborne shipping and logistics company with over 55 years
of operating history in the shipping industry that held
approximately 45% of Navios Acquisition’s outstanding
voting stock as of March 31, 2011. Other than with respect
to South American operations, Navios Holdings has limited recent
experience in the crude oil, chemical and product tanker sectors.
Such limited experience could cause Navios Holdings or Navios
Tankers Management Inc. to make decisions that a more
experienced operator in the sector might not make. If Navios
Holdings or Navios Tankers Management Inc. is not able to
properly assess or ascertain a particular aspect of the crude
oil, product or chemical tanker sectors, it could have a
material adverse affect on its operations.
Navios
Holdings may compete directly with Navios Acquisition, causing
certain officers to have a conflict of interest.
Angeliki Frangou and Ted C. Petrone are each officers
and/or
directors of both Navios Holdings and Navios Acquisition.
Navios Acquisition operates in the crude oil, product and
chemical tanker sectors of the shipping industry, and although
Navios Holdings does not currently operate in those sectors,
there is no assurance it will not enter them. If it does, Navios
Acquisition may compete directly with Navios Holdings for
business opportunities.
57
Table of Contents
Tax
Risks
We may
earn United States source income that is subject to tax, thereby
adversely affecting our results of operations and cash
flows.
Under the U.S. Internal Revenue Code of 1986, or the Code,
50% of gross income attributable to shipping transportation that
begins or ends, but that does not both begin and end, in the
United States is characterized as U.S. source shipping
income. Such income generally will be subject to a 4%
U.S. federal income tax without allowance for deduction,
unless we qualify for an exemption from such tax under
section 883 of the Code. Based on our current plans, we
expect that our income from sources within the United States
will be international shipping income that qualifies for
exemption from United States federal income taxation under
section 883 of the Code, and that we will have no other
income that will be taxed in the United States. Our ability to
qualify for the exemption at any given time will depend upon
circumstances related to the ownership of our common stock at
such time and thus are beyond our control. Accordingly, we can
give no assurance that we would qualify for the exemption under
Section 883 with respect to any such income we earn. If
Navios Holdings’ vessel-owning subsidiaries were not
entitled to the benefit of section 883 of the Code, they
would be subject to United States taxation on a portion of their
income. As a result, depending on the trading patterns of our
vessels, we could become liable for tax, and our net income and
cash flow could be adversely affected.
We may
be taxed as a United States corporation.
The purchase by International Shipping Enterprises Inc.
(“ISE”), our predecessor, of all of the outstanding
shares of common stock of Navios Holdings, and the subsequent
downstream merger of ISE with and into Navios Holdings took
place on August 25, 2005. Navios Holdings is incorporated
under the laws of the Republic of the Marshall Islands. ISE
received an opinion from its counsel for the merger transaction
that, while there is no direct authority that governs the tax
treatment of the transaction, it was more likely than not that
Navios Holdings would be taxed by the United States as a foreign
corporation. Accordingly, we take the position that we will be
taxed as a foreign corporation by the United States. If Navios
Holdings is taxed as a U.S. corporation in the future, its
taxes will be significantly higher than they are currently.
58
Table of Contents
USE OF
PROCEEDS
This exchange offer is intended to satisfy certain of our
obligations under the registration rights agreement entered into
in connection with the issuance of the outstanding notes. We
will not receive any cash proceeds from the issuance of the
exchange notes and have agreed to pay the expenses of the
exchange offer. In consideration for issuing the exchange notes,
we will receive in exchange outstanding notes in like principal
amount. The form and terms of the exchange notes are identical
to the form and terms of the outstanding notes, except as
otherwise described herein under “The Exchange
Offer — Terms of the Exchange Offer.”
The net proceeds from the offering of the outstanding notes was
approximately $340.6 million. We applied approximately
$318.9 million of such net proceeds to complete a tender
offer and consent solicitation and full redemption of our
91/2% senior
notes due 2014 including accrued interest on these senior notes.
The remaining proceeds were used for general corporate purposes.
The outstanding notes surrendered in exchange for the exchange
notes will be retired and cancelled and cannot be reissued.
Accordingly, issuance of the exchange notes will not result in
any increase in our outstanding indebtedness.
59
Table of Contents
CAPITALIZATION
The following table sets forth our capitalization as of
March 31, 2011:
(i) on a historical basis;
(ii) on an as adjusted basis to reflect material changes
through June 10, 2011 as follows:
(a) repayments of long term indebtedness of
$3.7 million (of which $1.9 million relates to
Navios Logistics) that were made subsequent to
March 31, 2011 through June 10, 2011.
(b) On May 9, 2011, Navios Holdings drew down
$18.9 million from its revolving credit facility of up to
$30.0 million with Marfin Popular Bank to partially finance
the acquisition of Navios Astra, which was delivered to Navios
Holdings on February 21, 2011.
(c) On May 19, 2011, Navios Holdings sold the Navios
Luz, a 2010 built Capesize vessel of 179,144 dwt, and the Navios
Orbiter, a 2004 built Panamax vessel of 76,602 dwt, to Navios
Maritime Partners L.P. (“Navios Partners”) for total
consideration of $130.0 million, of which
$120.0 million is payable in cash and $10.0 million is
payable in newly issued common units of Navios Partners. A
portion of the cash proceeds amounting to $57.7 million was
used to fully repay the outstanding loans associated with the
vessels.
(d) On April 12, 2011, Navios Logistics issued
$200.0 million in senior unsecured notes (the
“Logistics Senior Notes”) due on April 15, 2019,
at a fixed rate of 9.25%. The net proceeds from the Logistics
Senior Notes were approximately $194.0 million, after
deducting related fees and estimated expenses, and will be used
to (i) purchase barges and pushboats, (ii) repay
existing indebtedness, and (iii) to the extent available,
for general corporate purposes. On April 12, 2011, Navios
Logistics, using the proceeds from the Logistics Senior Notes,
fully repaid its $70.0 million loan facility with Marfin
Popular Bank.
The information in this table should be read in conjunction with
our consolidated financial statements and related notes thereto
and the other information included or incorporated by reference
into this prospectus. You should also read this table in
conjunction with our consolidated financial statements and
related notes thereto, as well as the sections entitled
“Operating and Financial Review and Prospects” which
are incorporated by reference herein from our Annual Report on
Form 20-F/A
for the fiscal year ended December 31, 2010 and our Report
on
Form 6-K
reporting results for the quarter ended March 31, 2011.
| As of March 31, 2011 | ||||||||
| Historical(i) | As Adjusted(ii) | |||||||
| (unaudited) |
(unaudited) |
|||||||
| (In thousands of U.S. dollars) | ||||||||
|
Existing long-term indebtedness (including current
portion)
|
||||||||
|
Senior secured credit facilities
|
543,323 | 502,571 | ||||||
|
8.875% first priority ship mortgage notes due 2017
|
395,122 | 395,122 | ||||||
|
8.125% senior notes due 2019
|
350,000 | 350,000 | ||||||
|
Unsecured bond
|
20,000 | 20,000 | ||||||
|
Total Company and guarantor subsidiaries
|
1,308,445 | 1,267,693 | ||||||
|
Navios Logistics indebtedness
|
126,034 | 254,175 | ||||||
|
Total non-guarantor subsidiaries
|
126,034 | 254,175 | ||||||
|
Total long-term debt
|
1,434,479 | 1,521,868 | ||||||
|
Total Navios Holdings stockholders’ equity
|
1,020,781 | 1,020,781 | ||||||
|
Total capitalization
|
2,455,260 | 2,542,649 | ||||||
60
Table of Contents
THE
EXCHANGE OFFER
Purpose
of the Exchange Offer
We issued the original notes on January 28, 2011 in
transactions exempt from registration under the Securities Act.
In connection with the issuance and sale, we entered into a
registration rights agreement with the initial purchasers of the
outstanding notes. In the registration rights agreement we
agreed to, among other things
| • | file the Exchange Offer Registration Statement with the SEC not later than 150 days after the date of original issuance of the outstanding notes; | |
| • | use our commercially reasonable efforts to have the Exchange Offer Registration Statement declared effective by the SEC not later than 210 days after the date of original issuance of the outstanding notes; | |
| • | use our commercially reasonable efforts to keep the Exchange Offer Registration Statement effective until the closing of the Exchange Offer; | |
| • | keep the Exchange Offer open for acceptance for a period of not less than 20 business days; and | |
| • | use our commercially reasonable efforts to cause the Exchange Offer to be consummated not later than 255 days after the date of original issuance of the outstanding notes. |
If:
| • | we are not permitted to file the Exchange Offer Registration Statement or to consummate the Exchange Offer because of any changes in law, SEC rules or regulations or applicable interpretations thereof by the staff of the SEC; | |
| • | for any other reason the Exchange Offer Registration Statement is not declared effective on or prior to the 210th day after the date of original issuance of the outstanding notes, or the Exchange Offer is not consummated on or prior to the 255th day after the date of original issuance of the outstanding notes (unless the Exchange Offer is subsequently consummated); | |
| • | any initial purchaser that holds notes so requests; or | |
| • | any holder of notes is not permitted to participate in the Exchange Offer or does not receive fully tradeable Exchange Notes pursuant to the Exchange Offer; |
we agree to file with the SEC a shelf registration statement
(the “Shelf Registration Statement”) to cover resale
of the Registrable Securities (as defined in the Registration
Rights Agreement) by the holders thereof. We will use our
commercially reasonable efforts to cause the applicable
registration statement to be declared effective within the time
periods specified in the Registration Rights Agreement. We will
use our commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective, supplemented and
amended until the first anniversary of the effective date of the
Shelf Registration Statement or such shorter period that will
terminate when all the registrable securities covered by the
Shelf Registration Statement have been sold pursuant thereto or
cease to be outstanding.
If (i) the Exchange Offer Registration Statement is not
filed with the SEC on or prior to the 150th day after the
date of original issuance of the outstanding notes,
(ii) the Exchange Offer Registration Statement has not been
declared effective on or prior to the 210th day after the
date of original issuance of the outstanding notes, or
(iii) the Exchange Offer is not consummated on or prior to
the 255th day after the date of original issuance of the
outstanding notes or the (iv) Shelf Registration Statement
is not declared effective within the time periods specified in
the Registration Rights Agreement (each such event referred to
in clauses (i) through (iv) above, a
“Registration Default”), the rate of interest on the
notes shall be increased by 0.25% per annum of the principal
amount of the notes, and will further increase by an additional
0.25% per annum of the principal amount of the notes for each
subsequent
90-day
period (or portion thereof) while a Registration Default is
continuing up to a maximum of 1.0% per annum. Following the cure
of all Registration Defaults, the accrual of Additional Interest
with respect to Registration Defaults will cease.
61
Table of Contents
If the Shelf Registration Statement is not usable for any reason
for more than 45 days in any consecutive
12-month
period then, beginning on the 45th day that the Shelf
Registration Statement ceases to be usable, subject to certain
limited exceptions, the rate of interest on the notes shall be
increased by 0.25% per annum of the principal amount of the
notes, and will further increase by an additional 0.25% per
annum of the principal amount of the notes for each subsequent
90-day
period (or portion thereof), up to a maximum amount of 1.0% per
annum. Upon the Shelf Registration Statement once again becoming
usable, the accrual of such Additional Interest will cease.
Once the exchange offer is complete, we will have no further
obligation to register any of the outstanding notes not tendered
to us in the exchange offer. See “Risk Factors —
Risks Relating to Our Indebtedness and the Exchange
Notes — Your Failure to Tender Outstanding Notes in
the Exchange Offer May Affect Their Marketability.”
Effect of
the Exchange Offer
Based on interpretations of the staff of the SEC, as set forth
in no-action letters to third parties, we believe that the notes
issued in the exchange offer may be offered for resale, resold
or otherwise transferred by holders of such notes, other than by
any holder that is a broker-dealer who acquired outstanding
notes for its own account as a result of market-making or other
trading activities or by any holder which is an
“affiliate” of us within the meaning of Rule 405
under the Securities Act. The exchange notes may be offered for
resale, resold or otherwise transferred without compliance with
the registration and prospectus delivery provisions of the
Securities Act, if:
| • | the holder is acquiring the exchange notes in the ordinary course of its business; | |
| • | the holder is not engaging in and does not intend to engage in a distribution of the exchange notes; | |
| • | the holder does not have any arrangement or understanding with any person to participate in the exchange offer for the purpose of distributing the exchange notes; and | |
| • | the holder is not an “affiliate” of ours or any of the guarantors of the exchange notes, within the meaning of Rule 405 under the Securities Act. |
However, the SEC has not considered the exchange offer in the
context of a no-action letter, and we cannot guarantee that the
staff of the SEC would make a similar determination with respect
to the exchange offer as in these other circumstances.
Each holder must furnish a written representation, at our
request, that:
| • | it is not an affiliate of us or, if an affiliate, that it will comply with registration and prospectus delivery requirements of the Securities Act to the extent applicable; | |
| • | it is not engaged in, and does not intend to engage in, a distribution of the notes issued in the exchange offer and has no arrangement or understanding to participate in a distribution of notes issued in the exchange offer; and | |
| • | it is acquiring the exchange notes in the ordinary course of its business. |
Each holder who cannot make such representations:
| • | will not be able to rely on the interpretations of the staff of the SEC in the above-mentioned interpretive letters; | |
| • | will not be permitted or entitled to tender outstanding notes in the exchange offer; and | |
| • | must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or other transfer of outstanding notes, unless the sale is made under an exemption from such requirements. |
In addition, each broker-dealer that receives exchange notes for
its own account in exchange for outstanding notes, where such
outstanding notes were acquired by that broker-dealer as a
result of market-making or other trading activities, must
acknowledge that it will deliver this prospectus in connection
with any resale of such notes issued in the exchange offer. See
“Plan of Distribution” for a discussion of the
exchange and resale obligations of broker-dealers in connection
with the exchange offer.
62
Table of Contents
In addition, to comply with state securities laws of certain
jurisdictions, the exchange notes may not be offered or sold in
any state unless they have been registered or qualified for sale
in such state or an exemption from registration or qualification
is available and complied with by the holders selling the
exchange notes. We have not agreed to register or qualify the
exchange notes for offer or sale under state securities laws.
Terms of
the Exchange Offer
Upon the terms and subject to the conditions of the exchange
offer described in this prospectus and in the accompanying
letter of transmittal, we will accept for exchange all
outstanding notes validly tendered and not withdrawn before
5:00 p.m., New York City time, on the expiration date. We
will issue U.S.$1,000 principal amount of exchange notes in
exchange for each U.S.$1,000 principal amount of outstanding
notes accepted in the exchange offer. You may tender some or all
of your outstanding notes pursuant to the exchange offer.
However, outstanding notes may be tendered only in a minimum
principal amount of U.S.$2,000 and in integral multiples of
U.S.$1,000 in excess thereof.
The exchange notes will be substantially identical to the
outstanding notes, except that:
| • | the offering of the exchange notes has been registered under the Securities Act; | |
| • | the exchange notes will not be subject to transfer restrictions; and | |
| • | the exchange notes will be issued free of any covenants regarding registration rights and free of any provision for additional interest. |
The exchange notes will evidence the same debt as the
outstanding notes and will be issued under and be entitled to
the benefits of the same indenture under which the outstanding
notes were issued. The outstanding notes and the exchange notes
will be treated as a single series of debt securities under the
indenture. For a description of the terms of the indenture and
the exchange notes, see “Description of Notes.”
The exchange offer is not conditioned upon any minimum aggregate
principal amount of outstanding notes being tendered for
exchange. As of the date of this prospectus, we have an
aggregate of U.S.$350,000,000 principal amount of outstanding
notes.
We intend to conduct the exchange offer in accordance with the
applicable requirements of the Securities Act and the Securities
Exchange Act and the rules and regulations of the SEC. Holders
of outstanding notes do not have any appraisal or
dissenters’ rights under law or under the indenture in
connection with the exchange offer. Outstanding notes that are
not tendered will remain outstanding and continue to accrue
interest, but will not retain any rights under the registration
rights agreement (except in the case of the Initial Purchasers
and Participating Broker-Dealers as provided herein).
We will be deemed to have accepted for exchange validly tendered
outstanding notes when we have given oral or written notice of
the acceptance to the exchange agent. The exchange agent will
act as agent for the tendering holders of outstanding notes for
the purposes of receiving the exchange notes from us and
delivering the exchange notes to the tendering holders. Subject
to the terms of the registration rights agreement, we expressly
reserve the right to amend or terminate the exchange offer, and
not to accept for exchange any outstanding notes not previously
accepted for exchange, upon the occurrence of any of the
conditions specified below under “— Conditions.”
All outstanding notes accepted for exchange will be exchanged
for exchange notes promptly following the expiration date. If we
decide for any reason to delay for any period our acceptance of
any outstanding notes for exchange, we will extend the
expiration date for the same period.
If we do not accept for exchange any tendered outstanding notes
because of an invalid tender, the occurrence of certain other
events described in this prospectus or otherwise, such
unaccepted outstanding notes will be returned, without expense,
to the holder tendering them or the appropriate book-entry will
be made, in each case, as promptly as practicable after the
expiration date.
We are not making, nor is our Board of Directors making, any
recommendation to you as to whether to tender or refrain from
tendering all or any portion of your outstanding notes in the
exchange offer. No one has been authorized to make any such
recommendation. You must make your own decision whether to
tender in the exchange
63
Table of Contents
offer and, if you decide to do so, you must also make your own
decision as to the aggregate amount of outstanding notes to
tender after reading this prospectus and the letter of
transmittal and consulting with your advisers, if any, based on
your own financial position and requirements.
Expiration
Date; Extensions; Amendments
The term “expiration date” means 5:00 p.m., New
York City time,
on ,
2011 unless we, in our sole discretion, extend the exchange
offer, in which case the term “expiration date” shall
mean the latest date and time to which the exchange offer is
extended.
If we determine to extend the exchange offer, we will notify the
exchange agent of any extension by oral or written notice. We
will notify the registered holders of outstanding notes of the
extension no later than 9:00 a.m., New York City time, on
the business day immediately following the previously scheduled
expiration date.
We reserve the right, in our sole discretion:
| • | to delay accepting for exchange any outstanding notes; | |
| • | to extend the exchange offer or to terminate the exchange offer and to refuse to accept outstanding notes not previously accepted if any of the conditions set forth below under “— Conditions” have not been satisfied by the expiration date; or | |
| • | subject to the terms of the registration rights agreement, to amend the terms of the exchange offer in any manner. |
Any such delay in acceptance, extension, termination or
amendment will be followed as promptly as practicable by oral or
written notice to the registered holders of outstanding notes.
If we amend the exchange offer in a manner that we determine to
constitute a material change, we will promptly disclose the
amendment in a manner reasonably calculated to inform the
holders of the outstanding notes of the amendment.
Without limiting the manner in which we may choose to make
public announcements of any delay in acceptance, extension,
termination or amendment of the exchange offer, we will have no
obligation to publish, advertise or otherwise communicate any
public announcement, other than by making a timely release to a
financial news service.
During any extension of the exchange offer, all outstanding
notes previously tendered will remain subject to the exchange
offer, and we may accept them for exchange. We will return any
outstanding notes that we do not accept for exchange for any
reason without expense to the tendering holder as promptly as
practicable after the expiration or earlier termination of the
exchange offer.
Interest
on the Exchange Notes and the Outstanding Notes
Any outstanding notes not tendered or accepted for exchange will
continue to accrue interest at the rate of
81/8%
per annum in accordance with their terms. The exchange notes
will accrue interest at the rate of
81/8%
per annum from the date of the last periodic payment of interest
on the outstanding notes or, if no interest has been paid, from
the date of original issuance of the outstanding notes. Interest
on the exchange notes and any outstanding notes not tendered or
accepted for exchange will be payable semi-annually in arrears
on February 15 and August 15 of each year, commencing on
January 28, 2011.
Procedures
for Tendering
Only a registered holder of outstanding notes may tender those
notes in the exchange offer. To tender in the exchange offer, a
holder must properly complete, sign and date the letter of
transmittal, have the signatures thereon guaranteed if required
by the letter of transmittal, and mail or otherwise deliver such
letter of transmittal, together with all other documents
required by the letter of transmittal, to the exchange agent at
one of the addresses set forth
64
Table of Contents
below under “— Exchange Agent,” before
5:00 p.m., New York City time, on the expiration date. In
addition, either:
| • | the exchange agent must receive, before the expiration date, a timely confirmation of a book-entry transfer of the tendered outstanding notes into the exchange agent’s account at The Depository Trust Company (“DTC”), or the depositary, according to the procedure for book-entry transfer described below; or | |
| • | the holder must comply with the guaranteed delivery procedures described below. |
A tender of outstanding notes by a holder that is not withdrawn
prior to the expiration date will constitute an agreement
between that holder and us in accordance with the terms and
subject to the conditions set forth in this prospectus and in
the letter of transmittal.
The method of delivery of letters of transmittal and all other
required documents to the exchange agent, including delivery
through DTC, is at the holder’s election and risk. Instead
of delivery by mail, we recommend that holders use an overnight
or hand delivery service. If delivery is by mail, we recommend
that holders use certified or registered mail, properly insured,
with return receipt requested. In all cases, holders should
allow sufficient time to assure delivery to the exchange agent
before the expiration date. Holders should not send letters of
transmittal or other required documents to us. Holders may
request their respective brokers, dealers, commercial banks,
trust companies or other nominees to effect the above
transactions for them.
Any beneficial owner whose outstanding notes are registered in
the name of a broker, dealer, commercial bank, trust company or
other nominee and who wishes to tender those notes should
contact the registered holder promptly and instruct it to tender
on the beneficial owner’s behalf.
We will determine, in our sole discretion, all questions as to
the validity, form, eligibility (including time of receipt),
acceptance of tendered outstanding notes and withdrawal of
tendered outstanding notes, and our determination will be final
and binding. We reserve the absolute right to reject any and all
outstanding notes not properly tendered or any outstanding notes
the acceptance of which would, in the opinion of us or our
counsel, be unlawful. We also reserve the absolute right to
waive any defects or irregularities or conditions of the
exchange offer as to any particular outstanding notes either
before or after the expiration date. Our interpretation of the
terms and conditions of the exchange offer as to any particular
outstanding notes either before or after the expiration date,
including the instructions in the letter of transmittal, will be
final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of outstanding notes
for exchange must be cured within such time as we shall
determine. Although we intend to notify holders of any defects
or irregularities with respect to tenders of outstanding notes
for exchange, neither we nor the exchange agent nor any other
person shall be under any duty to give such notification, nor
shall any of them incur any liability for failure to give such
notification. Tenders of outstanding notes will not be deemed to
have been made until all defects or irregularities have been
cured or waived. Any outstanding notes delivered by book-entry
transfer within DTC, will be credited to the account maintained
within DTC by the participant in DTC which delivered such
outstanding notes, unless otherwise provided in the letter of
transmittal, as soon as practicable following the expiration
date.
In addition, we reserve the right in our sole discretion
(a) to purchase or make offers for any outstanding notes
that remain outstanding after the expiration date, (b) as
set forth below under “— Conditions,” to
terminate the exchange offer and (c) to the extent
permitted by applicable law, purchase outstanding notes in the
open market, in privately negotiated transactions or otherwise.
The terms of any such purchases or offers could differ from the
terms of the exchange offer.
By signing, or otherwise becoming bound by, the letter of
transmittal, each tendering holder of outstanding notes (other
than certain specified holders) will represent to us that:
| • | it is acquiring the exchange notes in the exchange offer in the ordinary course of its business; | |
| • | it is not engaging in and does not intend to engage in a distribution of the exchange notes; | |
| • | it is not participating, does not intend to participate, and has no arrangements or understandings with any person to participate in the exchange offer for the purpose of distributing the exchange notes; and |
65
Table of Contents
| • | it is not an “affiliate” of ours or any of the guarantors of the exchange notes, within the meaning of Rule 405 under the Securities Act, or, if it is our affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable. |
If the tendering holder is a broker-dealer that will receive
exchange notes for its own account in exchange for outstanding
notes that were acquired as a result of market-making activities
or other trading activities, it may be deemed to be an
“underwriter” within the meaning of the Securities
Act. Any such holder will be required to acknowledge in the
letter of transmittal that it will deliver a prospectus in
connection with any resale or transfer of these exchange notes.
However, by so acknowledging and by delivering a prospectus, the
holder will not be deemed to admit that it is an
“underwriter” within the meaning of the Securities Act.
Book-Entry
Transfer
The exchange agent will establish a new account or utilize an
existing account with respect to the outstanding notes at DTC
promptly after the date of this prospectus, and any financial
institution that is a participant in DTC’s systems may make
book-entry delivery of outstanding notes by causing DTC to
transfer these outstanding notes into the exchange agent’s
account in accordance with DTC’s procedures for transfer.
However, the exchange for the outstanding notes so tendered will
only be made after timely confirmation of this book-entry
transfer of outstanding notes into the exchange agent’s
account, and timely receipt by the exchange agent of an
agent’s message and any other documents required by the
letter of transmittal. The term “agent’s message”
means a message transmitted by DTC to, and received by, the
exchange agent and forming a part of a book-entry confirmation,
that states that DTC has received an express acknowledgment from
a participant in DTC tendering outstanding notes that are the
subject of the book-entry confirmation stating (1) the
aggregate principal amount of outstanding notes that have been
tendered by such participant, (2) that such participant has
received and agrees to be bound by the terms of the letter of
transmittal and (3) that we may enforce such agreement
against the participant.
Although delivery of outstanding notes must be effected through
book-entry transfer into the exchange agent’s account at
DTC, the letter of transmittal, properly completely and validly
executed, with any required signature guarantees, or an
agent’s message in lieu of the letter of transmittal, and
any other required documents, must be delivered to and received
by the exchange agent at one of its addresses listed below under
“— Exchange Agent,” before 5:00 p.m., New
York City time, on the expiration date, or the guaranteed
delivery procedure described below must be complied with.
Delivery of documents to DTC in accordance with its procedures
does not constitute delivery to the exchange agent.
All references in this prospectus to deposit or delivery of
outstanding notes shall be deemed to also refer to DTC’s
book-entry delivery method.
Guaranteed
Delivery Procedures
Holders who wish to tender their outstanding notes and
(1) who cannot deliver a confirmation of book-entry
transfer of outstanding notes into the exchange agent’s
account at DTC, the letter of transmittal or any other required
documents to the exchange agent prior to the expiration date or
(2) who cannot complete the procedure for book-entry
transfer on a timely basis, may effect a tender if:
| • | the tender is made through an eligible institution; | |
| • | before the expiration date, the exchange agent receives from the eligible institution a properly completed and duly executed notice of guaranteed delivery, by facsimile transmission, mail or hand delivery, listing the principal amount of outstanding notes tendered, stating that the tender is being made thereby and guaranteeing that, within three New York Stock Exchange, Inc. trading days after the expiration date, a duly executed letter of transmittal together with a confirmation of book-entry transfer of such outstanding notes into the exchange agent’s account at DTC, and any other documents required by the letter of transmittal and the instructions thereto, will be deposited by such eligible institution with the exchange agent; and |
66
Table of Contents
| • | the properly completed and executed letter of transmittal and a confirmation of book-entry transfer of all tendered outstanding notes into the exchange agent’s account at DTC and all other documents required by the letter of transmittal are received by the exchange agent within three New York Stock Exchange, Inc. trading days after the expiration date. |
Upon request to the exchange agent, a notice of guaranteed
delivery will be sent to holders who wish to tender their
outstanding notes according to the guaranteed delivery
procedures described above.
Withdrawal
of Tenders
Except as otherwise provided in this prospectus, tenders of
outstanding notes may be withdrawn at any time prior to
5:00 p.m., New York City time, on the expiration date.
For a withdrawal to be effective, the exchange agent must
receive a written or facsimile transmission notice of withdrawal
at one of its addresses set forth below under “—
Exchange Agent.” Any notice of withdrawal must:
| • | specify the name of the person who tendered the outstanding notes to be withdrawn; | |
| • | identify the outstanding notes to be withdrawn, including the principal amount of such outstanding notes; | |
| • | be signed by the holder in the same manner as the original signature on the letter of transmittal by which the outstanding notes were tendered and include any required signature guarantees; and | |
| • | specify the name and number of the account at DTC to be credited with the withdrawn outstanding notes and otherwise comply with the procedures of DTC. |
We will determine, in our sole discretion, all questions as to
the validity, form and eligibility (including time of receipt)
of any notice of withdrawal, and our determination shall be
final and binding on all parties. Any outstanding notes so
withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the exchange offer and no exchange
notes will be issued with respect thereto unless the outstanding
notes so withdrawn are validly retendered. Properly withdrawn
outstanding notes may be retendered by following one of the
procedures described above under “— Procedures for
Tendering” at any time prior to the expiration date.
Any outstanding notes that are tendered for exchange through the
facilities of DTC but that are not exchanged for any reason will
be credited to an account maintained with DTC for the
outstanding notes as soon as practicable after withdrawal,
rejection of tender or termination of the exchange offer.
Conditions
Despite any other term of the exchange offer, we will not be
required to accept for exchange, or to issue exchange notes in
exchange for, any outstanding notes, and we may terminate the
exchange offer as provided in this prospectus prior to the
expiration date, if:
| • | the exchange offer, or the making of any exchange by a holder of outstanding notes, would violate applicable law or any applicable interpretation of the SEC staff; | |
| • | the outstanding notes are not tendered in accordance with the exchange offer; | |
| • | you do not represent that you are acquiring the exchange notes in the ordinary course, that you are not engaging in and do not intend to engage in a distribution of the exchange notes, of your business and that you have no arrangement or understanding with any person to participate in a distribution of the exchange notes and you do not make any other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render available the use of an appropriate form for registration of the exchange notes under the Securities Act; or | |
| • | any action or proceeding is instituted or threatened in any court or by or before any governmental agency with respect to the exchange offer which, in our judgment, would reasonably be expected to impair our ability to proceed with the exchange offer. |
67
Table of Contents
These conditions are for our sole benefit and may be asserted by
us regardless of the circumstances giving rise to any of these
conditions or may be waived by us, in whole or in part, at any
time and from time to time in our reasonable discretion. Our
failure at any time to exercise any of the foregoing rights
shall not be deemed a waiver of the right and each right shall
be deemed an ongoing right which may be asserted at any time and
from time to time.
If we determine in our reasonable judgment that any of the
conditions are not satisfied, we may:
| • | refuse to accept and return to the tendering holder any outstanding notes or credit any tendered outstanding notes to the account maintained within DTC by the participant in DTC which delivered the outstanding notes; or | |
| • | extend the exchange offer and retain all outstanding notes tendered before the expiration date, subject to the rights of holders to withdraw the tenders of outstanding notes (see “— Withdrawal of Tenders” above); or | |
| • | waive the unsatisfied conditions with respect to the exchange offer prior to the expiration date and accept all properly tendered outstanding notes that have not been withdrawn or otherwise amend the terms of the exchange offer in any respect as provided under “— Expiration Date; Extensions; Amendments.” If a waiver constitutes a material change to the exchange offer, we will promptly disclose the waiver by means of a prospectus supplement that will be distributed to the registered holders, and we will extend the exchange offer as required in our judgment by law, depending upon the significance of the waiver and the manner of disclosure to the registered holders, if the exchange offer would otherwise expire during such extended period. |
In addition, we will not accept for exchange any outstanding
notes tendered, and we will not issue exchange notes in exchange
for any of the outstanding notes, if at that time any stop order
is threatened or in effect with respect to the registration
statement of which this prospectus constitutes a part or the
qualification of the indenture under the Trust Indenture
Act of 1939.
Exchange
Agent
Wells Fargo Bank, National Association has been appointed as the
exchange agent for the exchange offer. All signed letters of
transmittal and other documents required for a valid tender of
your outstanding notes should be directed to the exchange agent
at one of the addresses set forth below. Questions and requests
for assistance, requests for additional copies of this
prospectus or of the letter of transmittal and requests for
notices of guaranteed delivery should be directed to the
exchange agent addressed as follows:
|
By Registered or Certified Mail:
|
By Regular Mail or Overnight Courier: | |
|
WELLS FARGO BANK, N.A.
Corporate Trust Operations MAC N9303-121 PO Box 1517 Minneapolis, MN 55480 |
WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 Sixth & Marquette Avenue Minneapolis, MN 55479 |
|
|
In Person by Hand Only:
|
By Facsimile: | |
|
WELLS FARGO BANK, N.A.
12th Floor — Northstar East Building Corporate Trust Operations 608 Second Avenue South Minneapolis, MN 55479 |
(For Eligible Institutions only): fax. (612) 667-6282 Attn. Bondholder Communications |
For
Information or Confirmation by
Telephone: (800) 344-5128, Option 0
Attn. Bondholder Communications
Telephone: (800) 344-5128, Option 0
Attn. Bondholder Communications
Delivery to other than the above addresses or facsimile number
will not constitute a valid delivery.
68
Table of Contents
Fees and
Expenses
We will bear the expenses of soliciting tenders. We have not
retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or
others soliciting acceptance of the exchange offer. The
principal solicitation is being made by mail; however,
additional solicitation may be made by facsimile, telephone or
in person by our officers and employees.
We will pay the expenses to be incurred in connection with the
exchange offer. These expenses include fees and expenses of the
exchange agent and the trustee, accounting and legal fees,
printing costs, and related fees and expenses.
Transfer
Taxes
Holders who tender their outstanding notes for exchange will not
be obligated to pay any transfer taxes in connection with the
exchange offer. If, however, exchange notes issued in the
exchange offer are to be delivered to, or are to be issued in
the name of, any person other than the holder of the outstanding
notes tendered, or if a transfer tax is imposed for any reason
other than the exchange of outstanding notes for exchange notes
in connection with the exchange offer, then the holder must pay
any applicable transfer taxes, whether imposed on the registered
holder or on any other person. If satisfactory evidence of
payment of, or exemption from, transfer taxes is not submitted
with the letter of transmittal, the amount of the transfer taxes
will be billed directly to the tendering holder.
Accounting
Treatment
We will record the exchange notes in our accounting records at
the same carrying values as the outstanding notes on the date of
the exchange. Accordingly, we will recognize no gain or loss,
for accounting purposes, as a result of the exchange offer. The
expenses of the exchange offer will be amortized over the term
of the exchange notes.
Consequences
of Failure to Exchange
Holders of outstanding notes who do not exchange their
outstanding notes for exchange notes pursuant to the exchange
offer will continue to be subject to the restrictions on
transfer of the outstanding notes as set forth in the legend
printed thereon as a consequence of the issuance of the
outstanding notes pursuant to an exemption from the Securities
Act and applicable state securities laws. Outstanding notes not
exchanged pursuant to the exchange offer will continue to accrue
interest at
81/8%
per annum, and the outstanding notes will otherwise remain
outstanding in accordance with their terms.
In general, the outstanding notes may not be offered or sold
unless registered under the Securities Act, except pursuant to
an exemption from, or in a transaction not subject to, the
Securities Act and applicable state securities laws. Upon
completion of the exchange offer, holders of outstanding notes
will not be entitled to any rights to have the resale of
outstanding notes registered under the Securities Act, and we
currently do not intend to register under the Securities Act the
resale of any outstanding notes that remain outstanding after
completion of the exchange offer.
69
Table of Contents
DESCRIPTION
OF NOTES
You can find the definitions of certain terms used in this
description under the subheading “— Certain
Definitions.” In this description, the term
“Company” refers only to Navios Maritime Holdings Inc.
and not to any of its subsidiaries or affiliates and the term
“Navios Finance” refers only to Navios Maritime
Finance II (US) Inc. and not to any of its subsidiaries or
affiliates. References here to the “Co-Issuers” are to
the Company and Navios Finance as joint and several co-issuers
of the notes.
The
81/8% Senior
Notes due 2019 were issued (the “Outstanding Notes”)
and the exchange notes will be issued under an indenture dated
January 28, 2011, among the Co-Issuers, the Guarantors and
Wells Fargo Bank, National Association, as trustee. The terms of
the notes include those stated in the indenture and, following
the qualification of the indenture under the
Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), when the notes are
registered under the Securities Act, those made part of the
indenture by reference to the Trust Indenture Act. As used
in this “Description of Notes,” except as otherwise
specified or the context otherwise requires, the term
“notes” means the exchange notes offered hereby and
the Outstanding Notes.
Navios Finance is a Delaware corporation and a Wholly Owned
Restricted Subsidiary of the Company. Navios Finance was formed
solely for the purpose of serving as a co-issuer and guarantor
of the Company’s debt securities. Navios Finance agreed to
co-issue the notes as an accommodation to the Company, and
received no remuneration for so acting. Navios Finance is
capitalized only with a minimal amount of common equity. Other
than as a Co-Issuer of the notes and a guarantor of the Existing
Secured Notes, Navios Finance does not have (and is not
permitted to have) any assets (other than its equity capital),
operations, revenues, debt or obligations (other than as a
Co-Issuer of the notes, a guarantor of the Existing Secured
Notes and a co-obligor or guarantor of other indebtedness
permitted to be incurred by the terms of the indenture). As a
result, prospective purchasers of the notes should not expect
Navios Finance to participate in servicing the interest and
principal obligations on the notes.
The following description is a summary of the material
provisions of the indenture. It does not restate that agreement
in its entirety. We urge you to read the indenture because it,
and not this description, defines your rights as holders of
these notes. A copy of the indenture and the registration rights
agreement are available as set forth below under
“— Additional Information.”
The registered holder of a note will be treated as the owner of
it for all purposes. Only registered holders will have rights
under the indenture.
Brief
Description of the Notes and the Guarantees
The notes are:
| • | general joint and several senior unsecured obligations of the Co-Issuers; | |
| • | effectively subordinated to all existing and future secured obligations of the Co-Issuers (including the Existing Secured Notes) to the extent of the value of the assets securing such obligations; | |
| • | equal in right of payment to all existing and future unsecured obligations of the Co-Issuers that are not, by their terms, expressly subordinated in right of payment to the notes; and | |
| • | senior in right of payment to all existing and future obligations of the Co-Issuers that are, by their terms, expressly subordinated in right of payment to the notes. |
The notes are guaranteed by all existing Restricted Subsidiaries
of the Company (other than Navios Finance and the Existing
Senior Secured Notes
Co-Issuer)
and by future Wholly Owned Restricted Subsidiaries of the
Co-Issuers (other than by any Securitization Subsidiary) as
described below under “— Certain
Covenants — Subsidiary Guarantees.”
Each Guarantee is:
| • | a general senior unsecured obligation of the applicable Guarantor; | |
| • | effectively subordinated to all existing and future secured obligations of such Guarantor (including the Existing Secured Notes) to the extent of the value of the assets securing such obligations; |
70
Table of Contents
| • | equal in right of payment to all existing and future unsecured obligations of such Guarantor that are not, by their terms, expressly subordinated in right of payment to such Guarantee; and | |
| • | senior in right of payment to all existing and future obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee. |
Secured creditors of the Co-Issuers or the Guarantors will have
a claim on the assets that secure the obligations of the
Co-Issuers or the Guarantors to such creditors prior to claims
of holders of the notes and Guarantees against those assets. As
of March 31, 2011, the Co-Issuers and the Guarantors had
approximately $1,308.4 million of Indebtedness outstanding,
of which approximately $938.4 million was secured, which is
effectively senior to the notes, and the non-guarantor
Subsidiaries had approximately $126.0 million of
Indebtedness outstanding, which is structurally senior to the
notes. The Co-Issuers and the Guarantors will be permitted to
incur additional Indebtedness, including secured Indebtedness,
subject to the limitations described below under
“— Certain Covenants — Incurrence of
Indebtedness and Issuance of Disqualified Stock and Preferred
Stock” and, in the case of secured Indebtedness,
“— Certain Covenants — Liens.” The
non-guarantor subsidiaries accounted for approximately
$221.5 million, or 32.6%, of total revenue, approximately
$1,553.0 million, or 42.2%, of total assets and
approximately $957.1 million, or 40.6%, of total
liabilities, in each case for the year ended December 31,
2010. As of March 31, 2011, the non-guarantor subsidiaries
accounted for approximately $69.5 million, or 38.2%, of
total revenue, approximately $542.0 million, or 18.9%, of
total assets and approximately $209.1 million, or 12.2%, of
our total liabilities. As of March 30, 2011, Navios
Acquisition is no longer a consolidated subsidiary and our
consolidated statement of operations for March 31, 2011
includes results for Navios Acquisition only through
March 30, 2011. From that date onwards, Navios Acquisition
is considered as an affiliate entity of Navios Holdings and is
not a controlled subsidiary of the Company, and the investment
in Navios Acquisition is now accounted for under the equity
method due to the Company’s significant influence over
Navios Acquisition.
As of the Issue Date, all of the Company’s Subsidiaries
(including Navios Finance) became “Restricted
Subsidiaries,” with the exception of Navios Logistics and
its subsidiaries and Navios GP L.L.C., which are
“Unrestricted Subsidiaries.” In addition, Navios
Maritime Acquisition and its subsidiaries were
“Unrestricted Subsidiaries” as of the Issue Date. As
of March 30, 2011 Navios Acquisition is no longer a
consolidated subsidiary. Under the circumstances described below
under “— Certain Covenants —
Designation of Restricted and Unrestricted Subsidiaries,”
the Company will be permitted to designate additional
Subsidiaries (other than Navios Finance) as “Unrestricted
Subsidiaries.” Unrestricted Subsidiaries will not be
Guarantors and will not be subject to the restrictive covenants
in the indenture, but transactions between the Company
and/or any
of its Restricted Subsidiaries, on the one hand, and any of the
Unrestricted Subsidiaries, on the other hand, will be subject to
certain restrictive covenants. Navios Partners is not a
Subsidiary of the Company (because the Company does not own the
majority of its outstanding equity) and accordingly did not
guarantee the notes. In the event Navios Partners or Navios
Acquisition becomes a Subsidiary of the Company in the future,
it will automatically be designated as an Unrestricted
Subsidiary and as a consequence it would not become a Guarantor.
See “— Certain Covenants — Restricted
Payments.”
The Company’s Unrestricted Subsidiaries and any
Securitization Subsidiary will not guarantee the notes. The
notes will be structurally subordinated to the Indebtedness and
other obligations (including trade payables) of the
Company’s Unrestricted Subsidiaries and non-Guarantor
Restricted Subsidiaries. The guarantees of the notes may be
released under certain circumstances. See
“— Certain Covenants — Subsidiary
Guarantees.”
Principal,
Maturity and Interest
In the initial offering, the Co-Issuers issued
$350.0 million in aggregate principal amount of notes. The
indenture provides that the Co-Issuers may issue additional
notes from time to time after the offering. Any issuance of
additional notes is subject to all of the covenants in the
indenture, including the covenant described below under the
caption “— Certain Covenants —
Incurrence of Indebtedness and Issuance of Disqualified Stock
and Preferred Stock.” The notes and any additional notes
subsequently issued under the indenture will be treated as a
single class for all purposes under the indenture, including,
without limitation, waivers, amendments, redemptions and offers
to purchase. The Co-Issuers will issue the notes in
denominations of $2,000 and integral multiples of $1,000 in
excess thereof. The notes will mature on February 15, 2019.
71
Table of Contents
Interest on the notes will accrue at the rate of
81/8%
per annum and will be payable semi-annually in arrears on each
February 15 and August 15, commencing on August 15,
2011. Interest on overdue principal and interest and Additional
Interest, if any, will accrue at the then applicable interest
rate on the notes. The Co-Issuers will make each interest
payment to the holders of record on the immediately preceding
February 1 and August 1.
Interest on the notes will accrue from the date of original
issuance or, if interest has already been paid, from the date it
was most recently paid. Interest will be computed on the basis
of a 360-day
year comprised of twelve
30-day
months.
Additional
Amounts
All payments made by the Co-Issuers under or with respect to the
notes or by a Guarantor under or with respect to its Guarantee
will be made free and clear of and without withholding or
deduction for or on account of any present or future Taxes
imposed or levied by or on behalf of any Taxing Authority in any
jurisdiction in which a Co-Issuer or any Guarantor is organized
or is otherwise resident for tax purposes or any jurisdiction
from or through which payment is made (each, a “Relevant
Taxing Jurisdiction”), unless such Co-Issuer or Guarantor
is required to withhold or deduct Taxes by law or by the
official interpretation or administration thereof. If a
Co-Issuer or any Guarantor is required to withhold or deduct any
amount for or on account of Taxes imposed by a Relevant Taxing
Jurisdiction, from any payment made under or with respect to the
notes or the Guarantee of such Guarantor, the Co-Issuers or the
relevant Guarantor, as applicable, will pay such additional
amounts (“Additional Amounts”) as may be necessary so
that the net amount received by each holder of notes (including
Additional Amounts) after such withholding or deduction will
equal the amount the holder would have received if such Taxes
had not been withheld or deducted; provided,
however, that no Additional Amounts will be payable with
respect to any Tax:
(1) that would not have been imposed, payable or due but
for the existence of any present or former connection between
the holder (or the beneficial owner of, or person ultimately
entitled to obtain an interest in, such notes) and the Relevant
Taxing Jurisdiction (including being a citizen or resident or
national of, or carrying on a business or maintaining a
permanent establishment in, or being physically present in, the
Relevant Taxing Jurisdiction) other than the mere holding of the
notes or enforcement of rights under such note or under a
Guarantee or the receipt of payments in respect of such note or
a Guarantee;
(2) that would not have been imposed, payable or due but
for the failure to satisfy any certification, identification or
other reporting requirements whether imposed by statute, treaty,
regulation or administrative practice; provided,
however, that the Co-Issuers have delivered a request to
the holder to comply with such requirements at least
30 days prior to the date by which such compliance is
required;
(3) that would not have been imposed, payable or due if the
presentation of notes (where presentation is required) for
payment has occurred within 30 days after the date such
payment was due and payable or was duly provided for, whichever
is later;
(4) subject to the last paragraph of this section, that is
an estate, inheritance, gift, sales, excise, transfer or
personal property tax, assessment or charge; or
(5) as a result of a combination of the foregoing.
In addition, Additional Amounts will not be payable if the
beneficial owner of, or person ultimately entitled to obtain an
interest in, such notes had been the holder of the notes and
such beneficial owner would not be entitled to the payment of
Additional Amounts by reason of clause (1), (2), (3),
(4) or (5) above. In addition, Additional Amounts will
not be payable with respect to any Tax which is payable
otherwise than by withholding from any payment under or in
respect of the notes or any Guarantee.
Whenever in the indenture or in this “Description of
Notes” there is mentioned, in any context, the payment of
amounts based upon the principal amount of the notes or of
principal, interest or of any other amount payable under or with
respect to any of the notes, such mention shall be deemed to
include mention of the payment of Additional Amounts to the
extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof.
Upon request, the Co-Issuers will provide the trustee with
documentation satisfactory to the trustee evidencing the payment
of Additional Amounts.
72
Table of Contents
The Co-Issuers and the Guarantors will pay any present or future
stamp, court or documentary taxes, or any similar taxes, charges
or levies which arise in any Relevant Taxing Jurisdiction from
the execution, delivery or registration of the notes or any
other document or instrument referred to therein, or the receipt
of any payments with respect to or enforcement of, the notes or
any Guarantee.
Methods
of Receiving Payments on the Notes
If a holder of notes has given wire transfer instructions to the
Co-Issuers, the Co-Issuers will pay all principal, interest and
premium and Additional Interest, if any, on that holder’s
notes in accordance with those instructions so long as such
holder holds at least $100,000 aggregate principal amount of
notes. All other payments on the notes will be made at the
office or agency of the paying agent and registrar within the
United States unless the Co-Issuers elect to make interest
payments by check mailed to the holders of notes at their
respective addresses set forth in the register of holders.
Paying
Agent and Registrar for the Notes
The trustee will initially act as paying agent and registrar.
The Co-Issuers may change the paying agent or registrar without
prior notice to the holders of the notes, and the Company or any
of its Subsidiaries may act as paying agent or registrar other
than in connection with the discharge or defeasance provisions
of the indenture.
Transfer
and Exchange
A holder may transfer or exchange notes in accordance with the
provisions of the indenture. The registrar and the trustee may
require a holder, among other things, to furnish appropriate
endorsements and transfer documents in connection with a
transfer of notes. Holders will be required to pay all taxes due
on transfer. The Co-Issuers are not required to transfer or
exchange any note selected for redemption. Also, the Co-Issuers
are not required to transfer or exchange any note for a period
of 15 days before a selection of notes to be redeemed.
Guarantees
The Guarantors will jointly and severally, fully and
unconditionally, guarantee the Co-Issuers’ Obligations
under the notes. The Obligations of each Guarantor under its
Guarantee will be limited as necessary to prevent that Guarantee
from constituting a fraudulent conveyance under applicable law.
Optional
Redemption
On or after February 15, 2015, the Co-Issuers may redeem
all or a part of the notes upon not less than 30 nor more than
60 days’ notice, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued
and unpaid interest and Additional Interest, if any, on the
notes redeemed, to (but excluding) the applicable redemption
date, if redeemed during the twelve-month period beginning on
February 15 of the years indicated below, subject to the rights
of holders of notes on the relevant record date to receive
interest on the relevant interest payment date:
|
Year
|
Percentage | |||
|
2015
|
104.063 | % | ||
|
2016
|
102.031 | % | ||
|
2017 and thereafter
|
100.000 | % | ||
Prior to February 15, 2015, the Co-Issuers may redeem all
or a part of the notes upon not less than 30 nor more than
60 days’ notice at a redemption price equal to the sum
of:
(a) 100% of the principal amount of the notes to be
redeemed, plus
(b) the Applicable Premium,
plus accrued and unpaid interest and Additional Interest, if
any, on the notes redeemed, to (but excluding) the applicable
redemption date, subject to the right of holders of notes on the
relevant record date to receive interest due on the relevant
interest payment date (a “Make-Whole Redemption”).
73
Table of Contents
The Co-Issuers and their affiliates may acquire notes by means
other than a redemption, whether pursuant to a tender offer,
exchange offer, open market purchase, negotiated transaction or
otherwise, upon such terms and at such prices as the Co-Issuers
or their affiliates may determine, which may be more or less
than the consideration for which the notes offered hereby are
being sold and could be for cash or other consideration, so long
as such acquisition does not otherwise violate the terms of the
indenture.
Redemption
with Proceeds of Equity Offerings
At any time prior to February 15, 2014, the Co-Issuers may
on any one or more occasions redeem up to 35% of the aggregate
principal amount of notes issued under the indenture at a
redemption price of 108.125% of the principal amount, plus
accrued and unpaid interest and Additional Interest, if any, to
(but excluding) the redemption date, with the net cash proceeds
of one or more Equity Offerings; provided that:
(1) at least 65% of the aggregate principal amount of notes
issued under the indenture (excluding notes held by the
Co-Issuers and their Restricted Subsidiaries) remains
outstanding immediately after the occurrence of such
redemption; and
(2) such redemption occurs not more than 180 days
after the date of the closing of the relevant Equity Offering.
Redemption
for Changes in Withholding Taxes
In addition, the Co-Issuers may, at their option, redeem all
(but not less than all) of the notes then outstanding at 100% of
the principal amount of the notes, plus accrued and unpaid
interest and Additional Amounts, if any, to the date of
redemption, if the Co-Issuers have become or would become
obligated to pay, on the next date on which any amount would be
payable with respect to such notes, any Additional Amounts as a
result of any change in law (including any regulations
promulgated thereunder) or in the official interpretation or
administration of law, if such change is announced and becomes
effective on or after the Issue Date. Notice of any such
redemption must be given within 60 days of the earlier of
the announcement and the effectiveness of any such change.
Selection
and Notice of Redemption
If less than all of the notes are to be redeemed at any time,
the trustee will select notes for redemption as follows:
(1) if the notes are listed on any national securities
exchange, in compliance with the requirements of the principal
national securities exchange on which the notes are
listed; or
(2) if the notes are not listed on any national securities
exchange, on a pro rata basis, by lot or by such method
as the trustee deems fair and appropriate;
provided that if a partial redemption is made pursuant to
the provisions described under “— Redemption with
Proceeds of Equity Offerings,” selection of the notes or
portions thereof for redemption shall be made by the trustee
only on a pro rata basis or on as nearly a pro rata
basis as is practicable (subject to the procedures of The
Depository Trust Company), unless that method is otherwise
prohibited.
No notes of $2,000 or less can be redeemed in
part. Notices of redemption will be delivered
electronically or mailed by first class mail at least 30 but not
more than 60 days before the redemption date to each holder
of notes to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to
a redemption date if the notice is issued in connection with a
defeasance of the notes or a satisfaction and discharge of the
indenture. Notices of any optional redemption may not be
conditional on our part; provided that any notice of optional
redemption in connection with an Equity Offering as described
“Redemption with Proceeds of Equity Offerings” above
may be given prior to the completion thereof, and any such
redemption or notice may, at the Co-Issuers’ discretion, be
subject to one or more conditions precedent, including, but not
limited to, completion of such Equity Offering.
If any note is to be redeemed in part only, the notice of
redemption that relates to that note will state the portion of
the principal amount of that note that is to be redeemed. A new
note in principal amount equal to the unredeemed
74
Table of Contents
portion of the original note will be issued in the name of the
holder of notes upon cancellation of the original note. Notes
called for redemption become due on the date fixed for
redemption. On and after the redemption date, interest and
Additional Interest, if any, cease to accrue on notes or
portions of them called for redemption, unless the Co-Issuers
default in the payment of the redemption price.
Repurchase
at the Option of Holders
Change
of Control
If a Change of Control occurs, each holder of notes will have
the right to require the Co-Issuers to repurchase all or any
part (equal to $2,000 or an integral multiple of $1,000) of that
holder’s notes pursuant to the offer described below (the
“Change of Control Offer”) on the terms set forth in
the indenture. In the Change of Control Offer, the Co-Issuers
will offer a payment in cash (“Change of Control
Payment”) equal to 101% of the aggregate principal amount
of notes repurchased plus accrued and unpaid interest and
Additional Interest, if any, on the notes repurchased, to the
date of purchase, subject to the rights of holders of notes on
the relevant record date to receive interest due on the relevant
interest payment date. Within 30 days following any Change
of Control or, at the Co-Issuers’ option, prior to such
Change of Control but after it is publicly announced, the
Co-Issuers will deliver electronically or mail a notice to each
holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase
notes on the change of control payment date specified in the
notice (the “Change of Control Payment Date”), which
date will be no earlier than 30 days and no later than
60 days from the date such notice is electronically
delivered or mailed, other than as may be required by law,
pursuant to the procedures required by the indenture and
described in such notice. If the notice is sent prior to the
occurrence of the Change of Control, it may be conditioned upon
the consummation of the Change of Control.
The Co-Issuers will comply with the requirements of any
securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the
repurchase of the notes as a result of a Change of Control. To
the extent that the provisions of any securities laws or
regulations conflict with the Change of Control provisions of
the indenture, the Co-Issuers will comply with the applicable
securities laws and regulations and will not be deemed to have
breached its obligations under the Change of Control provisions
of the indenture by virtue of such compliance.
On the Change of Control Payment Date, the Co-Issuers will, to
the extent lawful:
(1) accept for payment all notes or portions of notes
properly tendered pursuant to the Change of Control Offer;
(2) deposit with the paying agent an amount equal to the
Change of Control Payment in respect of all notes or portions of
notes properly tendered; and
(3) deliver or cause to be delivered to the trustee the
notes properly accepted together with an Officers’
Certificate stating the aggregate principal amount of notes or
portions of notes being purchased by the Co-Issuers.
The paying agent will promptly mail or pay by wire transfer to
each holder of notes properly tendered the Change of Control
Payment for such notes, and the trustee will promptly
authenticate and mail (or cause to be transferred by book entry)
to each holder a new note equal in principal amount to any
unpurchased portion of the notes surrendered, if any;
provided that each new note will be in a principal amount
of $2,000 or an integral multiple of $1,000 in excess thereof.
The Co-Issuers will inform the holders of the notes of the
results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date. The
provisions described above that require the Co-Issuers to make a
Change of Control Offer following a Change of Control will be
applicable whether or not the covenant described below under the
caption “— Certain Covenants — Merger,
Consolidation or Sale of Assets” is applicable. Except as
described above with respect to a Change of Control, the
indenture does not contain provisions that permit the holders of
the notes to require that the Co-Issuers repurchase or redeem
the notes in the event of a takeover, recapitalization or
similar transaction.
75
Table of Contents
The Co-Issuers will not be required to make a Change of Control
Offer upon a Change of Control if (1) a third party makes
the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in the
indenture applicable to a Change of Control Offer made by the
Co-Issuers and purchases all notes properly tendered and not
withdrawn under the Change of Control Offer, or (2) notice
of redemption has been given in respect of all of the notes then
outstanding pursuant to the indenture as described above under
the caption “— Optional Redemption,” unless
and until there is a default in payment of the applicable
redemption price.
The definition of Change of Control includes a phrase relating
to the direct or indirect sale, lease, transfer, conveyance or
other disposition (but not the pledge or other encumbrance) of
“all or substantially all” of the properties or assets
of the Co-Issuers and the Restricted Subsidiaries taken as a
whole. Although there is a limited body of case law interpreting
the phrase “substantially all,” there is no precise
established definition of the phrase under applicable law.
Accordingly, the ability of a holder of notes to require the
Co-Issuers to repurchase their notes as a result of a sale,
lease, transfer, conveyance or other disposition (but not the
pledge or other encumbrance) of less than all of the assets of
the Co-Issuers and the Restricted Subsidiaries taken as a whole
to another Person or group may be uncertain.
The Change of Control purchase feature is a result of
negotiations between the initial purchasers and the Co-Issuers.
The Co-Issuers have no present intention to enter into a
transaction involving a change of control, although they could
do so in the future. Although the existence of a holder’s
right to require the Co-Issuers to repurchase the notes in
respect of a Change of Control may deter a third party from
acquiring the Co-Issuers in a transaction that constitutes a
Change of Control, the provisions of the indenture relating to a
Change of Control in and of themselves may not afford holders of
notes protection in the event of a highly leveraged
transactions, reorganization, recapitalization, restructuring,
merger or similar transaction involving the Co-Issuers that may
adversely affect holders, if such transaction is not the type of
transaction included within the definition of a Change of
Control, Holders may not be entitled to require the Co-Issuers
to repurchase their notes in certain circumstances involving a
significant change in the composition of our board of directors,
including in connection with a proxy contest where the board of
directors initially opposed dissident slate of directors but
approves them later as continuing directors.
Asset
Sales
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or any of its Restricted Subsidiaries
receives consideration at the time of the Asset Sale at least
equal to the Fair Market Value (for the avoidance of doubt, the
Fair Market Value may be determined at the time a contract is
entered into for an Asset Sale) of the assets or Equity
Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form
of cash or Cash Equivalents. For purposes of this provision,
each of the following will be deemed to be cash:
(a) any Indebtedness or other liabilities, as shown on the
Company’s most recent consolidated balance sheet or the
notes thereto, of the Company or any of its Restricted
Subsidiaries (other than liabilities that are expressly
subordinated to the notes or any Guarantee) that are assumed,
repaid or retired by the transferee (or a third party on behalf
of the transferee) of any such assets;
(b) any securities, notes or other obligations received by
the Company or any such Restricted Subsidiary from such
transferee or any other Person on account of such Asset Sale
that are, within 180 days of the Asset Sale, converted,
sold or exchanged by the Company or such Restricted Subsidiary
into cash or Cash Equivalents, to the extent of the cash or Cash
Equivalents received in that conversion, sale or exchange;
(c) the Fair Market Value of (i) any assets (other
than securities and other than assets that are classified as
current assets under GAAP) received by the Company or any
Restricted Subsidiary to be used by it in a Permitted Business
(including, without limitation, Vessels and Related Assets),
(ii) Capital
76
Table of Contents
Stock in a Person that is a Restricted Subsidiary or in a Person
engaged in a Permitted Business that shall become a Restricted
Subsidiary immediately upon the acquisition of such Person by
the Company or (iii) a combination of (i) and
(ii); and
(d) any Designated Non-cash Consideration received by the
Company or any Restricted Subsidiary in such Asset Sale having
an aggregate Fair Market Value, taken together with all other
Designated Non-cash Consideration received pursuant to this
paragraph (2) that is at that time outstanding, not to
exceed the greater of (x) $75.0 million and
(y) 4.0% of Total Tangible Assets of the Company at the
time of the receipt of such Designated Non-cash Consideration,
with the Fair Market Value of each item of Designated Non-cash
Consideration being measured at the time received and without
giving effect to subsequent changes in value.
Within 365 days (subject to extensions as provided in the
immediately succeeding paragraph) after the receipt of any Net
Proceeds from an Asset Sale, the Company or any of its
Restricted Subsidiaries shall apply such Net Proceeds to:
(1) repay or prepay any and all obligations under the
Credit Facilities or any other Secured Indebtedness and, if the
Indebtedness repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto;
(2) acquire all or substantially all of the assets of, or
any Capital Stock of, a Person engaged in a Permitted Business;
provided that in the case of acquisition of Capital Stock
of any Person, such Person is or becomes a Restricted Subsidiary
of the Company;
(3) make a capital expenditure;
(4) acquire other assets that are not classified as current
assets under GAAP and that are used or useful in a Permitted
Business (including, without limitation, Vessels and Related
Assets);
(5) make an Asset Sale Offer (and purchase or redeem other
Indebtedness that is pari passu with the notes containing
provisions similar to those set forth in the indenture with
respect to offers to purchase or redeem with the proceeds of
sales of assets) in accordance with the provisions described
below and in the indenture; and/or
(6) any combination of the transactions permitted by the
foregoing clauses (1) through (5).
A (A) binding contract to apply Net Proceeds in accordance
with clauses (2) through (4) above will toll the
365-day
period in respect of such Net Proceeds or (B) determination
by the Company to potentially apply all or a portion of such Net
Proceeds towards the exercise an outstanding Vessel Purchase
Option Contract will toll the
365-day
period in respect of such Net Proceeds, in each case, for a
period not to exceed 365 days from the expiration of the
aforementioned
365-day
period, provided that such binding contract and such
determination, in each case, shall be treated as a permitted
application of Net Proceeds from the date of such binding
contract until and only until the earlier of (x) the date
on which such acquisition or expenditure is consummated and (y)
(i) in the case of any Vessel Construction Contract or any
Exercised Vessel Purchase Option Contract (including any
outstanding Vessel Purchase Option Contract exercised during the
365-day
period referenced in clause (B) above), the date of
expiration or termination of such Vessel Construction Contract
or Exercised Vessel Purchase Option Contract and
(ii) otherwise, the 365th day following the expiration
of the aforementioned
365-day
period (clause (i) or clause (ii) as applicable, the
“Reinvestment Termination Date”). If such acquisition
or expenditure is not consummated on or before the Reinvestment
Termination Date and the Company (or the applicable Restricted
Subsidiary, as the case may be) shall not have applied such Net
Proceeds pursuant to clauses (1) through (6) above on
or before the Reinvestment Termination Date, such binding
contract shall be deemed not to have been a permitted
application of the Net Proceeds.
Pending the final application of any Net Proceeds, the Company
or any of its Restricted Subsidiaries may temporarily reduce
outstanding Indebtedness or otherwise invest the Net Proceeds in
any manner that is not prohibited by the indenture.
77
Table of Contents
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the second paragraph of this covenant
will constitute “Excess Proceeds.” When the aggregate
amount of Excess Proceeds exceeds $30.0 million, the
Co-Issuers will make an offer (an “Asset Sale Offer”)
to all holders of notes and all holders of other Indebtedness
that is pari passu with the notes containing provisions similar
to those set forth in the indenture with respect to offers to
purchase or redeem with the proceeds of sales of assets to
purchase the maximum principal amount of notes and such other
pari passu Indebtedness that may be required to be purchased out
of the Excess Proceeds. The offer price for the notes in any
Asset Sale Offer will be equal to 100% of principal amount of
the notes plus accrued and unpaid interest and Additional
Interest thereon, if any, to the date of purchase, and will be
payable in cash, and the offer or redemption price for such pari
passu Indebtedness shall be as set forth in the related
documentation governing such Indebtedness. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, those
Excess Proceeds may be used for any purpose not otherwise
prohibited by the indenture. If the aggregate principal amount
of notes and other pari passu Indebtedness described above
tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the trustee will select the notes and the Company or
the agent for such other pari passu Indebtedness will select
such other pari passu Indebtedness to be purchased on a pro
rata basis. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero. The Co-Issuers
may elect to satisfy their obligations to make an Asset Sale
Offer prior to the expiration of the relevant period or with
respect to Excess Proceeds of $30.0 million or less.
The Co-Issuers will comply with the requirements of any
securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with each
repurchase of notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations
conflict with the Asset Sale provisions of the indenture, the
Co-Issuers will comply with the applicable securities laws and
regulations and will not be deemed to have breached its
obligations under the Asset Sale provisions of the indenture by
virtue of such compliance.
General
Certain of the Company’s Credit Facilities may contain
prohibitions on the ability of the Company and its Subsidiaries
to voluntarily repurchase, redeem or prepay certain of their
Indebtedness, including the notes, and limitations on the
ability of the Company and its Subsidiaries to engage in Asset
Sales and may provide that any Change of Control under the
indenture governing the notes constitutes an event of default
under the Credit Facilities. Additionally, future agreements may
contain prohibitions of certain events, including events that
would constitute a Change of Control or an Asset Sale and
including repurchases of or other prepayments in respect of the
notes. The exercise by the holders of notes of their right to
require the Company to repurchase the notes upon a Change of
Control or an Asset Sale could cause a default under these other
agreements, even if the Change of Control or Asset Sale itself
does not, due to the financial effect of such repurchases on the
Company and its Subsidiaries. In the event a Change of Control
or Asset Sale occurs at a time when the Company is prohibited
from purchasing notes, the Company could seek the consent of its
other lenders to the purchase of notes or could attempt to
refinance, repay or replace the borrowings that contain such
prohibition and enter into new credit facilities without such
prohibition. If the Company does not obtain a consent or
refinance, repay or replace those borrowings, the Company will
remain prohibited from purchasing notes. In that case, the
Company’s failure to purchase tendered notes would
constitute an Event of Default under the indenture which, in
turn, may constitute a default under the other indebtedness.
Finally, the Company’s ability to pay cash to the holders
of notes upon a repurchase may be limited by the Company’s
then existing financial resources. See “Risk
Factors — Risks Relating to the Notes — We
may be unable to raise funds necessary to finance the change of
control repurchase offer required by the indenture governing the
notes.”
Certain
Covenants
Incurrence
of Indebtedness and Issuance of Disqualified Stock and Preferred
Stock
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to
(collectively, “incur”) any Indebtedness (including
Acquired Debt), and the Company will not issue any shares of
Disqualified Stock, and the Company will not permit any of its
Restricted Subsidiaries to issue any shares
78
Table of Contents
of Disqualified Stock or preferred stock; provided,
however, that the Company may incur Indebtedness
(including Acquired Debt) or issue Disqualified Stock, and any
Guarantor may incur Indebtedness (including Acquired Debt),
issue shares of Disqualified Stock or issue shares of preferred
stock, if the Fixed Charge Coverage Ratio for the Company’s
most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued, as the case may
be, would have been at least 2.0 to 1.0, determined on a pro
forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been
incurred or the Disqualified Stock or the preferred stock had
been issued, as the case may be, at the beginning of such
four-quarter period; provided, further, that
Navios Finance may incur Indebtedness in connection with serving
as a co-obligor or guarantor of Indebtedness incurred by the
Company or any Restricted Subsidiary that is otherwise permitted
by this covenant.
The first paragraph of this covenant will not prohibit the
incurrence of any of the following items of Indebtedness
(collectively, “Permitted Debt”):
(1) the incurrence by the Co-Issuers or any Guarantor of
Indebtedness and letters of credit under one or more Credit
Facilities in an aggregate amount at any time outstanding under
this clause (1) not to exceed $600.0 million, less the
amount of Non-Recourse Debt outstanding under clause (16)
below;
(2) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(3) the incurrence of the notes on the Issue Date, the
Guarantees and the exchange notes to be issued pursuant to the
registration rights agreement;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any
part of the purchase price or cost of design, construction,
installation or improvement of property, plant or equipment used
in the business of the Company or any of its Restricted
Subsidiaries, and Permitted Refinancing Indebtedness in respect
thereof, in an aggregate amount not to exceed at any time
outstanding the greater of (A) $60.0 million and
(B) 3.0% of Total Tangible Assets;
(5) Indebtedness of the Company or any of its Restricted
Subsidiaries incurred to finance the replacement (through
construction, acquisition, lease or otherwise) of one or more
Vessels and any assets that shall become Related Assets, upon a
total loss, destruction, condemnation, confiscation,
requisition, seizure, forfeiture or other taking of title to or
use of such Vessel (collectively, a “Total Loss”) in
an aggregate amount no greater than the ready for sea cost (as
determined in good faith by the Company) for such replacement
Vessel, in each case, less all compensation, damages and other
payments (including insurance proceeds other than in respect of
business interruption insurance) actually received by the
Company or any of its Restricted Subsidiaries from any Person in
connection with the Total Loss in excess of amounts actually
used to repay Indebtedness secured by the Vessel subject to the
Total Loss;
(6) Indebtedness of the Company or any Restricted
Subsidiary incurred in relation to: (i) maintenance,
repairs, refurbishments and replacements required to maintain
the classification of any of the Vessels owned, leased, time
chartered or bareboat chartered to or by the Company or any
Restricted Subsidiary; (ii) drydocking of any of the
Vessels owned or leased by the Company or any Restricted
Subsidiary for maintenance, repair, refurbishment or replacement
purposes in the ordinary course of business; and (iii) any
expenditures which will or may reasonably expected to be
recoverable from insurance on such Vessels;
(7) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in respect of
Indebtedness (other than intercompany Indebtedness) that was
permitted by the indenture to be incurred under the first
paragraph of this covenant or clause (2), (3), (5), (6),
(7) or (14) of this paragraph;
(8) the incurrence of Indebtedness by the Company owed to a
Restricted Subsidiary and Indebtedness by any Restricted
Subsidiary owed to the Company or any other Restricted
Subsidiary; provided, however, that upon any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or such
Indebtedness being owed to
79
Table of Contents
any Person other than the Company or a Restricted Subsidiary,
the Company or such Restricted Subsidiary, as applicable, shall
be deemed to have incurred Indebtedness not permitted by this
clause (8);
(9) the issuance by any of the Company’s Restricted
Subsidiaries to the Company or to any of its Restricted
Subsidiaries of shares of Disqualified Stock or preferred stock;
provided, however, that:
(a) any subsequent issuance or transfer of Equity Interests
that results in any such Disqualified Stock or preferred stock
being held by a Person other than the Company or a Restricted
Subsidiary of the Company; and
(b) any sale or other transfer of any such Disqualified
Stock or preferred stock to a Person that is neither the Company
nor a Restricted Subsidiary of the Company;
will be deemed, in each case, to constitute an issuance of such
Disqualified Stock or preferred stock by such Restricted
Subsidiary that is not permitted by this clause (9);
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Hedging Obligations;
(11) the guarantee by the Company or any Guarantor of
Indebtedness of the Company or a Restricted Subsidiary of the
Company that was permitted to be incurred by another provision
of this covenant; provided that if the Indebtedness being
guaranteed is contractually subordinated to the notes or a
Guarantee, then the guarantee shall be contractually
subordinated to the same extent as the Indebtedness guaranteed;
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of workers’
compensation claims, unemployment insurance, health, disability
and other employee benefits or property, casualty or liability
insurance, self-insurance obligations, bankers’
acceptances, or performance, completion, bid, appeal and surety
bonds, in each case, in the ordinary course of business;
(13) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from the honoring by a bank
or other financial institution of a check, draft or similar
instrument inadvertently drawn against insufficient funds, so
long as such Indebtedness is covered within five business days;
(14) Indebtedness, Disqualified Stock or preferred stock of
(x) the Company or a Restricted Subsidiary incurred or
issued to finance an acquisition or (y) a Person acquired
by the Company or a Restricted Subsidiary or merged,
consolidated, amalgamated or liquidated with or into a
Restricted Subsidiary or the Company; provided, however, that
after giving effect to such incurrence or issuance (and the
related acquisition, merger, consolidation, amalgamation or
liquidation), the Fixed Charge Coverage Ratio for the
Company’s most recently ended four full fiscal quarters for
which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock or preferred stock is
issued, as the case may be, would have been at least 1.75 to 1.0;
(15) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness consisting of guarantees,
earn-outs, indemnities or obligations in respect of purchase
price adjustments in connection with the disposition or
acquisition of assets, including, without limitation, shares of
Capital Stock;
(16) Non-Recourse Debt incurred by a Securitization
Subsidiary in a Qualified Securitization Transaction;
(17) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness constituting reimbursement
obligations with respect to letters of credit so long each such
obligation is satisfied within 30 days of the incurrence
thereof; and
(18) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness, Disqualified Stock or
preferred stock in an aggregate amount at any time outstanding,
including all Permitted Refinancing Indebtedness incurred
pursuant to this clause (18), not to exceed the greater of
(A) $100.0 million and (B) 5.0% of Total Tangible
Assets.
For purposes of determining compliance with this
“Incurrence of Indebtedness and Issuance of Disqualified
Stock and Preferred Stock” covenant, in the event that an
item of proposed Indebtedness, Disqualified Stock or
80
Table of Contents
preferred stock meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1)
through (18) above, or is entitled to be incurred pursuant
to the first paragraph of this covenant, the Company, in its
sole discretion, may classify such item of Indebtedness,
Disqualified Stock and preferred stock (or any portion thereof)
on the date of its incurrence, or later reclassify, all or a
portion of such item of Indebtedness, Disqualified Stock and
preferred stock, in any manner that complies with this covenant.
Indebtedness under (a) the Credit Agreement outstanding on
the Issue Date will be deemed to have been incurred on such date
in reliance on the exception provided by clause (1) above,
but thereafter may be reclassified in any manner that complies
with this covenant and (b) all other Credit Facilities
(other than the Credit Agreement) outstanding or committed to on
the Issue Date will be deemed to have been incurred on such date
in reliance on the exception provided by clause (2) above
(whether or not outstanding on such date) but thereafter may be
reclassified in any manner that complies with this covenant.
The accrual of interest, the accrual of dividends, the accretion
or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends
on Disqualified Stock or preferred stock in the form of
additional shares of the same class of Disqualified Stock or
preferred stock, as the case may be, will not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Stock
or preferred stock for purposes of this covenant;
provided, in each such case, that the amount thereof is
included in Fixed Charges of the Company as accrued.
The amount of any Indebtedness outstanding as of any date will
be:
(1) the accreted value of such Indebtedness, in the case of
any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case
of any other Indebtedness;
(3) in respect of Indebtedness of another Person secured by
a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of
determination; and
(B) the amount of the Indebtedness of the other Person that
is secured by such assets; and
(4) in respect of the Indebtedness incurred by a
Securitization Subsidiary, the amount of obligations outstanding
under the legal documents entered into as part of a Qualified
Securitization Transaction on any date of determination
characterized as principal or that would be characterized as
principal if such securitization were structured as a secured
lending transaction rather than as a purchase.
For purposes of determining compliance with this covenant,
(i) Acquired Debt shall be deemed to have been incurred by
the Company or its Restricted Subsidiaries, as the case may be,
at the time an acquired Person becomes such a Restricted
Subsidiary of the Company (or is merged into the Company or such
a Restricted Subsidiary) or at the time of the acquisition of
assets, as the case may be, (ii) the maximum amount of
Indebtedness, Disqualified Stock or preferred stock that the
Company and its Restricted Subsidiaries may incur pursuant to
this covenant shall not be deemed to be exceeded, with respect
to any outstanding Indebtedness, Disqualified Stock or preferred
stock due solely to the result of fluctuations in the exchange
rates of currencies and (iii) the outstanding principal
amount of any particular Indebtedness shall be counted only once
and any obligations arising under any guarantee, Lien, letter of
credit or similar instrument supporting such Indebtedness
permitted to be incurred under this covenant shall not be double
counted.
For purposes of determining compliance of any
non-U.S. dollar-denominated
Indebtedness with this covenant, the amount outstanding under
any U.S. dollar-equivalent principal amount of Indebtedness
denominated in a foreign currency shall at all times be
calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was incurred, in the case
of term Indebtedness, or first committed, in the case of
revolving credit Indebtedness; provided, however,
that if such Indebtedness is incurred to refinance other
Indebtedness denominated in the same or different currency, and
such refinancing would cause the applicable
U.S. dollar-denominated restriction to be exceeded if
calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such U.S. dollar-denominated
restriction shall be deemed not to have been exceeded so long as
the
81
Table of Contents
principal amount of such refinancing Indebtedness does not
exceed the principal amount of such Indebtedness being
refinanced.
Restricted
Payments
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(i) pay any dividend or make any other payment or
distribution on account of the Company’s or any of its
Restricted Subsidiaries’ Equity Interests (including,
without limitation, any payment in connection with any merger,
amalgamation or consolidation involving the Company or any of
its Restricted Subsidiaries) or to the holders of the
Company’s or any of its Restricted Subsidiaries’
Equity Interests in their capacity as such (other than
(A) dividends or distributions payable in Qualified Equity
Interests or (B) dividends or other payments or
distributions payable to the Company or a Restricted Subsidiary
of the Company);
(ii) purchase, redeem or otherwise acquire or retire for
value (including, without limitation, in connection with any
merger or consolidation) any Equity Interests of the Company or
any direct or indirect parent of the Company;
(iii) make any voluntary or optional principal payment on
or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value, any Indebtedness of the Company or
any Guarantor that is contractually subordinated to the notes or
any Guarantee (excluding any Indebtedness owed to and held by
the Company or any of its Restricted Subsidiaries), other than
(x) payments of principal at the Stated Maturity thereof
and (y) payments, purchases, redemptions, defeasances or
other acquisitions or retirements for value in anticipation of
satisfying a scheduled maturity, sinking fund or amortization or
other installment obligation or mandatory redemption, in each
case, due within one year of the Stated Maturity thereof; or
(iv) make any Restricted Investment
(all such payments and other actions set forth in
clauses (i) through (iv) above being collectively
referred to as “Restricted Payments”), unless, at the
time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted
Payment;
(2) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of
the covenant described below under the caption
“— Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock”; and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and
its Restricted Subsidiaries since the 2006 Notes Issue Date
(excluding Restricted Payments permitted by clauses (2), (3),
(4), (5), (6), (7), (8), (9), (10), (11), (12) and
(14) of the next succeeding paragraph), is not greater than
the sum, without duplication, of:
(a) 50% of the Consolidated Net Income of the Company for
the period (taken as one accounting period) from October 1,
2006 to the end of the Company’s most recently ended fiscal
quarter for which internal financial statements are available at
the time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such
deficit); plus
(b) (i) 100% of the aggregate net cash proceeds and
(ii) 100% of the Fair Market Value of the property and
assets other than cash, in each case, received by the Company
after the 2006 Notes Issue Date as a contribution to its equity
capital or from the issue or sale (other than to a Restricted
Subsidiary of the Company) of Qualified Equity Interests,
including upon the exercise of options or warrants, or from the
issue or sale (other than to a Restricted Subsidiary of the
Company) of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Company that
have been converted into or exchanged for Qualified Equity
Interests, together with the aggregate cash and Cash
82
Table of Contents
Equivalents received by the Company or any of its Restricted
Subsidiaries at the time of such conversion or exchange;
plus
(c) to the extent that any Restricted Investment that was
made after the 2006 Notes Issue Date is sold or otherwise
liquidated or repaid for cash or Cash Equivalents, the return of
capital in cash or Cash Equivalents with respect to such
Restricted Investment (less the cost of disposition, if any);
plus
(d) to the extent that any Unrestricted Subsidiary of the
Company is redesignated as a Restricted Subsidiary after the
2006 Notes Issue Date or is merged into the Company or a
Restricted Subsidiary or transfers all or substantially all its
assets to the Company or a Restricted Subsidiary, the Fair
Market Value of the Investment of the Company and its Restricted
Subsidiaries in such Subsidiary (or the assets so transferred,
if applicable) as of the date of such redesignation (other than
to the extent of such Investment in such Unrestricted Subsidiary
that was made as a Permitted Investment); plus
(e) any amount which previously treated as a Restricted
Payment on account of any guarantee entered into by the Company
or a Restricted Subsidiary upon the unconditional release of
such guarantee.
The preceding provisions will not prohibit:
(1) the payment of any dividend or other distribution
within 60 days after the date of declaration of the
dividend or other distribution, if at the date of declaration
such payment would have complied with the provisions of the
indenture;
(2) the making of any Restricted Payment in exchange for,
or out of the net proceeds of the substantially concurrent sale
or issuance (other than to a Restricted Subsidiary of the
Company), including upon exercise of an option or warrant, of,
Qualified Equity Interests or from the substantially concurrent
contribution of equity capital with respect to Qualified Equity
Interests to the Company; provided that the amount of any such
net proceeds that are utilized for any such Restricted Payment
will be excluded from clause (3)(b) of the preceding paragraph;
(3) the payment, defeasance, redemption, repurchase or
other acquisition or retirement for value of Indebtedness of the
Company or any of its Restricted Subsidiaries that is
contractually subordinated to the notes or to any Guarantee with
the net proceeds from a substantially concurrent incurrence of
Permitted Refinancing Indebtedness or in exchange for Qualified
Equity Interests;
(4) the payment of any dividend or other distribution (or,
in the case of any partnership, limited liability company or
similar entity, any similar distribution) by a Restricted
Subsidiary of the Company to the holders of its Equity Interests
on a pro rata basis taking into account the relative
preferences, if any, of the various classes of Equity Interests
in such Restricted Subsidiary;
(5) the repurchase, redemption or other acquisition or
retirement for value of any Qualified Equity Interests of the
Company or any of its Restricted Subsidiaries held by any
current or former officer, director, consultant or employee of
the Company or any of its Restricted Subsidiaries (or Heirs or
other permitted transferees thereof); provided that the
aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests may not exceed
$5.0 million in any calendar year; provided,
further, that such amount may be increased by an amount
not to exceed
(A) the cash proceeds from the sale of Qualified Equity
Interests of the Company to directors, officers, employees or
consultants of the Company or any of its Restricted Subsidiaries
that occurs after the Issue Date (provided that the
amount of such cash proceeds utilized for any such repurchase,
redemption, acquisition or other retirement will not increase
the amount available for Restricted Payments under
clause (3) of the immediately preceding paragraph),
plus
(B) the cash proceeds of key-man life insurance policies
received by the Company or any Restricted Subsidiary after the
Issue Date;
provided that to the extent that any portion of the
$5.0 million annual limit on such redemptions or
repurchases is not utilized in any year, such unused portion may
be carried forward and be utilized in one or more subsequent
years;
83
Table of Contents
(6) cancellation of Indebtedness owing to the Company from
members of management of the Company in connection with a
repurchase of Qualified Equity Interests of the Company pursuant
to any management equity plan or stock option plan or any other
management or employee benefit plan or other agreement or
arrangement approved by the Board of Directors to the extent
such Indebtedness was issued to such member of management as
consideration for the purchase of the Qualified Equity Interests
so repurchased;
(7) so long as no Default or Event of Default has occurred
and is continuing or would result thereby, any dividend or
distribution consisting of Equity Interests of an Unrestricted
Subsidiary or the proceeds of the sale of Equity Interests of an
Unrestricted Subsidiary;
(8) the repurchase of Equity Interests deemed to occur upon
the exercise of options, warrants or other convertible
securities to the extent such Equity Interests represent a
portion of the exercise price of those options, warrants or
other convertible securities and cash payments in lieu of the
issuance of fractional shares in connection with the exercise of
options, warrants or other convertible securities;
(9) so long as no Default or Event of Default has occurred
and is continuing or would result thereby, the declaration and
payment of cash dividends on Designated Preferred Stock in
accordance with the certificate of designations therefor;
provided that at the time of issuance of such Designated
Preferred Stock, the Company would, after giving pro forma
effect thereto as if such issuance had been made at the
beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in
the first paragraph of the covenant described below under the
caption “— Incurrence of Indebtedness and
Issuance of Disqualified Stock and Preferred Stock”;
(10) so long as no Default or Event of Default has occurred
and is continuing or would result thereby, the declaration and
payment of cash dividends to holders of any class or series of
Disqualified Stock of the Company issued in accordance with the
covenant described under “— Incurrence of
Indebtedness and Issuance of Disqualified Stock and Preferred
Stock”;
(11) payments made to purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness of the
Company or any of its Restricted Subsidiaries that is
contractually subordinated to the notes or to any Guarantee
(i) following the occurrence of a Change of Control, at a
purchase price not greater than 101% of the outstanding
principal amount (or accreted value, in the case of any debt
issued at a discount from its principal amount at maturity)
thereof, plus accrued and unpaid interest, if any, after the
Company and its Restricted Subsidiaries have satisfied their
obligations with respect to a Change of Control Offer set forth
under the covenant entitled “— Repurchases at the
Option of Holders — Change of Control” or
(ii) with the Excess Proceeds of one or more Asset Sales,
at a purchase price not greater than 100% of the principal
amount (or accreted value, in the case of any debt issued at a
discount from its principal amount at maturity) thereof, plus
accrued and unpaid interest, if any, after the Company and its
Restricted Subsidiaries have satisfied their obligations with
respect to such Excess Proceeds set forth under the covenant
entitled “— Repurchases at the Option of
Holders — Asset Sale” to the extent that such
subordinated Indebtedness is required to be repurchased or
redeemed pursuant to the terms thereof as a result of such
Change of Control or Asset Sale;
(12) payments pursuant to clause (6) of the covenant
described under “— Transactions with
Affiliates”;
(13) so long as no payment Default or Event of Default has
occurred and is continuing or would result thereby, the payment
of cash dividends on the Company’s shares of common stock
in the aggregate amount per fiscal quarter not to exceed $0.0666
per share for each share of common stock of the Company
outstanding as of the one record date for dividends payable in
respect of such fiscal quarter (as such amount shall be
appropriately adjusted for any stock splits, stock dividends,
reverse stock splits, stock consolidations and similar
transactions); and
(14) other Restricted Payments in an aggregate amount not
to exceed $50.0 million since the 2006 Notes Issue Date.
The amount of all Restricted Payments (other than cash and Cash
Equivalents) will be the Fair Market Value on the date of the
Restricted Payment of the asset(s) or securities proposed to be
transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted
Payment.
84
Table of Contents
For purposes of determining compliance with this covenant, in
the event that a Restricted Payment permitted pursuant to this
covenant or a Permitted Investment meets the criteria of more
than one of the categories of Restricted Payment described in
clauses (1) through (14) above or one or more clauses
of the definition of “Permitted Investments,” the
Company shall be permitted to classify such Restricted Payment
or Permitted Investment (or any portion thereof) on the date it
is made, or later reclassify, all or a portion of such
Restricted Payment or Permitted Investment, in any manner that
complies with this covenant, and such Restricted Payment or
Permitted Investment shall be treated as having been made
pursuant to only one of such clauses of this covenant or of the
definition of “Permitted Investment.” As of
December 31, 2010, based on the formula set forth in
clause (3) of the first paragraph of this covenant, the
Company would have been able to make approximately
$33.0 million in Restricted Payments.
Liens
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or
suffer to exist any Lien that secures obligations under any
Indebtedness or any related guarantee, on any asset of the
Company or any Restricted Subsidiary, whether owned on the Issue
Date or thereafter acquired, except Permitted Liens, unless
contemporaneously therewith:
(1) in the case of any Lien securing an obligation that
ranks pari passu with the notes or a Guarantee, effective
provision is made to secure the notes or such Guarantee, as the
case may be, at least equally and ratably with or prior to such
obligation with a Lien on the same collateral; and
(2) in the case of any Lien securing an obligation that is
subordinated in right of payment to the notes or a Guarantee,
effective provision is made to secure the notes or such
Guarantee, as the case may be, with a Lien on the same
collateral that is prior to the Lien securing such subordinated
obligation,
in each case, for so long as such obligation is secured by such
Lien (such Lien, the “Primary Lien”).
Notwithstanding the foregoing, the Company will not, and will
not permit any Restricted Subsidiary to, directly or indirectly,
create, incur, assume or suffer to exist any Lien under any of
clauses (1), (3), (7), (16), (24) or (25) of the
definition of “Permitted Liens” on any asset of the
Company or any Restricted Subsidiary that secures obligations
under any Indebtedness or any related guarantee, if such Lien is
junior or subordinated in priority to any other Lien on such
asset that secures obligations under any other Indebtedness or
any related guarantee of the Company or any Restricted
Subsidiary pursuant to an agreement which the Company or a
Restricted Subsidiary is a party or the terms of which have been
accepted, acknowledged or consented to by the Company or any
Restricted Subsidiary in writing.
Any Lien created for the benefit of the holders of the notes
pursuant to the first paragraph above shall automatically and
unconditionally be released and discharged upon the release and
discharge of the Primary Lien, without any further action on the
part of any Person.
Dividend
and Other Payment Restrictions Affecting
Subsidiaries
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to
exist or become effective any consensual encumbrance or
restriction on the ability of any of its Restricted Subsidiaries
to:
(1) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted
Subsidiaries, or pay any Indebtedness owed to the Company or any
of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company
or any of its Restricted Subsidiaries.
However, the preceding restrictions will not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements, including, without limitation, those
governing Existing Indebtedness and Credit Facilities, as in
effect on the Issue Date and any amendments, modifications,
restatements, renewals, increases,
85
Table of Contents
supplements, refundings, replacements or refinancings of those
agreements; provided that the amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings are not materially more
restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in those
agreements on the Issue Date;
(2) the indenture, the notes and the Guarantees;
(3) applicable law, rule, regulation or order or
governmental license, permit or concession;
(4) any instrument governing Indebtedness or Equity
Interests of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness or Equity
Interests were incurred or issued in connection with such
acquisition to provide funds to consummate such acquisition),
which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so
acquired; provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of the indenture to be
incurred;
(5) customary provisions restricting assignments,
subletting or other similar transfers in contracts, licenses and
other agreements (including, without limitation, leases and
agreements relating to intellectual property) entered into in
the ordinary course of business;
(6) purchase money obligations and Capital Lease
Obligations that impose restrictions on the property purchased
or leased of the nature described in clause (3) of the
preceding paragraph;
(7) any agreement for the sale or other disposition of a
Restricted Subsidiary or an asset that restricts distributions
by that Restricted Subsidiary or transfers of such asset pending
the sale or other disposition;
(8) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced;
(9) Liens and agreements related thereto that were
permitted to be incurred under the provisions of the indenture
described above under the caption “— Liens”
that limit the right of the debtor to dispose of the assets
subject to such Liens;
(10) provisions limiting the disposition or distribution of
assets or property (including Capital Stock of any Person in
which the Company has an Investment) in joint venture
agreements, stockholder agreements, partnership agreements,
limited liability company operating agreements, asset sale
agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements, which limitation is applicable in all
material respects only to the assets or property that are the
subject of such agreements;
(11) restrictions on cash or other deposits or net worth
imposed under contracts entered into in the ordinary course of
business;
(12) customary provisions restricting the disposition of
real property interests set forth in any easements or other
similar agreements or arrangements of the Company or any
Restricted Subsidiary;
(13) provisions restricting the transfer of any Capital
Stock of an Unrestricted Subsidiary;
(14) Indebtedness of a Co-Issuer or Restricted Subsidiary
incurred subsequent to the Issue Date pursuant to the provisions
of the covenant described under “— Incurrence of
Indebtedness and Issuance of Disqualified Stock and Preferred
Stock” (i) if the encumbrances and restrictions
contained in any such Indebtedness taken as a whole are not
materially less favorable to the holders of the notes than the
encumbrances and restrictions contained in the indenture or that
may be contained in any Credit Agreement in accordance with this
covenant or (ii) if such encumbrance or restriction is
customary in comparable financings (as determined in good faith
by the Company) and either (x) the Company determines in
good faith that such encumbrance or restriction will not
adversely affect in any material respect the Company’s
ability to make principal or interest payments on the notes as
and when due or (y) such encumbrance or restriction applies
only in the event of and during the continuance of a default
under such Indebtedness; and
86
Table of Contents
(15) Non-Recourse Debt or other encumbrances, restrictions
or contractual requirements of a Securitization Subsidiary in
connection with a Qualified Securitization Transaction; provided
that such restrictions apply only to such Securitization
Subsidiary or the Securitization Assets that are subject to the
Qualified Securitization Transaction.
Transactions
with Affiliates
The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Company (each,
an “Affiliate Transaction”), unless:
(1) the Affiliate Transaction is on terms that are not
materially less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person, with such determination to
be made at the time such Affiliate Transaction is entered into
or agreed to; and
(2) the Company delivers to the trustee:
(a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration
in excess of $20.0 million, a resolution of the Board of
Directors of the Company set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies
with this covenant and that such Affiliate Transaction has been
approved by a majority of the disinterested members of the Board
of Directors; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions (i) involving aggregate
consideration in excess of $50.0 million or (ii) as to
which there are no disinterested members of the Board of
Directors, an opinion as to the fairness to the Company or such
Restricted Subsidiary of such Affiliate Transaction from a
financial point of view issued by an independent accounting,
appraisal or investment banking firm of international standing
qualified to perform the task for which such firm has been
engaged (as determined by the Company in good faith).
The following items will not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the
provisions of the prior paragraph:
(1) director, officer, employee and consultant
compensation, benefit, reimbursement and indemnification
agreements, plans and arrangements (and payment awards in
connection therewith) entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business;
(2) transactions between or among the Company
and/or its
Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted
Subsidiary of the Company) that is an Affiliate of the Company
solely because the Company owns, directly or through a
Restricted Subsidiary, an Equity Interest in, or controls, such
Person;
(4) any issuance of Qualified Equity Interests of the
Company (other than Designated Preferred Stock) to an Affiliate
and the granting or performance of registration rights in
respect of any Qualified Equity Interests of the Company (other
than Designated Preferred Stock), which rights have been
approved by the Board of Directors of the Company;
(5) Restricted Payments that do not violate the provisions
of the indenture described above under the caption
“— Restricted Payments” and Investments
consisting of Permitted Investments;
(6) the performance of obligations of the Company or any
Restricted Subsidiary under the terms of any agreement that is
in effect as of or on the Issue Date and disclosed in this
prospectus or any amendment, modification, supplement, extension
or renewal, from time to time, thereto or any transaction
contemplated thereby (including pursuant to any amendment,
modification, supplement, extension or renewal, from time to
time, thereto) in any replacement agreement thereto, so long as
any such amendment, modification, supplement, extension or
renewal, or replacement agreement, is not materially more
disadvantageous to the holders of notes taken as a whole than
the original agreement as in effect on the Issue Date; and
87
Table of Contents
(7) transactions effected as part of a Qualified
Securitization Transaction.
Merger,
Consolidation or Sale of Assets
(a) The Company may not, directly or indirectly:
(1) consolidate, amalgamate or merge with or into another
Person (whether or not the Company is the surviving Person); or
(2) sell, assign, transfer, convey or otherwise dispose of
all or substantially all of the properties or assets of the
Company and its Restricted Subsidiaries taken as a whole, in one
or more related transactions, to another Person, unless:
(1) either: (a) the Company is the surviving Person;
or (b) the Person formed by or surviving any such
consolidation, amalgamation or merger (if other than the
Company) or to which such sale, assignment, transfer, conveyance
or other disposition has been made (x) is a corporation,
limited liability company, trust or limited partnership
organized or existing under the laws of an Eligible
Jurisdiction, and (y) assumes all the obligations of the
Company under the notes, the indenture and the registration
rights agreement pursuant to agreements reasonably satisfactory
to the trustee;
(2) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(3) either (a) the Company or the Person formed by or
surviving any such consolidation, amalgamation or merger (if
other than the Company), or to which such sale, assignment,
transfer, conveyance or other disposition has been made, will,
on the date of such transaction after giving pro forma effect
thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in the first paragraph of the covenant described above
under the caption “— Incurrence of Indebtedness
and Issuance of Disqualified Stock and Preferred Stock” or
(b) the Fixed Charge Coverage Ratio for the Company or such
surviving Person determined in accordance with the first
paragraph of the covenant described above under the caption
“— Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock” shall be greater
than the Fixed Charge Coverage Ratio test for the Company and
its Restricted Subsidiaries immediately prior to such
transaction.
In addition, the Company may not, directly or indirectly, lease
all or substantially all of its properties or assets, in one or
more related transactions, to any other Person; provided
that the foregoing shall not prohibit the chartering out of
Vessels in the ordinary course of business.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series
of transactions) of all or substantially all of the properties
or assets of one or more Restricted Subsidiaries, the Equity
Interests of which constitute all or substantially all of the
properties and assets of the Company, will be deemed to be the
transfer of all or substantially all of the properties and
assets of the Company.
(b) The Company will not permit any Guarantor to, directly
or indirectly, consolidate, amalgamate or merge with or into
another Person (whether or not the Company or such Guarantor is
the surviving Person) unless:
(1) subject to the Guarantee release provisions described
below, such Guarantor is the surviving Person or the Person
formed by or surviving any such consolidation, amalgamation or
merger (if other than the Company or a Guarantor) expressly
assumes all the obligations of such Guarantor under the
Guarantee of such Guarantor, the indenture and the registration
rights agreement pursuant to agreements reasonably satisfactory
to the trustee; and
(2) immediately after such transaction, no Default or Event
of Default exists.
(c) This “Merger, Consolidation or Sale of
Assets” covenant will not apply to a merger of the Company,
a Guarantor or a Wholly Owned Restricted Subsidiary of such
Person with an Affiliate solely for the purpose, and with the
effect, of reorganizing the Company, a Guarantor or a Wholly
Owned Restricted Subsidiary, as the case may be, in an Eligible
Jurisdiction. In addition, nothing in this “Merger,
Consolidation or Sale of Assets” will prohibit any
Restricted Subsidiary from consolidating or amalgamating with,
merging with or into or conveying, transferring or leasing, in
one transaction or a series of transactions, all or
substantially all of its assets to the Company or another
Restricted Subsidiary or reconstituting itself in another
jurisdiction for the purpose of reflagging a vessel.
88
Table of Contents
Designation
of Restricted and Unrestricted Subsidiaries
The Board of Directors of the Company may designate any
Subsidiary (other than Navios Finance or any other Subsidiary
that is at such time a co-issuer of the notes) to be an
Unrestricted Subsidiary if that designation would not cause a
Default or cause a Default to be continuing after such
designation. If a Restricted Subsidiary is designated as an
Unrestricted Subsidiary, the aggregate Fair Market Value of all
outstanding Investments owned by the Company and its Restricted
Subsidiaries in the Subsidiary designated as an Unrestricted
Subsidiary will be deemed to be an Investment made as of the
time of the designation and will reduce the amount available for
Restricted Payments under the covenant described above under the
caption “— Restricted Payments” or under one
or more clauses of the definition of Permitted Investments, as
determined by the Company. That designation will only be
permitted if the Investment would be permitted at that time and
if the Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary. The Board of Directors of the
Company may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if that redesignation would not cause a
Default or cause a Default to be continuing after such
redesignation. Notwithstanding the foregoing, on any occasion
following the Issue Date on which Navios Partners shall become a
Subsidiary of the Company, then, on such occasion and without
any further act on the part of the Company, it shall be
automatically designated an “Unrestricted Subsidiary”
for all purposes under the indenture (unless the Company
otherwise provides notice to the trustee) and, notwithstanding
anything to the contrary in this covenant, the Company shall not
be deemed to have made an Investment in such Subsidiary at the
time of such designation other than to the extent of any
Investment made which resulted in it becoming a Subsidiary of
the Company.
Subsidiary
Guarantees
If the Company or any of its Restricted Subsidiaries acquires or
creates a Wholly Owned Restricted Subsidiary (or redesignates an
Unrestricted Subsidiary as a Restricted Subsidiary and such
Restricted Subsidiary is a Wholly Owned Restricted Subsidiary)
and such Wholly Owned Restricted Subsidiary shall at any time
have total assets with a book value in excess of
$5.0 million, then such Wholly Owned Restricted Subsidiary
(unless such Subsidiary is a Securitization Subsidiary or is
Navios Finance or the Existing Senior Secured Notes
Co-Issuer
(or any other subsidiary that at such time is a co-issuer of the
notes or the Existing Senior Secured Notes)) must become a
Guarantor and shall, within 45 business days of the date on
which it was so acquired, created or redesignated or so
capitalized:
(1) execute and deliver to the trustee a supplemental
indenture in form reasonably satisfactory to the trustee
pursuant to which such Wholly Owned Restricted Subsidiary shall
unconditionally guarantee all of the Co-Issuers’
obligations under the notes and the indenture on the terms set
forth in the indenture; and
(2) deliver to the trustee one or more opinions of counsel
that such supplemental indenture has been duly authorized,
executed and delivered by such Wholly Owned Restricted
Subsidiary and constitutes a valid and legally binding and
enforceable obligation of such Wholly Owned Restricted
Subsidiary, subject to customary exceptions.
Thereafter, such Wholly Owned Restricted Subsidiary shall be a
Guarantor for all purposes of the indenture.
The Guarantee of a Guarantor will automatically and
unconditionally (without any further action on the part of any
Person) be released:
(1) in connection with any sale or other disposition of all
or substantially all of the assets of that Guarantor (including
by way of merger, consolidation or amalgamation) to a Person
that is not (either before or after giving effect to such
transaction) the Company or a Restricted Subsidiary of the
Company, if the sale or other disposition does not violate the
“Asset Sale” or “Transactions with
Affiliates” provisions of the indenture;
(2) in connection with any sale or other disposition of a
majority of the Capital Stock of that Guarantor to a Person that
is not (either before or after giving effect to such
transaction) the Company or a Subsidiary of the Company, if
(x) such Guarantor would no longer constitute a
“Subsidiary” under the indenture and (y) the sale
or other disposition does not violate the “Asset Sale”
provisions of the indenture;
89
Table of Contents
(3) if the Company designates any Restricted Subsidiary
that is a Guarantor to be an Unrestricted Subsidiary in
accordance with the applicable provisions of the indenture;
(4) upon liquidation or dissolution of such Guarantor;
(5) in the case of a Guarantor that is not a Wholly Owned
Restricted Subsidiary that has voluntarily issued a Guarantee of
the notes, upon notice to the trustee by the Company of the
designation of such Guarantor as non-Guarantor Restricted
Subsidiary if (x) the Company would be permitted to make an
Investment in such Restricted Subsidiary at the time of such
release equal to the Fair Market Value of the Investment of the
Company and its other Restricted Subsidiaries in such Guarantor
as either a Permitted Investment or pursuant to the covenant
described under “— Restricted Payments” and
(y) all transactions entered into by such Restricted
Subsidiary while a Guarantor would be permitted under the
indenture at the time its Guarantee is released; and
(6) upon legal or covenant defeasance or satisfaction and
discharge of the notes as provided below under the caption
“— Legal Defeasance and Covenant Defeasance”
or “— Satisfaction and Discharge.”
See “— Repurchase at the Option of
Holders — Asset Sales.”
The form of the Guarantee is attached as an exhibit to the
indenture.
Payments
for Consent
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid
any consideration to or for the benefit of any holder of notes
for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of the indenture or the notes
unless such consideration is offered to be paid to all holders
of the notes that consent, waive or agree to amend in the time
frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
Limitation
on Business Activities of Navios Finance
The indenture provides that Navios Finance will not hold any
material assets, become liable for any material obligations,
engage in any trade or business, or conduct any business
activity, other than the issuance of the Equity Interest to the
Company or any Wholly Owned Restricted Subsidiary, the
incurrence of Indebtedness as a co-obligor or guarantor of
Indebtedness incurred by the Company or any Restricted
Subsidiary, including the notes, that is permitted to be
incurred by the Company or any Restricted Subsidiary under the
covenant described under “— Certain
Covenants — Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock” and activities
incidental thereto. The indenture also provides that for so long
as the Company or any successor obligor under the notes is a
Person that is not incorporated in the United States of America,
any State of the United States or the District of Columbia there
will be a co-issuer of the notes that is a Wholly Owned
Restricted Subsidiary of the Company and that is a corporation
organized and incorporated in the United States of America, any
State of the United States or the District of Columbia.
Reports
Whether or not the Company is then subject to Section 13(a)
or 15(d) of the Exchange Act, the Company will furnish to the
trustee and the holders, so long as the notes are outstanding:
(1) within 75 days after the end of each of the first
three fiscal quarters in each fiscal year, quarterly reports on
Form 6-K
(or any successor form) containing unaudited financial
statements (including a balance sheet and statement of income,
changes in stockholders’ equity and cash flow) and a
management’s discussion and analysis of financial condition
and results of operations (or equivalent disclosure) for and as
of the end of such fiscal quarter (with comparable financial
statements for the corresponding fiscal quarter of the
immediately preceding fiscal year);
(2) within 150 days after the end of each fiscal year,
an annual report on
Form 20-F
(or any successor form) containing the information required to
be contained therein for such fiscal year; and
90
Table of Contents
(3) at or prior to such times as would be required to be
filed or furnished to the Commission if the Company was then a
“foreign private issuer” subject to Section 13(a)
or 15(d) of the Exchange Act, all such other reports and
information that the Company would have been required pursuant
thereto;
provided, however, that to the extent that the
Company ceases to qualify as a “foreign private
issuer” within the meaning of the Exchange Act, whether or
not the Company is then subject to Section 13(a) or 15(d)
of the Exchange Act, the Company will furnish to the trustee and
the holders, so long as any notes are outstanding, within
30 days of the respective dates on which the Company would
be required to file such documents with the Commission if it was
required to file such documents under the Exchange Act, all
reports and other information that would be required to be filed
with (or furnished to) the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act.
In addition, whether or not required by the rules and
regulations of the Commission, the Company will electronically
file or furnish, as the case may be, a copy of all such
information and reports that it would be required to file as a
foreign private issuer with the Commission for public
availability within the time periods specified above (unless the
Commission will not accept such a filing) and make such
information available to securities analysts and prospective
investors upon request. In addition, the Company has agreed
that, for so long as any notes remain outstanding, it will
furnish to the holders and to securities analysts and
prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
Notwithstanding the foregoing, the Company will be deemed to
have furnished such reports referred to in the first paragraph
of this covenant to the trustee and the holders of notes if the
Company has filed such reports with the Commission via the EDGAR
filing system and such reports are publicly available.
Events
of Default and Remedies
Each of the following is an Event of Default:
(1) default by a Co-Issuer or any Guarantor for 30
consecutive days in the payment when due and payable of interest
on, or Additional Interest, if any, with respect to, the notes;
(2) default by a Co-Issuer or any Guarantor in payment when
due and payable of the principal of or premium, if any, on the
notes;
(3) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions described under the
caption “— Certain Covenants — Merger,
Consolidation or Sale of Assets” after receipt by the
Company or such Subsidiary, as applicable, of a written notice
specifying the default (and demanding that such default be
remedied and stating that such notice is a “Notice of
Default”) from the trustee or the holders of at least 25%
of the outstanding principal amount of the notes;
(4) failure by Company or any of its Restricted
Subsidiaries to comply with any other covenants in the indenture
(other than any default described in clause (3) above) for
60 consecutive days after notice has been given to the Company
by the trustee or to the Company and the trustee by the holders
of at least 25% in aggregate principal amount of the notes then
outstanding specifying the default and demanding compliance with
any of the other covenants in the indenture;
(5) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company
or any Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a
Significant Subsidiary, whether such Indebtedness now exists or
is created after the Issue Date, if that default:
(a) is caused by a failure to pay the principal amount of
any such Indebtedness at its stated final maturity after giving
effect to any applicable grace periods (a “Payment
Default”); or
(b) results in the acceleration of such Indebtedness prior
to its stated final maturity,
and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$30.0 million or more;
91
Table of Contents
(6) failure by the Company or any Significant Subsidiary or
any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary to pay final judgments
aggregating in excess of $30.0 million in excess of amounts
that are covered by insurance or which have been bonded, which
judgments are not paid, discharged or stayed for a period of
60 days after such judgment or judgments become final and
non-appealable;
(7) except as permitted by the indenture including upon the
permitted release of the Guarantee, any Guarantee of a
Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary
shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and
effect or any Guarantor or any Person acting on behalf of any
Guarantor shall deny or disaffirm in writing its obligations
under its Guarantee; and
(8) certain events of bankruptcy or insolvency described in
the indenture with respect to a Co-Issuer or any of the
Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary.
In the case of an Event of Default arising from certain events
of bankruptcy or insolvency specified in clause (8) with
respect to a Co-Issuer, all outstanding notes will become due
and payable immediately without further action or notice. If any
other Event of Default occurs and is continuing, the trustee, by
written notice to the Co-Issuers, or the holders of at least 25%
in principal amount of the then outstanding notes, by written
notice to the trustee and the Co-Issuers, may declare all the
notes to be due and payable. Any notice from the trustee or
noteholders shall specify the applicable Event(s) of Default and
state that such notice is a “Notice of Acceleration.”
Upon such declaration of acceleration pursuant to a Notice of
Acceleration, the aggregate principal of and accrued and unpaid
interest on the outstanding notes shall become due and payable
without further action or notice.
Subject to certain limitations, holders of a majority in
principal amount of the then outstanding notes may direct the
trustee in its exercise of any trust or power. The trustee may
withhold from holders of the notes notice of any continuing
Default or Event of Default if it determines that withholding
notice is in their interest, except a Default or Event of
Default relating to the payment of principal or interest or
Additional Interest.
Except to enforce the right to receive payment of principal,
premium, if any, or interest when due, no holder of a note may
pursue any remedy with respect to the indenture or the notes
unless:
(1) such holder has previously given the trustee written
notice that an Event of Default is continuing;
(2) holders of at least 25% in aggregate principal amount
of the outstanding notes have requested in writing the trustee
to pursue the remedy;
(3) such holders have offered the trustee security or
indemnity satisfactory to it against any loss, liability or
expense;
(4) the trustee has not complied with such request within
60 days after the receipt thereof and the offer of security
or indemnity; and
(5) holders of a majority in aggregate principal amount of
the outstanding notes have not given the trustee a written
direction inconsistent with such request within such
60-day
period.
The holders of a majority in aggregate principal amount of the
notes then outstanding may, on behalf of the holders of all of
the notes, rescind an acceleration or waive any existing Default
or Event of Default and its consequences under the indenture
except a continuing Default or Event of Default in the payment
of interest or premium or Additional Interest, if any, on, or
the principal of, the notes.
The Co-Issuers will be required to deliver to the trustee
annually a statement regarding compliance with the indenture.
Within 30 days of becoming aware of any Default or Event of
Default, the Company will be required to deliver to the trustee
a statement specifying such Default or Event of Default.
92
Table of Contents
No
Personal Liability of Directors, Officers, Employees and
Stockholders
No past, future or present director, officer, employee,
incorporator, member, manager, agent or shareholder of a
Co-Issuer or any Guarantor, as such, will have any liability for
any obligations of the Co-Issuers or any Guarantors under the
notes, the indenture, the Guarantees or for any claim based on,
in respect of, or by reason of, such obligations or their
creation. Each holder of notes by accepting a note waives and
releases all such liability. The waiver and release are part of
the consideration for issuance of the notes and the Guarantees.
The waiver may not be effective to waive liabilities under the
federal securities laws of the United States.
Legal
Defeasance and Covenant Defeasance
The Co-Issuers may, at their option and at any time, elect to
have all of their obligations discharged with respect to the
outstanding notes and all obligations of the Guarantors
discharged with respect to their Guarantees (“Legal
Defeasance”). Such Legal Defeasance means that the
Co-Issuers shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding notes, except
for:
(1) the rights of holders of outstanding notes to receive
payments in respect of the principal of or interest or premium
and Additional Interest, if any, on such notes when such
payments are due from the trust referred to below;
(2) the Co-Issuers’ obligations with respect to the
notes concerning issuing temporary notes, registration of notes,
mutilated, destroyed, lost or stolen notes and the maintenance
of an office or agency for payment and money for security
payments held in trust;
(3) the rights, powers, trusts, duties and immunities of
the trustee, and the Co-Issuers’ and the Guarantors’
obligations in connection therewith; and
(4) the Legal Defeasance provisions of the indenture.
In addition, the Co-Issuers may, at their option and at any
time, elect to have their obligations and the obligations of the
Guarantors released with respect to certain covenants (including
all the covenants described in this description of notes and the
obligation to make Asset Sale Offers and Change of Control
Offers) in the indenture and may elect to cause the release of
the Guarantees of the notes and all Liens securing the notes or
the Guarantees (“Covenant Defeasance”) and thereafter
any omission to comply with those covenants and such Guarantee
and Lien releases will not, in each case, constitute a Default
or Event of Default with respect to the notes. In the event
Covenant Defeasance occurs, events (other than nonpayment,
bankruptcy, receivership, rehabilitation and insolvency events)
described under “— Events of Default and
Remedies” will no longer constitute Events of Default with
respect to the notes.
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(1) the Co-Issuers must irrevocably deposit with the
trustee, in trust, for the benefit of the holders of the notes,
cash in U.S. dollars, non-callable Government Securities,
or a combination thereof, in amounts as will be sufficient,
without consideration of any reinvestment of interest, in the
opinion of a nationally recognized investment bank, appraisal
firm or firm of independent public accountants, to pay the
principal of or interest and premium and Additional Interest, if
any, on the outstanding notes on the Stated Maturity or on the
applicable redemption date, as the case may be, and the
Co-Issuers must specify whether the notes are being defeased to
maturity or to a particular redemption date;
(2) in the case of Legal Defeasance, the Co-Issuers must
deliver to the trustee an Opinion of Counsel reasonably
acceptable to the trustee confirming that (a) the
Co-Issuers have received from, or there has been published by,
the U.S. Internal Revenue Service a ruling or
(b) since the Issue Date, there has been a change in the
applicable U.S. federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel will
confirm that, the holders of the outstanding notes will not
recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Legal Defeasance had not occurred;
93
Table of Contents
(3) in the case of Covenant Defeasance, the Co-Issuers must
deliver to the trustee an Opinion of Counsel reasonably
acceptable to the trustee confirming that the holders of the
outstanding notes will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such
Covenant Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant
Defeasance had not occurred;
(4) no Default or Event of Default has occurred and is
continuing on the date of such deposit (other than a Default or
Event of Default resulting from, or otherwise arising in
connection with, the borrowing of funds to be applied to such
deposit and the grant of any Lien securing such borrowing);
(5) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default
under, any material agreement or instrument (other than the
indenture) to which either of the Co-Issuers or any of their
Subsidiaries is a party or by which either of the Co-Issuers or
any of their Subsidiaries are bound;
(6) the Co-Issuers must deliver to the trustee an
Officers’ Certificate stating that the deposit was not made
by the Co-Issuers with the intent of preferring the holders of
notes over the other creditors of the Co-Issuers or any of their
Subsidiaries or with the intent of defeating, hindering,
delaying or defrauding creditors of the Co-Issuers or any of
their Subsidiaries or others; and
(7) the Co-Issuers must deliver to the trustee an
Officers’ Certificate and an Opinion of Counsel, each to
the effect that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Notwithstanding the foregoing, the Opinion of Counsel required
by clause (2) above with respect to a Legal Defeasance need
not be delivered if all notes not theretofore delivered to the
trustee for cancellation will become due and payable within one
year under arrangements reasonably satisfactory to the trustee
for the giving of a notice of redemption by the trustee in the
name and at the expense of the Co-Issuers.
If the funds deposited with the trustee to effect Covenant
Defeasance are insufficient to pay the principal of and interest
on the notes when due, then the obligations of the Co-Issuers
and the Guarantors under the indenture will be revived and no
such defeasance will be deemed to have occurred.
Satisfaction
and Discharge
The indenture will be discharged and will cease to be of further
effect as to all notes issued thereunder, when:
(1) either:
(a) all notes that have been authenticated, except lost,
stolen or destroyed notes that have been replaced or paid and
notes for whose payment money has been deposited in trust or
segregated and held in trust by the Co-Issuers and thereafter
repaid to the Co-Issuers or discharged from the trust, have been
delivered to the trustee for cancellation; or
(b) all notes that have not been delivered to the trustee
for cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become
due and payable within one year or have been called for
redemption pursuant to the provisions described under
“— Optional Redemption” and the Co-Issuers
have irrevocably deposited or caused to be deposited with the
trustee as trust funds in trust solely for the benefit of the
holders, cash or Cash Equivalents in U.S. dollars,
non-callable Government Securities, or a combination thereof, in
amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire
Indebtedness on the notes not delivered to the trustee for
cancellation for principal, premium and Additional Interest, if
any, and accrued interest to the date of maturity or redemption;
(2) no Event of Default has occurred and is continuing on
the date of the deposit (other than an Event of Default
resulting from the borrowing of funds to be applied to such
deposit including the incurrence of liens in connection with
such borrowing) and the deposit will not result in a breach or
violation of, or constitute a default under, the indenture;
94
Table of Contents
(3) the Co-Issuers or any Guarantor has paid or caused to
be paid all sums payable by them under the indenture; and
(4) the Co-Issuers have delivered irrevocable instructions
to the trustee under the indenture to apply the deposited money
toward the payment of the notes at maturity or on the redemption
date, as the case may be.
In addition, the Co-Issuers must deliver an Officers’
Certificate and an Opinion of Counsel to the trustee stating
that all conditions precedent to satisfaction and discharge have
been satisfied.
Amendment,
Supplement and Waiver
Except as provided in the next two succeeding paragraphs, the
indenture, the notes and the Guarantees may be amended or
supplemented with the consent of the Co-Issuers and the holders
of at least a majority in principal amount of the notes then
outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer
for, notes), and any existing Default or Event of Default or
compliance with any provision of the indenture or the notes or
the Guarantees may be waived with the consent of the holders of
a majority in principal amount of the then outstanding notes
(including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for,
notes).
Without the consent of the Co-Issuers and each holder of notes
affected, an amendment, supplement or waiver may not (with
respect to any notes held by a non-consenting holder to the
extent permitted under the indenture):
(1) reduce the principal amount of notes whose holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any note or alter the provisions with respect to the redemption
of the notes (it being understood that this clause (2) does
not apply to provisions relating to the covenants described
above under the caption “— Repurchase at the
Option of Holders”);
(3) reduce the rate of or change the time for payment of
interest on any note;
(4) waive a Default or Event of Default in the payment of
principal of, or interest or premium, or Additional Interest, if
any, on the notes (except a rescission of acceleration of the
notes by the holders of at least a majority in aggregate
principal amount of the then outstanding notes in accordance
with the provisions of the indenture and a waiver of the payment
default that resulted from such acceleration);
(5) make any note payable in money other than that stated
in the notes;
(6) make any change in the provisions of the indenture
relating to waivers of past Defaults or the rights of holders of
notes to receive payments of principal of, or interest or
premium or Additional Interest, if any, on the notes;
(7) waive a redemption payment with respect to any note (it
being understood that this clause (7) does not apply to a
payment required by one of the covenants described above under
the caption “— Repurchase at the Option of
Holders”);
(8) release any Guarantor from any of its obligations under
its Guarantee or the indenture, except in accordance with the
terms of the indenture;
(9) in the event that the obligation to make a Change of
Control Offer or an Asset Sale Offer has arisen, amend, change
or modify in any material respect the obligation of the Company
to make and consummate such Change of Control Offer or such
Asset Sale Offer, as the case may be;
(10) expressly subordinate in right of payment the notes or
the Guarantees to any other Indebtedness of a Co-Issuer or any
Guarantor; or
(11) make any change in the preceding amendment and waiver
provisions.
95
Table of Contents
Notwithstanding the preceding, without the consent of any holder
of notes, the Co-Issuers, the Guarantors and the trustee may
amend, waive, supplement or otherwise modify the indenture, the
notes or the Guarantees:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated notes in addition to or
in place of certificated notes;
(3) to provide for the assumption of a Co-Issuer’s or
a Guarantor’s obligations to holders of notes and
Guarantees in the case of a merger, amalgamation or
consolidation or sale of all or substantially all of such
Co-Issuer’s or such Guarantor’s assets, as applicable;
(4) to make any change that would provide any additional
rights or benefits to the holders of notes or that does not
materially adversely affect the legal rights under the indenture
of any such holder;
(5) to comply with requirements of the Commission in order
to effect or maintain the qualification of the indenture under
the Trust Indenture Act;
(6) to allow any Guarantor to execute a supplemental
indenture and a Guarantee with respect to the notes or to
release a Guarantee or a security interest under the notes or a
Guarantee in accordance with the terms of the indenture;
(7) to provide for the issuance of additional notes in
accordance with the terms of the indenture;
(8) to evidence and provide for the acceptance of
appointment under the indenture by a successor trustee;
(9) to comply with the rules of any applicable securities
depository;
(10) to conform the text of the indenture, the Guarantees
or the notes to any provision of this Description of Notes to
the extent that such provision in this Description of Notes was
intended by the Co-Issuers (as demonstrated by an Officers’
Certificate) to be a substantially verbatim recitation of a
provision of the indenture, the Guarantees or the notes;
(11) to add to the covenants of the Company or any
Restricted Subsidiary for the benefit of the noteholders or
surrender any rights or powers conferred upon the Company or any
Restricted Subsidiary; or
(12) to secure the notes.
Concerning
the Trustee
If the trustee becomes a creditor of a Co-Issuer or any
Guarantor, the indenture limits the right of the trustee to
obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as
security or otherwise. The trustee will be permitted to engage
in other transactions; however, if it acquires any conflicting
interest it must eliminate such conflict within 90 days,
apply to the Commission for permission to continue (if the
indenture has been qualified under the Trust Indenture Act)
or resign.
The holders of a majority in principal amount of the then
outstanding notes will have the right to direct the time, method
and place of conducting any proceeding for exercising any remedy
available to the trustee, subject to certain exceptions. The
indenture provides that in case an Event of Default occurs and
is continuing, the trustee will be required, in the exercise of
its power, to use the degree of care of a prudent person in the
conduct of such person’s own affairs. Subject to such
provisions, the trustee will be under no obligation to exercise
any of its rights or powers under the indenture at the request
of any holder of notes, unless such holder has offered to the
trustee security and indemnity satisfactory to it against any
loss, liability or expense.
Additional
Information
Anyone who receives this prospectus may obtain a copy of the
indenture and the registration rights agreement without charge
by writing to Navios Maritime Holdings Inc., 85 Akti Miaouli
Street, Piraeus 185 38, Greece, attention: Executive Vice
President, Legal.
96
Table of Contents
Certain
Definitions
Set forth below are certain defined terms used in the indenture.
Reference is made to the indenture for a full definition of all
such terms, as well as any other capitalized terms used herein
for which no definition is provided.
“2006 Note Issue Date” means December 18,
2006, the date of original issuance of the Company’s
91/2% Senior
Notes due 2014.
“Acquired Debt” means, with respect to any
specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or becomes a Restricted
Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation
of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
“Additional Interest” means
(i) “Additional Interest” as defined in the
registration rights agreement with respect to the notes issued
on the Issue Date and (ii) “Special Interest,”
“Additional Interest,” “Liquidated Damages”
or any similar term as such term is defined in any registration
rights agreement with respect to additional notes issued after
the Issue Date.
“Affiliate” of any specified Person means any
other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified
Person. For purposes of this definition, “control,” as
used with respect to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of
the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise. For
purposes of this definition, the terms “controlling,”
“controlled by” and “under common control
with” have correlative meanings.
“Applicable Premium” means, with respect to a
note at any time, the greater of (1) 1.0% of the principal
amount of such note at such time and (2) the excess of
(A) the present value at such time of (i) the
redemption price of such note at February 15, 2015 plus
(ii) all remaining interest payments due on such note
through and including February 15, 2015 (excluding any
interest accrued to the Make-Whole Redemption Date),
discounted on a semi-annual basis (assuming a
360-day year
consisting of twelve
30-day
months) from February 15, 2015 to the Make-Whole
Redemption Date, computed using a discount rate equal to
the Applicable Treasury Rate plus 0.50%, over (B) the
principal amount of such note on the Make-Whole
Redemption Date.
“Applicable Treasury Rate” for any redemption
date, means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available
at least two Business Days prior to the Make-Whole
Redemption Date of such note (or, if such Statistical
Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from the
Make-Whole Redemption Date to February 15, 2015;
provided, however, that if the period from the
Make-Whole Redemption Date to February 15, 2015 is not
equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the
Applicable Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year)
from the weekly average yields of United States Treasury
securities for which such yields are given except that if the
period from the Make-Whole Redemption Date to
February 15, 2015 is less than one year, the weekly average
yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
“Appraised Value” means the fair market sale
value as of a specified date of a specified Vessel that would be
obtained in an arm’s-length transaction between an informed
and willing seller under no compulsion to sell and an informed
and willing buyer under no compulsion to buy, as determined by
an Independent Appraiser selected by the Company and, in the
event such Independent Appraiser is not a Designated Appraiser,
reasonably acceptable to the trustee.
97
Table of Contents
“Asset Sale” means:
(1) the sale, lease, conveyance or other disposition of any
assets; provided that the sale, conveyance or other
disposition of all or substantially all of the assets of the
Co-Issuers and their Restricted Subsidiaries taken as a whole
will be governed by the provisions of the indenture described
above under the caption “— Repurchase at the
Option of Holders — Change of Control”
and/or the
provisions described above under the caption
“— Certain Covenants — Merger,
Consolidation or Sale of Assets” and not by the provisions
of the Asset Sale covenant; and
(2) the issuance by any of the Company’s Restricted
Subsidiaries of any Equity Interest of such Restricted
Subsidiary or the sale by the Company or any Restricted
Subsidiary of Equity Interests in any Restricted Subsidiaries
(other than directors’ qualifying shares or shares required
by applicable law to be held by a Person other than the Company
or any of its Subsidiaries).
Notwithstanding the preceding, none of the following items will
be deemed to be an Asset Sale:
(1) any single transaction or series of related
transactions that involves assets having a Fair Market Value of
less than $10.0 million;
(2) a sale, lease, conveyance, transfer or other
disposition of assets between or among the Company
and/or its
Restricted Subsidiaries;
(3) an issuance, sale, transfer or other disposition of
Equity Interests by a Restricted Subsidiary of the Company to
the Company or to another Restricted Subsidiary of the Company;
(4) the sale or other disposition of damaged, worn-out or
obsolete assets;
(5) the sale or other disposition of cash or Cash
Equivalents;
(6) (i) a Restricted Payment that does not violate the
covenant described above under the caption
“— Certain Covenants — Restricted
Payments” or a Permitted Investment and (ii) any
issuance, sale, transfer or other disposition of Capital Stock
of an Unrestricted Subsidiary;
(7) sales of accounts receivable and inventory (other than
Vessels and Related Assets) in the ordinary course of business
for cash or Cash Equivalents;
(8) a Permitted Asset Swap;
(9) sales
and/or
contributions of Securitization Assets to a Securitization
Subsidiary in a Qualified Securitization Transaction for the
Fair Market Value thereof including cash in an amount at least
equal to 75% of the Fair Market Value thereof (for the purposes
of this clause (9), Purchase Money Notes will be deemed to be
cash); and
(10) any transfer of Securitization Assets or a fractional
undivided interest therein, by a Securitization Subsidiary in a
Qualified Securitization Transaction.
“Attributable Indebtedness” in respect of a
Sale/Leaseback Transaction means, as at the time of
determination, the present value (discounted at the interest
rate equal to the rate implicit in such transaction for the
relevant lease period, determined in accordance with GAAP) of
the total obligations of the lessee for net rental payments
during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such
lease has been extended); provided, however, that
if such Sale/Leaseback Transaction results in a Capital Lease
Obligation, the amount of Indebtedness required thereby will be
determined in accordance with the definition of “Capital
Lease Obligation.”
“Beneficial Owner” has the meaning assigned to
such term in
Rule 13d-3
and
Rule 13d-5
under the Exchange Act, except that in calculating the
beneficial ownership of any particular “person” (as
that term is used in Section 13(d)(3) of the Exchange Act),
such “person” will be deemed to have beneficial
ownership of all securities that such “person” has the
right to acquire by conversion or exercise of other securities,
whether such right is currently exercisable or is exercisable
only after the passage of time; provided that,
notwithstanding the foregoing, the holders of the Company’s
warrants outstanding on the Issue Date shall not be deemed to
beneficially own the
98
Table of Contents
underlying shares until such warrants have been exercised. The
terms “Beneficially Owns,” “Beneficially
Owned” and “Beneficial Ownership” have
correlative meanings.
“Board of Directors” means:
(1) with respect to a corporation, the board of directors
of the corporation or, other than for purposes of the definition
of “Change of Control,” any committee thereof duly
authorized to act on behalf of such board; and
(2) with respect to any other Person, the functional
equivalent of a board of directors of a corporation or, other
than for purposes of the definition of “Change of
Control,” any committee thereof duly authorized to act on
behalf thereof.
“Capital Lease Obligation” means, at the time
of determination, the amount of the liability in respect of a
capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other
equivalents (however designated) in the equity of such
association or entity;
(3) in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or
membership interests; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities
convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
“Cash Equivalents” means:
(1) United States dollars or Euro or other currency of a
member of the Organization for Economic Cooperation and
Development (including such currencies as are held as overnight
bank deposits and demand deposits with banks);
(2) securities issued or directly and fully guaranteed or
insured by the government of the United States or any Member
State of the European Union or any other country whose sovereign
debt has a rating of at least A3 from Moody’s and at least
A- from S&P or any agency or instrumentality thereof having
maturities of not more than one year from the date of
acquisition;
(3) demand and time deposits and eurodollar time deposits
and certificates of deposit or bankers’ acceptances with
maturities of one year or less from the date of acquisition, in
each case, with any financial institution organized under the
laws of any country that is a member of the Organization for
Economic Cooperation and Development having capital and surplus
and undivided profits in excess of US$500.0 million;
(4) repurchase obligations with a term of not more than
60 days for underlying securities of the types described in
clause (2) above entered into with any financial
institution meeting the qualifications specified in
clause (3) above;
(5) commercial paper and variable or fixed rate notes rated
P-1 or
higher by Moody’s Investors Service, Inc. or
A-1 or
higher by Standard & Poor’s Rating Services and,
in each case, maturing within one year after the date of
acquisition;
(6) local currency held by the Company or any of its
Restricted Subsidiaries from time to time in the ordinary course
of business; and
(7) money market funds that invest primarily in Cash
Equivalents of the kinds described in clauses (1) through
(6) of this definition.
99
Table of Contents
“Change of Control” means the occurrence of any
of the following events:
(1) any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Exchange
Act), other than one or more Permitted Holders, is or becomes
the Beneficial Owner, directly or indirectly, of Voting Stock
representing more than 50% of the voting power of the total
outstanding Voting Stock of the Company;
(2) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of
Directors (together with any new directors whose election to
such Board of Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of the
majority of the directors of the Company then still in office
who were either directors at the beginning of such period or
whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the
Board of Directors of the Company;
(3) (a) all or substantially all of the assets of the
Company and the Restricted Subsidiaries are sold or otherwise
transferred to any Person other than a Wholly Owned Restricted
Subsidiary or one or more Permitted Holders or (b) the
Company consolidates or merges with or into another Person or
any Person consolidates or merges with or into the Company, in
either case under this clause (3), in one transaction or a
series of related transactions in which immediately after the
consummation thereof Persons Beneficially Owning, directly or
indirectly, Voting Stock representing in the aggregate a
majority of the total voting power of the Voting Stock of the
Company immediately prior to such consummation do not
Beneficially Own, directly or indirectly, Voting Stock
representing a majority of the total voting power of the Voting
Stock of the Company or the surviving or transferee
Person; or
(4) the Company shall adopt a plan of liquidation or
dissolution or any such plan shall be approved by the
stockholders of the Company.
“Commission” means the U.S. Securities and
Exchange Commission.
“Company” means Navios Maritime Holdings Inc.,
a Marshall Islands corporation.
“Consolidated Cash Flow” means, for any period,
for any Person, an amount determined for such Person and its
Restricted Subsidiaries on a consolidated basis equal to:
(1) Consolidated Net Income for such period; plus
(2) the sum, without duplication, of the amounts for such
Person and its Restricted Subsidiaries for such period (in each
case to the extent reducing such Consolidated Net Income) of:
(a) Fixed Charges;
(b) provision for taxes based on income;
(c) total depreciation expenses;
(d) total amortization expenses (including, without
limitation, the amortization of capitalized drydocking expenses);
(e) other non-cash items reducing such Consolidated Net
Income (excluding any such non-cash item to the extent that it
represents an accrual or reserve for potential cash items in any
future period or amortization of a prepaid cash item that was
paid in a prior period); and
(f) to the extent any Attributable Indebtedness is
outstanding and is not a Capital Lease Obligation, the amount of
any payments therefor less the amount of interest implicit in
such payments; minus
(3) the amount for such period (to the extent increasing
such Consolidated Net Income) of non-cash items increasing such
Consolidated Net Income (other than any such non-cash item to
the extent it represents the reversal of an accrual or reserve
for potential cash items in any prior period);
provided that the items listed in clauses (2)(a) through
(f) of a Restricted Subsidiary will be included in
Consolidated Cash Flow only to the extent (and in the same
proportion) that the net income of such Subsidiary was included
in calculating Consolidated Net Income for such period.
100
Table of Contents
“Consolidated Net Income” means, for any
period, the net income (or net loss) of the Company and its
Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, adjusted to the
extent included in calculating such net income or loss by
excluding (without duplication):
(1) any net after-tax extraordinary or nonrecurring gains
or losses (less all fees and expenses relating thereto);
(2) any net after-tax gains or losses (less all fees and
expenses relating thereto) attributable to Asset Sales or
dispositions of securities;
(3) the portion of net income (or loss) of any Person
(other than the Company or a Restricted Subsidiary) in which the
Company or any Restricted Subsidiary has an ownership interest,
except to the extent of the amount of dividends or other
distributions actually paid to the Company or any Restricted
Subsidiary in cash during such period;
(4) the net income (but not the net loss) of any Restricted
Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary
is at the date of determination restricted, directly or
indirectly, except to the extent that such net income is
actually, or is permitted to be, paid to the Company or a
Restricted Subsidiary thereof by loans, advances, intercompany
transfers, principal repayments or otherwise; provided that with
respect to a Guarantor or a Securitization Subsidiary this
clause (4) shall be applicable solely for purpose of
calculating Consolidated Net Income to determine the amount of
Restricted Payments permitted under the covenant described under
the caption “— Certain Covenants —
Restricted Payments”;
(5) any non-cash expenses or charges resulting from stock,
stock option or other equity-based awards;
(6) the cumulative effect of a change in accounting
principles;
(7) any impairment charge or asset write-off or write-down,
in each case, pursuant to GAAP, and the amortization of
intangibles arising pursuant to GAAP;
(8) the net after-tax effects of adjustments in the
inventory, property and equipment, goodwill, intangible assets,
deferred revenue and debt line items in such Person’s
consolidated financial statements pursuant to GAAP resulting
from the application of purchase accounting or the amortization
or write-off of any amounts thereof;
(9) any fees and expenses incurred during such period, or
any amortization thereof for such period, in connection with any
acquisition, Investment, asset sale, issuance or repayment of
Indebtedness, issuance of Equity Interests, refinancing
transaction or amendment or modification of any debt instrument
(including without limitation any such transaction undertaken
but not completed);
(10) the portion of distributions received from one or more
Designated MLPs otherwise includable in “Consolidated Net
Income” of the Company to the extent the Company elects to
exclude such distributions from “Consolidated Net
Income” and credits such amounts towards subclause (y)
of clause (17) of the definition of “Permitted
Investments”;
(11) the portion of distributions received from Navios
Logistics otherwise includable in “Consolidated Net
Income” of the Company to the extent the Company elects to
exclude such distributions from “Consolidated Net
Income” and credits such amounts towards clause (18)
of the definition of “Permitted Investments”; and
(12) the portion of distributions received from Navios
Maritime Acquisition otherwise includable in “Consolidated
Net Income” of the Company to the extent the Company elects
to exclude such distributions from “Consolidated Net
Income” and credits such amounts towards clause (19)
of the definition of “Permitted Investments”;
provided, however, that Consolidated Net Income
shall be reduced by the amount of all dividends on Designated
Preferred Stock (other than dividends paid in Qualified Equity
Interests) paid, accrued or scheduled to be paid or accrued
during such period.
101
Table of Contents
“Credit Agreement” means that certain Facility
Agreement, dated as of February 2007, among the Company, HSH
Nordbank AG, as swap bank, joint-arranger, agent, account bank
and security trustee, Commerzbank AG, as joint-arranger and swap
bank, and the lenders party thereto, including any related
notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case,
as amended, restated, modified, renewed, refunded, replaced
(whether upon termination or otherwise), increased or refinanced
(including by means of sales of debt securities to institutional
investors) including by means of a Qualified Securitization
Transaction in whole or in part from time to time (and without
limitation as to amount, terms, conditions, covenants and other
provisions, including increasing the amount of available
borrowings thereunder, changing or replacing agent banks and
lenders thereunder or adding, removing or reclassifying
Subsidiaries of the Company as borrowers or guarantors
thereunder).
“Credit Facilities” means one or more debt
facilities or agreements (including, without limitation, the
Credit Agreement) or commercial paper facilities, in each case,
with banks, other institutional lenders, commercial finance
companies or other lenders providing for revolving credit loans,
term loans, bonds, debentures, securitization financing
(including through the transfer of Securitization Assets to
special purpose entities formed to borrow from such lenders
against, or sell undivided interests in, such assets in a
Qualified Securitization Transaction) or letters of credit,
pursuant to agreements or indentures, in each case, as amended,
restated, modified, renewed, refunded, replaced, increased or
refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time
(and without limitation as to amount, terms, conditions,
covenants and other provisions, including increasing the amount
of available borrowings thereunder, changing or replacing agent
banks and lenders thereunder or adding, removing or
reclassifying Subsidiaries of the Company as borrowers or
guarantors thereunder).
“Default” means any event that is, or with the
passage of time or the giving of notice or both would be, an
Event of Default.
“Designated Appraiser” means any of Fearnleys
A.S., Oslo Shipbrokers A.S., Clarkson Valuations Limited,
Simpson Spence & Young Shipbrokers Ltd., E.A. Gibson
Shipbrokers Ltd., Jacq. Pierot Jr. & Sons, Allied
Shipbroking, Greece, RS Platou ASA, ICAP Shipping Limited, ACM
Ltd., London, Island Shipbrokers PTE LTD, Singapore, and
Deloitte LLP, Ernst & Young LLP and KPMG LLP;
provided that, at the time any such firm is to be
utilized, such firm would qualify as an Independent Appraiser.
“Designated MLP” means one or more master
limited partnerships, publicly traded partnerships or limited
liability companies, in each case, the interests in which are
publicly traded on an established securities exchange or
secondary market and designated as such by an Officer of the
Company. Unless otherwise designated as such by an Officer of
the Company, Navios Partners is a Designated MLP.
“Designated Non-cash Consideration” means the
Fair Market Value of non-cash consideration received by the
Company or a Restricted Subsidiary in connection with an Asset
Sale that is so designated as Designated Non-cash Consideration
pursuant to an Officers’ Certificate setting forth the
basis of such valuation executed by an authorized officer of the
Company, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale of such Designated Non-cash
Consideration.
“Designated Preferred Stock” means preferred
stock of the Company (other than Disqualified Stock) issued and
sold for cash in a bona-fide financing transaction that is
designated as Designated Preferred Stock pursuant to an
Officers’ Certificate on the issuance date thereof, the net
cash proceeds of which are excluded from the calculation set
forth in clause (3) of the first paragraph of the
“Restricted Payments” covenant and are not used for
purposes of clause (b) of such clause (3).
“Disqualified Stock” means any Capital Stock
that, by its terms (or by the terms of any security into which
it is convertible, or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder of the Capital Stock, in
whole or in part, on or prior to the date that is 91 days
after the date on which the notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders of the Capital
Stock have the right to require the issuer thereof to repurchase
or redeem such Capital Stock upon the occurrence of a change of
control or an asset sale prior to the stated maturity of the
notes will not
102
Table of Contents
constitute Disqualified Stock. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of the
indenture will be the maximum amount that the Company and its
Restricted Subsidiaries may become obligated to pay upon the
maturity of, or pursuant to any mandatory redemption provisions
of, such Disqualified Stock.
“Eligible Jurisdiction” means any of the
Republic of the Marshall Islands, the United States of America,
any State of the United States or the District of Columbia, the
Commonwealth of the Bahamas, the Republic of Liberia, the
Republic of Panama, the Commonwealth of Bermuda, the British
Virgin Islands, the Cayman Islands, the Isle of Man, Cyprus,
Norway, Greece, Hong Kong, the United Kingdom, Malta, any Member
State of the European Union and any other jurisdiction generally
acceptable to institutional lenders in the shipping industry, as
determined in good faith by the Board of Directors.
“Equity Interests” means Capital Stock and all
warrants, options or other rights to acquire Capital Stock (but
excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
“Equity Offering” means any issuance and sale
by the Company of its Qualified Equity Interests.
“Exchange Act” means the U.S. Securities
Exchange Act of 1934, as amended.
“Exercised Vessel Purchase Option Contract”
means any Vessel Purchase Option Contract which has been
exercised by the Company or a Restricted Subsidiary, obligating
the Company or such Restricted Subsidiary to purchase such
Vessel and any Related Assets, subject only to customary
conditions precedent.
“Existing Indebtedness” means Indebtedness of
the Company and its Subsidiaries (other than Indebtedness under
the Credit Agreement) in existence on the Issue Date after
giving effect to the issuance of the notes on the Issue Date and
the use of proceeds therefrom, including the amount of undrawn
commitments under any Credit Facilities in existence on the
Issue Date and described in the prospectus. For clarity
purposes, any of the Company’s
91/2% Senior
Notes due 2014 that are not repurchased on or about the Issue
Date in connection with the consent solicitation and tender
offer described in this prospectus will continue to constitute
Existing Indebtedness hereunder.
“Existing Secured Notes” means the
87/8%
First Priority Ship Mortgage Notes due 2017 issued by the
Company and the Existing Secured Notes
Co-Issuer.
“Existing Secured Notes
Co-Issuer”
means Navios Maritime Finance (US) Inc., a Delaware corporation
that is the co-issuer of the Existing Secured Notes.
“Existing Secured Notes Issue Date” means
November 2, 2009, the date of original issuance of the
Existing Secured Notes.
“Fair Market Value” means, with respect to any
asset or property, the value that would be paid by a willing
buyer to an unaffiliated willing seller in an arm’s length
transaction not involving distress or necessity of either party.
Fair Market Value shall be determined in good faith by
(i) if the value of such property or asset is less than
$25.0 million, an officer of the Company and evidenced by
an Officers’ Certificate delivered to the trustee and
(ii) if the value of such property or asset equals or
exceeds $25.0 million, the Board of Directors of the
Company; provided, however, that (x) if such
determination is with respect to one or more Vessels with a
value that equals or exceeds $25.0 million (as determined
by the Company in good faith), Fair Market Value shall be
(I) based on the Appraised Value of such Vessel and
(II) shall be the greater of such Vessel’s
“charter-free” and “charter-adjusted” values
and (y) if such determination relates to the determination
by the Company of compliance with clause (7) of the
definition of “Permitted Liens,” such determination
shall comply with clause (x) to the extent such
determination relates to one or more Vessels and in all other
cases such determination shall be based on the written opinion
of an independent investment banking firm of international
standing qualified to perform the task for which such firm has
been engaged (as determined by the Company in good faith).
“Fixed Charge Coverage Ratio” means with
respect to any specified Person for any period, the ratio of the
Consolidated Cash Flow of such Person for such period to the
Fixed Charges of such Person for such period. In the event that
the specified Person or any of its Restricted Subsidiaries
incurs, assumes, guarantees, repays, repurchases, redeems,
defeases or otherwise discharges any Indebtedness (other than
ordinary working capital borrowings) or
103
Table of Contents
issues, repurchases or redeems Disqualified Stock or preferred
stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated and on or prior
to the date on which the event for which the calculation of the
Fixed Charge Coverage Ratio is made occurred (the
“Calculation Date”), then the Fixed Charge Coverage
Ratio will be calculated giving pro forma effect to such
incurrence, assumption, guarantee, repayment, repurchase,
redemption, defeasance or other discharge of Indebtedness, or
such issuance, repurchase or redemption of Disqualified Stock or
preferred stock, and the use of the proceeds therefrom, as if
the same had occurred at the beginning of the applicable
four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
(1) acquisitions (including of Vessels and Related Assets
including, without limitation, chartered-in Vessels) that have
been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations, of
any other Person or any of its Subsidiaries acquired by the
specified Person or any of its Restricted Subsidiaries, and
including any related financing transactions and any prior
acquisitions by such other Person to the extent not fully
reflected in the historical results of operations of such other
Person, and including increases in ownership of Restricted
Subsidiaries, during the four-quarter reference period or
subsequent to such reference period and on or prior to the
Calculation Date will be given pro forma effect as if they had
occurred on the first day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to operations
(including Vessels and Related Assets) or businesses (and
ownership interests therein) disposed of prior to the
Calculation Date, will be excluded;
(3) the Fixed Charges attributable to operations (including
Vessels and Related Assets) or businesses (and ownership
interests therein) disposed of prior to the Calculation Date
will be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the
specified Person or any of its Restricted Subsidiaries following
the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the
Calculation Date (or would become a Restricted Subsidiary on
such Calculation Date in connection with the transaction
requiring determination of such Consolidated Cash Flow) will be
deemed to have been a Restricted Subsidiary at all times during
such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Calculation Date (or would cease to be a Restricted Subsidiary
on such Calculation Date in connection with the transaction
requiring determination of such Consolidated Cash Flow) will be
deemed not to have been a Restricted Subsidiary at any time
during such four-quarter period;
(6) if any Indebtedness bears a floating rate of interest,
the interest expense on such Indebtedness will be calculated at
the actual rate that was in effect from time to time (taking
into account any Hedging Obligation applicable to such
Indebtedness if such Hedging Obligation has a remaining term as
at the Calculation Date in excess of 12 months); and
(7) if the Company or any Restricted Subsidiary shall have
entered into an agreement to acquire a Vessel which at the time
of calculation of the Fixed Charge Coverage Ratio is being
constructed on behalf of the Company or such Restricted
Subsidiary, (each such Vessel, a “Pending Vessel”) and
if such Vessel both (i) is scheduled to be delivered no
later than 24 months from the date of such calculation of
the Fixed Charge Coverage Ratio and (ii) has been chartered
out to a third party that is not an Affiliate of the Company
pursuant to a bona fide time charter entered into on customary
terms for time charters at the time (as determined in good faith
by the Company), which is binding on such third party and which
has a fixed duration of not less than three years (each such
Vessel that meets the requirement of prongs (i) and
(ii) of this clause (7), a “Qualified Pending
Vessel”), pro forma effect will be given to the extent
provided in the next paragraph below.
For purposes of this definition, whenever pro forma effect is to
be given to an acquisition (including, without limitation, the
charter-in of a Vessel) or construction of a Vessel or the
Capital Stock of a Person that owns, or charters in, one or more
Vessels or the financing thereof, such Person may (i) other
than in the case of a Pending Vessel, if a relevant Vessel is to
be subject to a time charter-out with a remaining term of twelve
months or longer, apply for the period for which the Fixed
Charge Coverage Ratio is being calculated pro forma earnings
(losses) for
104
Table of Contents
such Vessel based upon such charter-out (ii) other than in
the case of a Pending Vessel, if a relevant Vessel is to be
subject to a time charter-out with a remaining term of between
six and twelve months, apply for the period for which the Fixed
Charge Coverage Ratio is being calculated the annualized amount
of pro forma earnings (losses) for such Vessel based upon such
charter-out, (iii) other than in the case of a Pending
Vessel. if a relevant Vessel is not to be subject to a time
charter-out, is under time charter-out that is due to expire in
six months or less or is to be subject to charter on a voyage
charter basis (whether or not any such charter is in place for
such Vessel), in each case apply for the period for which the
Fixed Charge Coverage Ratio is being calculated earnings
(losses) for such Vessel based upon the average of the
historical earnings of comparable Vessels in such Person’s
fleet in the most recent four quarter period (as determined in
good faith by the chief financial officer of the Company) or if
there is no such comparable Vessel, then based upon industry
average earnings for comparable Vessels (as determined in good
faith by the chief financial officer of the Company) or
(iv) if such Vessel is a Qualified Pending Vessel described
in clause (7) of the immediately preceding paragraph,
include, to the extent that such Qualified Pending Vessel has
not been delivered to the Company or a Restricted Subsidiary or
if so delivered has not been deployed for the entire period for
which the Fixed Charge Coverage Ratio is being calculated, for
such period (or the portion of such period during which such
Qualified Pending Vessel was not deployed if such Qualified
Pending Vessel has been deployed but not for the entire period)
the Proportionate Amount of the pro forma earnings (losses) for
such Qualified Pending Vessel based upon the contractual terms
of such Vessel’s charter-out agreement applicable to the
first twelve months following scheduled delivery of such
Qualified Pending Vessel (or the ratable amount of such
Proportionate Amount of earnings (losses) to the extent the
Qualified Pending Vessel has been deployed but for less then the
entire period (with the actual earnings of such Qualified
Pending Vessel being given effect to for the period deployed to
the extent otherwise included in the calculation of Consolidated
Cash Flow)). As used herein, “Proportionate Amount of
earnings (losses)” means the product of the earnings
(losses) referred to above and the percentage of the
aggregate purchase price for such Vessel that has been paid as
of the relevant date of the determination of the Fixed Charge
Coverage Ratio.
Additionally, any pro forma calculations may include the
reduction or increase in costs for the applicable period
resulting from, or in connection with, the acquisition of
assets, an asset sale or other transaction or event which is
being given pro forma effect that (a) would be permitted to
be reflected on pro forma financial statements pursuant to
Regulation S-X
under the Securities Act or (b) have been realized at the
time such pro forma calculation is made or are reasonably
expected to be realized within twelve months following the
consummation of the transaction to which such pro forma
calculations relate, which actions shall be certified by the
chief financial officer of the Company, provided that, in
the case of adjustments pursuant to this clause (b), such
adjustments will be set forth in a certificate signed by the
Company’s chief financial officer which states in detail
(i) the amount of such adjustment or adjustments and
(ii) that such adjustment or adjustments are based on the
reasonable good faith beliefs of the Company at the time of such
execution. Any such certificate will be provided to the trustee
if the Company or any Restricted Subsidiary incurs Indebtedness,
issues Disqualified Stock or preferred stock, makes any
Restricted Payment or consummates any transaction described
under “— Certain Covenants — Merger,
Consolidation or Asset Sale” necessitating the calculation
of the Fixed Charge Coverage Ratio.
“Fixed Charges” means, with respect to any
specified Person for any period, the sum, without duplication,
of:
(1) the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or
accrued, (x) including, without limitation, amortization of
original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the
interest component of any Securitization Fees, the interest
component of all payments associated with Capital Lease
Obligations and the net payments made pursuant to Hedging
Obligations in respect of interest rates (but for clarity
purposes excluding any non-cash interest expense attributable to
the movement in the mark to market valuation of Hedging
Obligations or other derivative instruments pursuant to GAAP) an
and (y) excluding amortization of deferred financing fees,
debt issuance costs and commissions, fees and expenses incurred
in connection with the incurrence of Indebtedness and any
expensing of bridge, commitment and other financing fees; plus
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period;
plus
105
Table of Contents
(3) any interest accruing on Indebtedness of another Person
that is guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or
one of its Restricted Subsidiaries, whether or not such
guarantee or Lien is called upon; plus
(4) all dividends accrued or paid on any series of
Disqualified Stock or Designated Preferred Stock of the Company
or any Disqualified Stock or preferred stock of any Restricted
Subsidiary (other than any such Disqualified Stock, Designated
Preferred Stock or preferred stock held by the Company or a
Wholly Owned Restricted Subsidiary or to the extent paid in
Qualified Equity Interests); plus
(5) to the extent any Attributable Indebtedness is
outstanding and is not a Capital Lease Obligation, the amount of
interest implicit in any payments related to such Attributable
Indebtedness during such period.
“Forward Freight Agreement” means, with respect
to any Person, any forward freight agreement or comparable swap,
future or similar agreement or arrangement relating to
derivative trading in freight or similar rates.
“GAAP” means generally accepted accounting
principles in the United States of America as in effect on the
Existing Secured Notes Issue Date.
“Government Securities” means direct
obligations of, or obligations guaranteed by, the United States
of America, and the payment for which the United States pledges
its full faith and credit.
“guarantee” means a guarantee other than by
endorsement of negotiable instruments for collection in the
ordinary course of business, direct or indirect, in any manner
including, without limitation, through letters of credit or
reimbursement agreements in respect thereof, of all or any part
of any Indebtedness.
“Guarantee” means the guarantee by each
Guarantor of the Company’s obligations under the indenture
and on the notes, executed pursuant to the provisions of the
indenture.
“Guarantor” means each Subsidiary of the
Company that executes a Guarantee in accordance with the
provisions of the indenture and its successors and assigns,
until such Subsidiary is released from its Guarantee in
accordance with the provisions of the indenture.
“Hedging Obligations” means, with respect to
any Person, the obligations of such Person under swap, cap,
collar, forward purchase, Forward Freight Agreements or
agreements or arrangements similar to any of the foregoing and
dealing with interest rates, currency exchange rates, commodity
prices or freight rates, either generally or under specific
contingencies.
“Heirs” of any individual means such
individual’s estate, spouse, lineal relatives (including
adoptive descendants), administrator, committee or other
personal representative or other estate planning vehicle and any
custodian or trustee for the benefit of any spouse or lineal
relatives (including adoptive descendants) of such individual.
“Indebtedness” of any Person at any date means,
without duplication:
(1) all liabilities, contingent or otherwise, of such
Person for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a
portion thereof);
(2) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all reimbursement obligations of such Person in respect
of letters of credit, letters of guaranty, bankers’
acceptances and similar credit transactions;
(4) all obligations of such Person representing the balance
deferred and unpaid of the purchase price of any property or
services due more than six months after such property is
acquired or such services are completed and which is treated as
indebtedness under GAAP, except any such balance that
constitutes an accrued expense or trade payable, or similar
obligations to trade creditors incurred in the ordinary course
of business;
(5) all Capital Lease Obligations of such Person;
106
Table of Contents
(6) all Indebtedness of others secured by a Lien on any
asset of such Person, whether or not such Indebtedness is
assumed by such Person;
(7) all Indebtedness of others guaranteed by such Person to
the extent of such guarantee; provided that Indebtedness of the
Company or its Subsidiaries that is guaranteed by the Company or
the Company’s Subsidiaries shall only be counted once in
the calculation of the amount of Indebtedness of the Company and
its Subsidiaries on a consolidated basis; provided, further,
that Standard Securitization Undertakings in connection with a
Qualified Securitization Transaction shall not be considered to
be a guarantee of Indebtedness;
(8) all Attributable Indebtedness;
(9) to the extent not otherwise included in this
definition, Hedging Obligations of such Person; and
(10) all obligations of such Person under conditional sale
or other title retention agreements relating to assets purchased
by such Person.
Notwithstanding clause (4) above, the obligation of the
Company or any Restricted Subsidiary to pay the purchase price
for an Exercised Vessel Purchase Option Contract entered into
and exercised in the ordinary course of business and consistent
with past practices of the Company and its Restricted
Subsidiaries shall not constitute “Indebtedness” under
clause (4) above even though the purchase price therefor
may be due more than six months after exercise thereof.
“Independent Appraiser” means a Person:
(1) that is (a) engaged in the business of appraising
Vessels who is generally acceptable to institutional lenders to
the shipping industry or (b) if no Person described in
clause (i) is at such time generally providing appraisals
of vessels (as determined in good faith by the Company) then, an
independent investment banking firm of international standing
qualified to perform such valuation (as determined in good faith
by the Company); and
(2) who (a) is independent of the parties to the
transaction in question and their Affiliates and (b) is not
connected with the Company, any of the Restricted Subsidiaries
or any of such Affiliates as an officer, director, employee,
partner or person performing similar functions.
“Investments” means, with respect to any
Person, all direct or indirect investments by such Person in
other Persons in the forms of loans (including guarantees or
other obligations), advances or capital contributions, purchases
or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are
or would be classified as investments on a balance sheet
prepared in accordance with GAAP but excluding extensions of
trade credit or advances, deposits and payments to or with
suppliers, lessors or utilities or for workers’
compensation in the ordinary course of business or prepaid
expenses or deposits on the balance sheet of such Person
prepared in accordance with GAAP. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes
of any Equity Interests of any Restricted Subsidiary of the
Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of
the Company, the Company will be deemed to have made an
Investment on the date of any such sale or disposition equal to
the Fair Market Value of the Company’s Investments in such
Subsidiary that were not sold or disposed of in an amount
determined as provided in the final paragraph of the covenant
described above under the caption “— Certain
Covenants — Restricted Payments.” The acquisition
by the Company or any Restricted Subsidiary of the Company of a
Person that holds an Investment in a third Person will be deemed
to be an Investment by the Company or such Restricted Subsidiary
in such third Person in an amount equal to the Fair Market Value
of the Investments held by the acquired Person in such third
Person in an amount determined as provided in the final
paragraph of the covenant described above under the caption
“— Certain Covenants — Restricted
Payments.” Except as otherwise provided in the indenture,
the amount of an Investment will be determined at the time the
Investment is made and without giving effect to subsequent
changes in value.
“Issue Date” means January 28, 2011, the
date of the original issuance of the notes under the indenture.
107
Table of Contents
“Lien” means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind on such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease
in the nature thereof, any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction; provided that
in no event shall an operating lease that is not a Capital Lease
Obligation be deemed to constitute a Lien.
“Make-Whole Redemption Date” with respect
to a Make-Whole Redemption, means the date such Make-Whole
Redemption is effected.
“Navios Logistics” means Navios South American
Logistics Inc. a Marshall Islands corporation.
“Navios Maritime Acquisition” means Navios
Maritime Acquisition Corporation, a Marshall Islands corporation.
“Navios Partners” means Navios Maritime
Partners, L.P., a Marshall Islands limited partnership, of which
a Subsidiary of the Company is the general partner.
“Net FFA Loss Amount” means, for each
applicable period, the amount of net recorded losses (whether
realized or unrealized), net of recorded gains during such
period (whether realized or unrealized), in respect of Forward
Freight Agreements not permitted to be entered into under
clause (i) of the definition of “Permitted Hedging
Obligations” and related net recorded trading losses
(whether realized or unrealized), net of related cash trading
gains for such period (whether realized or unrealized), of the
Company and its Restricted Subsidiaries for such period.
“Net Proceeds” means the aggregate cash
proceeds received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition
of any non-cash consideration received in any Asset Sale), net
of fees, commissions, expenses and other direct costs relating
to such Asset Sale, including, without limitation, (a) fees
and expenses related to such Asset Sale (including legal,
accounting and investment banking fees, title and recording tax
fees and sales and brokerage commissions, and any relocation
expenses and severance or shutdown costs incurred as a result of
such Asset Sale), (b) all federal, state, provincial,
foreign and local taxes paid or payable as a result of the Asset
Sale, (c) amounts required to be applied to the repayment
of Indebtedness, other than Indebtedness under a Credit
Facility, secured by a Lien incurred in compliance with the
terms of the indenture on the asset or assets that were the
subject of such Asset Sale, (d) amounts required to be paid
to any Person (other than the Company or any of its Restricted
Subsidiaries) owning a beneficial interest in the assets which
are subject to such Asset Sale and (e) any escrow or
reserve for adjustment in respect of the sale price of such
assets established in accordance with GAAP and any reserve in
accordance with GAAP against any liabilities associated with
such Asset Sale and retained by the seller after such Asset
Sale, including pension and other post-employment benefit
liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated
with such Asset Sale except to the extent that such proceeds are
released from any such escrow or to the extent such reserve is
reduced or eliminated.
“Non-Recourse Debt” means Indebtedness:
(1) as to which neither the Company nor any of its
Restricted Subsidiaries (a) provides credit support of any
kind (including any undertaking, agreement or instrument that
would constitute Indebtedness (other than, with respect to a
Securitization Subsidiary, pursuant to Standard Securitization
Undertakings in connection with a Qualified Securitization
Transaction)), (b) is directly or indirectly liable as a
guarantor or otherwise (other than, with respect to a
Securitization Subsidiary, pursuant to Standard Securitization
Undertaking in connection with a Qualified Securitization
Transaction), or (c) constitutes the lender; and
(2) as to which the lenders have been notified in writing
or have contractually agreed that they will not have any
recourse to the stock or assets of the Company or any of its
Restricted Subsidiaries (other than, in the case of a Qualified
Securitization Transaction, the equity interests in, any
Purchase Money Notes of and the assets of the applicable
Securitization Subsidiary).
“Obligations” means any principal, interest,
penalties, fees, costs and expenses, indemnifications,
reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness.
108
Table of Contents
“Officer” means, with respect to any Person,
any of the following: the Chairman of the Board of Directors,
the Chief Executive Officer, the Chief Financial Officer, the
President, the Chief Operating Officer, any Vice President, any
Assistant Vice President, the Treasurer, any Assistant
Treasurer, the Secretary, any Assistant Secretary, the
Controller or any other officer designated by the relevant Board
of Directors serving in a similar capacity.
“Officers’ Certificate” means a
certificate signed by two Officers.
“Opinion of Counsel” means a written opinion
from legal counsel that meets the requirements of the indenture.
The counsel may be an employee of, or counsel to, the Co-Issuers
or a Guarantor. Opinions of Counsel required to be delivered
under the indenture may have qualifications customary for
opinions of the type required in the relevant jurisdiction or
related to the items covered by the opinion and counsel
delivering such Opinions of Counsel may rely on certificates of
the Co-Issuers or government or other officials customary for
opinions of the type required, including certificates certifying
as to matters of fact, including that various covenants have
been complied with.
“Permitted Asset Swap” means the exchange of
property or assets of the Company or any Restricted Subsidiary
for assets to be used by the Company or a Restricted Subsidiary
in a Permitted Business.
“Permitted Business” means any business
conducted by the Company or any of its Subsidiaries as described
in this prospectus and any businesses that, in the good faith
judgment of the Board of Directors of the Company, are
reasonably related, ancillary, supplemental or complementary
thereto, or reasonable extensions thereof. For purposes hereof,
the acquisition of loans and other third party debt obligations
in connection with the acquisition or potential acquisition of
Vessels is a Permitted Business.
“Permitted Hedging Obligations” means
(i) at any time, Hedging Obligations designed to manage
interest rates or interest rate risk or protect against
fluctuations in currency exchange rates, commodity prices or
freight rates and not for speculative purposes (all as
determined by the Company on the date of entering into such
Hedging Obligation) and
(ii) obligations in respect of one or more Forward Freight
Agreements not covered by clause (i) above if at the time
each such Forward Freight Agreement is entered into either
(x) after giving pro forma effect thereto as if such
Forward Freight Agreement had been entered into at the beginning
of the applicable four-quarter period, the Company would have
been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in the first paragraph of the covenant described above
under the caption “— Incurrence of Indebtedness
and Issuance of Disqualified Stock and Preferred
Stock” or
(y) the Net FFA Loss Amount shall not have exceeded either
(I) $12.5 million for the calendar year in which such
Forward Freight Agreement is entered into, determined as of the
end of the Company’s most recently ended fiscal quarter for
which internal financial statements are available at the time
the applicable Forward Freight Agreement shall be entered into,
provided that to the extent that any portion of the Net
FFA Loss Amount for any prior calendar year is less than
$12.5 million, such unused portion may be carried forward
and utilized in one or more subsequent years until so utilized
or (II) $50.0 million for the period (taken as one
accounting period) from January 1, 2007, to the end of the
Company’s most recently ended fiscal quarter for which
internal financial statements are available at the time the
applicable Forward Freight Agreement shall be entered into;
provided that the restrictions set forth in this
clause (ii) shall not apply with respect to
(I) the settling of a position in respect of an outstanding
Forward Freight Agreement in accordance with the terms
thereof, or
(II) the entering into of any Forward Freight Agreement by
the Company or any Restricted Subsidiary if the sole purpose
thereof is to offset, in whole or in part, the risk of loss with
respect to any then outstanding Forward Freight Agreement.
109
Table of Contents
“Permitted Holders” means each of:
(i) Angeliki Frangou; (ii) each of her spouse,
siblings, ancestors, descendants (whether by blood, marriage or
adoption, and including stepchildren) and the spouses, siblings,
ancestors and descendants thereof (whether by blood, marriage or
adoption, and including stepchildren) of such natural persons,
the beneficiaries, estates and legal representatives of any of
the foregoing, the trustee of any bona fide trust of which any
of the foregoing, individually or in the aggregate, are the
majority in interest beneficiaries or grantors, and any
corporation, partnership, limited liability company or other
Person in which any of the foregoing, individually or in the
aggregate, own or control a majority in interest; and
(iii) all Affiliates controlled by the Persons named in
clauses (i) and (ii) above.
“Permitted Investments” means:
(1) any Investment in cash or Cash Equivalents;
(2) any Investment in a Co-Issuer or in a Guarantor;
(3) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person, if as a result of such
Investment:
(a) such Person becomes a Guarantor; or
(b) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets
to, or is liquidated into, a Co-Issuer or a Guarantor;
(4) any Investment made as a result of the receipt of
non-cash consideration from an asset sale that was made pursuant
to and in compliance with the covenant described above under the
caption “— Repurchase at the Option of
Holders — Asset Sales”;
(5) any Investment made for consideration consisting of
Qualified Equity Interests of the Company;
(6) any Investments received in compromise, settlement or
resolution of (A) obligations of trade creditors or
customers, including, without limitation, pursuant to any plan
of reorganization or similar arrangement upon the bankruptcy or
insolvency of any trade creditor or customer; or
(B) litigation, arbitration or other disputes with Persons
who are not Affiliates;
(7) Investments represented by Permitted Hedging
Obligations;
(8) Investments in existence on the Issue Date;
(9) Investments in prepaid expenses, negotiable instruments
held for collection and lease, endorsements for deposit or
collection in the ordinary course of business, utility or
workers’ compensation, performance and similar deposits
entered into as a result of the operations of the business in
the ordinary course of business;
(10) loans and advances to employees and officers of the
Company and its Restricted Subsidiaries in the ordinary course
of business not to exceed $10.0 million at any one time
outstanding;
(11) payroll, travel and similar advances made in the
ordinary course of business to cover matters that are expected
at the time of such advances to be treated as expenses in
accordance with GAAP;
(12) Investments held by a Person at the time such Person
becomes a Restricted Subsidiary of the Company or is merged into
the Company or a Restricted Subsidiary of the Company and not
made in contemplation of such Person becoming a Restricted
Subsidiary or merger;
(13) any Investment by the Company or any Restricted
Subsidiary in a Securitization Subsidiary (including, without
limitation, the payment of Securitization Fees in connection
with a Qualified Securitization Transaction) or any Investment
by a Securitization Subsidiary in any other Person in connection
with a Qualified Securitization Transaction (including
Investments of funds held in accounts required by customary
arrangements governing such Qualified Securitization Transaction
in the manner required by such arrangements), so long as any
Investment in a Securitization Subsidiary is in the form of a
Purchase Money Note, a contribution of additional Securitization
Assets or an Equity Interest;
110
Table of Contents
(14) Investments in any Person engaged in a Permitted
Business the Fair Market Value of which, when taken together
with all other Investments made pursuant to this
clause (14) since the Issue Date and that remain
outstanding, do not exceed the greater of
(x) $60.0 million and (y) 3.5% of Total Tangible
Assets;
(15) Investments in Unrestricted Subsidiaries, the Fair
Market Value of which, when taken together with all other
Investments made pursuant to this clause (15) since the
Issue Date and that remain outstanding, do not exceed the
greater of (x) $100.0 million and (y) 5.0% of
Total Tangible Assets;
(16) other Investments in any Person having an aggregate
Fair Market Value, when taken together with all other
Investments made pursuant to this clause (16) that are at
the time outstanding, not to exceed the greater of
(x) $75.0 million and (y) 4.0% of Total Tangible
Assets;
(17) Investments in one or more Designated MLPs, the Fair
Market Value of which, when taken together with all other
Investments made pursuant to this clause (17) since the
Issue Date and that remain outstanding, do not exceed the sum of
(x) the greater of (I) $200.0 million and
(II) 10.0% of Total Tangible Assets and (y) provided
that the Company shall have elected to exclude such cash
distributions from Consolidated Net Income as provided for in
clause (10) of the definition thereof, the amount of cash
distributions received from such Designated MLPs since the Issue
Date;
(18) Investments in Navios Logistics, the Fair Market Value
of which, when taken together with all other Investments made
pursuant to this clause (18) since the Issue Date and that
remain outstanding, do not exceed the amount of cash
distributions received from Navios Logistics since the Issue
Date; provided that the Company shall have elected to exclude
such cash distributions from Consolidated Net Income as provided
for in clause (11) of the definition thereof; and
(19) Investments in Navios Maritime Acquisition, the Fair
Market Value of which, when taken together with all other
Investments made pursuant to this clause (19) since the
Issue Date and that remain outstanding, do not exceed the amount
of cash distributions received from Navios Maritime Acquisition
since the Issue Date; provided that the Company shall
have elected to exclude such cash distributions from
Consolidated Net Income as provided for in clause (12) of
the definition thereof.
“Permitted Liens” means:
(1) Liens on assets and property of the Company or any of
its Subsidiaries securing Indebtedness and other related
Obligations under Credit Facilities in an aggregate amount at
any time outstanding not to exceed $600.0 million;
(2) Liens in favor of the Company or any of its Restricted
Subsidiaries;
(3) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated or amalgamated
with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were not created in connection with
such merger, consolidation or amalgamation and do not extend to
any assets other than those of the Person merged into or
consolidated or amalgamated with the Company or the Restricted
Subsidiary;
(4) Liens on property (including Capital Stock) existing at
the time of acquisition of the property by the Company or any
Restricted Subsidiary of the Company; provided that such Liens
were not incurred in connection with such acquisition;
(5) Liens incurred or deposits in connection with
workers’ compensation, employment insurance or other types
of social security, including Liens securing letters of credit
issued in the ordinary course of business or to secure the
performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and
return-of-money
bonds and other similar obligations including those arising from
regulatory, contractual or warranty requirements of the Company
and its Subsidiaries, including rights of offset and setoff (in
each case exclusive of obligations for the payment of borrowed
money);
(6) Liens securing Indebtedness incurred pursuant to
clause (4) of the second paragraph of the covenant entitled
“— Certain Covenants — Incurrence of
Indebtedness and Issuance of Disqualified Stock and Preferred
Stock” covering only the assets acquired with or financed
by such Indebtedness;
111
Table of Contents
(7) Liens securing Indebtedness incurred to finance
(A) the construction, purchase or lease of, or repairs,
improvements or additions to, one or more Vessels and any
Related Assets or (B) the Capital Stock of a Person the
assets of which include one or more Vessels and any Related
Assets (and, in each case, Liens securing Indebtedness that
refinances or replaces any such Indebtedness); provided,
however, that, (i) except as provided in clauses (ii)
and (iii) below and except to the extent that any portion
of such Indebtedness is secured by a Lien incurred and
outstanding pursuant to another clause of this definition of
“Permitted Liens” or otherwise in compliance with the
covenant described under “— Certain
Covenants — Liens,” the principal amount of
Indebtedness secured by such a Lien in respect of this
clause (7) does not exceed (x) with respect to
Indebtedness incurred to finance the construction of such
Vessel(s) or Related Assets, 80%, without duplication, of the
sum of (1) the contract price pursuant to the Vessel
Construction Contract(s) for such Vessel(s) plus, without
duplication, the Fair Market Value of any Related Assets and
(2) any other ready for sea cost for such Vessel(s) or
Related Assets (as determined in good faith by the Company), and
(y) with respect to Indebtedness Incurred to finance the
acquisition of such Vessel(s), Related Assets or Person, 80% of
the Fair Market Value of such Vessel(s), Related Assets or the
Vessel and Related Assets of such Person at the time such Lien
is incurred, (ii) in the case of Indebtedness that matures
within nine months after the incurrence of such Indebtedness
(other than any Permitted Refinancing Indebtedness of such
Indebtedness or Indebtedness that matures within one year prior
to the Stated Maturity of the notes), the principal amount of
Indebtedness secured by such a Lien shall not exceed the Fair
Market Value of such, without duplication, Vessel(s), Related
Assets or the Vessel and Related Assets of such Person at the
time such Lien is incurred, and (iii) in the case of
Indebtedness representing Capital Lease Obligations relating to
a Vessel or Related Assets, the principal amount of Indebtedness
secured by such a Lien shall not exceed 100% of the sum of (1),
without duplication, the Fair Market Value of such Vessel or
Related Assets at the time such Lien is incurred and
(2) any ready for sea cost for such Vessel or Related
Assets (as determined in good faith by the Company);
(8) Liens arising from Uniform Commercial Code financing
statements filings or other applicable similar filings regarding
operating leases and vessel charters entered into by the Company
and its Restricted Subsidiaries in the ordinary course of
business;
(9) Liens incurred in the ordinary course of business of
the Company or any Restricted Subsidiary arising from Vessel
chartering, drydocking, maintenance, repair, refurbishment or
replacement, the furnishing of supplies and bunkers to Vessels
and Related Assets, repairs and improvements to Vessels and
Related Assets, masters’, officers’ or crews’
wages and maritime Liens and any other Liens (other than Liens
in respect of Indebtedness) incurred in the ordinary course of
operations of a Vessel;
(10) Liens for general average and salvage;
(11) Liens existing on the Issue Date (other than Liens
under the Credit Agreement) and Liens in respect of Indebtedness
incurred after the Issue Date under all Credit Facilities (other
than the Credit Agreement) outstanding or committed to on the
Issue Date to the extent such Indebtedness is deemed incurred in
reliance on clause (2) of the definition of Permitted Debt
pursuant to the second sentence of the third paragraph of the
“Incurrence of Indebtedness and Issuance of Disqualified
Stock and Preferred Stock covenant;
(12) Liens for taxes, assessments or governmental charges
or claims that are not yet due or that are being contested in
good faith by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or other
appropriate provision as is required in conformity with GAAP has
been made therefor;
(13) (x) Liens imposed by law, such as carriers’,
warehousemen’s, landlord’s, suppliers’ and
mechanics’ Liens, in each case, incurred in the ordinary
course of business and (y) other Liens arising by operation
of law covered by insurance including any deductibles thereon);
(14) survey exceptions, easements or reservations of, or
rights of others for, licenses,
rights-of-way,
sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use
of real property that do not materially adversely affect the
operation of the business of the Company and its Restricted
Subsidiaries, taken as a whole;
112
Table of Contents
(15) Liens created for the benefit of (or to secure) the
notes (or the Guarantees) (and any exchange notes and related
Guarantees issued pursuant to the registration rights agreement)
or payment obligations to the trustee;
(16) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under the indenture; provided, however,
that such Liens (a) are not materially more favorable to
the lienholders with respect to such Liens than the Liens in
respect of the Indebtedness being refinanced, and (b) do
not extend to or cover any property or assets of the Company or
any of its Restricted Subsidiaries not securing the Indebtedness
so refinanced (other than (x) any improvements or
accessions to such property or assets or any items which
constitute Related Assets with respect to such underlying
property or assets securing the Indebtedness so refinanced or
(y) any Lien on additional property or assets which Lien
would have been permitted to be granted by the covenant under
“— Certain Covenants — Liens” in
respect of the Indebtedness being refunded, refinanced,
replaced, defeased or discharged by such Permitted Refinancing
Indebtedness at the time such prior Indebtedness was initially
incurred by the Company or such Restricted Subsidiary);
(17) Liens arising by reason of any judgment, decree or
order of any court not giving rise to an Event of Default;
(18) Liens and rights of setoff in favor of a bank imposed
by law and incurred in the ordinary course of business on
deposit accounts maintained with such bank and cash and Cash
Equivalents in such accounts;
(19) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person’s
obligations in respect of bankers’ acceptances issued or
created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(20) Liens securing Permitted Hedging Obligations which
Permitted Hedging Obligations relate to Indebtedness that is
otherwise permitted under the indenture: provided, however, that
if such Permitted Hedging Obligation is a Forward Freight
Agreement such Lien shall not extend to any property or asset of
the Company or any Restricted Subsidiary other than funds of the
Company or such Restricted Subsidiary maintained in the ordinary
course of business in deposit accounts with the clearinghouse
clearing such Forward Freight Agreement;
(21) Liens arising under a contract over goods, documents
of title to goods and related documents and insurances and their
proceeds, in each case in respect of documentary credit
transactions entered into in the ordinary course of business;
(22) Liens arising under any retention of title, hire,
purchase or conditional sale arrangement or arrangements having
similar effect in respect of goods supplied to the Company or a
Restricted Subsidiary in the ordinary course of business;
(23) Liens on Securitization Assets transferred to a
Securitization Subsidiary or on assets of a Securitization
Subsidiary or pledges of the equity interests in or Purchase
Money Notes of a Securitization Subsidiary, in each case, in
connection with a Qualified Securitization Transaction;
(24) any extension, renewal or replacement, in whole or in
part, of any Lien described in the foregoing clauses (1)
through (23); provided that any such extension, renewal or
replacement is no more restrictive in any material respect that
the Lien so extended, renewed or replaced and does not extend to
any additional property or assets; and
(25) Liens incurred by the Company or any Restricted
Subsidiary of the Company with respect to obligations that do
not exceed $125.0 million at any one time outstanding.
For purposes of determining what category of Permitted Lien that
any Lien shall be included in, the Company in its sole
discretion may classify such Lien on the date of its incurrence
and later reclassify all or a portion of such Lien in any manner
that complies with this definition.
“Permitted Refinancing Indebtedness” means any
Indebtedness, Disqualified Stock or preferred stock of the
Company or any of its Restricted Subsidiaries issued in exchange
for, or the net proceeds of which are used to refund, refinance,
replace, defease or discharge, other Indebtedness, Disqualified
Stock or preferred stock of the
113
Table of Contents
Company or any of its Restricted Subsidiaries; provided
that, in the case of Indebtedness which is not being used to
concurrently refinance or defease the notes in full:
(1) the principal amount (or accreted value, if applicable)
or mandatory redemption amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount (or accreted
value, if applicable) or mandatory redemption amount, plus
accrued interest or dividends in connection therewith, of the
Indebtedness, Disqualified Stock or preferred stock extended,
refinanced, renewed, replaced, defeased or refunded (plus all
dividends and accrued interest on such Indebtedness,
Disqualified Stock or preferred stock and the amount of all
fees, expenses, premiums and other amounts incurred in
connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity or final redemption date either (i) no earlier
than the final maturity or final redemption date of the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded or (ii) after the maturity date of the
notes;
(3) the portion, if any, of the Indebtedness, Disqualified
Stock or preferred stock being extended, refinanced, renewed,
replaced, defeased or refunded has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness, Disqualified Stock or preferred
stock being extended, refinanced, renewed, replaced, defeased or
refunded;
(4) if the Indebtedness, Disqualified Stock or preferred
stock being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the notes or a
Guarantee, such Permitted Refinancing Indebtedness is
subordinated in right of payment to the notes or a Guarantee on
terms at least as favorable to the holders of notes as those
contained in the documentation governing the Indebtedness,
Disqualified Stock or preferred stock being extended,
refinanced, renewed, replaced, defeased or refunded; and
(5) such Indebtedness is incurred either by (i) if a
Restricted Subsidiary that is not a Guarantor is the obligor on
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded, any Restricted Subsidiary that is not a
Guarantor or (ii) the Company (and Navios Finance, to the
extent it is serving as a co-obligor or guarantor of
Indebtedness incurred by the Company or any Guarantor or any
Restricted Subsidiary that becomes a Guarantor in contemplation
or upon the incurrence of such Permitted Refinancing
Indebtedness) or a Guarantor (or any Restricted Subsidiary that
becomes a Guarantor in contemplation of or upon the incurrence
of such Permitted Refinancing Indebtedness).
For all purposes of the indenture, Indebtedness, Disqualified
Stock or preferred stock of the Company or any of its Restricted
Subsidiaries (collectively, the “Replacement
Indebtedness”) may in the Company’s discretion be
deemed to replace other Indebtedness, Disqualified Stock or
preferred stock of the Company or any of its Restricted
Subsidiaries (collectively, the “Replaced
Indebtedness”) if such Replacement Indebtedness satisfies
the requirements of clauses (1) through (5) above and
is (x) incurred no later than 180 days of the date on
which the Replaced Indebtedness was repaid, redeemed, defeased
or discharged and (y) if the proceeds of the Replaced
Indebtedness were primarily utilized to finance or refinance the
acquisition of one or more Vessels, then substantially all of
the net proceeds from such Replacement Indebtedness must be used
to finance or refinance the acquisition of assets used or useful
in a Permitted Business (including, without limitation, Vessels
and Related Assets, which need not be the same Vessel or Vessels
or Related Assets which were financed or refinanced with the
Replaced Indebtedness).
“Person” means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, limited liability company or
government or other entity.
“Purchase Money Note” means a promissory note
of a Securitization Subsidiary to the Company or any Restricted
Subsidiary of the Company, which note (a) must be repaid
from cash available to the Securitization Subsidiary, other than
amounts required to be established as reserves, amounts paid to
investors in respect of interest, principal and other amounts
owing to such investors and amounts paid in connection with the
purchase of newly generated or newly acquired Securitization
Assets and (b) may be subordinated to the payments
described in clause (a).
“Qualified Equity Interests” means Equity
Interests of the Company other than Disqualified Stock.
114
Table of Contents
“Qualified Securitization Transaction” means
any transaction or series of transactions entered into by the
Company or any of its Restricted Subsidiaries pursuant to which
the Company or such Restricted Subsidiary sells, contributes,
conveys or otherwise transfers to (a) a Securitization
Subsidiary (in the case of a transfer by the Company or any of
its Restricted Subsidiaries) and (b) any other Person (in
the case of a transfer by a Securitization Subsidiary), or
transfers an undivided interest in or grants a security interest
in, any Securitization Assets (whether now existing or arising
in the future) of the Company or any of its Restricted
Subsidiaries, and any assets related thereto, including, without
limitation, all collateral securing such Securitization Assets,
all contracts and all guarantees or other obligations in respect
of such Securitization Assets, proceeds of such Securitization
Assets and all other assets which are customarily transferred or
in respect of which security interests are customarily granted
in connection with a securitization transaction of such type;
provided such transaction is on market terms at the time
the Company or such Restricted Subsidiary enters into such
transaction.
“registration rights agreement” means
(i) the Registration Rights Agreement dated as of the Issue
Date among the Company, the Guarantors and the initial
purchasers of the notes issued on the Issue Date and
(ii) any other exchange and registration rights agreement
entered into in connection with an issuance of additional notes
in a private offering after the Issue Date.
“Related Asset” means (i) any insurance
policies and contracts from time to time in force with respect
to a Vessel, (ii) the Capital Stock of any Restricted
Subsidiary of the Company owning a Vessel and related assets,
(iii) any requisition compensation payable in respect of
any compulsory acquisition of a Vessel, (iv) any earnings
derived from the use or operation of a Vessel
and/or any
earnings account with respect to such earnings, (v) any
charters, operating leases, contracts of affreightment, Vessel
purchase options and related agreements entered and any security
or guarantee in respect of the charterer’s or lessee’s
obligations under such charter, lease, Vessel purchase option or
agreement, (vi) any cash collateral account established
with respect to a Vessel pursuant to the financing arrangement
with respect thereto, (vii) any building, conversion or
repair contracts relating to a Vessel and any security or
guarantee in respect of the builder’s obligations under
such contract and (viii) any security interest in, or
agreement or assignment relating to, any of the foregoing or any
mortgage in respect of a Vessel and any asset reasonably
related, ancillary or complementary thereto.
“Restricted Investment” means an Investment
other than a Permitted Investment.
“Restricted Subsidiary” of a Person means any
Subsidiary of such Person that is not an Unrestricted Subsidiary.
“Sale/Leaseback Transaction” means any
arrangement with any Person or to which any such Person is a
party, providing for the leasing to the Company or a Subsidiary
of the Company of any property, whether owned by the Company or
any of its Subsidiaries at the Issue Date or later acquired,
which has been or is to be sold or transferred by the Company or
any of its Subsidiaries to such Person or to any other Person
from whom funds have been or are to be advanced by such Person
on the security of such property.
“Secured Indebtedness” means any Indebtedness
(other than Subordinated Indebtedness) of the Company or a
Restricted Subsidiary of the Company secured by a Lien on any of
its assets.
“Securities Act” means the U.S. Securities
Act of 1933, as amended.
“Securitization Assets” means any accounts
receivable, instruments, chattel paper, contract rights, general
intangibles or revenue streams subject to a Qualified
Securitization Transaction and any assets related thereto (other
than Vessels), including, without limitation, all collateral
securing such assets, all contracts and all guarantees or other
supporting obligations in respect of such assets and all
proceeds of the forgoing.
“Securitization Fees” means all yield, interest
or other payments made directly or by means of discounts with
respect to any interest issued or sold in connection with, and
other fees paid to a Person that is not a Securitization
Subsidiary in connection with, any Qualified Securitization
Transaction.
“Securitization Repurchase Obligation” means
any obligation of a seller of Securitization Assets in a
Qualified Securitization Transaction to repurchase
Securitization Assets arising as a result of a breach of
Standard Securitization Undertakings, including as a result of a
Securitization Asset or portion thereof becoming subject to
115
Table of Contents
any asserted defense, dispute, offset or counterclaim of any
kind as a result of any action taken by, any failure to take
action by or any other event relating to, the seller.
“Securitization Subsidiary” means a Subsidiary
of the Company (or another Person formed for the purposes of
engaging in a Qualified Securitization Transaction in which the
Company or any Subsidiary of the Company makes an Investment and
to which the Company or any Subsidiary of the Company transfers
Securitization Assets and related assets):
(1) that is formed solely for the purpose of, and that
engages in no activities other than activities in connection
with, financing Securitization Assets of the Company
and/or its
Restricted Subsidiaries, and any activities incidental thereto;
(2) that is designated by the Board of Directors of the
Company or such other Person as a Securitization Subsidiary
pursuant to resolution set forth in an Officers’
Certificate and delivered to the trustee;
(3) that, other than Securitization Assets, has total
assets at the time of such creation and designation with a book
value of $10,000 or less;
(4) has no Indebtedness other than Non-Recourse Debt;
(5) with which neither the Company nor any Restricted
Subsidiary of the Company has any material contract, agreement,
arrangement or understanding other than contracts, agreements,
arrangements and understandings on terms not materially less
favorable to the Company or such Restricted Subsidiary than
those that might be obtained at the time from Persons that are
not Affiliates of the Company in connection with a Qualified
Securitization Transaction (as determined in good faith by the
Company) and Securitization Fees payable in the ordinary course
of business in connection with such a Qualified Securitization
Transaction; and
(6) with respect to which neither the Company nor any
Restricted Subsidiary of the Company has any obligation
(a) to make any additional capital contribution (other than
Securitization Assets) or similar payment or transfer thereto or
(b) to maintain or preserve the solvency or any balance
sheet term, financial condition, level of income or results of
operations thereof.
“Significant Subsidiary” means any Subsidiary
that would be a “significant subsidiary” as defined in
Article 1,
Rule 1-02
of
Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation
is in effect on the Issue Date.
“Standard Securitization Undertakings” means
representations, warranties, covenants and indemnities entered
into by the Company or any Restricted Subsidiary of the Company
which have been determined by the Company in good faith to be
reasonably customary in Qualified Securitization Transactions,
including, without limitation, those relating to the servicing
of the assets of a Securitization Subsidiary, it being
understood that any Securitization Repurchase Obligation shall
be deemed to be a Standard Securitization Undertaking.
“Stated Maturity” means, with respect to any
installment of principal on any series of Indebtedness, the date
on which the payment of principal was scheduled to be paid in
the documentation governing such Indebtedness as of the Issue
Date (or, if incurred after the Issue Date, as of the date of
the initial incurrence thereof) and will not include any
contingent obligations to repay, redeem or repurchase any such
principal prior to the date originally scheduled for the payment
thereof.
“Subordinated Indebtedness” means Indebtedness
of the Company or any Guarantor that is subordinated in right
payment to the notes or the note Guarantees of such Guarantor,
as the case may be.
“Subsidiary” means, with respect to any
specified Person:
(1) any corporation, association or other business entity
of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees of the corporation, association or other business
entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of such
Person (or a combination thereof); and
116
Table of Contents
(2) any other Person of which at least a majority of the
voting interest (without regard to the occurrence of any
contingency) is at the time directly or indirectly owned by such
Person or one or more Subsidiaries of such Person (or a
combination thereof).
“Tax” shall mean any tax, duty, levy, impost,
assessment or other governmental charge (including penalties,
interest and any other liabilities related thereto).
“Taxing Authority” shall mean any government or
political subdivision or territory or possession of any
government or any authority or agency therein or thereof having
power to tax.
“Total Tangible Assets” means the total
consolidated assets, less goodwill and intangibles, of the
Company and its Restricted Subsidiaries, as shown on the most
recent balance sheet of the Company prepared in accordance with
GAAP.
“Unrestricted Subsidiary” means any Subsidiary
of the Company that is designated by the Board of Directors of
the Company as an Unrestricted Subsidiary pursuant to a board
resolution, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by the covenant described above
under the caption “— Certain
Covenants — Transactions with Affiliates,” is not
party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or
understanding are not materially less favorable to the Company
or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company
nor any of its Restricted Subsidiaries has any direct or
indirect obligation (a) to make any additional capital
contributions (other than, with respect to a Securitization
Subsidiary, Securitization Assets transferred in connection with
a Qualified Securitization Transaction) or similar payment or
transfer thereto or (b) to maintain or preserve the
solvency or any balance sheet term, financial condition, level
of income or results of operations thereof; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or
any of its Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary will be evidenced to the trustee by
filing with the trustee a certified copy of the board resolution
giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the
preceding conditions and was permitted by the covenant described
above under the caption “— Certain
Covenants — Restricted Payments.” If, at any
time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it will
thereafter cease to be an Unrestricted Subsidiary for purposes
of the indenture and any Indebtedness of such Subsidiary will be
deemed to be incurred by a Restricted Subsidiary of the Company
as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under the covenant described under the
caption “— Certain Covenants —
Incurrence of Indebtedness and Issuance of Disqualified Stock
and Preferred Stock,” the Company will be in default of
such covenant. The Board of Directors of the Company may at any
time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that such designation will be deemed
to be an incurrence of Indebtedness by a Restricted Subsidiary
of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be
permitted if (1) such Indebtedness is permitted under the
covenant described under the caption “— Certain
Covenants — Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock,” calculated on a
pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no
Default or Event of Default would be in existence immediately
following such designation. Any Subsidiary of an Unrestricted
Subsidiary will automatically be designated as an Unrestricted
Subsidiary.
“Vessel” means one or more shipping vessels
whose primary purpose is the maritime transportation of cargo or
which are otherwise engaged, used or useful in any business
activities of the Company and its Restricted Subsidiaries and
which are owned by and registered (or to be owned by and
registered) in the name of the Company or any of its Restricted
Subsidiaries or operated or to be operated by the Company or any
of its Restricted
117
Table of Contents
Subsidiaries pursuant to a lease or other operating agreement
constituting a Capital Lease Obligation, in each case together
with all related spares, equipment and any additions or
improvements.
“Vessel Construction Contract” means any
contract for the construction (or construction and acquisition)
of a Vessel and any Related Assets entered into by the Company
or any Restricted Subsidiary, including any amendments,
supplements or modifications thereto or change orders in respect
thereof.
“Vessel Purchase Option Contract” means any
contract granting the Company or any Restricted Subsidiary the
option to purchase one or more Vessels and any Related Assets,
including any amendments, supplements or modifications thereto.
“Voting Stock” of any Person as of any date
means the Capital Stock of such Person that is at the time
entitled to vote in the election of the Board of Directors of
such Person.
“Weighted Average Life to Maturity” means, when
applied to any Indebtedness Disqualified Stock or preferred
stock at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking
fund, serial maturity or other required payments of principal,
including payment at final maturity, in respect of such
Indebtedness or redemption or similar payment in respect of such
Disqualified Stock or preferred stock, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness or the maximum amount payable upon maturity of, or
pursuant to any mandatory redemption provisions of, amount of
such Disqualified Stock or preferred stock.
“Wholly Owned Restricted Subsidiary” of any
Person means a Restricted Subsidiary of such Person, all of the
outstanding Equity Interests of which (other than
directors’ qualifying shares or shares required by
applicable law to be held by a Person other than the Company or
any of its Subsidiaries) are at the time owned by such Person or
another Wholly Owned Restricted Subsidiary of such Person.
118
Table of Contents
CERTAIN
U.S. FEDERAL TAX CONSIDERATIONS
The following is a summary of certain U.S. federal income
tax consequences of the purchase, ownership and disposition of
the exchange notes and the exchange of the outstanding notes for
the exchange notes. This summary is limited to beneficial owners
of outstanding notes and exchange notes that:
| • | except as specifically discussed below, are U.S. holders (as defined below); and | |
| • | hold the outstanding notes and will hold the exchange notes as capital assets. |
As used in this prospectus, a “U.S. holder” means
a beneficial owner of outstanding notes or exchange notes who or
that is, for U.S. federal income tax purposes:
| • | a citizen or individual resident of the United States; | |
| • | a corporation (or entity treated as a corporation for such purposes) created or organized in or under the laws of the United States, or any state thereof or the District of Columbia; | |
| • | an estate the income of which is includible in its gross income for U.S. federal income tax purposes without regard to its source; or | |
| • | a trust, if either (x) it is subject to the primary supervision of a court within the United States and one or more “United States persons” have the authority to control all substantial decisions of the trust or (y) it has a valid election in effect under applicable Treasury regulations to be treated as a “United States person.” |
The U.S. federal income tax considerations set forth below
are based upon the Internal Revenue Code of 1986, as amended
(the “Internal Revenue Code”), existing and proposed
regulations thereunder, and current administrative rulings and
court decisions, all of which are subject to change or differing
interpretations (possibly with retroactive effect). We have not
and will not seek any rulings from the Internal Revenue Service
(“IRS”) regarding the matters discussed below. There
can be no assurance that the IRS will not take positions
concerning the tax consequences of the purchase, ownership or
disposition of the exchange notes or the exchange of outstanding
notes for exchange notes that are different from those discussed
below or that a court will not agree with any such positions.
This summary does not discuss all of the aspects of
U.S. federal income taxation that may be relevant to a
beneficial owner of the outstanding notes or the exchange notes
in light of such beneficial owner’s particular investment
or other circumstances. This summary also does not discuss
considerations or consequences relevant to persons subject to
special provisions of U.S. federal income tax law, such as:
| • | entities that are tax-exempt for U.S. federal income tax purposes and retirement plans, individual retirement accounts and tax-deferred accounts; | |
| • | pass-through entities (including partnerships and entities and arrangements classified as partnerships for U.S. federal income tax purposes) and beneficial owners of pass-through entities; | |
| • | U.S. expatriates; | |
| • | persons that are subject to the alternative minimum tax; | |
| • | financial institutions, insurance companies, and dealers or traders in securities or currencies; | |
| • | persons having a “functional currency” other than the U.S. dollar; | |
| • | persons that hold the outstanding notes or will hold the exchange notes as part of a constructive sale, wash sale, conversion transaction or other integrated transaction or a straddle, hedge or synthetic security; and | |
| • | a person that acquired an outstanding note in the offering of outstanding notes and also sold a 91/2% senior note due 2014 pursuant to the tender offer with respect to those notes (or whose 91/2% senior note due 2014 was redeemed following completion of such tender offer). |
If an entity or arrangement classified as a partnership for
U.S. federal income tax purposes holds the outstanding
notes or the exchange notes, the U.S. federal income tax
treatment of a partner in the partnership
119
Table of Contents
generally will depend on the status of the partner and the
activities of the partnership, and partnerships holding the
outstanding notes or the exchange notes should consult their own
tax advisors regarding the U.S. federal income tax
consequences of purchasing, owning and disposing of the exchange
notes and exchanging the outstanding notes for the exchange
notes. In addition, this summary does not address the effect of
any U.S. federal estate or gift tax laws, the newly enacted
Medicare tax on investment income or any U.S. state or
local or
non-U.S. tax
laws on a beneficial owner of the outstanding notes or exchange
notes. Each beneficial owner of the outstanding notes or
exchange notes should consult a tax advisor as to the particular
tax consequences to it of purchasing, owning and disposing of
the exchange notes and exchanging the outstanding notes for the
exchange notes, including the applicability and effect of any
U.S. federal estate or gift tax laws or any U.S. state
or local or
non-U.S. tax
laws.
For U.S. federal income tax purposes, Navios Maritime
Holdings Inc., and not Navios Maritime Finance II (US)
Inc., is treated as the issuer of the outstanding notes and will
be treated as the issuer of the exchange notes.
Exchange of Outstanding Notes for Exchange
Notes. The exchange of outstanding notes for
exchange notes in the exchange offer will not be a taxable
exchange for U.S. federal income tax purposes and,
accordingly, for such purposes a U.S. holder will not
recognize any taxable gain or loss as a result of such exchange
and will have the same tax basis and holding period in the
exchange notes as it had in the outstanding notes immediately
before the exchange.
Stated Interest. Stated interest on the
exchange notes will be taxable to a U.S. holder as ordinary
interest income at the time it is paid or accrued in accordance
with the U.S. holder’s usual method of accounting for
U.S. federal income tax purposes.
Stated interest on the exchange notes will constitute income
from sources without the United States for foreign tax credit
purposes. Such income generally will constitute “passive
category income” or, in the case of certain
U.S. holders, “general category income,” for
foreign tax credit purposes.
Market Discount and Bond Premium. If a
U.S. holder purchases an exchange note (or purchased an
outstanding note for which the exchange note was exchanged, as
the case may be) at a price that is less than its principal
amount, the excess of the principal amount over the
U.S. holder’s purchase price will be treated as
“market discount.” However, the market discount will
be considered to be zero if it is less than
1/4
of 1% of the principal amount multiplied by the number of
complete years to maturity from the date the U.S. holder
purchased the exchange note or outstanding note, as the case may
be.
Under the market discount rules of the Internal Revenue Code, a
U.S. holder generally will be required to treat any
principal payment on, or any gain realized on the sale,
exchange, retirement or other disposition of, an exchange note
as ordinary income (generally treated as interest income) to the
extent of the market discount which accrued but was not
previously included in income by the U.S. holder during the
period the U.S. holder held the exchange note (and the
outstanding note for which the exchange note was exchanged, as
the case may be). In addition, the U.S. holder may be
required to defer, until the maturity of the exchange note or
its earlier disposition in a taxable transaction, the deduction
of all or a portion of the interest expense on any indebtedness
incurred or continued to purchase or carry the exchange note (or
the outstanding note for which the exchange note was exchanged,
as the case may be). In general, market discount will be
considered to accrue ratably during the period from the date of
the purchase of the exchange note (or outstanding note for which
the exchange note was exchanged, as the case may be) to the
maturity date of the exchange note, unless the U.S. holder
makes an irrevocable election (on an
instrument-by-instrument
basis) to accrue market discount under a constant yield method.
A U.S. holder of an exchange note may elect to include
market discount in income currently as it accrues (under either
a ratable or constant yield method), in which case the rules
described above regarding the treatment as ordinary income of
gain upon the disposition of the exchange note and upon the
receipt of certain payments and the deferral of interest
deductions will not apply. The election to include market
discount in income currently, once made, applies to all market
discount obligations acquired on or after the first day of the
first taxable year to which the election applies, and may not be
revoked without the consent of the IRS.
If a U.S. holder purchases an exchange note (or purchased
the outstanding note for which the exchange note was exchanged,
as the case may be) for an amount in excess of the amount
payable at maturity of the exchange note, the U.S. holder
will be considered to have purchased the exchange note (or
outstanding note) with “bond premium”
120
Table of Contents
equal to the excess of the U.S. holder’s purchase
price over the amount payable at maturity (or on an earlier call
date if it results in a smaller amortizable bond premium). It
may be possible for a U.S. holder of an exchange note to
elect to amortize the premium over the remaining term of the
exchange note (or until an earlier call date, as applicable)
using a constant yield method. However, because we may call the
exchange notes under certain circumstances at a price in excess
of their stated principal amount, such amortization may be
reduced
and/or
deferred. Any amortized amount of the premium for a taxable year
generally will be treated first as a reduction of interest on
the exchange note included in such taxable year to the extent
thereof, then as a deduction allowed in that taxable year to the
extent of the U.S. holder’s prior interest inclusions
on the exchange note, and finally as a carryforward allowable
against the U.S. holder’s future interest inclusions
on the exchange note. The election, once made, is irrevocable
without the consent of the IRS and applies to all taxable bonds
held during the taxable year for which the election is made or
subsequently acquired. A U.S. holder that does not make
this election will be required to include in gross income the
full amount of interest on the exchange note in accordance with
its regular method of tax accounting, and will include the
premium in its tax basis for the exchange note for purposes of
computing the amount of its gain or loss recognized on the
taxable disposition of the exchange note. U.S. holders
should consult their own tax advisors concerning the computation
and amortization of any bond premium on the exchange notes.
A U.S. holder may elect to include in gross income under a
constant yield method all amounts that accrue on an exchange
note that are treated as interest for tax purposes (i.e., stated
interest, market discount and de minimis market discount, as
adjusted by any amortizable bond premium). U.S. holders
should consult their tax advisors as to the desirability,
mechanics and collateral consequences of making this election.
Dispositions of the Exchange Notes. Except as
discussed above, under “— Exchange of
Notes”, and unless a nonrecognition provision of the
U.S. federal income tax laws applies, upon the sale,
exchange, redemption, retirement or other taxable disposition of
an exchange note, a U.S. holder will recognize taxable gain
or loss in an amount equal to the difference, if any, between
the amount realized on the sale, exchange, redemption,
retirement or other taxable disposition (other than amounts
attributable to accrued stated interest, which will be treated
as described above) and the U.S. holder’s adjusted tax
basis in the exchange note. A U.S. holder’s adjusted
tax basis in an exchange note will generally be equal to its
cost for the exchange note (or, in the case of an exchange note
exchanged for an outstanding note in the exchange offer, the tax
basis of the outstanding note, as discussed above under
“— Exchange of Notes,”), increased by the
amount of any market discount previously included in the
U.S. holder’s gross income, and reduced by the amount
of any amortizable bond premium applied to reduce, or allowed as
a deduction against, interest on the exchange note. Gain or loss
recognized by a U.S. holder on the sale, exchange,
redemption, retirement or other taxable disposition of an
exchange note will generally be capital gain or loss, except
with respect to accrued market discount not previously included
in income by the U.S. holder, which will be taxable as
ordinary income. The capital gain or loss recognized by a
U.S. holder will be long-term capital gain or loss if the
exchange note has been held for more than one year at the time
of the disposition (taking into account, for this purpose, in
the case of an exchange note received in exchange for an
outstanding note in the exchange offer, the period of time that
the U.S. holder held the outstanding note). Long-term
capital gains recognized by individual and certain other
non-corporate U.S. holders generally are eligible for
reduced rates of taxation. The deductibility of capital losses
is subject to limitations. Capital gain or loss recognized by a
U.S. holder generally will be U.S. source gain or loss
for foreign tax credit purposes.
Certain Reporting Requirements. Pursuant to
recently enacted legislation, effective for tax years beginning
after March 18, 2010, individuals who are
U.S. holders, and who hold “specified foreign
financial assets” (as defined in section 6038D of the
Internal Revenue Code), including debt of a
non-U.S. corporation
that is not held in an account maintained by a
U.S. “financial institution” (as defined in
section 6038D of the Internal Revenue Code), whose
aggregate value exceeds $50,000 during the tax year, may be
required to attach to their tax returns for the year certain
specified information. An individual who fails to timely furnish
the required information may be subject to a penalty.
Additionally, in the event a U.S. holder does not file the
required information, the statute of limitations on the
assessment and collection of U.S. federal income taxes of
such U.S. holder for the related tax year may not close
until at least three years after such information is filed.
Under certain circumstances, an entity may be treated as an
individual for purposes of the foregoing rules.
U.S. holders should consult their own tax advisors
regarding their reporting obligations under this legislation.
121
Table of Contents
Backup Withholding. In general, “backup
withholding” may apply to payments of interest made on an
exchange note, and to the proceeds of a disposition (including a
retirement or redemption) of an exchange note, that are made to
a non-corporate beneficial owner of the exchange notes if that
beneficial owner fails to provide an accurate taxpayer
identification number to its applicable payor (and certify that
such beneficial owner is not subject to backup withholding) or
otherwise comply with applicable requirements of the backup
withholding rules.
Backup withholding is not an additional tax and may be credited
against a beneficial owner’s U.S. federal income tax
liability, provided that the required information is timely
furnished to the IRS.
Non-U.S. Holders. For
purposes of the following discussion a
“non-U.S. holder”
means a beneficial owner of the exchange notes that is not, for
U.S. federal income tax purposes, a U.S. holder or a
partnership. A
non-U.S. holder
generally will not be subject to U.S. federal income or
withholding tax on:
| • | interest received in respect of the exchange notes, unless those payments are effectively connected with the conduct by the non-U.S. holder of a trade or business in the United States; or | |
| • | gain realized on the sale, exchange, redemption or retirement of the exchange notes, unless that gain is effectively connected with the conduct by the non-U.S. holder of a trade or business in the United States or, in the case of gain realized by an individual non-U.S. holder, the non-U.S. holder is present in the United States for 183 days or more in the taxable year of the disposition and certain other conditions are met. |
Non-U.S. holders
should consult their own tax advisors regarding their
U.S. federal income and withholding tax consequences if
they are subject to any of the exceptions noted above.
A
non-U.S. holder
may be required to certify its
non-U.S. status
to avoid backup withholding on payments of interest made on an
exchange note and on proceeds of a disposition (including a
retirement or redemption) of an exchange note.
THIS SUMMARY DOES NOT DISCUSS ANY TAX CONSEQUENCES RELATING TO
THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE EXCHANGE
NOTES AND THE EXCHANGE OF THE OUTSTANDING NOTES FOR
THE EXCHANGE NOTES OTHER THAN U.S. FEDERAL INCOME TAX
CONSEQUENCES AND INVESTORS SHOULD SEEK ADVICE FROM THEIR OWN
COUNSEL WITH RESPECT TO SUCH OTHER TAX CONSEQUENCES.
122
Table of Contents
PLAN OF
DISTRIBUTION
Based on interpretations by the staff of the SEC set forth in
no-action letters issued to third parties, we believe that the
exchange notes issued pursuant to the exchange offer in exchange
for the outstanding notes may be offered for resale, resold and
otherwise transferred by holders thereof, other than any holder
which is (A) an “affiliate” of our company within
the meaning of Rule 405 under the Securities Act,
(B) a broker-dealer who acquired notes directly from our
company or (C) broker-dealers who acquired notes as a
result of market-making or other trading activities, without
compliance with the registration and prospectus delivery
provisions of the Securities Act provided that such exchange
notes are acquired in the ordinary course of such holders’
business, and such holders are not engaged in, and do not intend
to engage in, and have no arrangement or understanding with any
person to participate in, a distribution of such exchange notes.
However, broker-dealers receiving the exchange notes in the
exchange offer will be subject to a prospectus delivery
requirement with respect to resales of such exchange notes. To
date, the staff of the SEC has taken the position that these
broker-dealers may fulfill their prospectus delivery
requirements with respect to transactions involving an exchange
of securities such as the exchange pursuant to the exchange
offer, other than a resale of an unsold allotment from the sale
of the outstanding notes to the initial purchasers thereof, with
the prospectus contained in the exchange offer registration
statement. Pursuant to the registration rights agreement, we
have agreed to permit these broker-dealers to use this
prospectus in connection with the resale of such exchange notes.
We have agreed that, for a period of 210 days after the
expiration date of the exchange offer, we will make this
prospectus, and any amendment or supplement to this prospectus,
available to, and promptly send additional copies of this
prospectus, and any amendment or supplement to this prospectus,
to, any broker-dealer that requests such documents in the letter
of transmittal for use in connection with any such resale. In
addition, all dealers effecting transactions in the exchange
notes may be required to deliver a prospectus.
Each holder of the outstanding notes who wishes to exchange its
outstanding notes for exchange notes in the exchange offer will
be required to make certain representations to us as set forth
in “The Exchange Offer.”
Each broker-dealer that receives exchange notes for its own
account pursuant to the exchange offer must acknowledge that it
will deliver a prospectus in connection with any resale of such
exchange notes. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer
in connection with resales of exchange notes received in
exchange for outstanding notes where such outstanding notes were
acquired as a result of market-making activities or other
trading activities.
We will not receive any proceeds from any sale of exchange notes
by broker-dealers. Exchange notes received by broker-dealers for
their own account pursuant to the exchange offer may be sold
from time to time in one or more transactions in the
over-the-counter
market, in negotiated transactions, through the writing of
options on the exchange notes or a combination of such methods
of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated
prices. Any such resale may be directly to purchasers or to or
through brokers or dealers who may receive compensation in the
form of commissions or concessions from any such broker-dealer
or the purchasers of any such exchange notes. Any broker-dealer
that resells exchange notes that were received by it for its own
account in the exchange offer and any broker or dealer that
participates in a distribution of such exchange notes may be
deemed to be an “underwriter” within the meaning of
the Securities Act, and any profit on any such resale of
exchange notes and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation
under the Securities Act. The letter of transmittal states that,
by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it
is an “underwriter” within the meaning of the
Securities Act.
We have agreed to pay the expenses incident to the exchange
offer (including the expenses of one counsel for the holders of
the notes) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the exchange notes,
including any broker-dealers, against certain liabilities,
including liabilities under the Securities Act, as set forth in
the registration rights agreement.
123
Table of Contents
WHERE YOU
CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on
Form F-4
under the Securities Act with respect to the securities offered
by this prospectus. The prospectus, which forms a part of the
registration statement, including amendments, does not contain
all the information included in the registration statement. This
prospectus is based on information provided by us and other
sources that we believe to be reliable. This prospectus
summarizes certain documents and other information and we refer
you to them for a more complete understanding of what we discuss
in this prospectus. This prospectus incorporates important
business and financial information about us which is not
included in or delivered with this prospectus. You can obtain
documents containing this information through us.
We are subject to the informational requirements of the Exchange
Act, applicable to foreign private issuers. We, as a
“foreign private issuer,” are exempt from the rules
under the Exchange Act prescribing certain disclosure and
procedural requirements for proxy solicitations, and our
officers, directors and principal shareholders are exempt from
the reporting and “short-swing” profit recovery
provisions contained in Section 16 of the Exchange Act,
with respect to their purchases and sales of shares. In
addition, we are not required to file annual, quarterly and
current reports and financial statements with the SEC as
frequently or as promptly as U.S. companies whose
securities are registered under the Exchange Act. However, we
anticipate filing with the SEC, within 120 days after the
end of each fiscal year, an annual report on
Form 20-F
containing financial statements audited by an independent
registered public accounting firm. We also anticipate furnishing
quarterly reports on
Form 6-K
containing unaudited interim financial information for the first
three quarters of each fiscal year, within 75 days after
the end of such quarter.
You may read and copy any document we file or furnish with the
SEC at reference facilities at 100 F Street, N.E.,
Washington, DC 20549. You may also obtain copies of the
documents at prescribed rates by writing to the Public Reference
Section of the SEC at 100 F Street, N.E., Washington,
DC 20549. Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
facilities. You can review our SEC filings and the registration
statement by accessing the SEC’s internet site at
http://www.sec.gov.
You may also request copies of those documents, at no cost to
you, by contacting us at the following address:
Navios Maritime Holdings Inc.
85 Akti Miaouli Street
Piraeus 185 38, Greece
Attention: Vasiliki (Villy) Papaefthymiou
Telephone: +30-210-4595000
124
Table of Contents
LEGAL
MATTERS
Certain legal matters relating to the validity of the exchange
notes will be passed upon for us by Fried, Frank, Harris,
Shriver & Jacobson LLP, New York, New York. Certain
legal matters governed by the laws of the Marshall Islands and
Liberia will be passed upon for us by Reeder & Simpson
P.C. Certain legal matters governed by the laws of Malta,
Belgium and Panama will be passed upon for us by Camilleri,
Delia, Randon & Associates, Loyens & Loeff
and Vives y Asociados, respectively.
125
Table of Contents
EXPERTS
The consolidated financial statements and management’s
assessment of the effectiveness of internal control over
financial reporting (which is included in Management’s
Annual Report on Internal Control over Financial Reporting)
incorporated in this Prospectus by reference to the Annual
Report on
Form 20-F/A
for the year ended December 31, 2010 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
S.A., an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
126
Table of Contents
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
| Item 20. | Indemnification of Directors and Officers. |
Under our Amended and Restated Articles of Incorporation, our
By-laws 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 they are or were a
director or officer of the corporation, or are or were 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 By-laws) that, in connection with such action, suit
or proceeding if they acted in good faith and in a manner they
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
their conduct was unlawful.
Further, under Section 60 of the BCA and our By-laws, 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 that they
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 their
conduct was unlawful.
In addition, under Section 60 of the BCA and under our
By-laws, 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 they are or were a director or officer of the
corporation, or are or were 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 by such
person in connection with the defense or settlement of such
action or suit if they acted in good faith and in a manner they
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 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
that the court shall deem proper.
Our By-laws further provide that any indemnification pursuant to
the foregoing (unless ordered by a court) may be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is
proper in the circumstances because they have met the applicable
standard of conduct set forth above. Such determination may be
made by the Board of Directors of the corporation by a majority
vote of a quorum consisting of directors who were not parties to
any action, suit or proceeding referred to in the foregoing
instances, by independent legal counsel in a written opinion or
by the shareholders of the corporation.
Further, and as provided by both our By-laws 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, they will be
indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by them in connection with such
matter.
Likewise, pursuant to our By-laws and Section 60 of the
BCA, expenses (our By-laws 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 they are not entitled to indemnification. The
By-laws 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.
II-1
Table of Contents
Both Section 60 of the BCA and our By-laws further provide
that the foregoing indemnification and advancement of expenses
are not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in their official
capacity
and/or as to
action in another capacity while holding office.
Under both Section 60 of the BCA and our By-laws, 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 of another corporation,
partnership, joint venture, trust or other enterprise against
any liability asserted against them and incurred by them in such
capacity, or arising out of their status as such, regardless of
whether the corporation would have the power to indemnify them
against such liability under the foregoing.
Under Section 60 of the BCA (and as provided in our
By-laws), 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 their heirs, executors and
administrators unless otherwise provided when authorized or
ratified. Additionally, our By-Laws provide that no director or
officer of the corporation will be personally liable to the
corporation or any shareholder of the corporation for monetary
damages for breach of fiduciary duty as a director or officer,
provided that a director or officer’s liability will not be
limited for any breach of the director’s or the
officer’s duty of loyalty to the corporation or its
shareholders, for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law or
for any transaction from which the director or officer derived
an improper personal benefit.
In addition to the above, our By-laws 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 Amended and Restated Articles of Incorporation set out a
much abbreviated version of the foregoing.
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 21. | Exhibits and Financial Statement Schedules. |
(a) Exhibits
|
Exhibit |
||||
|
Number
|
Description
|
|||
| 3 | .1.1 | Amended and Restated Articles of Incorporation of Navios Maritime Holdlings Inc. (Incorporated by reference to the Registration Statement on Form F-1 of Navios Maritime Holdings, Inc. (File No. 333-129382)). | ||
| 3 | .1.2 | Bylaws of Navios Maritime Holdlings Inc. (Incorporated by reference to the Registration Statement on Form F-1 of Navios Maritime Holdings, Inc. (File No. 333-129382)). | ||
| 3 | .2.1 | Articles of Incorporation of Navios Maritime Finance II (US) Inc. | ||
| 3 | .2.2 | Bylaws of Navios Maritime Finance II (US) Inc. | ||
| 3 | .3.1 | Articles of Incorporation of Faith Marine Ltd. | ||
| 3 | .3.2 | Bylaws of Faith Marine Ltd. | ||
| 3 | .4.1 | Articles of Incorporation of Vector Shipping Corporation. | ||
| 3 | .4.2 | Bylaws of Vector Shipping Corporation. | ||
| 3 | .5.1 | Articles of Incorporation of Aramis Navigation Inc. | ||
| 3 | .5.2 | Bylaws of Aramis Navigation Inc. | ||
| 3 | .6.1 | Articles of Incorporation of Ducale Marine Inc. | ||
| 3 | .6.2 | Bylaws of Ducale Marine Inc. | ||
| 3 | .7.1 | Articles of Incorporation of Aquis Marine Corp. | ||
II-2
Table of Contents
|
Exhibit |
||||
|
Number
|
Description
|
|||
| 3 | .7.2 | Bylaws of Aquis Marine Corp. | ||
| 3 | .8.1 | Articles of Incorporation of Highbird Management Inc. | ||
| 3 | .8.2 | Bylaws of Highbird Management Inc. | ||
| 3 | .9.1 | Articles of Incorporation of Floral Marine Ltd. | ||
| 3 | .9.2 | Bylaws of Floral Marine Ltd. | ||
| 3 | .10.1 | Articles of Incorporation of Red Rose Shipping Corp. | ||
| 3 | .10.2 | Bylaws of Red Rose Shipping Corp. | ||
| 3 | .11.1 | Articles of Incorporation of Ginger Services Co. | ||
| 3 | .11.2 | Bylaws of Ginger Services Co. | ||
| 3 | .12.1 | Articles of Incorporation of Quena Shipmanagement Inc. | ||
| 3 | .12.2 | Bylaws of Quena Shipmanagement Inc. | ||
| 3 | .13.1 | Articles of Incorporation of Astra Maritime Corporation. | ||
| 3 | .13.2 | Bylaws of Astra Maritime Corporation. | ||
| 3 | .14.1 | Articles of Incorporation of Primavera Shipping Corporation. | ||
| 3 | .14.2 | Bylaws of Primavera Shipping Corporation. | ||
| 3 | .15.1 | Articles of Incorporation of Pueblo Holdings Ltd. | ||
| 3 | .15.2 | Bylaws of Pueblo Holdings Ltd. | ||
| 3 | .16.1 | Articles of Incorporation of Beaufiks Shipping Corporation. | ||
| 3 | .16.2 | Bylaws of Beaufiks Shipping Corporation. | ||
| 3 | .17.1 | Articles of Incorporation of Rowboat Marine Inc. | ||
| 3 | .17.2 | Bylaws of Rowboat Marine Inc. | ||
| 3 | .18.1 | Articles of Incorporation of Corsair Shipping Ltd. | ||
| 3 | .18.2 | Bylaws of Corsair Shipping Ltd. | ||
| 3 | .19.1 | Articles of Incorporation of Navios Tankers Management Inc. | ||
| 3 | .19.2 | Bylaws of Navios Tankers Management Inc. | ||
| 3 | .20.1 | Articles of Incorporation of Pharos Navigation S.A. | ||
| 3 | .20.2 | Bylaws of Pharos Navigation S.A. | ||
| 3 | .21.1 | Articles of Incorporation of Sizzling Ventures Inc. | ||
| 3 | .21.2 | Bylaws of Sizzling Ventures Inc. | ||
| 3 | .22.1 | Articles of Incorporation of Shikhar Ventures S.A. | ||
| 3 | .22.2 | Bylaws of Shikhar Ventures S.A. | ||
| 3 | .23.1 | Articles of Incorporation of Taharqa Spirit Corp. | ||
| 3 | .23.2 | Bylaws of Taharqa Spirit Corp. | ||
| 3 | .24.1 | Articles of Incorporation of Rheia Associates Co. | ||
| 3 | .24.2 | Bylaws of Rheia Associates Co. | ||
| 3 | .25.1 | Articles of Incorporation of Rumer Holding Ltd. | ||
| 3 | .25.2 | Bylaws of Rumer Holding Ltd. | ||
| 3 | .26.1 | Memorandum and Articles of Association of Kleimar N.V. | ||
| 3 | .27.1 | Memorandum and Articles of Association of NAV Holdings Limited. | ||
| 3 | .28.1 | Fourth Amended and Restated Articles of Incorporation of Navios Corporation. | ||
| 3 | .28.2 | Bylaws of Navios Corporation. | ||
| 3 | .29.1 | Articles of Amendment and Restatement of Articles of Incorporation of Anemos Maritime Holdings Inc. | ||
| 3 | .29.2 | Bylaws of Anemos Maritime Holdings Inc. | ||
II-3
Table of Contents
|
Exhibit |
||||
|
Number
|
Description
|
|||
| 3 | .30.1 | Articles of Domestication of Navios Shipmanagement Inc. | ||
| 3 | .30.2 | Articles of Amendment of Articles of Incorporation of Levant Maritime International S.A. | ||
| 3 | .30.3 | Bylaws of Navios Shipmanagement Inc. | ||
| 3 | .31.1 | Articles of Domestication of Aegean Shipping Corporation (formerly known as Voreios Shipping Company Limited). | ||
| 3 | .31.2 | Memorandum of Association of Voreios Shipping Company Limited. | ||
| 3 | .31.3 | Articles of Association of Voreios Shipping Company Limited. | ||
| 3 | .32.1 | Articles of Incorporation of Arc Shipping Corporation. | ||
| 3 | .32.2 | Bylaws of Arc Shipping Corporation. | ||
| 3 | .33.1 | Articles of Incorporation of Magellan Shipping Corporation. | ||
| 3 | .33.2 | Bylaws of Magellan Shipping Corporation. | ||
| 3 | .34.1 | Articles of Amendment and Restatement of Articles of Incorporation of Ionian Shipping Corporation. | ||
| 3 | .34.2 | Bylaws of Ionian Shipping Corporation. | ||
| 3 | .35.1 | Articles of Amendment and Restatement of Articles of Incorporation of Apollon Shipping Corporation. | ||
| 3 | .35.2 | Bylaws of Apollon Shipping Corporation. | ||
| 3 | .36.1 | Articles of Amendment and Restatement of Articles of Incorporation of Herakles Shipping Corporation. | ||
| 3 | .36.2 | Bylaws of Herakles Shipping Corporation. | ||
| 3 | .37.1 | Articles of Amendment and Restatement of Articles of Incorporation of Achilles Shipping Corporation. | ||
| 3 | .37.2 | Bylaws of Achilles Shipping Corporation. | ||
| 3 | .38.1 | Articles of Amendment and Restatement of Articles of Incorporation of Kypros Shipping Corporation. | ||
| 3 | .38.2 | Bylaws of Kypros Shipping Corporation. | ||
| 3 | .39.1 | Articles of Amendment and Restatement of Articles of Incorporation of Hios Shipping Corporation. | ||
| 3 | .39.2 | Bylaws of Hios Shipping Corporation. | ||
| 3 | .40.1 | Articles of Incorporation of Meridian Shipping Enterprises Inc. | ||
| 3 | .40.2 | Bylaws of Meridian Shipping Enterprises Inc. | ||
| 3 | .41.1 | Articles of Incorporation of Mercator Shipping Corporation. | ||
| 3 | .41.2 | Bylaws of Mercator Shipping Corporation. | ||
| 3 | .42.1 | Articles of Incorporation of Horizon Shipping Enterprises Corporation. | ||
| 3 | .42.2 | Bylaws of Horizon Shipping Enterprises Corporation. | ||
| 3 | .43.1 | Articles of Incorporation of Star Maritime Enterprises Corporation. | ||
| 3 | .43.2 | Bylaws of Star Maritime Enterprises Corporation. | ||
| 3 | .44.1 | Second Amended and Restated Articles of Incorporation of Navios Handybulk Inc. | ||
| 3 | .44.2 | Bylaws of Navios Handybulk Inc. | ||
| 3 | .45.1 | Second Amended and Restated Articles of Incorporation of Navios International Inc. | ||
| 3 | .45.2 | Bylaws of Navios International Inc. | ||
| 3 | .46.1 | Articles of Incorporation of Nostos Shipmanagement Corp. | ||
| 3 | .46.2 | Bylaws of Nostos Shipmanagement Corp. | ||
| 3 | .47.1 | Articles of Incorporation of Portorosa Marine Corp. | ||
| 3 | .47.2 | Bylaws of Portorosa Marine Corp. | ||
| 3 | .48.1 | Articles of Incorporation of White Narcissus Marine S.A. | ||
| 3 | .49.1 | Memorandum of Association and Articles of Association of Hestia Shipping Ltd. | ||
| 3 | .50.1 | Articles of Incorporation of Kleimar Ltd. | ||
| 3 | .50.2 | Articles of Amendment of Articles of Incorporation of Kleimar Ltd. | ||
| 3 | .50.3 | Bylaws of Kleimar Ltd. | ||
II-4
Table of Contents
|
Exhibit |
||||
|
Number
|
Description
|
|||
| 3 | .51.1 | Articles of Incorporation of Navimax Corporation. | ||
| 3 | .51.2 | Bylaws of Navimax Corporation. | ||
| 4 | .1 | Indenture relating to 81/8% Senior Notes due 2019 dated January 28, 2011, among Navios Maritime Holdings Inc., Navios Maritime Finance II (US) Inc., the guarantors listed therein and Wells Fargo Bank, National Association, as Trustee (Incorporated by reference to Exhibit 4.1 of the Form 6-K filed on February 1, 2011). | ||
| 4 | .2 | 2006 Employee, Director and Consultant Stock Plan (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on May 16, 2007). | ||
| 4 | .3 | Financial Agreement, dated as of March 31, 2008, between Nauticler S.A. and Marfin Egnatia Bank, S.A. (Incorporated by reference to Exhibit 99.3 of the Form 6-K filed on June 13, 2008). | ||
| 4 | .4 | Facility Agreement, dated as of June 24, 2008, with Navios Maritime Holdings Inc. as a guarantor, for a loan amount up to $133.0 million (Incorporated by reference to Exhibit 99.1 to the Form 6-K filed on July 14, 2008). | ||
| 4 | .5 | Facility Agreement, dated as of November 10, 2008, with Navios Maritime Holdings Inc. as a guarantor, for a loan amount up to $90.0 million (Incorporated by reference to Exhibit 99.2 of the Form 6-K filed on December 10, 2008). | ||
| 4 | .6 | Loan Agreement, dated March 26, 2009, among Surf Maritime Co., Pueblo Holdings Ltd., Ginger Services Co. and Marfin Egnatia Bank S.A. (Incorporated by reference to Exhibit 99.2 of the Form 6-K filed on May 18, 2009). | ||
| 4 | .7 | Financial Agreement, dated March 20, 2009, between Nauticler S.A. and Marfin Popular Bank Public Co., Ltd. (Incorporated by reference to Exhibit 99.3 of the Form 6-K filed on May 18, 2009). | ||
| 4 | .8 | Third Supplemental Agreement in relation to the Facility Agreement dated February 1, 2007, dated March 23, 2009 (Incorporated by reference to Exhibit 99.4 of the Form 6-K filed on May 18, 2009). | ||
| 4 | .9 | Amendment to Share Purchase Agreement, dated June 29, 2009, between Anemos Maritime Holdings Inc. and Navios Maritime Partners L.P. (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on July 7, 2009). | ||
| 4 | .10 | Amendment to Omnibus Agreement, dated June 29, 2009, among Navios Maritime Holdings Inc., Navios GP L.L.C., Navios Maritime Operating L.L.C., and Navios Maritime Partners L.P. (Incorporated by reference to Exhibit 10.2 of the Form 6-K filed on July 7, 2009). | ||
| 4 | .11 | Facility Agreement for $240.0 million, dated June 24, 2009, among the Borrowers listed therein and Commerzbank AG (Incorporated by reference to Exhibit 10.3 of the Form 6-K filed on July 7, 2009). | ||
| 4 | .12 | Supplemental Agreement in relation to the Facility Agreement dated December 11, 2007, dated July 10, 2009, among Chilali Corp., Rumer Holdings Ltd. and Emporiki Bank of Greece S.A. with Navios Maritime Holdings Inc. as guarantor (Incorporated by reference to Exhibit 99.3 of the Form 6-K filed on August 5, 2009). | ||
| 4 | .13 | Amended and Restated Loan Agreement in respect of a loan facility of up to $120.0 million, dated May 25, 2009 with Navios Maritime Holdings Inc. as guarantor (Incorporated by reference to Exhibit 99.2 of the Form 6-K filed on October 8, 2009). | ||
| 4 | .14 | Supplemental Agreement in relation to the Amended and Restated Loan Agreement dated May 25, 2009, dated July 16, 2009 (Incorporated by reference to Exhibit 99.1 of the Form 6-K filed on October 8, 2009). | ||
| 4 | .15 | Second Supplemental Agreement in relation to the Facility Agreement dated December 11, 2007, dated August 28, 2009 (Incorporated by reference to Exhibit 99.3 of the Form 6-K filed on October 8, 2009). | ||
| 4 | .16 | Facility Agreement for $66.5 million, dated August 28, 2009, with Navios Maritime Holdings Inc. as guarantor (Incorporated by reference to Exhibit 99.4 of the Form 6-K filed on October 8, 2009). | ||
| 4 | .17 | Facility Agreement for $75.0 million, dated August 28, 2009, with Navios Maritime Holdings Inc. as guarantor (Incorporated by reference to Exhibit 99.5 of the Form 6-K filed on October 8, 2009). | ||
| 4 | .18 | Loan Agreement for up to $110.0 million, dated October 23, 2009, with Navios Maritime Holdings Inc. as guarantor (Incorporated by reference to Exhibit 99.1 of the Form 6-K filed on November 10, 2009 (File No. 091172561)). | ||
II-5
Table of Contents
|
Exhibit |
||||
|
Number
|
Description
|
|||
| 4 | .19 | Indenture relating to 87/8% First Priority Ship Mortgage Notes due 2017, dated November 2, 2009, among Navios Maritime Holdings Inc., Navios Maritime Finance (US) Inc. and Wells Fargo Bank, National Association (Incorporated by reference to Exhibit 99.3 of the Form 6-K filed on November 10, 2009). | ||
| 4 | .20 | Registration Rights Agreement, dated as of November 2, 2009 (Incorporated by reference to Exhibit 99.4 of the Form 6-K filed on November 10, 2009). | ||
| 4 | .21 | First Supplemental Indenture to the indenture dated November 2, 2009, dated as of January 29, 2010 (Incorporated by reference to Exhibit 99.6 of the Form 6-K filed on February 17, 2010). | ||
| 4 | .22 | Credit Agreement, dated as of April 7, 2010 (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on April 8, 2010). | ||
| 4 | .23 | Credit Agreement, dated as of April 8, 2010 (Incorporated by reference to Exhibit 10.2 of the Form 6-K filed on April 8, 2010). | ||
| 4 | .24 | Second Supplemental Indenture, dated as of March 30, 2010 (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on April 21, 2010). | ||
| 4 | .25 | Third Supplemental Indenture, dated as of April 7, 2010 (Incorporated by reference to Exhibit 10.2 of the Form 6-K filed on April 21, 2010). | ||
| 4 | .26 | Fourth Supplemental Agreement, dated as of January 8, 2010 (Incorporated by reference to Exhibit 10.2 of the Form 6-K filed on May 18, 2010). | ||
| 4 | .27 | Fifth Supplemental Agreement, dated as of April 28, 2010 (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on May 18, 2010). | ||
| 4 | .28 | Fourth Supplemental Indenture, dated as of June 7, 2010 (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on June 17, 2010). | ||
| 4 | .29 | Facility Agreement for $40.0 million, dated as of August 20, 2010 (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on September 1, 2010). | ||
| 4 | .30 | Loan Agreement for $40.0 million with Navios Maritime Acquisition Corporation, dated as of September 7, 2010 (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on October 14, 2010). | ||
| 4 | .31 | Letter Amendment, dated as of September 24, 2010 (Incorporated by reference to Exhibit 10.2 of the Form 6-K filed on October 14, 2010). | ||
| 4 | .32 | Facility Agreement of up to $40.0 million dated as of September 30, 2010 (Incorporated by reference to Exhibit 10.3 of the Form 6-K filed on October 14, 2010). | ||
| 4 | .33 | Amended and Restated Loan Agreement for $120.0 million (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on November 15, 2010). | ||
| 4 | .34 | Fifth Supplemental Indenture, dated as of August 10, 2010 (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on February 1, 2011). | ||
| 4 | .35 | Sixth Supplemental Indenture, dated as of January 28, 2011 (Incorporated by reference to Exhibit 10.2 of the Form 6-K filed on February 1, 2011). | ||
| 4 | .36 | Supplemental Agreement dated January 28, 2011 relating to the Facility Agreement, dated as of June 24, 2009, for $240.0 million (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on February 4, 2011). | ||
| 4 | .37 | Supplemental Agreement dated January 28, 2011 relating to the Facility Agreement, dated as of September 30, 2010, for $40.0 million (Incorporated by reference to Exhibit 10.2 of the Form 6-K filed on February 4, 2011). | ||
| 4 | .38 | Supplemental Agreement dated January 28, 2011 relating to the Facility Agreement, dated as of December 11, 2007 (as amended), for $154.0 million (Incorporated by reference to Exhibit 10.3 of the Form 6-K filed on February 4, 2011). | ||
| 4 | .39 | Supplemental Agreement dated January 28, 2011 relating to the Facility Agreement, dated as of August 28, 2009 (as amended), for $75.0 million (Incorporated by reference to Exhibit 10.4 of the Form 6-K filed on February 4, 2011). | ||
II-6
Table of Contents
|
Exhibit |
||||
|
Number
|
Description
|
|||
| 4 | .40 | Supplemental Agreement dated January 28, 2011 relating to the Amended and Restated Loan Agreement, dated as of October 27, 2010, in respect of a loan facility of up to $120.0 million (Incorporated by reference to Exhibit 10.5 of the Form 6-K filed on February 4, 2011). | ||
| 4 | .41 | Supplemental Agreement dated January 28, 2011 relating to the Loan Agreement, dated as of October 23, 2009 (as amended), for a revolving credit facility of up to $110.0 million (Incorporated by reference to Exhibit 10.6 of the Form 6-K filed on February 4, 2011). | ||
| 4 | .42 | Sixth Supplemental Agreement dated January 28, 2011 relating to the Facility Agreement, dated as of February 1, 2007 (as amended), for a term loan facility of up to $280.0 million (Incorporated by reference to Exhibit 10.7 of the Form 6-K filed on February 4, 2011). | ||
| 4 | .43 | Supplemental Agreement dated January 28, 2011 relating to the Facility Agreement, dated as of August 20, 2010, for a term loan facility of up to $40.0 million (Incorporated by reference to Exhibit 10.8 of the Form 6-K filed on February 4, 2011). | ||
| 4 | .44 | Supplemental Agreement dated January 28, 2011 relating to the Facility Agreement, dated as of August 28, 2009 (as amended), for a term loan facility of up to $66.5 million (Incorporated by reference to Exhibit 10.9 of the Form 6-K filed on February 4, 2011). | ||
| 4 | .45 | Indenture relating to 9.25% Senior Notes due 2019 dated April 12, 2011, among Navios South American Logistics Inc., Navios Logistics Finance (US) Inc., the Guarantors named therein, and Wells Fargo Bank, National Association, as trustee (Incorporated by reference to Exhibit 4.1 of the Form 6-K filed on May 25, 2011). | ||
| 4 | .46 | Supplemental Agreement No. 2, dated May 6, 2011, relating to a Loan Agreement, dated October 23, 2009, as amended, in respect of a revolving credit facility of up to $110,000,000 (Incorporated by reference to Exhibit 10.2 of the Form 6-K filed on May 25, 2011). | ||
| 4 | .47 | The Administrative Services Agreement, dated April 12, 2011, between Navios South American Logistics Inc. and Navios Maritime Holdings Inc. (Incorporated by reference to Exhibit 10.3 of the Form 6-K filed on May 25, 2011). | ||
| 4 | .48 | Letter of Amendment No. 1, dated October 21, 2010, to the Loan Agreement, dated September 7, 2010, between Navios Maritime Acquisition Corporation and Navios Maritime Holdings Inc. (Incorporated by reference to Exhibit 10.4 of the Form 6-K filed on May 25, 2011). | ||
| 5 | .1 | Opinion of Fried, Frank, Harris, Shriver & Jacobson LLP. | ||
| 5 | .2 | Opinion of Reeder & Simpson P.C. | ||
| 5 | .3 | Opinion of Camilleri, Delia, Randon & Associates. | ||
| 5 | .4 | Opinion of Loyens & Loeff. | ||
| 5 | .5 | Opinion of Vives y Asociados. | ||
| 10 | .1 | Registration Rights Agreement dated January 28, 2011 (Incorporated by reference in Exhibit 10.1 of the Form 6-K filed on February 1, 2011). | ||
| 10 | .2 | The Registration Rights Agreement, dated April 12, 2011, among Navios South American Logistics Inc., Navios Logistics Finance (US) Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, and S. Goldman Advisors LLC (Incorporated by reference to Exhibit 10.1 of the Form 6-K filed on May 25, 2011). | ||
| 12 | .1 | Computation of Ratio of Earnings to Fixed Charges. | ||
| 21 | .1 | List of Subsidiaries. | ||
| 23 | .1 | Consent of Fried, Frank, Harris, Shriver & Jacobson LLP (included in the opinion filed as Exhibit 5.1). | ||
| 23 | .2 | Consent of Reeder & Simpson P.C. (included in the opinion filed as Exhibit 5.2). | ||
| 23 | .3 | Consent of Camilleri, Delia, Randon & Associates (included in the opinion filed as Exhibit 5.3). | ||
| 23 | .4 | Consent of Loyens & Loeff (included in the opinion filed as Exhibit 5.4). | ||
| 23 | .5 | Consent of Vives y Asociados (included in the opinion filed as Exhibit 5.5). | ||
| 23 | .6 | Consent of PricewaterhouseCoopers S.A. | ||
| 24 | .1 | Power of Attorney (included on the signature page to the Registration Statement). | ||
II-7
Table of Contents
|
Exhibit |
||||
|
Number
|
Description
|
|||
| 25 | .1 | Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Wells Fargo Bank, National Association as Trustee under the 2019 Indenture. | ||
| 99 | .1 | Form of Letter of Transmittal. | ||
| 99 | .2 | Form of Notice of Guaranteed Delivery. | ||
| 99 | .3 | Form of Letter to Registered Holders and/or Participants of the Book-Entry Transfer Facility. | ||
| 99 | .4 | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | ||
| 99 | .5 | Form of Letter to Clients. | ||
| Item 22. | Undertakings. |
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) 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 SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table
in effective registration statement; and
(iii) 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;
(2) 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;
(3) 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;
(4) to file a post-effective amendment to the registration
statement to include any financial statements required by
Item 8.A. of
Form 20-F
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in
the prospectus is at least as current as the date of those
financial statements;
(5) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser, 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
II-8
Table of Contents
statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such
date of first use;
(6) that, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to 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;
(7) to supply by means of a post-effective amendment all
information concerning a transaction, and the company being
acquired involved therein, that was not the subject of and
included in the registration statement when it became
effective; and
(8) to respond to requests for information that is
incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11, or 13 of this form, within one business
day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means, and
(ii) to arrange or provide for a facility in the United
States for the purpose of responding to such requests. The
undertaking in subparagraph (i) above includes information
contained in documents filed subsequent to the effective date of
the Registration Statement through the date of responding to the
request.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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.
II-9
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
NAVIOS MARITIME HOLDINGS INC.
| By: |
/s/ Angeliki
Frangou
|
Name: Angeliki Frangou
| Title: | Chairman and Chief Executive Officer |
| By: |
/s/ George
Achniotis
|
Name: George Achniotis
| Title: | Chief Financial Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Angeliki
Frangou Angeliki Frangou |
Chief Executive Officer and Chairman of the Board (principal executive officer) |
June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer (principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Ted
C. Petrone Ted C. Petrone |
Director | June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Executive Vice President — Legal, Secretary and Director | June 21, 2011 | ||||
II-10
Table of Contents
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Spyridon
Magoulas Spyridon Magoulas |
Director | June 21, 2011 | ||||
|
/s/ John
Stratakis John Stratakis |
Director | June 21, 2011 | ||||
|
/s/ George
Malanga George Malanga |
Director | June 21, 2011 | ||||
|
/s/ Efstathios
Loizos Efstathios Loizos |
Director | June 21, 2011 | ||||
II-11
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
NAVIOS MARITIME FINANCE II (US) INC.
| By: |
/s/ George
Achniotis
|
Name: George Achniotis
| Title: | Chief Financial Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
President, Secretary and Director (principal executive officer) |
June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer and Director (principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Anna
Kalathakis Anna Kalathakis |
Treasurer and Director | June 21, 2011 | ||||
II-12
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
AQUIS MARINE CORP.
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | President/Director |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
President and Director (principal executive officer) |
June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer (principal financial and accounting officer) |
June 21, 2011 | ||||
II-13
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
NAVIOS TANKERS MANAGEMENT INC.
| By: |
/s/ Alexandros
Laios
|
Name: Alexandros Laios
| Title: | Secretary/Director |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Efstratios
Desypris Efstratios Desypris |
President and Director (principal executive officer) |
June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer (principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Leonidas
Korres Leonidas Korres |
Treasurer and Director | June 21, 2011 | ||||
|
/s/ Alexandros
Laios Alexandros Laios |
Secretary and Director | June 21, 2011 | ||||
II-14
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
FAITH MARINE LTD.
VECTOR SHIPPING CORPORATION
ARAMIS NAVIGATION INC.
DUCALE MARINE INC.
HIGHBIRD MANAGEMENT INC.
FLORAL MARINE LTD.
RED ROSE SHIPPING CORP.
GINGER SERVICES CO.
QUENA SHIPMANAGEMENT INC.
ASTRA MARITIME CORPORATION
PRIMAVERA SHIPPING CORPORATION
PUEBLO HOLDINGS LTD.
BEAUFIKS SHIPPING CORPORATION
ROWBOAT MARINE INC.
CORSAIR SHIPPING LTD.
PHAROS NAVIGATION S.A.
SIZZLING VENTURES INC.
SHIKHAR VENTURES S.A.
TAHARQA SPIRIT CORP.
RHEIA ASSOCIATES CO.
RUMER HOLDING LTD.
AEGEAN SHIPPING CORPORATION
ARC SHIPPING CORPORATION
MAGELLAN SHIPPING CORPORATION
IONIAN SHIPPING CORPORATION
APOLLON SHIPPING CORPORATION
HERAKLES SHIPPING CORPORATION
ACHILLES SHIPPING CORPORATION
KYPROS SHIPPING CORPORATION
HIOS SHIPPING CORPORATION
MERIDIAN SHIPPING ENTERPRISES INC.
MERCATOR SHIPPING CORPORATION
HORIZON SHIPPING ENTERPRISES CORPORATION
STAR MARITIME ENTERPRISES CORPORATION
NOSTOS SHIPMANAGEMENT CORP.
PORTOROSA MARINE CORP.
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
II-15
Table of Contents
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post- effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ George
Achniotis George Achniotis |
President and Chief Financial Officer (principal executive officer and principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Anna
Kalathakis Anna Kalathakis |
Treasurer and Director | June 21, 2011 | ||||
|
/s/ Shunji
Sasada Shunji Sasada |
Vice-President | June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Secretary and Director | June 21, 2011 | ||||
II-16
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
KLEIMAR LTD.
| By: |
/s/ George
Achniotis
|
Name: George Achniotis
| Title: |
Chief Financial Officer, Secretary and Director |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Angeliki
Frangou Angeliki Frangou |
President and Director (principal executive officer) |
June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer, Secretary and Director (principal financial and accounting officer) |
June 21, 2011 | ||||
II-17
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
NAVIMAX CORPORATION
| By: |
/s/ Shunji
Sasada
|
Name: Shunji Sasada
| Title: | President |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Shunji
Sasada Shunji Sasada |
President, Secretary and Treasurer (principal executive officer) |
June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer (principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Alida
Vives Alida Vives |
Director | June 21, 2011 | ||||
|
/s/ Rodrigo
Vives Rodrigo Vives |
Director | June 21, 2011 | ||||
|
/s/ Victor
Alvarado Victor Alvarado |
Director | June 21, 2011 | ||||
II-18
Table of Contents
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
KLEIMAR N.V.
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Angeliki
Frangou Angeliki Frangou |
Chief Executive Officer and Director (principal executive officer) | June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer and Director (principal financial and accounting officer) | June 21, 2011 | ||||
|
/s/ Ted
Petrone Ted Petrone |
Director | June 21, 2011 | ||||
|
/s/ Shunji
Sasada Shunji Sasada |
Director | June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Director | June 21, 2011 | ||||
II-19
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
NAV HOLDINGS LIMITED
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Angeliki
Frangou Angeliki Frangou |
Chief Executive Officer and Director (principal executive officer) | June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer (principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Anna
Kalathakis Anna Kalathakis |
Director | June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Director | June 21, 2011 | ||||
II-20
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
NAVIOS CORPORATION
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Angeliki
Frangou Angeliki Frangou |
Chief Executive Officer and Chairman (principal executive officer) | June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer (principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Ted
Petrone Ted Petrone |
President and Director | June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Executive Vice President, Secretary and Director | June 21, 2011 | ||||
II-21
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
ANEMOS MARITIME HOLDINGS INC.
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Angeliki
Frangou Angeliki Frangou |
Chief Executive Officer and Director (principal executive officer) | June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
President, Chief Financial Officer and Director (principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Secretary and Director | June 21, 2011 | ||||
II-22
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
NAVIOS SHIPMANAGEMENT INC.
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ George
Achniotis George Achniotis |
President, Chief Financial Officer and Director (principal executive officer and principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Anna
Kalathakis Anna Kalathakis |
Treasurer and Director | June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Secretary and Director | June 21, 2011 | ||||
II-23
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
NAVIOS HANDYBULK INC.
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Shunji
Sasada Shunji Sasada |
Vice-President (principal executive officer) |
June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer (principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Treasurer, Secretary and Director | June 21, 2011 | ||||
|
/s/ Ted
Petrone Ted Petrone |
Director | June 21, 2011 | ||||
II-24
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
NAVIOS INTERNATIONAL INC.
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ Angeliki
Frangou Angeliki Frangou |
President and Director (principal executive officer) |
June 21, 2011 | ||||
|
/s/ George
Achniotis George Achniotis |
Chief Financial Officer (principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Treasurer and Director | June 21, 2011 | ||||
II-25
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
WHITE NARCISSUS MARINE S.A.
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ George
Achniotis George Achniotis |
President, Chief Financial Officer and Director (principal executive officer and principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Anna
Kalathakis Anna Kalathakis |
Treasurer and Director | June 21, 2011 | ||||
|
/s/ Vasiliki
Papaefthymiou Vasiliki Papaefthymiou |
Vice President, Secretary and Director | June 21, 2011 | ||||
II-26
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in Piraeus, Greece on June 21, 2011.
HESTIA SHIPPING LTD.
| By: |
/s/ Vasiliki
Papaefthymiou
|
Name: Vasiliki Papaefthymiou
| Title: | Director and Authorized Officer |
POWER OF
ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Angeliki Frangou and Vasiliki
Papaefthymiou and each of them singly, his, her or its true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his,
her or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it might or
could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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 June 21, 2011.
|
Signature
|
Title(s)
|
Date
|
||||
|
/s/ George
Achniotis George Achniotis |
Chief Executive Officer, Chief Financial Officer and Director (principal executive officer and principal financial and accounting officer) |
June 21, 2011 | ||||
|
/s/ Ted
Petrone Ted Petrone |
Director | June 21, 2011 | ||||
II-27
Table of Contents
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 June 21, 2011.
PUGLISI & ASSOCIATES
| By: |
/s/ Donald
J. Puglisi
|
Name: Donald J. Puglisi
| Title: | Managing Director |
II-28
Exhibit 3.2.1
CERTIFICATE OF INCORPORATION
OF
NAVIOS MARITIME FINANCE II (US) INC.
Pursuant to § 102 of the General Corporation Law
of the State of Delaware
of the State of Delaware
The undersigned, in order to form a corporation pursuant to Section 102 of the General
Corporation Law of Delaware, does hereby certify:
FIRST: The name of the Corporation is Navios Maritime Finance II (US) Inc.
SECOND: The address of the Corporation’s registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to serve as co-obligor and guarantor of
Navios Maritime Holdings Inc.’s debt securities.
FOURTH: The total number of shares which the Corporation shall have authority to
issue is 100 shares of Common Stock, par value $ 0.01 per share.
FIFTH: The name and mailing address of the Incorporator is as follows:
| Name | Mailing Address | ||
Charmain A. Ho-A-Lim
|
Fried, Frank, Harris, Shriver & Jacobson LLP | ||
| 1001 Pennsylvania Avenue NW | |||
| Washington, DC 20004 |
SIXTH: The Board of Directors is expressly authorized to adopt, amend, or repeal the
by-laws of the Corporation.
SEVENTH: Elections of directors need not be by written ballot unless the bylaws of
the Corporation shall otherwise provide.
EIGHTH: 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;
provided, however, that the foregoing shall not eliminate or limit the liability of
a director (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 General Corporation Law of Delaware,
or (iv) for any transaction from which the director derived an improper personal benefit. If the
General Corporation Law of Delaware is hereafter amended to permit further elimination or
limitation of 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 General
Corporation Law of Delaware as so amended. Any repeal or modification of this Article EIGHTH by
the stockholders of the Corporation or otherwise shall not adversely affect any right or protection
of a director of the Corporation existing at the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders herein are granted subject to this
reservation.
- 2 -
IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of January, 2011, and I affirm
that the foregoing certificate is my act and deed and that the facts stated therein are true.
| /s/ Charmain A. Ho-A-Lim | ||||
| Charmain A. Ho-A-Lim, Incorporator | ||||
- 3 -
Exhibit 3.2.2
BY-LAWS OF
NAVIOS MARITIME FINANCE II (US) INC.
(A Delaware Corporation)
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of the Corporation within the
State of Delaware shall be in the City of Wilmington, County of New Castle.
SECTION 2. Other Offices. The Corporation may also have an office or offices other
than said registered office at such place or places, either within or without the State of
Delaware, as the Board of Directors shall from time to time determine or the business of the
Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 1. Place of Meetings. All meetings of the stockholders for the election of
directors or for any other purpose shall be held at any such place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of Directors and stated in
the notice of meeting or in a duly executed waiver thereof.
SECTION 2. Annual Meeting. The annual meeting of stockholders, shall be held at such
date and time as shall be designated from time to time by the Board of Directors and stated in the
notice of meeting or in a duly executed waiver thereof. At such annual meeting, the stockholders
shall elect, by a plurality vote, a Board of Directors and transact such other business as may
properly be brought before the meeting.
SECTION 3. Special Meetings. Special meetings of stockholders, unless otherwise
prescribed by statute, may be called at any time by the Board of Directors or the Chairman of the
Board, if one shall have been elected, or the President and shall be called by the Secretary upon
the request in writing of a stockholder or stockholders holding of record at least 50 percent of
the voting power of the issued and outstanding shares of stock of the Corporation entitled to vote
at such meeting.
SECTION 4. Notice of Meetings. Except as otherwise expressly required by statute,
written notice of each annual and special meeting of stockholders stating the date, place and hour
of the meeting, and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be given to each stockholder of record entitled to vote thereat not less
than ten nor more than sixty days before the date of the meeting. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the notice. Notice
shall
be given personally or by mail and, if by mail, shall be sent in a postage-prepaid envelope,
addressed to the stockholder at his address as it appears on the records of the Corporation.
Notice by mail shall be deemed given at the time when the same shall be deposited in the United
States mail, postage prepaid. Notice of any meeting shall not be required to be given to any
person who attends such meeting, except when such person attends the meeting in person or by proxy
for the express purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened, or who, either before or after the
meeting, shall submit a signed written waiver of notice, in person or by proxy. Neither the
business to be transacted at, nor the purpose of, an annual or special meeting of stockholders need
be specified in any written waiver of notice.
SECTION 5. List of Stockholders. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before each meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
showing the address of and the number of shares registered in the name of each stockholder. Such
list shall be open to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the meeting, either at a
place within the city, town or village where the meeting is to be held, which place shall be
specified in the notice of meeting, or, if not specified, at the place where the meeting is to be
held. The list shall be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present.
SECTION 6. Quorum, Adjournments. The holders of a majority of the voting power of
the issued and outstanding stock of the Corporation entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum for the transaction of business at all meetings of
stockholders, except as otherwise provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented by proxy at any meeting of stockholders,
the stockholders entitled to vote thereat, present in person or represented by proxy, shall have
the power to adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented by proxy. At such adjourned meeting at
which a quorum shall be present or represented by proxy, any business may be transacted which might
have been transacted at the meeting as originally called. If the adjournment is for more than
thirty days, or, if after adjournment a new record date is set, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
SECTION 7. Organization. At each meeting of stockholders, the Chairman of the Board,
if one shall have been elected, or, in his absence or if one shall not have been elected, the
President shall act as chairman of the meeting. The Secretary or, in his absence or inability to
act, the person whom the chairman of the meeting shall appoint secretary of the meeting shall act
as secretary of the meeting and keep the minutes thereof.
SECTION 8. Order of Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
SECTION 9. Voting. Except as otherwise provided by statute or the Certificate of
Incorporation, each stockholder of the Corporation shall be entitled at each meeting of
- 2 -
stockholders to one vote for each share of capital stock of the Corporation standing in his name on
the record of stockholders of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 7 of Article V of
these By-Laws as the record date for the determination of the stockholders who shall
be entitled to notice of and to vote at such meeting; or
(b) if no such record date shall have been so fixed, then at the close of
business on the day next preceding the day on which notice thereof shall be given, or,
if notice is waived, at the close of business on the date next preceding the day on
which the meeting is held.
Each stockholder entitled to vote at any meeting of stockholders may authorize another person or
persons to act for him by a proxy signed by such stockholder or his attorney-in-fact, but no proxy
shall be voted after three years from its date, unless the proxy provides for a longer period. Any
such proxy shall be delivered to the secretary of the meeting at or prior to the time designated in
the order of business for so delivering such proxies. When a quorum is present at any meeting, the
vote of the holders of a majority of the voting power of the issued and outstanding stock of the
Corporation entitled to vote thereon, present in person or represented by proxy, shall decide any
question brought before such meeting, unless the question is one upon which by express provision of
statute or of the Certificate of Incorporation or of these By-Laws, a different vote is required,
in which case such express provision shall govern and control the decision of such question.
Unless required by statute, or determined by the chairman of the meeting to be advisable, the vote
on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the
stockholder voting, or by his proxy, if there by such proxy, and shall state the number of shares
voted.
SECTION 10. Inspectors. The Board of Directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any adjournment thereof. If
any of the inspectors so appointed shall fail to appear or act, the chairman of the meeting shall,
or if inspectors shall not have been appointed, the chairman of the meeting may, appoint one or
more inspectors. Each inspector, before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality
and according to the best of his ability. The inspectors shall determine the number of shares of
capital stock of the Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine all challenges and questions arising
in connection with the right to vote, count and tabulate all votes, ballots or consents, determine
the results, and do such acts as are proper to conduct the election or vote with fairness to all
stockholders. On request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute a certificate of
any fact found by them. No director or candidate for the office of director shall act as an
inspector of an election of directors. Inspectors need not be stockholders.
SECTION 11. Action by Consent. Whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection with any corporate
- 3 -
action, by any
provision of statute or of the Certificate of Incorporation or of these By-Laws, the meeting and
vote of stockholders may be dispensed with, and the action taken without such meeting and vote, if
a consent in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares of stock of the Corporation entitled
to vote thereon were present and voted.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. The Board of Directors may exercise
all such authority and powers of the Corporation and do all such lawful acts and things as are not
by statute or the Certificate of Incorporation directed or required to be exercised or done by the
stockholders.
SECTION 2. Number, Qualifications, Election and Term of Office. The Board of
Directors shall consist of not less than one (1) nor more than eight (8) directors, the exact
number of which shall be fixed from time to time by the Board of Directors. Thereafter, the number
of directors may be fixed, from time to time, by the affirmative vote of a majority of the entire
Board of Directors or by action of the stockholders of the Corporation. Any decrease in the number
of directors shall be effective at the time of the next succeeding annual meeting of stockholders
unless there shall be vacancies in the Board of Directors, in which case such decrease may become
effective at any time prior to the next succeeding annual meeting to the extent of the number of
such vacancies. Directors need not be stockholders. Except as otherwise provided by statute or
these By-Laws, the directors (other than members of the initial Board of Directors) shall be
elected at the annual meeting of stockholders. Each director shall hold office until his successor
shall have been elected and qualified, or until his death, or until he shall have resigned, or have
been removed, as hereinafter provided in these By-Laws.
SECTION 3. Place of Meetings. Meetings of the Board of Directors shall be held at
such place or places, within or without the State of Delaware, as the Board of Directors may from
time to time determine or as shall be specified in the notice of any such meeting.
SECTION 4. Annual Meeting. The Board of Directors shall meet for the purpose of
organization, the election of officers and the transaction of other business, as soon as
practicable after each annual meeting of stockholders, on the same day and at the same place where
such annual meeting shall be held. Notice of such meeting need not be given. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors may be held at such
other time or place (within or without the State of Delaware) as shall be specified in a notice
thereof given as hereinafter provided in Section 7 of this Article III.
SECTION 5. Regular Meetings. Regular meetings of the Board of Directors shall be
held at such time and place as the Board of Directors may fix. If any day fixed for a regular
meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting
which would otherwise be held on that day shall be held at the same hour on the next
- 4 -
succeeding
business day. Notice of regular meetings of the Board of Directors need not be given except as
otherwise required by statute or these By-Laws.
SECTION 6. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board, if one shall have been elected, or by two or more directors of
the Corporation or by the President.
SECTION 7. Notice of Meetings. Notice of each special meeting of the Board of
Directors (and of each regular meeting for which notice shall be required) shall be given by the
Secretary as hereinafter provided in this Section 7, in which notice shall be stated the time and
place of the meeting. Except as otherwise required by these By-Laws, such notice need not state
the purposes of such meeting. Notice of each such meeting shall be mailed, postage prepaid, to
each director, addressed to him at his residence or usual place of business, by first class mail,
at least two days before the day on which such meeting is to be held, or shall be sent addressed to
him at such place by telegraph, cable, telex, telecopier or other similar means, or be delivered to
him personally or be given to him by telephone or other similar means, at least twenty-four hours
before the time at which such meeting is to be held. Notice of any such meeting need not be given
to any director who shall, either before or after the meeting, submit a signed waiver of notice or
who shall attend such meeting, except when he shall attend for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
SECTION 8. Quorum and Manner of Acting. A majority of the entire Board of Directors
shall constitute a quorum for the transaction of business at any meeting of the Board of Directors,
and, except as otherwise expressly required by statute or the Certificate of Incorporation or these
By-Laws, the act of a majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. In the absence of a quorum at any meeting of the Board
of Directors, a majority of the directors present thereat may adjourn such meeting to another time
and place. Notice of the time and place of any such adjourned meeting shall be given to all of the
directors unless such time and place were announced at the meeting at which the adjournment was
taken, in which case such notice shall only be given to the directors who were not present thereat.
At any adjourned meeting at which a quorum is present, any business may be transacted which might
have been transacted at the meeting as originally called. The directors shall act only as a Board
and the individual directors shall have no power as such.
SECTION 9. Organization. At each meeting of the Board of Directors, the Chairman of
the Board, if one shall have been elected, or, in the absence of the Chairman of the Board or if
one shall not have been elected, the President (or, in his absence, another director chosen by a
majority of the directors present) shall act as chairman of the meeting and preside thereat. The
Secretary or, in his absence, any person appointed by the chairman shall act as secretary of the
meeting and keep the minutes thereof.
SECTION 10. Resignations. Any director of the Corporation may resign at any time by
giving written notice of his resignation to the Corporation. Any such resignation shall take
effect at the time specified therein or, if the time when it shall become effective shall not be
- 5 -
specified therein, immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 11. Vacancies. Any vacancy in the Board of Directors, whether arising from
death, resignation, removal (with or without cause), an increase in the number of directors or any
other cause, may be filled by the vote of a majority of the directors then in office, though less
than a quorum, or by the sole remaining director or by the stockholders at the next annual meeting
thereof or at a special meeting thereof. Each director so elected shall hold office until his
successor shall have been elected and qualified.
SECTION 12. Removal of Directors. Any director may be removed, either with or
without cause, at any time, by the holders of a majority of the voting power of the issued and
outstanding capital stock of the Corporation entitled to vote at an election of directors.
SECTION 13. Compensation. The Board of Directors shall have authority to fix the
compensation, including fees and reimbursement of expenses, of directors for services to the
Corporation in any capacity.
SECTION 14. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one or more committees, including an executive
committee, each committee to consist of one or more of the directors of the Corporation. The Board
of Directors may designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Except to the extent
restricted by statute or the Certificate of Incorporation, each such committee, to the extent
provided in the resolution creating it, shall have and may exercise all the powers and authority of
the Board of Directors and may authorize the seal of the Corporation to be affixed to all papers
which require it. Each such committee shall serve at the pleasure of the Board of Directors and
have such name as may be determined from time to time by resolution adopted by the Board of
Directors. Each committee shall keep regular minutes of its meetings and report the same to the
Board of Directors.
SECTION 15. Action by Consent. Unless restricted by the Certificate of
Incorporation, any action required or permitted to be taken by the Board of Directors or any
committee thereof may be taken without a meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of the Board of Directors or such committee, as the case may
be.
SECTION 16. Telephonic Meeting. Unless restricted by the Certificate of
Incorporation, any one or more members of the Board of Directors or any committee thereof may
participate in a meeting of the Board of Directors or such committee by means of a conference
telephone or similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation by such means shall constitute presence in
person at a meeting.
- 6 -
ARTICLE IV
Officers
SECTION 1. Number and Qualifications. The officers of the Corporation shall be
elected by the Board of Directors and shall include the President and the Secretary. If the Board
of Directors wishes, it either may also elect as an officer of the Corporation a Chairman of the
Board and may elect other officers (including one or more Vice Presidents, a Treasurer, one or more
Assistant Treasurers and one or more Assistant Secretaries) as may be necessary or desirable for
the business of the Corporation. Any two or more offices may be held by the same person, and no
officer except the Chairman of the Board need be a director. Each officer shall hold office until
his successor shall have been duly elected and shall have qualified, or until his death, or until
he shall have resigned or have been removed, as hereinafter provided in these By-Laws.
SECTION 2. Resignations. Any officer of the Corporation may resign at any time by
giving written notice of his resignation to the Corporation. Any such resignation shall take
effect at the time specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon receipt. Unless otherwise specified therein, the acceptance of
any such resignation shall not be necessary to make it effective.
SECTION 3. Removal. Any officer of the Corporation may be removed, either with or
without cause, at any time, by the Board of Directors at any meeting thereof.
SECTION 4. Chairman of the Board. The Chairman of the Board, if one shall have been
elected, shall be a member of the Board, an officer of the Corporation and, if present, shall
preside at each meeting of the Board of Directors or the stockholders. He shall advise and counsel
with the President, and in his absence with other executives of the Corporation, and shall perform
such other duties as may from time to time be assigned to him by the Board of Directors.
SECTION 5. The President. The President shall be the chief executive officer of the
Corporation. He shall, in the absence of the Chairman of the Board or if a Chairman of the Board
shall not have been elected, preside at each meeting of the Board of Directors or the stockholders.
He shall perform all duties incident to the office of President and chief executive officer and
such other duties as may from time to time be assigned to him by the Board of Directors.
SECTION 6. Vice-President. Each Vice-President, if any, shall perform all such
duties as from time to time may be assigned to him by the Board of Directors or the President. At
the request of the President or in his absence or in the event of his inability or refusal to act,
the Vice-President, or if there shall be more than one, the Vice-Presidents in the order determined
by the Board of Directors (or if there be no such determination, then the Vice-Presidents in the
order of their election), shall perform the duties of the President, and, when so acting, shall
have
the powers of and be subject to the restrictions placed upon the President in respect of the
performance of such duties.
- 7 -
SECTION 7. Treasurer. The Treasurer, if any, shall
(a) have charge and custody of, and be responsible for, all the funds and
securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the Corporation in
such depositories as may be designated by the Board of Directors or pursuant to its
direction;
(d) receive, and give receipts for, moneys due and payable to the Corporation
from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the investments of its
funds, taking proper vouchers therefore;
(f) render to the Board of Directors, whenever the Board of Directors may
require, an account of the financial condition of the Corporation; and
(g) in general, perform all duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the Board of Directors.
SECTION 8. Secretary. The Secretary shall
(a) keep or cause to be kept in one or more books provided for the purpose, the
minutes of all meetings of the Board of Directors, the committees of the Board of
Directors and the stockholders;
(b) see that all notices are duly given in accordance with the provisions of
these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and affix and
attest the seal to all certificates for shares of the Corporation (unless the seal of
the Corporation on such certificates shall be a facsimile, as hereinafter provided)
and affix and attest the seal to all other documents to be executed on behalf of the
Corporation under its seal;
(d) see that the books, reports, statements, certificates and other documents and
records required by law to be kept and filed are properly kept and filed; and
(e) in general, perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him by the Board of Directors.
SECTION 9. The Assistant Treasurer. The Assistant Treasurer, if any, or if there
shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors
(or if there be no such determination, then in the order of their election), shall, in the
- 8 -
absence
of the Treasurer or in the event of his inability or refusal to act, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as from time to time may
be assigned by the Board of Directors.
SECTION 10. The Assistant Secretary. The Assistant Secretary, if any, or if there be
more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in the absence of the
Secretary or in the event of his inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as from time to time may be assigned by
the Board of Directors.
SECTION 11. Officers’ Bonds or Other Security. If required by the Board of
Directors, any officer of the Corporation shall give a bond or other security for the faithful
performance of his duties, in such amount and with such surety as the Board of Directors may
require.
SECTION 12. Compensation. The compensation of the officers of the Corporation for
their services as such officers shall be fixed from time to time by the Board of Directors. An
officer of the Corporation shall not be prevented from receiving compensation by reason of the fact
that he is also a director of the Corporation.
ARTICLE V
Stock Certificates and Their Transfer
SECTION 1. Stock Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Corporation by, the Chairman of
the Board or the President or a Vice-President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned
by him in the Corporation. If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the
qualifications, limitations or restriction of such preferences and/or rights shall be set forth in
full or summarized on the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, provided that, except as otherwise provided in Section 202
of the General Corporation Law of the State of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation will furnish without
charge to each stockholder who so requests the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
SECTION 2. Facsimile Signatures. Any or all of the signatures on a certificate may
be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of issue.
- 9 -
SECTION 3. Lost Certificates. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate
or certificates, or his legal representative, to give the Corporation a bond in such sum as it may
direct sufficient to indemnify it against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of any such certificate or the issuance of such
new certificate.
SECTION 4. Transfers of Stock. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its records; provided, however, that the Corporation shall be
entitled to recognize and enforce any lawful restriction on transfer. Whenever any transfer of
stock shall be made for collateral security, and not absolutely, it shall be so expressed in the
entry of transfer if, when the certificates are presented to the Corporation for transfer, both the
transferor and the transferee request the Corporation to do so.
SECTION 5. Transfer Agents and Registrars. The Board of Directors may appoint, or
authorize any officer or officers to appoint, one or more transfer agents and one or more
registrars.
SECTION 6. Regulations. The Board of Directors may make such additional rules and
regulations, not inconsistent with these By-Laws, as it may deem expedient concerning the issue,
transfer and registration of certificates for shares of stock of the Corporation.
SECTION 7. Fixing the Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not
be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 8. Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its records as the owner of shares of stock to
receive dividends and to vote as such owner, shall be entitled to hold liable for calls and
assessments a person registered on its records as the owner of shares of stock, and shall not be
bound to recognize any equitable or other claim to or interest in such share or shares of stock on
the part of any other person, whether or not it shall have express or other notice thereof, except
as otherwise provided by the laws of Delaware.
- 10 -
ARTICLE VI
Indemnification of Directors and Officers
SECTION 1. General. The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him 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 his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall 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.
SECTION 2. Derivative Actions. The Corporation shall 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 a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by him 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, provided that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or
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 of Chancery or such
other court shall deem proper.
SECTION 3. Indemnification in Certain Cases. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 1 and 2 of this Article VI, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection therewith.
SECTION 4. Procedure. Any indemnification under Sections 1 and 2 of this Article VI
(unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer, employee or agent is
proper in the circumstances because he has met the applicable standard of conduct set
- 11 -
forth in such
Sections 1 and 2. Such determination shall be made (a) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action, suit or proceeding,
or (b) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or (c) by the
stockholders.
SECTION 5. Advances for Expenses. Expenses incurred in defending a civil or criminal
action, suit or proceeding may 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 the director,
officer, employee or agent to repay such amount if it shall be ultimately determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article VI.
SECTION 6. Rights Not Exclusive. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this Article VI shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may
be entitled under any law, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in another capacity while
holding such office.
SECTION 7. Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article VI.
SECTION 8. Definition of Corporation. For the purposes of this Article VI,
references to “the Corporation” include all constituent corporations absorbed in a consolidation or
merger as well as the resulting or surviving corporation so that any person who is or was a
director, officer, employee or agent of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise shall stand in the same position
under the provisions of this Article VI with respect to the resulting or surviving corporation as
he would if he had served the resulting or surviving corporation in the same capacity.
SECTION 9. Survival of Rights. The indemnification and advancement of expenses
provided by, or granted pursuant to this Article VI shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
ARTICLE VII
General Provisions
SECTION 1. Dividends. Subject to the provisions of statute and the Certificate of
Incorporation, dividends upon the shares of capital stock of the Corporation may be declared
- 12 -
by the
Board of Directors at any regular or special meeting. Dividends may be paid in cash, in property
or in shares of stock of the Corporation, unless otherwise provided by statute or the Certificate
of Incorporation.
SECTION 2. Reserves. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
may, from time to time, in its absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may think conducive to the
interests of the Corporation. The Board of Directors may modify or abolish any such reserves in
the manner in which it was created.
SECTION 3. Seal. The seal of the Corporation shall be in such form as shall be
approved by the Board of Directors.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall be fixed, and once
fixed, may thereafter be changed, by resolution of the Board of Directors.
SECTION 5. Checks, Notes, Drafts, Etc. All checks, notes, drafts or other orders for
the payment of money of the Corporation shall be signed, endorsed or accepted in the name of the
Corporation by such officer, officers, person or persons as from time to time may be designated by
the Board of Directors or by an officer or officers authorized by the Board of Directors to make
such designation.
SECTION 6. Execution of Contracts, Deeds, Etc. The Board of Directors may authorize
any officer or officers, agent or agents, in the name and on behalf of the Corporation to enter
into or execute and deliver any and all deeds, bonds, mortgages, contracts and other obligations or
instruments, and such authority may be general or confined to specific instances.
SECTION 7. Voting of Stock in Other Corporations. Unless otherwise provided by
resolution of the Board of Directors, the Chairman of the Board or the President, from time to
time, may (or may appoint one or more attorneys or agents to) cast the votes which the Corporation
may be entitled to cast as a shareholder or otherwise in any other corporation, any of whose shares
or securities may be held by the Corporation, at meetings of the holders of the shares or other
securities of such other corporation. In the event one or more attorneys or agents are appointed,
the Chairman of the Board or the President may instruct the person or persons so
appointed as to the manner of casting such votes or giving such consent. The Chairman of the
Board or the President may, or may instruct the attorneys or agents appointed to, execute or cause
to be executed in the name and on behalf of the Corporation and under its seal or otherwise, such
written proxies, consents, waivers or other instruments as may be necessary or proper in the
circumstances.
- 13 -
ARTICLE VIII
Amendments
These By-Laws may be amended or repealed or new by-laws adopted (a) by action of the
stockholders entitled to vote thereon at any annual or special meeting of stockholders or (b) if
the Certificate of Incorporation so provides, by action of the Board of Directors at a regular or
special meeting thereof. Any by-law made by the Board of Directors may be amended or repealed by
action of the stockholders at any annual or special meeting of stockholders.
- 14 -
Exhibit 3.3.1
THE REPUBLIC OF LIBERIA
Business Corporation Act 1977
The Associations Law, Title 5, as Amended, of the Liberian Code of Laws Revised
The Associations Law, Title 5, as Amended, of the Liberian Code of Laws Revised
ARTICLES
OF INCORPORATION
of
FAITH MARINE LTD.
The undersigned, for the purpose of incorporating a nonresident domestic corporation in accordance
with the provisions of the Business Corporation Act of the Republic of Liberia, does hereby
execute, as incorporator and file in the Office of the Minister of Foreign Affairs this instrument
for that purpose, as follows:
| A. | The name of the Corporation shall be: |
FAITH MARINE LTD.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Business Corporation Act and without in any way limiting the generality of the foregoing, the Corporation shall have the power: |
| (1) | To carry on the business of an investment holding company or corporation, and for such purpose to purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in shares of stocks, bonds, debentures, notes, evidences of indebtedness, warrants, rights, certificates, receipts or any other instruments or interest in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organization, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement, and enhancement in value of any such securities and to aid by loan, subsidy, guarantee or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose, and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules of any such institution; |
| As used herein the term: | |||
| “Securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Business Corporation Act is legally permitted to acquire or deal in, by whomsoever issued or created; | |||
| “Person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign; and | |||
| “Public authority” shall include any domestic or foreign governmental, municipal or other public authority; | |||
| (2) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and wheresoever situated, and any interest therein either as principal or as factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the Laws of Liberia, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution; | ||
| (3) | To borrow or raise money and contract debts, when necessary for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured; | ||
| (4) | To acquire, and take over as a going concern and thereafter to carry on the business of any person, firm or corporation engaged in any business which the Corporation is authorized to carry on, and in connection therewith to acquire the good will and all or any assets, and to assume or otherwise provide for all or any of the liabilities of any such business; | ||
| (5) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person, firm or corporation wheresoever situated; |
| (6) | To lend or advance money to or for the account of any other person, firm or corporation and also to guarantee, endorse or give security for any promissory notes, bonds, or other instruments of indebtedness of such other person, firm or corporation, and to otherwise invest its funds as from time to time may be deemed advisable by the Board of Directors, but the Corporation shall not engage in the business of banking or the provision of insurance services or exercise banking or insurance service provider’s powers, and nothing in these Articles contained shall be deemed to authorize it to do so; | ||
| (7) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for or certificates of deposit for, any proxies or powers of attorney or other privileges pertaining to any securities or interest therein, to hold in trust, issue on commission, make advances upon or sell, lease, license, transfer, organize, reorganize, incorporate or dispose of any of the undertakings or resulting investments aforesaid, or the stock or securities thereon; to act as agent for any of the above or like purposes, or any purpose herein mentioned, and to act as fiscal agent of any other person, firm or corporation; | ||
| (8) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person, firm or corporation or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto, and to render general investment advisory or financial advisory or managerial services to any person or public authority; | ||
| (9) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation; | ||
| (10) | To cause or allow the legal title or any legal or equitable estate, right or interest in any property, whether real, personal, or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of, or operated by, any person, formed or to be formed, either upon trust for, or as agents or nominees of, the Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation; | ||
| (11) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation organized under the Business Corporation Act, to buy, sell and deal in foreign exchange; |
| (12) | To make and give any guarantee so far as the same may be permitted to be done by a corporation organized under the Business Corporation Act and to mortgage, pledge or charge the property of the Corporation, of whatsoever nature the property may be, as security for any such guarantee made or given and to assist financially or otherwise with or without consideration and on such terms as the Corporation thinks fit any person, firm, company or corporation in any part of the world and in connection therewith undertake and guarantee the liabilities of that person, firm, company or corporation and to issue or procure the issue of indemnities in respect of the liabilities of such person, firm, company or corporation and to mortgage and hypothecate the Corporation’s vessels or real or personal property or immovable or movable property of other form or property whatsoever as security for any such undertaking or guarantee or indemnity given or issued as aforesaid; | ||
| (13) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by law, and provide further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote; | ||
| (14) | To invest its uninvested funds and/or surplus from time to time to such extent as the Board of Directors may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or the provision of insurance services or exercise banking or insurance service provider’s powers, and nothing in these Articles contained shall be deemed to authorize it to do so; | ||
| (15) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build and repair steamships, motorships, tankers, whaling vessels, sailing vessels, yachts, tugs, lighters, barges, seaplanes, submersible craft, scows, rafts, dredges, pontoons, offshore installations and service craft, rocket-launching platforms, non-displacement vessels and all other vessels and craft of any and all means of conveyance and transportation by land, water or air, together with engines, boilers, machinery, equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, use and operation thereof, and to equip, furnish, and outfit such vessels and ships; | ||
| (16) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of passengers, mail, freight, goods, cargo in bulk and personal effects by water between the various ports of the world and to engage generally in waterborne and airborne commerce throughout the world; |
| (17) | To act as broker or agent in the chartering, sub-chartering, buying, and selling of steamships, motorships, tankers, whaling vessels, sailing vessels, yachts, tugs, lighters, barges, seaplanes, submersible craft, offshore installations and service craft, rocket-launching platforms, non-displacement vessels, scows, rafts, dredges, pontoons, airplanes, airships, hydroplanes, and all other vessels and craft of any and all motive power whatsoever, including aircraft, landcraft and watercraft, and equipment and appurtenances of all kinds in connection therewith and to engage in the business of negotiation and concluding freighting or transportation contracts of every kind and description for its own account and as the agent for any other corporation, or any firm, association or individual, domestic or foreign; | ||
| (18) | To act as ship’s agent, ship chandler, ship broker, ship’s husband, manager of shipping property, custom house broker, forwarding agent, freight contractor, lighterman, stevedore, warehouseman and wharfinger, on its own behalf or as agent for any other corporation, or any firm, association or individual, domestic or foreign; | ||
| (19) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith; | ||
| (20) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever, outside of the Republic of Liberia, and to do all things incidental to such business; | ||
| (21) | To act as agent, attorney-in-fact, broker or representative, general or special, on commission or otherwise for corporations, firms, associations, or individuals, foreign or domestic, including governments or governmental authorities; to aid, assist, promote and serve the interests of, and afford facilities for, the convenient transaction of business by its principals and partners in all parts of the world, and to appoint agents, brokers, or representatives; | ||
| (22) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused; | ||
| (23) | To apply for, purchase, or in any manner to acquire, hold, own, use and operate, to sell or in any manner dispose of, to grant, or license other rights in respects of, and in any manner deal with, any and all rights, interests, inventions, improvements and processes used in connection with or secured under letters patent, copyrights, or trademarks of the Republic of Liberia or other countries or otherwise, and to work, operate or develop the same; |
| (24) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatever kind and nature, real, personal or mixed, tangible or intangible in any part of the world suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties; | ||
| (25) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, country, state, body politic, or government or colony or any dependency thereof; | ||
| (26) | To carry on its business, to have one or more offices, and to exercise its powers wheresoever, subject to the laws of the particular country; | ||
| (27) | To carry on any other business in connection with the above or calculated directly or indirectly to enhance the value of or render profitable any of the Corporation’s property or rights; | ||
| (28) | To do all and everything necessary, suitable or proper for the accomplishment of any of the purposes, the attainment of any of the objects or the furtherance of any of the powers hereinbefore set forth either alone or in connection with other corporations, firms, or individuals and either as principals, or agents, and to do every other act or acts, thing or things, incidental or appurtenant to or growing out of or connected with the aforesaid objects, purposes or powers or any of them. |
| C. | The registered address of the Corporation in Liberia shall be 80 Broad Street, Monrovia, Liberia. The name of the Corporation’s registered agent at such address shall be The LISCR Trust Company. | |
| D. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to a holder of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| On the request of the holder of bearer shares and the surrender to the Corporation of the share certificate in respect of those shares, the shares shall be exchanged for a like number of registered shares and the name of the shareholder shall be entered in the share register of the Corporation and a new certificate shall be issued to the shareholder in his name and the exchange shall be entered in the share register of the Corporation. | ||
| On the request of the owner of shares registered in his name in the share register of the Corporation and the surrender to the Corporation of the share certificate in his name in respect of those shares, the shares shall be exchanged for a like number of bearer shares and a new certificate shall be issued to bearer and the exchange shall be entered in the share register of the Corporation. |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Business Corporation Act may have. | |
| F. | The name and mailing address of the incorporator of these Articles of Incorporation is: |
| Name | Postal Address | |
| A. Abedje | 80 Broad Street Monrovia Liberia |
| G. | The number of directors constituting the initial Board of Directors of the Corporation is three (3). | |
| H. | The Board of Directors as well as the Shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| I. | Corporate existence shall begin upon filing these Articles of Incorporation with the Minister of Foreign Affairs as of the filing date stated on these Articles. |
IN WITNESS
WHEREOF, I have executed this instrument on this 14th day of
January, 2010
| /s/ A. Abedje | ||||
| A. Abedje | ||||
$12.00 REVENUE STAMPS ON ORIGINAL
Exhibit 3.3.2
FAITH MARINE LTD.
BY-LAWS
ARTICLE I
OFFICES
The principal place of business of the Corporation shall be at such place or places as
the Directors shall from time to time determine. The corporation may also have an office or
offices at such other places within or without Liberia as the Board of Directors may from time to
time appoint or the business of the Corporation may require.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting: The annual meeting of shareholders of the Corporation
shall be held on such day and at such time and place within or without Liberia as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting: Special meetings of shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by the Officer carrying
out the duties of President or Secretary or Assistant Secretary or by the order of the Board of
Directors whenever requested in writing to do so by shareholders owning not less than one-tenth of
all the outstanding shares of the Corporation entitled to vote at such meeting. Such request shall
state the purpose or purposes of the proposed special
meeting. Such meetings shall be held at such place and on a date and at such time as may be
designated in the notice thereof by the Officer of the Corporation calling any such meeting. The
business transacted at any special meeting shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings: Notice of every annual and special meeting of
shareholders, other than any meeting the giving of notice of which is otherwise prescribed by law,
stating the date, time, place and purpose thereof, and in the case of special meetings, the name
of the person or persons at whose direction the notice is being issued, shall be given personally
or sent by mail, telegraph, cablegram, telex, teleprinter or other electronic means at least
fifteen but not more than sixty days before such meeting, to each shareholder of record entitled
to vote thereat and to each shareholder of record who, by reason of any action proposed at such
meeting would be entitled to have his shares appraised if such action were taken, and the notice
shall include a statement of that purpose and to that effect. If mailed, notice shall be deemed to
have been given when deposited in the mail, directed to the shareholder at his address as the same
appears on the record of shareholders of the Corporation or at such address as to which the
shareholder has given notice to the officer carrying out the duties of Secretary. Notice of a
meeting need not be given to any shareholder who submits a signed waiver of notice, whether before
or after the meeting, or who attends the meeting without protesting prior to the conclusion
thereof the lack of notice to him. If the Corporation shall issue any class of bearer shares,
notice of all meetings shall be given in the manner provided in the
Articles of Incorporation.
Section 4. Quorum: At all meetings of shareholders, except as otherwise expressly
provided by law, there must be present either in person or by proxy shareholders of record holding
at least a majority of the shares issued and outstanding and entitled to
vote at such meetings in order to constitute a quorum, but if less than a quorum is present, a
majority of those shares present either in person or by proxy shall have power to adjourn any
meeting until a quorum shall be present.
Section 5. Voting: If a quorum is present, and except as otherwise expressly provided
by law, the affirmative vote of a majority of the shares of stock represented at the meeting shall
be the act of the shareholders. At any meeting of shareholders each shareholder entitled to vote
any shares on any matter to be voted upon at such meeting shall be entitled to one vote on such
matter for each such share, and may exercise such voting right either in person or by proxy. Any
action required or permitted to be taken at a meeting, may be taken without a meeting if a consent
in writing, setting forth the action so taken, is signed by all of the shareholders entitled to
vote with respect to the subject matter thereof.
Section 6. Fixing of Record Date: The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of shareholders, or more than
sixty days prior to the last day on which the consent or dissent of shareholders may be expressed
for any purpose without a meeting, as the time as of which shareholders entitled to notice of and
to vote at such a meeting or whose consent or dissent is required or may be expressed for any
purpose, as the case may be, shall be determined, and all persons who were holders of record of
voting shares at such time and no others shall be entitled to notice of and to vote at such
meeting or to express their consent or dissent, as the case may be. The Board of Directors may fix
a time not exceeding sixty days preceding the date fixed for the payment of any dividend, the
making of any distribution, the allotment of any rights or the taking of any other action, as a
record time for the determination of the shareholders entitled to receive any such dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
Section 1. Number: The affairs, business and property of the Corporation shall
be managed by a Board of Directors to consist of not less than one Director. Within the limits
fixed by these By-Laws the number of Directors may be determined either by the vote of a majority
of the entire Board or by vote of the shareholders. The Directors need not be residents of Liberia
or shareholders of the Corporation. Corporations may be elected or appointed Directors.
Section 2. How Elected: Except as otherwise provided by law or Section 4 of this
Article, the Directors of the Corporation (other than the first Board of Directors if named in the
Articles of Incorporation or designated by the incorporators) shall be elected at the annual
meeting of shareholders. Each Director shall be elected to serve until the next annual meeting of
shareholders and until his successor shall have been duly elected and qualified, except in the
event of his death, resignation, removal or the earlier termination of his term of office.
Section 3. Removal: Any or all of the Directors may be removed, with or without cause
by a vote of the shareholders. Any Director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies: Vacancies in the Board of Directors occurring by death,
resignation, creation of new directorships, failure of the shareholders to elect the whole Board
at any annual election of Directors or for any other reason, including removal of
Directors for cause, may be filled either by the affirmative vote of a majority of the remaining
Directors then in office, although less than a quorum, at any special meeting called for that
purpose or at any regular meeting of the Board, or by vote of the shareholders. Vacancies
occurring by removal of Directors without cause may be filled only by vote of the shareholders.
Section 5. Regular meetings: Regular meetings of the Board of Directors may be held
at such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
Section 6. Special Meeting: Special meetings of the Board of Directors may, unless
otherwise prescribed by law, be called from time to time by the Officer carrying out the duties of
President, or any Officer of the Corporation who is also a Director. The Officer carrying out the
duties of President or of Secretary shall call a special meeting of the Board upon written request
directed to him by any Director, or any two Directors if there are three or more Directors
elected, stating the time, place and purpose of such special meeting. Special meetings of the
Board shall be held on a date and at such time and at such place as may be designated in the
notice thereof by the Officer calling the meeting.
Section 7. Notice of Special Meetings: Notice of the date, time and place of each
special meeting of the Board of Directors shall be given to each Director at least forty-eight
hours prior to such meeting, unless the notice is given orally or delivered in person, in which
case it shall be given at least twenty-four hours prior to such meeting. For the purpose of this
section, notice shall be deemed to be duly given to a Director if given to him personally
(including by telephone) or if such notice be delivered to such Director by mail,
telegraph, cablegram, telex, teleprinter or other electronic means to his last known address.
Notice of a meeting need not be given to any Director who submits a signed waiver of notice,
whether before or after the meeting, or who attends the meeting without protesting, prior to the
conclusion thereof, the lack of notice to him.
Section 8. Quorum: A majority of the Directors at the time in office, present in
person or by proxy or conference telephone or by electronic means allowing simultaneous
communication, shall constitute a quorum for the transaction of business.
Section 9. Voting: The vote of the majority of the Directors, present in person or by
proxy or conference telephone, or by electronic means allowing simultaneous communication, at a
meeting at which a quorum is present shall be the act of the Directors. Any action required or
permitted to be taken at a meeting may be taken without a meeting if all members of the Board
consent thereto in writing.
Section 10.
Compensation of Directors and Members of Committees: The Board may from time to time, in its discretion, fix the amounts which shall be payable to members
of the Board of Directors and to members of any committee, for attendance at the meetings of the
Board or of such committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees: The Board of Directors may,
by resolution or resolutions passed by a majority of the entire Board,
designate from among its members an executive committee, which, to the extent provided in said
resolution or resolutions, or in these By-Laws, shall have and may exercise, to the extent
permitted by law, the powers of the Board of Directors in the management of the business and
affairs of the Corporation, and may have power to authorize the seal of the Corporation to be
affixed to all papers which may require it. In addition, the Board of Directors may, by resolution
or resolutions passed by a majority of the entire Board, designate from among its members other
committees, each of which shall perform such functions and have such authority and powers as shall
be delegated to it by said resolution or resolutions or as provided for in these By-Laws, except
that only the executive committee may have and exercise the powers of the Board of Directors.
Members of the executive committee and any other committee shall hold office for such period as
may be prescribed by the vote of a majority of the entire Board of Directors, subject, however, to
removal at any time by the vote of the Board of Directors. Vacancies in membership of such
committees, shall be filled by vote of the Board of Directors. Committees may adopt their own
rules of procedure and may meet at stated times or on such notice as they may determine. Each
committee shall keep a record of its proceedings and report the same to the Board when required.
ARTICLE V
OFFICERS
Section 1. Number: The Board of Directors shall elect one or more Officers as it may
deem necessary. Officers may be of any nationality and need not be residents of Liberia. The
Officers shall be elected annually by the Board of Directors at its first meeting following the
annual election of Directors, but in the event of the failure of the Board to so elect any
Officer, such Officer may be elected at any subsequent meeting of the Board of
Directors. The salaries of Officers and any other compensation paid to them shall be fixed from
time to time by the Board of Directors. The Board of Directors may at any meeting elect additional
Officers. Each Officer shall hold office until the first meeting of the Board of Directors
following the next annual election of Directors and until his successor shall have been duly
elected and qualified, except in the event of the earlier termination of his term of office,
through death, resignation, removal or otherwise. Any Officer may be removed by the Board at any
time with or without cause. Any vacancy in an office may be filled for the unexpired portion of
the term of such office by the Board of Directors at any regular or special meeting.
Section 2. Designation: The Officer or Officers shall fulfill the following
functions, and all the functions may be fulfilled by one person, who may be a corporate person:
The Officer appointed as President shall be the chief executive officer of the Corporation
and shall have the general management of the affairs of the Corporation together with the powers
and duties usually incident to the office of President, except as specifically limited by
appropriate resolution of the Board of Directors and shall have such other powers and perform such
other duties as may be assigned to him by the Board of Directors. The President shall preside at
all meeting of shareholders at which he is present;
The Officer appointed as Treasurer shall have general supervision over the care and custody
of the funds, securities, and other valuable effects of the Corporation and shall deposit the same
or cause the same to be deposited in the name of the Corporation in such depositories as the Board
of Directors may designate, shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, shall have supervision over the
accounts of all receipts and disbursements of the Corporation, shall, whenever required by the
Board, render or cause to be rendered financial statements of the Corporation, shall have the
power and perform the duties usually incident to the office of Treasurer, and shall have such
powers and perform such other duties as may be assigned to him by the Board of Directors or
President;
The Officer appointed as Secretary shall act as Secretary of all meetings of the shareholders
and of the Board of Directors at which he is present, shall have supervision over the giving and
serving of notices of the Corporation, shall be the custodian of the corporate records and the
corporate seal of the Corporation, shall be empowered to affix the corporate seal to those
documents, the execution of which, on behalf of the Corporation under its seal, is duly authorized
and when so affixed may attest the same, and shall exercise the powers and perform such other
duties as may be assigned to him by the Board of Directors or the President.
Officers other than those treated in this Article shall exercise such powers and perform such
duties as may be assigned to them by the Board of Directors or the
President.
Section 3. Bond: The Board of Directors shall have power to the extent permitted by
law, to require any Officer, agent or employee of the Corporation to give bond for the faithful
discharge of his duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. Form and Issuance: The shares of the Corporation shall be represented
by certificates in form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the Officer having the duties of President or Vice-President, and
by the Officer having the duties of Secretary or Assistant Secretary or the Officer having the
duties of Treasurer or Assistant Treasurer; Provided that where one Officer has the duties of
President, Secretary and/or Treasurer the certificates may be signed by that one person. These
signatures may be facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or its employee.
Section 2. Transfer: The Board of Directors shall have power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates: The Board of Directors may direct a new
certificate or certificates of stock to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed.
When authorizing such issue of a new certificate or certificates, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or give the
Corporation a bond in such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been lost or destroyed.
ARTICLE VII
DIVIDENDS
Section 1. Declaration and Form: Dividends may be declared in conformity with
law by, and at the discretion of, the Board of Directors at any regular or special meeting.
Dividends may be declared and paid in cash, stock or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
Section 1. The seal of the Corporation, if any, shall be circular in form, with the name
of the Corporation in the circumference and such other appropriate legend as the Board of
Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
Section 1. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
ARTICLE X
AMENDMENTS
Section 1. By the Shareholders: These By-Laws may be amended, added to, altered
or repealed or new By-Laws may be adopted, at any meeting of shareholders of the Corporation by
the affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors: If the Articles of Incorporation so provide, these
By-Laws may be amended, added to, altered or repealed, or new By-Laws may be adopted, at any
regular or special meeting of the Board of Directors by the affirmative vote of a majority of the
entire Board, subject, however, to the power of the stockholders to alter, amend or repeal any
By-Law as adopted.
Exhibit 3.4.1
ARTICLES OF INCORPORATION
OF
VECTOR SHIPPING CORPORATION
PURSUANT
TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
VECTOR SHIPPING CORPORATION
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Fifty Thousand (50,000) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
| The name and address of the incorporator is: |
| Name | Post Office Address | |
| Majuro Nominees Ltd. | P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | ||
| Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN
WITNESS WHEREOF, I have executed this instrument on February 16, 2010.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.4.2
BYLAWS
VECTOR SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit
3.5.1
ARTICLES OF INCORPORATION
OF
ARAMIS NAVIGATION INC.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of
forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
ARAMIS NAVIGATION INC.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including landcraft, and any and all means of conveyance and transportation by land or water, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. | ||
| (5) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. | ||
| (6) | To appoint or act as an agent, broker, or representative, general or special, in respect of any or all of the powers expressed herein or implied hereby; to appoint agents, brokers or representatives. | ||
| (7) | To carry on its business, to have one or more offices, and to exercise its powers in foreign countries, subject to the laws of the particular country. | ||
| (8) | To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured. | ||
| (9) | To give a guarantee not in furtherance of corporate purposes when authorized by majority vote of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be secured |
| by mortgage or pledge or creation of security interest in corporate property. | |||
| (10) | To purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and personal property of every class and description. | ||
| (11) | To apply for, secure by purchase or otherwise hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent, patent rights, licenses, privileges, inventions, improvements and processes, copyrights, trademarks, and trade names, relative to or useful in connection with any business of this corporation. | ||
| (12) | To purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in, bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other instruments or interests in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original-subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules |
| of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Associations Law of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign governmental, municipal or other public authority. | |||
| (13) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and any interest therein, either as principal or as a factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | ||
| (14) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever and to do all things incidental to such business. | ||
| (15) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused. | ||
| (16) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, |
| construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatsoever kind and nature, real, personal or mixed, tangible or intangible, suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties. | |||
| (17) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person. | ||
| (18) | To acquire all or any part of the good will, rights, property and business of any person, heretofore or hereafter engaged in any business similar to any business which the Corporation has power to conduct, to pay for the same in cash or in the securities of the Corporation or otherwise, to hold, utilize and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such person, and conduct in any lawful manner the whole or any part of the business thus acquired. | ||
| (19) | To make, enter into and carry out any arrangements with any person or public authority, to obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers, rights, privileges, immunities, franchises, guarantees, grants and concessions, to acquire, hold, own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any business dependent thereon provided it is such a business as this Corporation may engage in; and to promote, cause to be formed and aid in any way any person for any such purpose. | ||
| (20) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for, or certificates of deposit for, any securities or interest therein; to acquire and |
| exercise any proxies or powers of attorney or other privileges pertaining to any securities or interest therein. | |||
| (21) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. | ||
| (22) | To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of or operated by, any person, formed or to be formed, either upon trust for or as agents or nominees of, this Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation. | ||
| (23) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation. | ||
| (24) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation organized under the Associations Law of the Republic of the Marshall Islands, to buy, sell and deal in foreign exchange. |
| (25) | To invest its uninvested funds and/or surplus from time to time to such extent as the Corporation may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (26) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by the Associations Law of the Republic of the Marshall Islands; and provided further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote. | ||
| (27) | To act in any and all parts of the world in any capacity whatsoever as agent, broker, or representative, general or special, for any person or public authority. | ||
| (28) | To do any and all of the acts and things herein set forth, as principal, factor, agent, contractor, or otherwise, either alone or in company with others; and in general to carry on any other similar business which is incidental or conducive or convenient or proper to the attainment of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to exercise any or all of its corporate powers and rights. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
| Majuro Nominees Ltd. | P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The board of directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF I have executed this instrument on December 14, 2009.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.5.2
BYLAWS
ARAMIS NAVIGATION INC.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.6.1
ARTICLES OF INCORPORATION
OF
DUCALE MARINE INC.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
DUCALE MARINE INC.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, vessels, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including landcraft, and any and all means of conveyance and transportation by land or water, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof, and to equip, furnish, and outfit such vessels and ships |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, shipbrokers, customhouse brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF I have executed this instrument on
June 22, 2009.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | 
|
|||
Exhibit 3.6.2
BYLAWS
DUCALE MARINE INC.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit
3.7.1
ARTICLES OF INCORPORATION
OF
AQUIS MARINE CORP.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
AQUIS MARINE CORP.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including landcraft, and any and all means of conveyance and transportation by land or water, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. |
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. |
| (4) | To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. |
| (5) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. |
| (6) | To appoint or act as an agent, broker, or representative, general or special, in respect of any or all of the powers expressed herein or implied hereby; to appoint agents, brokers or representatives. |
| (7) | To carry on its business, to have one or more offices, and to exercise its powers in foreign countries, subject to the laws of the particular country. |
| (8) | To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured. |
| (9) | To give a guarantee not in furtherance of corporate purposes when authorized by majority vote of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be secured |
| by mortgage or pledge or creation of security interest in corporate property. |
| (10) | To purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and personal property of every class and description. |
| (11) | To apply for, secure by purchase or otherwise hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent, patent rights, licenses, privileges, inventions, improvements and processes, copyrights, trademarks, and trade names, relative to or useful in connection with any business of this corporation. |
| (12) | To purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in, bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other instruments or interests in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules |
| of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Business Corporations Act of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign governmental, municipal or other public authority. |
| (13) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and any interest therein, either as principal or as a factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. |
| (14) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever and to do all things incidental to such business. |
| (15) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused. |
| (16) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, |
| construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatsoever kind and nature, real, personal or mixed, tangible or intangible, suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties. |
| (17) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person. |
| (18) | To acquire all or any part of the good will, rights, property and business of any person, heretofore or hereafter engaged in any business similar to any business which the Corporation has power to conduct, to pay for the same in cash or in the securities of the Corporation or otherwise, to hold, utilize and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such person, and conduct in any lawful manner the whole or any part of the business thus acquired. |
| (19) | To make, enter into and carry out any arrangements with any person or public authority, to obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers, rights, privileges, immunities, franchises, guarantees, grants and concessions, to acquire, hold, own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any business dependent thereon provided it is such a business as this Corporation may engage in; and to promote, cause to be formed and aid in any way any person for any such purpose. |
| (20) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for, or certificates of deposit for, any securities or interest therein; to acquire and |
| exercise any proxies or powers of attorney or other privileges pertaining to any securities or interest therein. |
| (21) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. |
| (22) | To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of or operated by, any person, formed or to be formed, either upon trust for or as agents or nominees of, this Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation. |
| (23) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation. |
| (24) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation organized under the Business Corporations Act of the Republic of the Marshall Islands, to buy, sell and deal in foreign exchange. |
| (25) | To invest its uninvested funds and/or surplus from time to time to such extent as the Corporation may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (26) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by the Business Corporations Act of the Republic of the Marshall Islands; and provided further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote. | ||
| (27) | To act in any and all parts of the world in any capacity whatsoever as agent, broker, or representative, general or special, for any person or public authority. | ||
| (28) | To do any and all of the acts and things herein set forth, as principal, factor, agent, contractor, or otherwise, either alone or in company with others; and in general to carry on any other similar business which is incidental or conducive or convenient or proper to the attainment of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to exercise any or all of its corporate powers and rights. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
Name |
Post Office Address |
|
Majuro Nominees Ltd.
|
P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The board of directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF I have executed this instrument on March 23, 2010.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | 
|
|||
Exhibit 3.7.2
BYLAWS
AQUIS MARINE CORP.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.8.1
ARTICLES OF INCORPORATION
OF
HIGHBIRD MANAGEMENT INC.
PURSUANT
TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The
undersigned, for the purpose of forming a Corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with the
Registrar of Corporations this instrument for that purpose, as follows:
The name of the Corporation shall be:
HIGHBIRD MANAGEMENT INC.
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may now or hereafter be organized under the Marshall
Islands Business Corporations Act and without in any way limiting the generality of the
foregoing, the corporation shall have the power:
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, vessels, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including landcraft, and any and all means of conveyance and transportation by land or water, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, shipbrokers, customhouse brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | ||
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | |||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | ||
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O Box 1405 Majuro Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | ||
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF I have executed this instrument on
July 14, 2009.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.8.2
BYLAWS
HIGHBIRD MANAGEMENT INC.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.9.1
ARTICLES OF INCORPORATION
OF
FLORAL MARINE LTD.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and
file with the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
FLORAL MARINE LTD.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including landcraft, and any and all means of conveyance and transportation by land or water, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. | ||
| (5) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. | ||
| (6) | To appoint or act as an agent, broker, or representative, general or special, in respect of any or all of the powers expressed herein or implied hereby; to appoint agents, brokers or representatives. | ||
| (7) | To carry on its business, to have one or more offices, and to exercise its powers in foreign countries, subject to the laws of the particular country. | ||
| (8) | To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured. | ||
| (9) | To give a guarantee not in furtherance of corporate purposes when authorized by majority vote of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be secured |
| by mortgage or pledge or creation of security interest in corporate property. | |||
| (10) | To purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and personal property of every class and description. | ||
| (11) | To apply for, secure by purchase or otherwise hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent, patent rights, licenses, privileges, inventions, improvements and processes, copyrights, trademarks, and trade names, relative to or useful in connection with any business of this corporation. | ||
| (12) | To purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in, bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other instruments or interests in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules |
| of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Associations Law of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign governmental, municipal or other public authority. | |||
| (13) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and any interest therein, either as principal or as a factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | ||
| (14) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever and to do all things incidental to such business. | ||
| (15) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused. | ||
| (16) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, |
| construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatsoever kind and nature, real, personal or mixed, tangible or intangible, suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties. | |||
| (17) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person. | ||
| (18) | To acquire all or any part of the good will, rights, property and business of any person, heretofore or hereafter engaged in any business similar to any business which the Corporation has power to conduct, to pay for the same in cash or in the securities of the Corporation or otherwise, to hold, utilize and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such person, and conduct in any lawful manner the whole or any part of the business thus acquired. | ||
| (19) | To make, enter into and carry out any arrangements with any person or public authority, to obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers, rights, privileges, immunities, franchises, guarantees grants and concessions, to acquire, hold, own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any business dependent thereon provided it is such a business as this Corporation may engage in; and to promote, cause to be formed and aid in any way any person for any such purpose. | ||
| (20) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for, or certificates of deposit for, any securities or interest therein; to acquire and |
| exercise any proxies or powers of attorney or other privileges pertaining to any securities or interest therein. | |||
| (21) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. | ||
| (22) | To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of or operated by, any person, formed or to be formed, either upon trust for or as agents or nominees of, this Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation. | ||
| (23) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation. | ||
| (24) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation organized under the Associations Law of the Republic of the Marshall Islands, to buy, sell and deal in foreign exchange. |
| (25) | To invest its uninvested funds and/or surplus from time to time to such extent as the Corporation may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (26) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by the Associations Law of the Republic of the Marshall Islands; and provided further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote. | ||
| (27) | To act in any and all parts of the world in any capacity whatsoever as agent, broker, or representative, general or special, for any person or public authority. | ||
| (28) | To do any and all of the acts and things herein set forth, as principal, factor, agent, contractor, or otherwise, either alone or in company with others; and in general to carry on any other similar business which is incidental or conducive or convenient or proper to the attainment of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to exercise any or all of its corporate powers and rights. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | ||
Majuro Nominees Ltd.
|
P.O. Box 1405 Majuro Marshall Islands |
| G. | The board of directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF I have executed this instrument on June 11, 2009.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.9.2
BYLAWS
FLORAL MARINE LTD.
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.10.1
ARTICLES
OF INCORPORATION
OF
RED
ROSE SHIPPING CORP.
PURSUANT
TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the Marshall
Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with the
Registrar of Corporations this instrument for that purpose as follows:
| A. | The name of the Corporation shall be: |
RED
ROSE SHIPPING CORP.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operates pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including landcraft, and any and all means of conveyance and transportation by land or water, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. | ||
| (5) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. | ||
| (6) | To appoint or act as an agent, broker, or representative, general or special, in respect of any or all of the powers expressed herein or implied hereby; to appoint agents, brokers or representatives. | ||
| (7) | To carry on its business, to have one or more offices, and to exercise its powers in foreign countries, subject to the laws of the particular country. | ||
| (8) | To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured. | ||
| (9) | To give a guarantee not in furtherance of corporate purposes when authorized by majority vote of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be secured |
| by mortgage or pledge or creation of security interest in corporate property. | |||
| (10) | To purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and personal property of every class and description. | ||
| (11) | To apply for, secure by purchase or otherwise hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent, patent rights, licenses, privileges, inventions, improvements and processes, copyrights, trademarks, and trade names, relative to or useful in connection with any business of this corporation. | ||
| (12) | To purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in, bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other instruments or interests in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules |
| of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Associations Law of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign governmental, municipal or other public authority. | |||
| (13) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and any interest therein, either as principal or as a factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | ||
| (14) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever and to do all things incidental to such business. | ||
| (15) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused. | ||
| (16) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, |
construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of
lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams,
stores and dwellings and all other property and things of whatsoever kind and nature, real,
personal or mixed, tangible or intangible, suitable or necessary in connection with any of the
purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties.
| (17) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person. | |
| (18) | To acquire all or any part of the good will, rights, property and business of any person, heretofore or hereafter engaged in any business similar to any business which the Corporation has power to conduct, to pay for the same in cash or in the securities of the Corporation or otherwise, to hold, utilize and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such person, and conduct in any lawful manner the whole or any part of the business thus acquired. | |
| (19) | To make, enter into and carry out any arrangements with any person or public authority, to obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers, rights, privileges, immunities, franchises, guarantees, grants and concessions, to acquire, hold, own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any business dependent thereon provided it is such a business as this Corporation may engage in; and to promote, cause to be formed and aid in any way any person for any such purpose. | |
| (20) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for, or certificates of deposit for, any securities or interest therein; to acquire and |
| exercise any proxies or powers of attorney or other privileges pertaining to any securities or interest therein. | ||
| (21) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. | |
| (22) | To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of or operated by, any person, formed or to be formed, either upon trust for or as agents or nominees of, this Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation. | |
| (23) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation. | |
| (24) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation organized under the Associations Law of the Republic of the Marshall Islands, to buy, sell and deal in foreign exchange. |
| (25) | To invest its uninvested funds and/or surplus from time to time to such extent as the Corporation may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | |
| (26) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by the Associations Law of the Republic of the Marshall Islands; and provided further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote. | |
| (27) | To act in any and all parts of the world in any capacity whatsoever as agent, broker, or representative, general or special, for any person or public authority. | |
| (28) | To do any and all of the acts and things herein set forth, as principal, factor, agent, contractor, or otherwise, either alone or in company with others; and in general to carry on any other similar business which is incidental or conducive or convenient or proper to the attainment of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to exercise any or all of its corporate powers and rights. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
Name
|
Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 Majuro Marshall Islands |
| G. | The board of directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. | |
| IN WITNESS WHEREOF I have executed this instrument on June 11, 2009. |
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.10.2
BYLAWS
RED ROSE SHIPPING CORP.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.11.1
ARTICLES OF INCORPORATION
OF
GINGER SERVICES CO.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as
follows:
A. The name of the Corporation shall be:
GINGER SERVICES CO.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 Majuro Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on
December 22, 2008.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | 
|
|||
Exhibit 3.11.2
BYLAWS
GINGER SERVICES CO.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit
3.12.1
ARTICLES OF INCORPORATION
OF
QUENA SHIPMANAGEMENT INC.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
A. The name of the Corporation shall be:
QUENA SHIPMANAGEMENT INC.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, vessels, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including aircraft, landcraft, and any and all means of conveyance and transportation by land, water or air, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, shipbrokers, customhouse brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number or shares. |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O Box 1405 Majuro Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF I have executed this instrument on July 29, 2008.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | 
|
|||
Exhibit 3.12.2
BYLAWS
QUENA SHIPMANAGEMENT INC.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.13.1
ARTICLES OF INCORPORATION
OF
ASTRA MARITIME CORPORATION
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with the Registrar of Corporations this instrument
for that purpose, as follows:
| A. | The name of the Corporation shall be: |
ASTRA MARITIME CORPORATION
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 Majuro Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on October 15, 2008.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | |
|||
Exhibit 3.13.2
BYLAWS
ASTRA MARITIME CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.14.1
ARTICLES OF INCORPORATION
OF
PRIMAVERA SHIPPING CORPORATION
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file
with the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
PRIMAVERA SHIPPING CORPORATION
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 Majuro Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on October 15, 2008.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.14.2
BYLAWS
PRIMAVERA SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.15.1
ARTICLES OF INCORPORATION
OF
PUEBLO HOLDINGS LTD
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of
the Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file
with the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
PUEBLO HOLDINGS LTD
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. |
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
F. The name and address of the incorporator is:
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on
August 8, 2008.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | 
|
|||
Exhibit 3.15.2
BYLAWS
PUEBLO HOLDINGS LTD.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.16.1
ARTICLES OF INCORPORATION
OF
BEAUFIKS SHIPPING CORPORATION
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby
make, subscribe, acknowledge and file with the Registrar of Corporations this instrument for that
purpose, as follows:
| A. | The name of the Corporation shall be: |
BEAUFIKS SHIPPING CORPORATION
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on June 19, 2008.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | |
|||
Exhibit 3.16.2
BYLAWS
BEAUFIKS SHIPPING CORPORATION
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.17.1
ARTICLES OF INCORPORATION
OF
ROWBOAT MARINE INC.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
ROWBOAT MARINE INC.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including aircraft, landcraft, and any and all means of conveyance and transportation by land, water or air, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. | ||
| (5) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. | ||
| (6) | To appoint or act as an agent, broker, or representative, general or special, in respect of any or all of the powers expressed herein or implied hereby; to appoint agents, brokers or representatives. | ||
| (7) | To carry on its business, to have one or more offices, and to exercise its powers in foreign countries, subject to the laws of the particular country. | ||
| (8) | To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured. | ||
| (9) | To give a guarantee not in furtherance of corporate purposes when authorized by majority vote of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be secured |
| by mortgage or pledge or creation of security interest in corporate property. | |||
| (10) | To purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and personal property of every class and description. | ||
| (11) | To apply for, secure by purchase or otherwise hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent, patent rights, licenses, privileges, inventions, improvements and processes, copyrights, trademarks, and trade names, relative to or useful in connection with any business of this corporation. | ||
| (12) | To purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in, bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other instruments or interests in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules |
| of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Associations Law of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign governmental, municipal or other public authority. | |||
| (13) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and any interest therein, either as principal or as a factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | ||
| (14) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever and to do all things incidental to such business. | ||
| (15) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused. | ||
| (16) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, |
| construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatsoever kind and nature, real, personal or mixed, tangible or intangible, suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties. | |||
| (17) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person. | ||
| (18) | To acquire all or any part of the good will, rights, property and business of any person, heretofore or hereafter engaged in any business similar to any business which the Corporation has power to conduct, to pay for the same in cash or in the securities of the Corporation or otherwise, to hold, utilize and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such person, and conduct in any lawful manner the whole or any part of the business thus acquired. | ||
| (19) | To make, enter into and carry out any arrangements with any person or public authority, to obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers, rights, privileges, immunities, franchises, guarantees, grants and concessions, to acquire, hold, own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any business dependent thereon provided it is such a business as this Corporation may engage in; and to promote, cause to be formed and aid in any way any person for any such purpose. | ||
| (20) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for, or certificates of deposit for, any securities or interest therein; to acquire and |
| exercise any proxies or powers of attorney or other privileges pertaining to any securities or interest therein. | |||
| (21) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. | ||
| (22) | To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of or operated by, any person, formed or to be formed, either upon trust for or as agents or nominees of, this Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation. | ||
| (23) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation. | ||
| (24) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation organized under the Associations Law of the Republic of the Marshall Islands, to buy, sell and deal in foreign exchange. |
| (25) | To invest its uninvested funds and/or surplus from time to time to such extent as the Corporation may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (26) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by the Associations Law of the Republic of the Marshall Islands; and provided further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote. | ||
| (27) | To act in any and all parts of the world in any capacity whatsoever as agent, broker, or representative, general or special, for any person or public authority. | ||
| (28) | To do any and all of the acts and things herein set forth, as principal, factor, agent, contractor, or otherwise, either alone or in company with others; and in general to carry on any other similar business which is incidental or conducive or convenient or proper to the attainment of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to exercise any or all of its corporate powers and rights. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O- Box 1405 Majuro Marshall Islands |
| G. | The board of directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with, the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF I have executed this instrument on June 11, 2008.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.17.2
BYLAWS
ROWBOAT MARINE INC.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.18.1
ARTICLES OF INCORPORATION
OF
CORSAIR SHIPPING LTD.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned for the purpose of
forming a corporation pursuant to the provisions of the Marshall
Islands Business Corporation Act, does hereby make, subscribe
acknowledge and file with the Registrar
of corporations this instrument for that purpose as follows:
| A. | The name of the corporation shall be: |
CORSAIR SHIPPING LTD.
| B. | The purpose of the corporation is to engage in any lawful act or activity for which Corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-character, sell, build, and repair steamships, motorships, tankers, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including aircraft, landcraft, and any and all means of conveyance and transportation by land, water or air, together with engines, boiler, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kind, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehouseman, wharfingers, ship chandlers, and general traders. | ||
| (5) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. | ||
| (6) | To appoint or act as an agent, broker, or representative, general or special, in respect of any or all of the powers expressed herein or implied hereby; to appoint agents, brokers or representatives. | ||
| (7) | To carry on its business, to have one or more offices, and to exercise its powers in foreign countries, subjects to the law of the particular country. | ||
| (8) | To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured. | ||
| (9) | To give a guarantee not in furtherance of corporate purposes when authorized by majority vote of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be secured |
| by mortgage or pledge or creation of security interest in corporate property. | ||
| (10) | To purchase or otherwise acquire, hold, own, mortgage, sell, convey or otherwise dispose of real and personal property or every class and description. | |
| (11) | To apply for, secure by purchase or otherwise hold, use, sell, assign, lease, grant licenses in respect of mortgage or otherwise dispose of letters patent, patent rights, licenses, privileges, inventions, improvements and processes, copyrights, trademarks, and trade names, relative to or useful in connection with any business of this corporation. | |
| (12) | To purchase of otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other instruments or interests in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic or by any domestic or foreign governmental municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection improvement and enhancement in value of any such securities and to aid by loan, subsidy guaranty or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules |
| of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Associations Law of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign governmental, municipal or other public authority. | ||
| (13) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner import, export, sell, distribute or otherwise dispose of and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever and any interest therein either as principal or as a factor or broker, or as commercial, sales, business or financial agent or representative, general or special or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | |
| (14) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever and to do all things incidental to such business. | |
| (15) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused. | |
| (16) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, |
| construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatsoever kind and nature, real personal or mixed, tangible or intangible suitable or necessary in connection with any of the purposes hereinabove or hereinafter set fourth or otherwise deal with or in any such properties. | ||
| (17) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of in any way permitted by law, the formation, merger, reorganization or liquidation of any person. | |
| (18) | To acquire all or any part of the good will, rights, property and business of any person, heretofore or hereafter engaged in any business similar to any business which the corporation has power to conduct, to pay for the same in cash or in the securities of the corporation or otherwise to hold, utilize and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such person, any conduct in any lawful manner the whole or any part of the business thus acquired. | |
| (19) | To make, enter into and carry out any arrangements with any person or public authority, to obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers, rights, privileges, immunities, franchises, guarantees, grants and concessions, to acquire, hold, own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any business dependent thereon provided it is such a business as this Corporation may engage in; and to promote, cause to be formed and aid in any way any person for any such purpose. | |
| (20) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for, or certificates of deposit for, any securities or interest therein; to acquire and |
| exercise any proxies or powers of attorney or other privileges pertaining to any securities or interest therein, | ||
| (21) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person or in connection with the issuance underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. | |
| (22) | To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of or operated by any person, formed or to be formed, either upon trust for or as agents or nominees of, this Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation. | |
| (23) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation. | |
| (24) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation organized under the Associations Law of the Republic of the Marshall Islands, to buy, sell and deal in foreign exchange. |
| (25) | To invest its uninvested funds and/or surplus from time to time to such extent as the Corporation may deem advisable in securities or in call and/or in time loans or otherwise upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize, it to do so. | |
| (26) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by the Associations Law of the Republic of the Marshall Islands; and provided further that shares of its own capital stock owned by the corporation shall not be voted upon directly or indirectly nor counted as outstanding for the purpose of any stockholders quorum or vote. | |
| (27) | To act in any and all parts of the world in any capacity whatsoever as agent, broker, or representative, general or special, for any person or public authority. | |
| (28) | To do any and all of the acts and things herein set forth, as principal, factor, agent, contractor, or otherwise, either alone or in company with others; and in general to carry on any other similar business which is incidental or conductive or convenient or proper to the attainment of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to exercise any or all of its corporate powers and rights. |
| C. | The registered address of the corporation in the Marshall Islands is Trust Company Complex, Ajelatke 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 Majuro Marshall Islands |
| G. | The board of directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporation as of the filing date stated on these Articles. |
IN
WITNESS WHEREOF I have executed this instrument on June 11, 2008.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.18.2
BYLAWS
CORSAIR SHIPPING LTD.
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.19.1
ARTICLES OF INCORPORATION
OF
NAVIOS TANKERS MANAGEMENT INC.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
NAVIOS TANKERS MANAGEMENT INC.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including landcraft, and any and all means of conveyance and transportation by land or water, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. | ||
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. |
| (5) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. | ||
| (6) | To appoint or act as an agent, broker, or representative, general or special, in respect of any or all of the powers expressed herein or implied hereby; to appoint agents, brokers or representatives. | ||
| (7) | To carry on its business, to have one or more offices, and to exercise its powers in foreign countries, subject to the laws of the particular country. | ||
| (8) | To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured. | ||
| (9) | To give a guarantee not in furtherance of corporate purposes when authorized by majority vote of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be secured by mortgage or pledge or creation of security interest in corporate property. | ||
| (10) | To purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and personal property of every class and description. | ||
| (11) | To apply for, secure by purchase or otherwise hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent, patent rights, licenses, privileges, inventions, improvements and processes, copyrights, trademarks, and trade names, relative to or useful in connection with any business of this corporation. | ||
| (12) | To purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in, bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other instruments or interests in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or |
| otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Business Corporations Act of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign governmental, municipal or other public authority. | |||
| (13) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and any interest therein, either as principal or as a factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | ||
| (14) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever and to do all things incidental to such business. | ||
| (15) | To carry on the businesses of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances of loans upon the security of goods warehoused. | ||
| (16) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatsoever kind and nature, real, personal or mixed, tangible or intangible, suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties. | ||
| (17) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person. |
| (18) | To acquire all or any part of the good will, rights, property and business of any person, heretofore or hereafter engaged in any business similar to any business which the Corporation has power to conduct, to pay for the same in cash or in the securities of the Corporation or otherwise, to hold, utilize and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such person, and conduct in any lawful manner the whole or any part of the business thus acquired. | ||
| (19) | To make, enter into and carry out any arrangements with any person or public authority, to obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers, rights, privileges, immunities, franchises, guarantees, grants and concessions, to acquire, hold, own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any business dependent thereon provided it is such a business as this Corporation may engage in; and to promote, cause to be formed and aid in any way any person for any such purpose. | ||
| (20) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for, or certificates of deposit for, any securities or interest therein; to acquire and exercise any proxies or powers of attorney or other privileges pertaining to any securities or interest therein. | ||
| (21) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. | ||
| (22) | To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of or operated by, any person, formed or to be formed, either upon trust for or as agents or nominees of, this Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation. | ||
| (23) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation. | ||
| (24) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done |
| by a corporation organized under the Business Corporations Act of the Republic of the Marshall Islands, to buy, sell and deal in foreign exchange. | |||
| (25) | To invest its uninvested funds and/or surplus from time to time to such extent as the Corporation may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (26) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by the Business Corporations Act of the Republic of the Marshall Islands; and provided further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote. | ||
| (27) | To act in any and all parts of the world in any capacity whatsoever as agent, broker, or representative, general or special, for any person or public authority. | ||
| (28) | To do any and all of the acts and things herein set forth, as principal, factor, agent, contractor, or otherwise, either alone or in company with others; and in general to carry on any other similar business which is incidental or conducive or convenient or proper to the attainment of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to exercise any or all of its corporate powers and rights. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |||
| Majuro Nominees Ltd. | P.O. Box 1405 | |||
| Majuro | ||||
| Marshall Islands |
| G. | The board of directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. | |
| IN WITNESS WHEREOF I have executed this instrument on March 24, 2010. |
| Majuro Nominees Ltd. Incorporator |
||||
| by: | ||||
Exhibit 3.19.2
BYLAWS
NAVIOS TANKERS MANAGEMENT INC.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.20.1
ARTICLES OF INCORPORATION
OF
PHAROS NAVIGATION S.A.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
PHAROS NAVIGATION S. A.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including aircraft, landcraft, and any and all means of conveyance and transportation by land, water or air, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. | ||
| (5) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. | ||
| (6) | To appoint or act as an agent, broker, or representative general or special, in respect of any or all of the powers expressed herein or implied hereby; to appoint agents, brokers or representatives. | ||
| (7) | To carry on its business, to have one or more offices, and to exercise its powers in foreign countries, subject to the laws of the particular country. | ||
| (8) | To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instrument and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured. | ||
| (9) | To give a guarantee not in furtherance of corporate purposes when authorized by majority vote of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be secured |
| by mortgage or pledge or creation of security interest in corporate property. | |||
| (10) | To purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and personal property of every class and description. | ||
| (11) | To apply for, secure by purchase otherwise hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent, patent rights, licenses, privileges, inventions, improvements and processes, copyrights, trademarks, and trade names, relative to or useful in connection with any business of this corporation. | ||
| (12) | To purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in, bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other instruments or interests in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules |
| of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Associations Law of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign governmental, municipal or other public authority. | |||
| (13) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials personal property and real property of every kind, character and description whatsoever, and any interest therein, either as principal or as a factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | ||
| (14) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever and to do all things incidental to such business. | ||
| (15) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused. | ||
| (16) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, |
| construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvement, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatsoever kind and nature, real, personal or mixed, tangible or intangible, suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties. | |||
| (17) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person. | ||
| (18) | To acquire all or any part of the good will, rights, property and business of any person, heretofore or hereafter engaged in any business similar to any business which the Corporation has power to conduct, to pay for the same in cash or in the securities of the Corporation or otherwise, to hold, utilize and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such person, and conduct in any lawful manner the whole or any part of the business thus acquired. | ||
| (19) | To make, enter into and carry out any arrangements with any person or public authority, to obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers, rights, privileges, immunities, franchises, guarantees grants and concessions, to acquire, hold, own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any business dependent thereon provided it is such a business as this Corporation may engage in; and to promote, cause to be formed, and aid in any way any person for any such purpose. | ||
| (20) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for, or certificates of deposit for, any securities or interest therein; to acquire and |
| exercise any proxies or powers of attorney or other privileges pertaining to any securities or interest therein. | |||
| (21) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. | ||
| (22) | To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of or operated by, any person, formed or to be formed, either upon trust for or as agents or nominees of this Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation. | ||
| (23) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation. | ||
| (24) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation organized under the Associations Law of the Republic of the Marshall Islands, to buy, sell and deal in foreign exchange. |
| (25) | To invest its uninvested funds and/or surplus from time to time to such extent as the Corporation may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (26) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by the Associations Law of the Republic of the Marshall Islands; and provided further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote. | ||
| (27) | To act in any and all parts of the world in any capacity whatsoever as agent, broker, or representative, general or special, for any person or public authority. | ||
| (28) | To do any and all of the acts and things herein set forth, as principal, factor, agent, contractor, or otherwise, either alone or in company with others; and in general to carry on any other similar business which is incidental or conducive or convenient or proper to the attainment of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to exercise any or all of its corporate powers and rights. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The board of directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF I have executed this instrument on
December 11, 2007.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.20.2
BYLAWS
PHAROS NAVIGATION S.A.
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.21.1
THE REPUBLIC OF LIBERIA
Business Corporation Act 1977
The Associations Law, Title 5, as Amended, of the Liberian Code of Laws Revised
Business Corporation Act 1977
The Associations Law, Title 5, as Amended, of the Liberian Code of Laws Revised
ARTICLES OF INCORPORATION
of
SIZZLING VENTURES INC.
The undersigned, for the purpose of incorporating a nonresident domestic corporation in accordance
with the provisions of the Business Corporation Act of the Republic of Liberia, does hereby make,
subscribe, acknowledge and file in the Office of the Minister of Foreign Affairs this instrument
for that purpose, as follows:
| A. | The name of the Corporation shall be: |
SIZZLING VENTURES INC.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corpoprations may now or hereafter be organized under the Business Corporation Act and without in any way limiting the generality of the foregoing, the Corporation shall have the power: |
| (1) | To carry on the business of an investment holding company or corporation, and for such purpose to purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or orherwise dispose of and generally to deal in shares, stocks, bonds, debentures, notes, evidences of indebtedness, warrants, rights, certificates, receipts or any other instruments or interest in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organization, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement, and enhancement in value of any such securities and to aid by loan, subsidy, guarantee or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or |
| subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules of any such institution. | |||
| As used herein the term; | |||
| “Securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Business Corporation Act is legally permitted to acquire or deal in, by whomsoever issued or created; | |||
| “Person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign; and | |||
| “Public authority” shall include any domestic or foreign governmental, municipal or other public authority; | |||
| (2) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, charter and description whatsoever, and wheresoever situated, and any interest therein either as principal or as factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the Laws of Liberia, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution; | ||
| (3) | To borrow or raise money and contract debts, when necessary for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured; | ||
| (4) | To acquire, and take over as a going concern and thereafter to carry on the business of any person, firm or corporation engaged in any business which the Corporation is authorized to carry on, and in connection therewith to acquire the good will and all or any assets, and to assume or otherwise provide for all or any of the liabilities of any such business; |
| (5) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person, firm or corporation wheresoever situated; | ||
| (6) | To lend or advance money to or for the account of any other person, firm or corporation and also to guarantee, endorse or give security for any promissory notes, bonds, or other instruments of indebtedness of such other person, firm or corporation; and to otherwise invest its funds as from time to time may be deemed advisable by the Board of Directors, but the Corporation shall not engage in the business of banking or the provision of insurance services or exercise banking or insurance service provider’s powers, and nothing in these Articles contained shall be deemed to authorize it to do so; | ||
| (7) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for or certificates of deposit for, any proxies or powers of attorney or other privileges pertaining to any securities or interest therein, to hold in trust, issue on commission, make advances upon or sell, lease, license, transfer, organize, reorganize, incorporate or dispose of any of the undertakings or resulting investments aforesaid, or the stock or securities thereon; to act as agent for any of the above or like purposes, or any purpose herein mentioned, and to act as fiscal agent of any other person, firm or corporation; | ||
| (8) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person, firm or corporation or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority; | ||
| (9) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the Corporation; | ||
| (10) | To cause or allow the legal title or any legal or equitable estate, right or interest in any property, whether real, personal, or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of, or operated by, any person, formed or to be formed, either upon trust for, or as agents or nominees of, the Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation; | ||
| (11) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but onluy in so far as the same may be permitted to be done by a corporation organized under the Business Corporation Act to buy, sell and deal in foreign exchange; |
| (12) | To make and give any guarantee so far as the same may be permitted to be done by a corporation organized under the Business Corporation Act and to mortgage, pledge or charge the property of the Corporation, of whatsoever nature the property may be, as security for any such guarantee made or given and to assist financially or otherwise with or without consideration and on such terms as the Corporation thinks fit any person, firm, company or corporation in any part of the world and in connection or therewith undertake and guarantee the liabilities of that person, firm, company or corporation and to issue or procure the issue of indemnities in respect of the liablities of such person, firm, company or corporation and to mortgage and hypothecate the Corporation’s vessels or real or personal property or immovable or movable property or other form or property whatsoever as security for any such undertaking or guarantee or indemnity given or issued as aforesaid; | ||
| (13) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by law; and provide further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote; | ||
| (14) | To invest in its uninvested funds and/or surplus from time to time to such extent as the Board of Directors may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or the provision of insurance services or exercise banking or insurance service provider’s powers, and nothing in these Articles contained shall be deemed to authorize it to do so; | ||
| (15) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, whaling vessels, sailing vessels, tugs, lighters, barges, seaplanes, submersible craft, offshore installations and service craft, rocket-launching platforms, non-displacement vessels and all other vessels and craft of any and all means of conveyance and transportation by land, water or air, together with engines, boilers, machinery, equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, use and operation thereof; and to equip, furnish, and outfit such vessels and ships; | ||
| (16) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of passengers, mail, freight, goods, cargo in bulk and personal effects by water between the various ports of the world and to engage generally in waterborne and airborne commerce throughout the world; | ||
| (17) | To act as broker or agent in the chartering, sub-chartering, buying, and selling of steamships, motorships, tankers, whaling vessels, sailing vessels, yachts, tugs, |
lighters, barges, scows, rafts, dredges, pontoons, airplanes, airships, hydroplanes and all
other vessels and craft of any and all motive power whatsoever, including aircraft landcraft and
watercraft, and equipment and appurtenances of all kinds in connection therewith and to engage in
the business of negotiation and concluding freighting or transportation contracts of every kind and
description for its own account and as the agent for any other corporation, or any firm, association
or individual, domestic or foreign;
| (18) | To act as ship’s agent, ship chandler, ship broker, ship’s husband, manager of shipping property, custom house broker, forwarding agent freight contractor, lighteman, stevedore, warehouseman and wharfinger, on its own behalf or as agent for any other corporation, or any firm, association or individual, domestic or foreign; | |
| (19) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith; | |
| (20) | To engage in any merchantile, manufacturing or trading business of any kind or character whatsoever, outside of the Republic of Liberia, and to do all things incidental to such business; | |
| (21) | To act as agent, attorney-in-fact, broker or representative, general or special, on commission or otherwise for corporations, firms, associations, or individuals, foreign or domestic, including governments or governmental authorities; to aid, assist, promote and serve the interests of, and afford facilities for, the convenient transaction of business by its principals and partners in all parts of the world; and to appoint agents, brokers, or representatives; | |
| (22) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused; | |
| (23) | To apply for, purchase, or in any manner to acquire, hold, own, use and operate; to sell or in any manner dispose of, to grant, or license other rights in respects of, and in any manner deal with, any and all rights, interests, inventions, improvements and processes used in connection with or secured under letters patent, copyrights, or trademarks of the Republic of Liberia or other countries or otherwise, and to work, operate or develop the same; | |
| (24) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvements, warehouses, factories, buildings. structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatever kind and nature, real, personal or mixed, tangible or intangible in any part of the world suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties; |
| (25) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, country, state, body politic, or government or colony or any dependency thereof; | ||
| (26) | To carry on its business, to have one or more offices, and to exercise its powers wheresoever, subject to the laws of the particular country; | ||
| (27) | To carry on any other business in connection with the above or calculated directly or indirectly to enhance the value of or render profitable any of the Corporation’s property or rights; | ||
| (28) | To do all and everything necessary, suitable or proper for the accomplishment of any of the purposes, the attainment of any of the objects or the furtherance of any of the powers hereinbefore set forth either alone or in connection with other corporations, firms, or individuals and either as principals, or agents, and to do every other act or acts, thing or things, incidental or appurtenant to or growing out of or connected with the aforesaid objects, purposes or powers or any of them. |
| C. | The registered address of the Corporation in Liberia shall be 80 Broad Street, Monrovia, Liberia. The name of the Corporation’s registered agent at such address shall be The LISCR Trust Company. | |
| D. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to a holder of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| On the request of the holder of bearer shares and the surrender to the Corporation of the share certificate in respect of those shares, the shares shall be exchanged for a like number of registered shares and the name of the shareholder shall be entered in the share register of the corporation and a new certificate shall be issued to the shareholder in his name and the exchange shall be entered in the share register of the Corporation. | ||
| On the request of the owner of shares registered in his name in the share register of the Corporation and the surrender to the Corporation of the share certificate in his name in respect of those shares, the shares shall be exchanged for a like number of bearer shares and a new certificate shall be issued to bearer and the exchange shall be entered in the share register of the Corporation. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Business Corporation Act may have. | |
| F. | The name and mailing address of each incorporator and subscriber of these Articles of Incorporation and the number of shares of stock subscribed by each incorporator is: |
| Number of shares of | ||||
| Name | Postal Address | Common Stock Subscribed | ||
A. Abedje
|
80 Broad Street Monrovia, Liberia |
One (1) |
| G. | The number of directors constituting the initial Board of Directors of the Corporation is three (3). | |
| H. | The Board of Directors as well as the Shareholders of the Corporation shall have the authority to adopt, amend or repeal the by-laws of the Corporation. | |
| I. | Corporate existence shall begin upon filing these Articles of Incorporation with the Minister of Foreign Affairs as of the filing date stated on these Articles. |
IN WITNESS
WHEREOF, I have executed this instrument on this 12th day of
August, 2005
/s/
A. Abedje
A. Abedje
| $12.00 REVENUE STAMPS ON ORIGINAL |
Exhibit 3.21.2
SIZZLING VENTURES INC.
(the “CORPORATION”)
(the “CORPORATION”)
BYLAWS
As Adopted on August 12, 2005
ARTICLE I
OFFICES
The registered office of the Corporation shall be 80, Broad Street, Monrovia, Liberia. The
Corporation may also have an office or offices at such other places within or without Liberia as
the Board of Directors may from time to time appoint or the business of the Corporation may
require.
ARTICLE II
SHAREHOLDERS
SHAREHOLDERS
Section 1. Annual Meeting: The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without Liberia as the Board of Directors may
determine for the purpose of electing Directors and of transacting such other business as may
properly be brought before the meeting.
Section 2. Special Meeting: Special meetings of shareholders, unless otherwise prescribed
by law, may be called for any purpose or purposes at any time by the Officer carrying out the
duties of President or Secretary or Assistant Secretary or by the order of the Board of Directors
whenever requested in writing to do so by shareholders owning not less than one-tenth of all the
outstanding shares of the Corporation entitled to vote at such meeting. Such request shall state
the purpose or purposes of the proposed special meeting. Such meetings shall be held at such place
and on a date and at such time as may be designated in the notice thereof by the Officer of the
Corporation calling any such meeting. The business transacted at any special meeting shall be
limited to the purposes stated in the notice.
Section 3. Notice of Meetings: Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is otherwise prescribed by law, stating the
date, time, place and purpose thereof, and in the case of special meetings, the name of the person
or persons at whose direction the notice is being issued, shall be given personally or sent by
mail, telegraph, cablegram, facsimile, email or other electronic means at least fifteen but not
more than sixty days before such meeting, to each shareholder of record entitled to vote thereat
and to each shareholder of record who, by reason of any action proposed at such meeting would be
entitled to have his shares appraised if such action were taken, and the notice shall include a
statement of that purpose and to that effect. If mailed, notice shall be deemed to have been given
when deposited in the mail, directed to the shareholder at his address as the same appears on
the record of shareholders of the Corporation or at such address as to which the shareholder has
given notice to the officer carrying out the duties of Secretary. Notice of a meeting need not be
given to any shareholder who submits a signed waiver of notice, whether before or after the
meeting, or who
1
attends the meeting without protesting prior to the conclusion thereof the lack of notice to him.
Section 4.
Quorum: At all meetings of shareholders, except as otherwise expressly provided
by law, there must be present either in person or by proxy shareholders of record holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
Section 5. Voting: If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders each shareholder entitled to vote any
shares on any matter to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
required or permitted to be taken at a meeting, may be taken without a meeting if a consent in
writing, setting forth the action so taken, is signed by all of the shareholders entitled to vote
with respect to the subject matter thereof.
Section 6. Fixing of Record Date: The Board of Directors may fix a time not more than sixty
nor less than fifteen days prior to the date of any meeting of shareholders, or more than sixty
days prior to the last day on which the consent or dissent of shareholders may be expressed
for any purpose without a meeting, as the time as of which shareholders entitled to notice of and
to vote at such a meeting or whose consent or dissent is required or may be expressed for any
purpose, as the case may be, shall be determined, and all persons who were holders of record of
voting shares at such time and no others shall be entitled to notice of and to vote at such meeting
or to express their consent or dissent, as the case may be. The Board of Directors may fix a time
not exceeding sixty days preceding the date fixed for the payment of any dividend, the making of
any distribution, the allotment of any rights or the taking of any other action, as a record time
for the determination of the shareholders entitled to receive any such dividend, distribution, or
allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number: The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of not less than one Director. Within the limits fixed by these
Bylaws the number of Directors may be determined either by the vote of a majority of the entire
Board or by vote of the shareholders. The Directors need not be residents of Liberia or
shareholders of the Corporation. Corporations may be elected or appointed Directors.
Section 2. How Elected: Except as otherwise provided by law or Section 4 of this Article,
the Directors of the Corporation (other than the first Board of Directors if named in the Articles
of Incorporation or designated by the incorporators) shall be elected at the annual meeting of
shareholders. Each Director shall be elected to serve until the next annual meeting of shareholders
and until his successor shall have been duly elected and qualified, except in the event of his
death, resignation, removal or the earlier termination of his term of office.
Section 3. Removal: Any or all of the Directors may be removed, with or without cause by a
vote of the shareholders. Any Director may be removed for cause by action of the Board of Directors.
2
Section 4. Vacancies: Vacancies in the Board of Directors occurring by death, resignation,
creation of new directorships, failure of the shareholders to elect the whole Board at any annual
election of Directors or for any other reason, including removal of Directors for cause, may be
filled either by the affirmative vote of a majority of the remaining Directors then in office,
although less than a quorum, at any special meeting called for that purpose or at any regular
meeting of the Board, or by vote of the shareholders. Vacancies occurring by removal of Directors
without cause may be filled only by vote of the shareholders.
Section 5. Regular meetings: Regular meetings of the Board of Directors may be held at such
time and place as may be determined by resolution of the Board of Directors and no notice shall be
required for any regular meeting. Except as otherwise provided by law, any business may be
transacted at any regular meeting.
Section 6. Special Meeting: Special meetings of the Board of Directors may, unless
otherwise prescribed by law, be called from time to time by the Officer carrying out the duties of
President, or any Officer of the Corporation who is also a Director. The Officer carrying out the
duties of President or of Secretary shall call a special meeting of the Board upon written request
directed to him by any Director, or any two Directors if there are three or more Directors elected,
stating the time, place and purpose of such special meeting. Special
meetings of the Board shall be
held on a date and at such time and at such place as may be designated in the notice thereof by the
Officer calling the meeting.
Section 7. Notice of Special Meetings: Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each Director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a Director if given to him personally (including by telephone)
or if such notice be delivered to such Director by mail, telegraph, cablegram, facsimile, email or
other electronic means to his last known address. Notice of a meeting need not be given to any
Director who submits a signed waiver of notice, whether before or after the meeting, or who attends
the meeting without protesting, prior to the conclusion thereof, the lack of notice to him.
Section 8. Quorum: A majority of the Directors at the time in office, present in person or
by proxy or conference telephone or by electronic means allowing simultaneous communication, shall
constitute a quorum for the transaction of business.
Section 9. Voting: The vote of the majority of the Directors, present in person or by proxy
or conference telephone, or by electronic means allowing simultaneous communication, at a meeting
at which a quorum is present shall be the act of the Directors. Any action required or permitted to
be taken at a meeting may be taken without a meeting if all members of the Board consent thereto in
writing.
Section 10. Compensation of Directors and Members of Committees: The Board may from time to
time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
3
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees: The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an executive committee, which, to the extent provided in said resolution or resolutions,
or in these Bylaws, shall have and may exercise, to the extent permitted by law, the powers of the
Board of Directors in the management of the business and affairs of the Corporation, and may have
power to authorize the seal of the Corporation to be affixed to all papers which may require it. In
addition, the Board of Directors may, by resolution or resolutions passed by a majority of the
entire Board, designate from among its members other committees, each of which shall perform such
functions and have such authority and powers as shall be delegated to it by said resolution or
resolutions or as provided for in these Bylaws, except that only the executive committee may have
and exercise the powers of the Board of Directors. Members of the executive committee and any other
committee shall hold office for such period as may be prescribed by the vote of a majority of the
entire Board of Directors, subject, however, to removal at any time by the vote of the Board of
Directors. Vacancies in membership of such committees shall be filled by vote of the Board of
Directors. Committees may adopt their own rules of procedure and may meet at stated times or on
such notice as they may determine. Each committee shall keep a record of its proceedings and report
the same to the Board when required.
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number: The shareholders or the Board of Directors shall initially appoint one
or more Officers, as they or it may deem necessary. Officers may be of any nationality and need not
be residents of Liberia. The Officers shall be appointed annually by the Board of Directors at its
first meeting following the annual election of Directors, but in the event of the failure of the
Board to so appoint any Officer, such Officer may be appointed at any subsequent meeting of the
Board of Directors. The salaries of officers and any other compensation paid to them shall be fixed
from time to time by the Board of Directors. The Board of Directors may at any meeting appoint
additional Officers. Each Officer shall hold office until the first meeting of the Board of
Directors following the next annual election of Directors and until his successor shall have been
duly appointed, except in the event of the earlier termination of his term of office, through
death, resignation, removal or otherwise. Any Officer may be removed by the Board at any time with
or without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. Designation: The Officer or Officers shall fulfill the following functions, and
all the functions may be fulfilled by one person, who may be a corporate person:
The Officer appointed as President shall be the chief executive officer of the Corporation
and shall have the general management of the affairs of the Corporation together with the powers
and duties usually incident to the office of President, except as specifically limited by
appropriate resolution of the Board of Directors and shall have such other powers and perform such
other duties as may be assigned to him by the Board of Directors. The President shall preside at
all meeting of shareholders at which he is present;
4
The Officer appointed as Treasurer shall have general supervision over the care and custody
of the funds, securities, and other valuable effects of the Corporation and shall deposit the same
or cause the same to be deposited in the name of the Corporation in such depositories as the Board
of Directors may designate, shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, shall have supervision over the accounts of all receipts and disbursements of
the Corporation, shall, whenever required by the Board, render or cause to be rendered financial,
statements of the Corporation, shall have the power and perform the duties usually incident to the
office of Treasurer, and shall have such powers and perform such other duties as may be assigned to
him by the Board of Directors or President;
The Officer appointed as Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he is present, shall have supervision over the
giving and serving of notices of the Corporation, shall be the custodian of the corporate records
and the corporate seal of the Corporation, shall be empowered to affix the corporate seal to those
documents, the execution of which, on behalf of the Corporation under its seal, is duly authorized
and when so affixed may attest the same, and shall exercise the powers and perform such other
duties as may be assigned to him by the Board of Directors or the President.
Officers other than those treated in this Article shall exercise such powers and perform such
duties as may be assigned to them by the Board of Directors or the President.
Section 3. Bond: The Board of Directors shall have power to the extent permitted by law, to
require any Officer, agent or employee of the Corporation to give bond for the faithful discharge
of his duties in such form and with such surety or sureties as the Board of Directors may deem
advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance: The shares of the Corporation shall be represented by
certificates in form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the Officer having the duties of President or Vice-President, and
by the Officer having the duties of Secretary or Assistant Secretary or the Officer having the
duties of Treasurer or Assistant Treasurer; Provided that where one person has the duties of
President Secretary and/or Treasurer the certificates may be signed by that one person. These
signatures may be facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or its employee.
Section 2. Transfer: The Board of Directors shall have power and authority to make such
rules and regulations as they may deem expedient concerning the issuance, registration and transfer
of certificates representing shares of the Corporation’s stock, and may appoint transfer agents and
registrars thereof.
Section 3. Loss of Stock Certificates: The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit
of that
5
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same in such manner as
it shall require and/or give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form: Dividends may be declared in conformity with law by, and at
the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Form: The seal of the Corporation, if any, shall be circular in form, with the
name of the Corporation in the circumference and such other appropriate legend as the Board of
Directors may from time to time determine.
Section 2. Seals for Particular Jurisdictions: The Board of Directors may determine that
the Corporation shall have more than one seal in the prescribed form specifying the jurisdiction in
which the seal is to be used.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year: The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders: These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of shareholders of the Corporation by the affirmative
vote of the holders of a majority of the stock present and voting at such meeting provided notice
that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice
of said meeting.
Section 2. By the Directors: If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed, or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the stockholders to alter, amend or repeal
any By-Law as adopted.
6
Exhibit 3.22.1
ARTICLES OF INCORPORATION
PURSUANT TO THE LIBERIAN BUSINESS CORPORATION ACT
PURSUANT TO THE LIBERIAN BUSINESS CORPORATION ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Liberian Business Corporation Act, does hereby make, subscribe, acknowledge and file in the Office
of the Minister of Foreign Affairs this instrument for that purpose, as follows:
A. The name of the Corporation shall be:
SHIKHAR VENTURES S.A.
B. The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may now or hereafter be organized under the Liberian Business Corporation Act and
without in any way limiting the generality of the foregoing, the corporation shall have the power:
(1) To carry on the business of an investment holding company or corporation and for such
purpose to purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner,
sell, distribute, or otherwise dispose of and generally to deal in shares, stocks, bonds,
debentures, notes, evidences of indebtedness, warrants, rights, certificates, receipts or any other
instruments or interest in the nature of securities created or issued by any person, partnership,
firm, corporation, company, association, or other business organizations, foreign or domestic, or
by any domestic or foreign governmental, municipal or other public authority, and exercise as
holder or owner of any such securities all rights, powers and privileges in respect thereof; to do
any and all acts and things for the preservation, protection, improvement, and enhancement in value
of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating
or responsible for any such securities; to acquire or become interested in any such securities by
original subscription, underwriting, loan, participation in syndicates or otherwise, and
irrespective of whether such securities be fully paid or subject to future payments; to make
payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe
for the same conditionally or otherwise and either with a view to resale or investment or for any
other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or
otherwise secure trading privileges on any board of trade, exchange or other similar institution
where any securities are dealt in and to comply with the rules of any such institution; as used
herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness,
shares of stock, warrants, options, rights, certificates, receipts or any other instruments or
interests in the nature of securities of any kind
whatsoever which a corporation organized under the Liberian Business Corporation Act is legally
permitted to acquire or deal in, by whomsoever issued or created; the
term “person” shall include
any person, partnership, firm, corporation, company, association or other business organization,
domestic or foreign; and the term “public authority” shall include any domestic or foreign
governmental, municipal or other public authority.
(2) To
purchase or otherwise acquire, hold, pledge, turn to account in any manner, import,
export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and
products (including any future interest therein) and merchandise, articles of commerce, materials,
personal property and real property of every kind, character and description whatsoever, and
wheresoever situated, and any interest therein, at any place or places in Liberia or abroad, either
as principal or as factor or broker, or as commercial, sales, business or financial agent or
representative, general or special, or, to the extent permitted by the laws of Liberia, in any
other capacity whatsoever for the account of any domestic or foreign person or public authority,
and in connection therewith or otherwise to acquire trading privileges on any board of trade,
exchange or other similar institution where any such products or commodities or personal or real
property are dealt in, and to comply with the rules of any such institution.
(3) To borrow or raise money and contract debts, when necessary for the transaction of its
business or for the exercise of its corporate rights, privileges or franchise or for any other
lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory
notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness
either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured.
(4) To acquire, and take over as a going concern and thereafter to carry on the business of
any person, firm or corporation engaged in any business which this corporation is authorized to
carry on, and in connection therewith to acquire the good will and all or any assets, and to assume
or otherwise provide for all or any of the liabilities of any such business.
(5) To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of,
in any way permitted by law, the formation, merger, reorganization or liquidation of any person,
firm or corporation in the Republic of Liberia or abroad.
(6) To lend or advance money to or for the account of any other person, firm or corporation
and also to guarantee, endorse or give security for any promissory notes, bonds, or other
instruments of indebtedness of such other person, firm or corporation; and to otherwise invest its
funds as from time to time may be deemed advisable by the board of directors, but this corporation
shall not engage in the banking business or exercise banking powers, and nothing in these Articles
contained shall be deemed to authorize it to do so.
(7) To make and issue trust receipts, deposit receipts, certificates of deposit, interim
receipts, or any other receipts for or certificates of deposit for, any proxies or powers of
attorney or other privileges pertaining to any securities or interest therein, to hold in trust,
issue on commission, make advances upon or sell, lease, license, transfer, organize, reorganize,
incorporate or dispose of any of the undertakings or resulting investments aforesaid, or the stock
or securities thereon; to act as agent for any of the above or like purposes, or any purpose herein
mentioned, and to act as fiscal agent of any other person, firm or corporation.
(8) To render advisory, investigatory, supervisory, managerial or other like services,
permitted to corporations, in connection with the promotion, organization, reorganization,
recapitalization, liquidation consolidation or merger of any person, firm or corporation or in
connection with the issuance, underwriting, sale or distribution of any securities issued in
connection therewith or incidental thereto; and to render general investment advisory or financial
advisory or managerial services to any person or public authority.
(9) To enter into any lawful arrangements for sharing profits, union of interest, reciprocal
concession or cooperation with any person or public authority, in the carrying on of any similar
business which this corporation is authorized to carry on, or any business or transaction deemed
necessary, convenient or incidental to carrying out any of the purposes of this corporation.
(10) To cause or allow the legal title, or any legal or equitable estate, right or interest in
any property, whether real, personal, or mixed, owned, acquired, controlled or operated by this
corporation, to remain or to be vested or registered in the name of, or operated by, any person,
formed or to be formed, either upon trust for or as agents or nominees of, this corporation, or
upon any other proper terms or conditions which the board of directors may consider for the benefit
of this corporation.
(11) To the extent suitable or necessary to carry out any of the purposes hereinbefore or
hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation
organized under the Liberian Business Corporation Act to buy, sell and deal in foreign exchange.
(12) To make and give any guaranty so far as the same may be permitted to be done by a
corporation organized under the Liberian Business Corporation Act and to mortgage, pledge or charge
the property of the corporation, of whatsoever nature the property may be, as security for any such
guaranty made or given and to assist financially or otherwise with or without consideration and on
such terms as the corporation thinks fit any person, firm, company or corporation in any part of
the world and in connection therewith undertake and guarantee the liabilities of that person, firm,
company or corporation and to issue or procure the issue of indemnities in respect of the
liabilities of such person, firm, company or corporation and to mortgage and hypothecate the
Corporation’s vessels or real or personal property or immovable or movable property or other form
or property whatsoever as security for any such undertaking or guarantee or indemnity given or
issued as aforesaid.
(13) To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital
stock or any securities of the corporation in the manner and to the extent now or hereafter
permitted by law; and provide further that shares of its own capital stock owned by the corporation
shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any
stockholders’ quorum or vote.
(14) To invest its uninvested funds and/or surplus from time to time to such extent as the
board of directors may deem advisable in securities or in call and/or in time loans or otherwise,
upon such security if any, as the board of directors may determine, but this corporation shall not
engage in the banking business or exercise banking powers, and nothing in these Articles contained
shall be deemed to authorize it to do so.
(15) To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage,
lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, whaling
vessels, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all
means of conveyance and transportation by land, water or air, together with engines, boilers,
machinery, equipment and appurtenances of all kinds, including masts, sails, boats, anchors,
cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together
with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for
the construction, use and operation thereof; and to equip, furnish, and outfit such vessels and
ships.
(16) To engage in ocean, coastwise and inland commerce, and generally in the carriage of
passengers, mail, freight, goods, cargo in bulk and personal effects by water between the various
ports of the world and to engage generally in waterborne and airborne commerce throughout the
world.
(17) To act as broker or agent in the chartering, sub-chartering, buying, and selling of
steamships, motorships, tankers, whaling vessels, sailing vessels, yachts, tugs, lighters, barges,
scows, rafts, dredges, pontoons, airplanes, airships, hydroplanes, and all other vessels and craft
of any and all motive power whatsoever, including aircraft, landcraft and watercraft, and equipment
and appurtenances of all kinds in connection therewith and to engage in the business of negotiation
and concluding freighting or transportation contracts of every kind and description for its own
account and as the agent for any other corporation, or any firm, association or individual,
domestic or foreign.
(18) To act as ship’s agent, ship chandler, ship broker, ship’s husband, manager of shipping
property, custom house broker, forwarding agent, freight contractor, lighterman, stevedore,
warehouseman and wharfinger, on its own behalf or as agent for any other corporation, or any firm,
association or individual, domestic or foreign.
(19) To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any
manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all
kinds, and any property, real, personal and mixed, in connection therewith.
(20) To engage in any mercantile, manufacturing or trading business of any kind or character
whatsoever, outside of the Republic of Liberia, and to do all things incidental to such business.
(21) To act as agent, attorney-in-fact, broker or representative, general or special, on
commission or otherwise for corporations, firms, associations, or individuals, foreign or domestic,
including governments or governmental authorities; to aid, assist, promote and serve the interests
of and afford facilities for, the convenient transaction of business by its
principals and partners in all parts of the world; and to appoint agents, brokers, or
representatives.
(22) To carry on the business of warehousing and all business incidental thereto, including
the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans
upon the security of goods warehoused.
(23) To apply for, purchase, or in any manner to acquire, hold, own, use and operate; to sell
or in any manner dispose of, to grant, or license other rights in respects of, and in any manner
deal with, any and all rights, interests, inventions, improvements and processes used in connection
with or secured under letters patent, copyrights, or trademarks of The Republic of Liberia or other
countries or otherwise, and to work, operate or develop the same.
(24) To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build,
erect, construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of
lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams,
stores and dwellings and all other property and things of whatsoever kind and nature, real,
personal or mixed, tangible or intangible, within or without Liberia, and in any part of the world
suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth,
or otherwise deal with or in any such properties.
(25) To enter into, make and perform contracts of every kind and description with any person, firm,
association, corporation, municipality, county, state, body politic, or government or colony or any
dependency thereof.
(26) To carry on its business, to have one or more offices, and to exercise its powers in The
Republic of Liberia and in any and all foreign countries, subject to the laws of the particular
country.
(27) To carry on any other business in connection with the above or calculated directly or
indirectly to enhance the value of or render profitable any of the corporation’s property or
rights.
(28) To do all and everything necessary, suitable or proper for the accomplishment of any of the
purposes, the attainment of any of the objects or the furtherance of any of the powers hereinbefore
set forth either alone or in connection with other corporations, firms, or individuals and either
as principals, or agents, and to do every other act or acts, thing or things, incidental or
appurtenant to or growing out of or connected with the aforesaid objects, purposes or powers or any
of them.
C. The registered address of the Corporation in Liberia shall be 80 Broad Street, Monrovia,
Liberia. The name of the Corporation’s registered agent at such
address shall be The LISCR Trust
Company.
D. The
aggregate number of shares of stock that the Corporation is authorized to issue is Five
Hundred (500) registered and/or bearer shares without par value.
The Corporation shall mail notices and information to holders of bearer shares to the address
provided to the Corporation by the shareholder for that purpose
The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for
another certificate in his name for a like number of shares, and the holder of shares issued in the
name of the owner may cause his certificate to be exchanged for another certificate to bearer for a
like number of shares.
E. The Corporation shall have every power which a corporation now or hereafter organized under the
Liberian Business Corporation Act may have.
F. The name and mailing address of each incorporator and subscriber of these Articles of
Incorporation and the number of shares of stock subscribed by each incorporator is:
| No. of Shares of | ||||
| Name | Post Office Address | Common Stock Subscribed | ||
C. Hug
|
80 Broad Street Monrovia, Liberia |
One |
G. The number of directors constituting the initial board of directors is three (3).
H. The
Board of Directors as well as the Shareholders of the Corporation
shall have the authority to
adopt, amend or repeal the by-laws of the Corporation.
I. Corporate existence shall begin upon filing these Articles of Incorporation with the Minister of
Foreign Affairs as of the filing date stated on these Articles.
IN WITNESS WHEREOF, I have executed this instrument on February 11, 2005.
| /s/ C. Hug | ||||
| C. Hug | ||||
$12.00 REVENUE STAMPS ON ORIGINAL
Exhibit 3.22.2
SHIKHAR VENTURES S.A.
(the “CORPORATION”)
(the “CORPORATION”)
BYLAWS
As Adopted on February 11, 2005
ARTICLE I
OFFICES
The registered office of the Corporation shall be 80, Broad Street, Monrovia, Liberia. The
Corporation may also have an office or offices at such other places within or without Liberia as
the Board of Directors may from time to time appoint or the business of the Corporation may
require.
ARTICLE II
SHAREHOLDERS
SHAREHOLDERS
Section 1. Annual Meeting: The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without Liberia as the Board of Directors may
determine for the purpose of electing Directors and of transacting such other business as may
properly be brought before the meeting.
Section 2.
Special Meeting: Special meetings of shareholders, unless otherwise prescribed by law,
may be called for any purpose or purposes at any time by the Officer carrying out the duties of
President or Secretary or Assistant Secretary or by the order of the Board of Directors whenever
requested in writing to do so by shareholders owning not less than one-tenth of all the outstanding
shares of the Corporation entitled to vote at such meeting. Such request shall state the purpose or
purposes of the proposed special meeting. Such meetings shall be held at such place and on a date
and at such time as may be designated in the notice thereof by the Officer of the Corporation
calling any such meeting. The business transacted at any special meeting shall be limited to the
purposes stated in the notice.
Section 3. Notice of Meetings: Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is otherwise prescribed by law, stating the
date, time, place and purpose thereof, and in the case of special meetings, the name of the person
or persons at whose direction the notice is being issued, shall be given personally or sent by
mail, telegraph, cablegram, facsimile, email or other electronic means at least fifteen but not
more than sixty days before such meeting, to each shareholder of record entitled to vote thereat
and to each shareholder of record who, by reason of any action proposed at such meeting would be
entitled to have his shares appraised if such action were taken, and the notice shall include a
statement of that purpose and to that effect. If mailed, notice shall be deemed to have been given
when deposited in the mail, directed to the shareholder at his address as the same appears on the
record of shareholders of the Corporation or at such address as to which the shareholder has given
notice to the officer carrying out the duties of Secretary. Notice of a meeting need not be given to
any shareholder who submits a signed waiver of notice, whether before or after the meeting, or who
1
attends the meeting without protesting prior to the conclusion thereof the lack of notice to him.
Section 4.
Quorum: At all meetings of shareholders, except as otherwise expressly provided
by law, there must be present either in person or by proxy shareholders of record holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
Section 5.
Voting: If a quorum is present, and except as otherwise expressly provided by law, the
affirmative vote of a majority of the shares of stock represented at the meeting shall be the act
of the shareholders. At any meeting of shareholders each shareholder entitled to vote any shares on
any matter to be voted upon at such meeting shall be entitled to one
vote on such matter for each
such share, and may exercise such voting right either in person or by proxy. Any action required or
permitted to be taken at a meeting, may be taken without a meeting if a consent in writing, setting
forth the action so taken, is signed by all of the shareholders entitled to vote with respect to
the subject matter thereof.
Section 6. Fixing of Record Date: The Board of Directors may fix a time not more than sixty
nor less than fifteen days prior to the date of any meeting of shareholders, or more than sixty
days prior to the last day on which the consent or dissent of shareholders may be expressed for any
purpose without a meeting, as the time as of which shareholders entitled to notice of and to vote
at such a meeting or whose consent or dissent is required or may be expressed for any purpose, as
the case may be, shall be determined, and all persons who were holders of record of voting shares
at such time and no others shall be entitled to notice of and to vote at such meeting or to express
their consent or dissent, as the case may be. The Board of Directors may fix a time not exceeding
sixty days preceding the date fixed for the payment of any dividend, the making of any
distribution, the allotment of any rights or the taking of any other action, as a record time for
the determination of the shareholders entitled to receive any such dividend, distribution, or
allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1.
Number: The affairs, business and property of the Corporation shall be managed by
a Board of Directors to consist of not less than one Director. Within the limits fixed by these
Bylaws the number of Directors may be determined either by the vote of a majority of the entire
Board or by vote of the shareholders. The Directors need not be residents of Liberia or
shareholders of the Corporation. Corporations may be elected or appointed Directors.
Section 2. How Elected: Except as otherwise provided by law or Section 4 of this Article,
the Directors of the Corporation (other than the first Board of Directors if named in the Articles
of Incorporation or designated by the incorporators) shall be elected at the annual meeting of
shareholders. Each Director shall be elected to serve until the next annual meeting of
shareholders and until his successor shall have been duly elected and
qualified, except in the
event of his death, resignation, removal or the earlier termination of his term of office.
Section 3. Removal: Any or all of the Directors may be removed, with or without cause by a
vote of the shareholders. Any Director may be removed for cause by
action of the Board of Directors.
2
Section 4.
Vacancies: Vacancies in the Board of Directors occurring by death, resignation,
creation of new directorships, failure of the shareholders to elect the whole Board at any annual
election of Directors or for any other reason, including removal of Directors for cause may be
filled either by the affirmative vote of a majority of the remaining Directors then in office,
although less than a quorum, at any special meeting called for that purpose or at any regular
meeting of the Board, or by vote of the shareholders. Vacancies occurring by removal of Directors
without cause may be filled only by vote of the shareholders.
Section 5. Regular meetings: Regular meetings of the Board of Directors may be held at such
time and place as may be determined by resolution of the Board of Directors and no notice shall be
required for any regular meeting. Except as otherwise provided by law, any business may be
transacted at any regular meeting.
Section 6. Special Meeting: Special meetings of the Board of Directors may, unless
otherwise prescribed by law, be called from time to time by the Officer carrying out the duties of
President, or any Officer of the Corporation who is also a Director. The Officer carrying out the
duties of President or of Secretary shall call a special meeting of the Board upon written request
directed to him by any Director, or any two Directors if there are three or more Directors elected,
stating the time, place and purpose of such special meeting. Special meetings of the Board shall be
held on a date and at such time and at such place as may be designated in the notice thereof by the
Officer calling the meeting.
Section 7.
Notice of Special Meetings: Notice of the date, time and place of each special meeting
of the Board of Directors shall be given to each Director at least forty-eight hours prior to such
meeting, unless the notice is given orally or delivered in person, in which case it shall be given
at least twenty-four hours prior to such meeting. For the purpose of this section, notice shall be
deemed to be duly given to a Director if given to him personally (including by telephone) or if
such notice be delivered to such Director by mail, telegraph, cablegram, facsimile, email or other
electronic means to his last known address. Notice of a meeting need not be given to any Director
who submits a signed waiver of notice, whether before or after the meeting, or who attends the
meeting without protesting, prior to the conclusion thereof, the lack of notice to him.
Section 8. Quorum: A majority of the Directors at the time in office, present in person or
by proxy or conference telephone or by electronic means allowing simultaneous communication, shall
constitute a quorum for the transaction of business.
Section 9.
Voting: The vote of the majority of the Directors, present in person or by proxy
or conference telephone, or by electronic means allowing simultaneous communication, at a meeting
at which a quorum is present shall be the act of the Directors. Any action required or permitted to
be taken at a meeting may be taken without a meeting if all members of the Board consent thereto in
writing.
Section 10. Compensation of Directors and Members of Committees: The Board may from time to
time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
3
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees: The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an executive committee, which, to the extent provided in said resolution or resolutions, or
in these Bylaws, shall have and may exercise, to the extent permitted
by law, the powers of the
Board of Directors in the management of the business and affairs of the Corporation, and may have
power to authorize the seal of the Corporation to be affixed to all papers which may require it. In
addition, the Board of Directors may, by resolution or resolutions
passed by a majority of the
entire Board, designate from among its members other committees, each of which shall perform such
functions and have such authority and powers as shall be delegated to it by said resolution or
resolutions or as provided for in these Bylaws, except that only the executive committee may have
and exercise the powers of the Board of Directors. Members of the executive committee and any other
committee shall hold office for such period as may be prescribed by the vote of a majority of the
entire Board of Directors, subject, however, to removal at any time by the vote of the Board of
Directors. Vacancies in membership of such committees shall be filled by vote of the Board of
Directors. Committees may adopt their own rules of procedure and may meet at stated times or on
such notice as they may determine. Each committee shall keep a record of its proceedings and report
the same to the Board when required.
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number: The shareholders or the Board of Directors shall initially appoint one
or more Officers, as they or it may deem necessary. Officers may be of any nationality and need not
be residents of Liberia. The Officers shall be appointed annually by the Board of Directors at its
first meeting following the annual election of Directors, but in the event of the failure of the
Board to so appoint any Officer, such Officer may be appointed at any subsequent meeting of the
Board of Directors. The salaries of Officers and any other
compensation paid to them shall be fixed
from time to time by the Board of Directors. The Board of Directors may at any meeting appoint
additional Officers. Each Officer shall hold office until the first meeting of the Board of
Directors following the next annual election of Directors and until his successor shall have been
duly appointed, except in the event of the earlier termination of his term of office, through
death, resignation, removal or otherwise. Any Officer may be removed by the Board at any time with
or without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2.
Designation: The Officer or Officers shall fulfill the
following functions, and
all the functions may be fulfilled by one person, who may be a corporate person:
| The Officer appointed as President shall be the chief executive officer of the Corporation and shall have the general management of the affairs of the Corporation together with the powers and duties usually incident to the office of President, except as specifically limited by appropriate resolution of the Board of Directors and shall have such other powers and perform such other duties as may be assigned to him by the Board of Directors. The President shall preside at all meeting of shareholders at which he is present; |
4
| The Officer appointed as Treasurer shall have general supervision over the care and custody of the funds, securities, and other valuable effects of the Corporation and shall deposit the same or cause the same to be deposited in the name of the Corporation in such depositories as the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, shall have supervision over the accounts of all receipts and disbursements of the Corporation, shall, whenever required by the Board, render or cause to be rendered financial statements of the Corporation, shall have the power and perform the duties usually incident to the office of Treasurer, and shall have such powers and perform such other duties as may be assigned to him by the Board of Directors or President; | ||
| The Officer appointed as Secretary shall act as Secretary of all meetings of the shareholders and of the Board of Directors at which he is present, shall have supervision over the giving and serving of notices of the Corporation, shall be the custodian of the corporate records and the corporate seal of the Corporation, shall be empowered to affix the corporate seal to those documents, the execution of which, on behalf of the Corporation under its seal, is duly authorized and when so affixed may attest the same, and shall exercise the powers and perform such other duties as may be assigned to him by the Board of Directors or the President. |
Officers other than those treated in this Article shall exercise such powers and perform such
duties as may be assigned to them by the Board of Directors or the President.
Section 3. Bond: The Board of Directors shall have power to the extent permitted by law, to
require any Officer, agent or employee of the Corporation to give bond for the faithful discharge
of his duties in such form and with such surety or sureties as the Board of Directors may deem
advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance: The shares of the Corporation shall be represented by
certificates in form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the Officer having the duties of President or Vice-President, and
by the Officer having the duties of Secretary or Assistant Secretary or the Officer having the
duties of Treasurer or Assistant Treasurer; Provided that where one person has the duties of
President, Secretary and/or Treasurer the certificates may be signed by that one person. These
signatures may be facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or its employee.
Section 2. Transfer: The Board of Directors shall have power and authority to make such
rules and regulations as they may deem expedient concerning the issuance, registration and transfer
of certificates representing shares of the Corporation’s stock, and may appoint transfer agents and
registrars thereof.
Section 3. Loss of Stock Certificates: The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit
of that
5
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same in such manner as
it shall require and/or give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form: Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Form: The seal of the Corporation, if any, shall be circular in form, with the
name of the Corporation in the circumference and such other appropriate legend as the Board of
Directors may from time to time determine.
Section 2. Seals for Particular Jurisdictions: The Board of Directors may determine that
the Corporation shall have more than one seal in the prescribed form specifying the jurisdiction in
which the seal is to be used.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year: The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders: These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of shareholders of the Corporation by the affirmative
vote of the holders of a majority of the stock present and voting at such meeting provided notice
that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice
of said meeting.
Section 2. By the Directors: If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed, or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the stockholders to alter, amend or repeal any By-Law as
adopted.
6
Exhibit 3.23.1
ARTICLES OF INCORPORATION
OF
TAHARQA SPIRIT CORP.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as
follows:
| A. | The name of the Corporation shall be: |
TAHARQA SPIRIT CORP.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act, and without in any way limiting the generality of the foregoing, the Corporation shall have the power: | |
| (1) To carry on the business of an investment holding company or corporation and for such purpose to purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in shares, stocks, bonds, debentures, notes, evidences of indebtedness, warrants, rights, certificates, receipts or any other instruments or interest in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement, and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities, to acquire or |
| become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Marshall Islands Business Corporations Act is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign; and the term “public authority” shall include any domestic or foreign governmental, municipal or other public authority. | ||
| (2) To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and wheresoever situated, either as principal or as factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or similar institution where any such products |
| or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | ||
| (3) To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust or otherwise, or unsecured. | ||
| (4) To acquire, and take over as a going concern and thereafter to carry on the business of any person, firm or corporation engaged in any business which this corporation is authorized to carry on, and in connection therewith to acquire the goodwill and all or any assets, and to assume or otherwise provide for all or any of the liabilities of any such business. | ||
| (5) To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person, firm or corporation in the Republic of the Marshall Islands or abroad. | ||
| (6) To lend or advance money to or for the account of any other person, firm or corporation and also to guarantee, endorse or give security for any promissory notes, bonds, or other instruments of indebtedness of such other person, firm or corporation; and to otherwise invest its funds as from time to time may be deemed advisable by the Board of Directors, but this corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (7) To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for or certificates of deposit for, any proxies or powers of attorney or other privileges pertaining to any securities or interest therein, to hold in trust, |
| issue on commission, make advances upon or sell, lease, license, transfer, organize, reorganize, incorporate or dispose of any of the undertakings or resulting investments aforesaid, or the stock or securities thereon; to act as agent for any of the above or like purposes, or any purpose herein mentioned, and to act as fiscal agent of any other person, firm or corporation. | ||
| (8) To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person, firm or corporation or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. | ||
| (9) To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of this corporation. | ||
| (10) To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal, or mixed, owned, acquired, controlled or operated by this corporation, to remain or to be vested or registered in the name of, or operated by, any person, formed or to be formed, either upon trust for or as agents or nominees of, this corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of this corporation. | ||
| (11) To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation organized under the Marshall |
| Islands Business Corporations Act, to buy, sell and deal in foreign exchange. | ||
| (12) To make and give any guarantee so far as the same may be permitted to be done by a corporation organized under the Marshall Islands Business Corporations Act and to mortgage, pledge or charge the property of the corporation, of whatsoever nature the property may be, as security for any such guaranty made or given and to assist financially or otherwise with or without consideration and on such terms as the corporation thinks fit any person, firm, company or corporation in any part of the world and in connection therewith undertake and guarantee the liabilities of that person, firm, company or corporation and to issue or procure the issue of indemnities in respect of the liabilities of such person, firm, company, or corporation and to mortgage and hypothecate the corporation’s vessels or real or personal property or immovable or movable property or other form of property whatsoever as security for any such undertaking or guarantee or indemnity given or issued as aforesaid. | ||
| (13) To issue, purchase, hold, sell, transfer, reissue, or cancel the shares of its own capital stock or any securities of the corporation in the manner and to the extent now or hereafter permitted by law; and provide further that shares of its own capital stock owned by the corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote. | ||
| (14) To invest its uninvested funds and/or surplus from time to time to such extent as the Board of Directors may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (15) To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, subcharter, sell, build, and repair steamships, |
| motorships, tankers, sailing vessels, yachts, tugs, lighters, barges, and all other vessels and craft of any and all means of conveyance and transportation by land, water or air, together with engines, boilers, machinery, equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. | ||
| (16) To engage in ocean, coastwise and inland commerce, and generally in the carriage of passengers, mail, freight, goods, cargo in bulk and personal effects by water between the various ports of the world and to engage generally in waterborne and airborne commerce throughout the world. | ||
| (17) To act as broker or agent in the chartering, sub- chartering, buying, and selling of steamships, motorships, tankers, sailing vessels, yachts, tugs, lighters, barges, scows, rafts, dredges, pontoons, airplanes, airships, hydroplanes, and all other vessels and craft of any and all motive power whatsoever, including aircrafts, landcraft and watercraft, and equipment and appurtenances of all kinds in connection therewith and to engage in the business of negotiation and concluding freighting or transportation contracts of every kind and description for its own account and as the agent for any other corporation, or any firm, association or individual, domestic or foreign. | ||
| (18) To act as ship’s agent, ship chandler, ship broker, ship’s husband, manager of shipping property, custom house broker, forwarding agent, freight contractor, lighterman, stevedore, warehouseman and wharfinger, on its own behalf or as agent for any other corporation, or any firm, association or individual, domestic or foreign. | ||
| (19) To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner |
| dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (20) To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever, outside of the Republic of the Marshall Islands, and to do all things incidental to such business. | ||
| (21) To act as agent, attorney-in-fact, broker or representative, general or special, on commission or otherwise for corporations, firms, associations, or individuals, foreign or domestic, including governments or governmental authorities; to aid, assist, promote and serve the interests of and afford facilities for, the convenient transaction of business by its principals and partners in all parts of the world; and to appoint agents, brokers or representatives. | ||
| (22) To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused. | ||
| (23) To apply for, purchase, or any manner to acquire, hold, own, use and operate; to sell or in any manner dispose of, to grant, or license other rights in respect of, and in any manner deal with, any and all rights, interests, inventions, improvements and processes used in connection with or secured under letters patent, copyrights, or trademarks and to work, operate, or develop the same. | ||
| (24) To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatsoever kind and nature, real, personal or mixed, tangible or intangible, without the Marshall Islands, and in any part of the world suitable |
| or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties. | ||
| (25) To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. | ||
| (26) To carry on its business, to have one or more offices, and to exercise its power in any and all foreign countries, subject to the laws of the particular country. | ||
| (27) To carry on any other business in connection with the above or calculated directly or indirectly to enhance the value of or render profitable any of the corporation’s property or rights. | ||
| (28) To do all and everything necessary, suitable, or proper for the accomplishment of any of the purposes, the attainment of any of the objects of the furtherance of any of the powers hereinbefore set forth either alone or in connection with other corporations, firms, or individuals and either as principals, or agents, and to do every other act or acts, thing or things, incidental or appurtenant to or growing out of or connected with the aforesaid objects, purposes or powers or any of them. | ||
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. |
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 Majuro Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on June 30, 2005.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | 
|
|||
Exhibit 3.23.2
BY-LAWS
OF
TAHARQA SPIRIT CORP.
Trust Company Complex
Ajeltake Road
Ajeltake Island
Marshall Islands
Trust Company Complex
Ajeltake Road
Ajeltake Island
Marshall Islands
ARTICLE I
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the corporation may require.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting: The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the board of
directors may determine for the purpose of electing Directors and of transacting such other
business as may properly come before the meeting.
Section 2. Special Meeting: Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by order of the board of
directors or by any Officer whenever required in writing to do so by shareholders owning not less
than one-tenth of all outstanding shares of the Corporation entitled to vote at such meeting. Such
request shall state the purpose or purposes of the proposed special
meeting. Such meetings shall be
held at such place and at such time as may be designated in the notice thereof by the officer of
the Corporation calling any such meeting. The business transacted at any special meeting shall be
limited to the purposes stated in the notice.
Section 3. Notice Of Meetings: Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons at
whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver without
protesting prior to the conclusion thereof the lack of notice to him. If the Corporation shall
issue any class of bearer shares, notice for all meetings shall be given in the manner provided in
the Articles of Incorporation.
Section 4. Quorum: At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present in person or by proxy shareholders holding at least a
majority of the shares issued and outstanding and entitled to vote at such meeting in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum. shall be
present.
Section 5. Voting: If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and every holder of registered shares then entitled to vote may vote in person
or by proxy and every holder of bearer shares then entitled to vote may vote by tabling the stock
certificate(s) or, if holders of bearer stock have presented their stock to the corporation within
the time specified in the notice of the meeting in order to be considered “holders of record” then
such holders of bearer stock may vote in person or by proxy. Any action required or permitted to be
taken at a meeting, may be taken without a meeting if a consent in writing setting forth the action
so taken, is signed by all the shareholders entitled to vote with respect to the subject matter
thereof.
ARTICLE III
DIRECTORS
Section 1. Number: The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined by either a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents
of the Marshall Islands nor
shareholders of the Corporation. Corporations may, to the extent permitted by law, be elected
directors.
Section 2. How Elected: Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors if named in the Articles
of Incorporation or designated by the Incorporator) shall be elected at the annual meeting of
shareholders. Each director shall be elected to serve until the next annual meeting of
shareholders and until his/her successor shall have been duly elected and qualified, except in the
event of his/her death, resignation, removal or the earlier termination of his/her term of office.
Section 3. Removal: Any or all of the directors may be removed, with or without cause, by a
vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies: Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings: Regular meetings of the Board of Directors may be held at such
time and place as may be determined by resolution of the Board of Directors and no notice shall be
required for any regular meeting. Except as otherwise provided by law, any business may be
transacted at any regular meeting.
Section 6. Special Meeting: A Special meeting of the Board of Directors may, unless
otherwise prescribed by law, be called from time to time by any officer of the Corporation who is
also a director. The Secretary shall call a special meeting of the Board upon written request
directed to either of them by any two directors stating the time, place and purpose of such special
meeting. Special meetings of the Board shall be held on a date and at such time and at such place
as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting: Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this Section, notice
shall be deemed to have been given to a director if given personally (including by telephone) or
if such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or
teleprinter to his/her last known address. Notice of a meeting need not be given to any director
who submits a signed waiver of notice, whether before ort after the meeting, or who attends the
meeting without protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum: A majority of the entire board, present in person or by proxy or by
communications equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting: The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and members of Committees: The board may from time to
time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
Section 1. Executive Committee and Other Committees: The Board may, by resolution or
resolutions passed by a majority of the entire Board, designate from among its members an Executive
Committee to consist of one or more of the directors of the Corporation, which, to the extent
provided in said resolution or resolutions, or in these Bylaws, shall have and may exercise, to the
extent permitted by law, the powers of the Board of Directors in the management of the business and
affairs of the Corporation, ands may have power to authorize the seal of the corporation to be
affixed to all papers which may require it. In addition, the Board of Directors may, by resolution
or resolutions passed by a majority of the entire Board, designate from among its members other
committees to consist of one or more directors of the Corporation, each of which shall perform such
function and have such authority and powers as shall be delegated to it by said resolution or
resolutions or as provided •for in these Bylaws, except that only the Executive Committee may have
and exercise the powers of the Board of Directors. Members of the Executive committee and any other
committee shall hold office for such period as may be prescribed by the vote of the majority of the
entire Board of Directors, subject, however, to removal at any time by the vote of the Board of
Directors. Vacancies in the membership of such committees shall be filled by vote of the Board of
Directors. Committees may adopt their own rules of procedure and may meet at stated times or on
such notice as they may determine. Each committee shall keep a record of its proceedings and report
the same to the Board when requested.
ARTICLE V
OFFICERS
Section 1. Number and Designation: The Board of Directors shall appoint a secretary. In
addition, the Board of Directors may appoint such other officers as it deems necessary. Officers
may be of any nationality, need not be residents of the Marshall Islands and may be, but are not
required to be, directors. Officers of the Corporation may be natural persons, corporations or
other business entities. If an officer is corporation or other business entity, the duties of such
officer may be carried out by any duly authorized representative of such corporation or other
business entity acting in its name. Any two (2) or more offices may be held by the same natural
person, corporation or other business entity.
The
officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of such
office by the Board of Directors at any regular or special meeting.
Section 2. President or Managing Director (if applicable): The President or Managing
Director shall be the Chief Executive Officer of the Corporation and shall have the general
management of the affairs of the Corporation, together with the powers and duties usually incident
to the office of President or Managing Director, except as specifically limited by appropriate
written resolution of the Board of Directors and shall have such other powers and perform such
other duties as may be assigned to him/her by the Board of Directors.
If a natural person, the
President or Managing Director shall preside at all meetings of shareholders at which he/she is
present and if he/she is a director, at all meetings of the directors.
Section 3. Treasurer (if applicable): The Managing Director or, if there shall be no
Managing Director, the Treasurer shall have general supervision over the care and custody of the
funds, securities and other valuable effects of the Corporation and shall deposit the same or cause
the same to be deposited in the name of the Corporation in such depositories as the board of
directors may designate, shall disburse the funds of the Corporation
as may be ordered by the Board
of Directors, shall have supervision over the accounts of all receipts and disbursements of the
Corporation, shall, whenever required by the Board, render or cause to be rendered financial
statements of the Corporation, shall have the power and perform the duties usually incident to the
office of Treasurer; and shall have the powers and perform such other duties as may be assigned to
him/her/it by the Board of Directors, Managing Director or President.
Section 4. Secretary: The Secretary shall, if a natural person, act as Secretary of all
meetings of the shareholders and of the Board of Directors at which he/she is present. The
secretary shall have supervision over the giving and serving of notices of the Corporation; shall
be the custodian of the corporate records and of the corporate seal of the Corporation; shall be
empowered to affix the corporate seal to those documents, the execution of which, on behalf of the
corporation under its seal, is duly authorized and when so affixed may attest the same, and shall
exercise the powers and perform such other duties as may be assigned to him/her/it by the Board of
Directors, Managing Director or the President.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of this
article shall exercise such powers and perform such duties as may be assigned to them by the Board
of Directors or by the President or Managing Director.
Section 6. Bond: The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. Form and Issuance: The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved
by the Board of Directors.
Certificates shall be signed by an Officer and/or a Director. Signatures of the Officer and/or
Director may be facsimiles if the certificate is countersigned by a transfer agent or registered by
a registrar other than the Corporation itself or its employee.
Section 2. Transfer: The board of directors shall have the power to make such rules and
regulations as they may deem expedient concerning the issuance, registration and transfer of
certificates representing shares of the corporation’s stock, and may appoint transfer agents and
registrars thereof.
Section 3. Loss of Stock Certificates: The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its discretion, and as a
condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate
or certificates, or his/her representative, to advertize the same in such manner as it shall
require and/or give the Corporation a bond in such sum as it may direct against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost or
destroyed.
ARTICLE VII
DIVIDENDS
Section 1. Declaration and Form: Dividend may be declared in conformity with law by, and at
the discretion of, the board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
Section 1. Corporate Seal: The seal of the Corporation, if any, shall be circular in form,
with the name of the corporation in the circumference and such other appropriate legend as the
Board of directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
Section 1.
Fiscal Year: The fiscal year of the corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
ARTICLE X
AMENDMENTS
Section 1. By the Shareholders: These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2.
By the Directors: If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaw as adopted.
ARTICLE XI
INDEMNIFICATION
Section 1. The Corporation shall indemnify its directors and officers to the full extent of its
powers granted under the provisions of, and in the situations described in, Section 60 of the
Business Corporation Act.
Exhibit 3.24.1
ARTICLES OF INCORPORATION
OF
RHEIA ASSOCIATES CO.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The
undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make,
subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as
follows:
| A. | The name of the Corporation shall be: |
RHEIA ASSOCIATES CO.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act, and without in any way limiting the generality of the foregoing, the Corporation shall have the power: | |
| (1) To carry on the business of an investment holding company or corporation and for such purpose to purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in shares, stocks, bonds, debentures, notes, evidences of indebtedness, warrants, rights, certificates, receipts or any other instruments or interest in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement, and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities, to acquire or |
| become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Marshall Islands Business Corporations Act is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign; and the term “public authority” shall include any domestic or foreign governmental, municipal or other public authority. | ||
| (2) To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and wheresoever situated, either as principal or as factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or similar institution where any such products |
| or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | ||
| (3) To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust or otherwise, or unsecured. | ||
| (4) To acquire, and take over as a going concern and thereafter to carry on the business of any person, firm or corporation engaged in any business which this corporation is authorized to carry on, and in connection therewith to acquire the goodwill and all or any assets, and to assume or otherwise provide for all or any of the liabilities of any such business. | ||
| (5) To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person, firm or corporation in the Republic of the Marshall Islands or abroad. | ||
| (6) To lend or advance money to or for the account of any other person, firm or corporation and also to guarantee, endorse or give security for any promissory notes, bonds, or other instruments of indebtedness of such other person, firm or corporation; and to otherwise invest its funds as from time to time may be deemed advisable by the Board of Directors, but this corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (7) To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for or certificates of deposit for, any proxies or powers of attorney or other privileges pertaining to any securities or interest therein, to hold in trust, |
issue on commission, make advances upon or sell, lease, license, transfer, organize,
reorganize, incorporate or dispose of any of the undertakings or resulting investments aforesaid,
or the stock or securities thereon; to act as agent for any of the above or like purposes, or any
purpose herein mentioned, and to act as fiscal agent of any other person, firm or corporation.
(8) To render advisory, investigatory, supervisory, managerial or other like services, permitted to
corporations, in connection with the promotion, organization, reorganization, recapitalization,
liquidation, consolidation or merger of any person, firm or corporation or in connection with the
issuance, underwriting, sale or distribution of any securities issued in connection therewith or
incidental thereto; and to render general investment advisory or financial advisory or managerial
services to any person or public authority.
(9) To enter into any lawful arrangements for sharing profits, union of interest, reciprocal
concession or cooperation with any person or public authority, in the carrying on of any similar
business which the corporation is authorized to carry on, or any business or transaction deemed
necessary, convenient or incidental to carrying out any of the purposes of this corporation.
(10) To cause or allow the legal title, or any legal or equitable estate, right or interest in any
property, whether real, personal, or mixed, owned, acquired, controlled or operated by this
corporation, to remain or to be vested or registered in the name of, or operated by, any person,
formed or to be formed, either upon trust for or as agents or nominees of, this corporation, or
upon any other proper terms or conditions which the Board of Directors may consider for the benefit
of this corporation.
(11) To the extent suitable or necessary to carry out any of the purposes hereinbefore or
hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation
organized under the Marshall
Islands
Business Corporations Act, to buy, sell and deal in foreign exchange.
(12) To make and give any guarantee so far as the same may be permitted to be done by a corporation
organized under the Marshall Islands Business Corporations Act and to mortgage, pledge or charge
the property of the corporation, of whatsoever nature the property may be, as security for any such
guaranty made or given and to assist financially or otherwise with or without consideration and on
such terms as the corporation thinks fit any person, firm, company or corporation in any part of
the world and in connection therewith undertake and guarantee the liabilities of that person,
firm, company or corporation and to issue or procure the issue of indemnities in respect of the
liabilities of such person, firm, company, or corporation and to mortgage and hypothecate the
corporation’s vessels or real or personal property or immovable or movable property or other form
of property whatsoever as security for any such undertaking or guarantee or indemnity given or
issued as aforesaid.
(13) To issue, purchase, hold, sell, transfer, reissue, or cancel the shares of its own capital
stock or any securities of the corporation in the manner and to the extent now or hereafter
permitted by law; and provide further that shares of its own capital stock owned by the corporation
shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any
stockholders’ quorum or vote.
(14) To invest its uninvested funds and/or surplus from time to time to such extent as the Board of
Directors may deem advisable in securities or in call and/or in time loans or otherwise, upon such
security, if any, as the Board of Directors may determine, but the corporation shall not engage in
the banking business or exercise banking powers, and nothing in these Articles contained shall be
deemed to authorize it to do so.
(15) To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease,
charter, subcharter, sell, build, and repair steamships,
motorships, tankers, sailing vessels, yachts, tugs, lighters, barges, and all other vessels and
craft of any and all means of conveyance and transportation by land, water or air, together with
engines, boilers, machinery, equipment and appurtenances of all kinds, including masts, sails,
boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and
belonging, together with all materials, articles, tools, equipment and appliances necessary,
suitable or convenient for the construction, use and operation thereof; and to equip, furnish, and
outfit such vessels and ships.
(16) To engage in ocean, coastwise and inland commerce, and generally in the carriage of
passengers, mail, freight, goods, cargo in bulk and personal effects by water between the various
ports of the world and to engage generally in waterborne and airborne commerce throughout the
world.
(17) To
act as broker or agent in the chartering, sub-chartering, buying, and selling of steamships,
motorships, tankers, sailing vessels, yachts, tugs, lighters, barges, scows, rafts, dredges,
pontoons, airplanes, airships, hydroplanes, and all other vessels and craft of any and all motive
power whatsoever, including aircrafts, landcraft and watercraft, and equipment and appurtenances of
all kinds in connection therewith and to engage in the business of negotiation and concluding
freighting or transportation contracts of every kind and description for its own account and as the
agent for any other corporation, or any firm, association or
individual, domestic or foreign.
(18) To act as ship’s agent, ship chandler, ship broker, ship’s husband, manager of shipping
property, custom house broker, forwarding agent, freight contractor,
lighterman, stevedore,
warehouseman and wharfinger, on its own behalf or as agent for any other corporation, or any firm,
association or individual, domestic or foreign.
(19) To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any
manner
dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds,
and any property, real, personal and mixed, in connection therewith.
(20) To engage in any mercantile, manufacturing or trading business of any kind or character
whatsoever, outside of the Republic of the Marshall Islands, and to do all things incidental to
such business.
(21) To
act as agent, attorney-in-fact, broker or representative, general or special, on commission
or otherwise for corporations, firms, associations, or individuals, foreign or domestic, including
governments or governmental authorities; to aid, assist, promote and serve the interests of and
afford facilities for, the convenient transaction of business by its principals and partners in all
parts of the world; and to appoint agents, brokers or representatives.
(22) To carry on the business of warehousing and all business incidental thereto, including the
issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon
the security of goods warehoused.
(23) To apply for, purchase, or any manner to acquire, hold, own, use and operate; to sell or in
any manner dispose of, to grant, or license other rights in respect of, and in any manner deal
with, any and all rights, interests, inventions, improvements and processes used in connection with
or secured under letters patent, copyrights, or trademarks and to work, operate, or develop the
same.
(24) To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build,
erect, construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of
lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams,
stores and dwellings and all other property and things of whatsoever kind and nature, real,
personal or mixed, tangible or intangible, without the Marshall Islands, and in any part of the
world suitable
or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or
otherwise deal with or in any such properties.
(25) To enter into, make and perform contracts of every kind and description with any person,
firm, association, corporation, municipality, county, state, body politic, or government or
colony or any dependency thereof.
(26) To carry on its business, to have one or more offices, and to exercise its power in any
and all foreign countries, subject to the laws of the particular
country.
(27) To carry on any other business in connection with the above or calculated directly or
indirectly to enhance the value of or render profitable any of the corporation’s property or
rights.
(28) To do all and everything necessary, suitable, or proper for the accomplishment of any of
the purposes, the attainment of any of the objects of the furtherance of any of the powers
hereinbefore set forth either alone or in connection with other corporations, firms, or
individuals and either as principals, or agents, and to do every other act or acts, thing or
things, incidental or appurtenant to or growing out of or connected with the aforesaid
objects, purposes or powers or any of them.
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. |
The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for
another certificate in his name for a like number of shares, and the holder of shares issued in the
name of the owner may cause his certificate to be exchanged for another certificate to bearer for a
like number of shares.
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on June 30, 2005.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | 
|
|||
Exhibit 3.24.2
B Y - L A W S
OF
RHEIA
ASSOCIATES CO.
Trust Company Complex
Ajeltake Road
Ajeltake Island
Marshall Islands
Ajeltake Road
Ajeltake Island
Marshall Islands
ARTICLE I
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the corporation may require.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting: The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the board of
directors may determine for the purpose of electing Directors and of transacting such other
business as may properly come before the meeting.
Section 2. Special Meeting: Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by order of the board of
directors or by any Officer whenever required in writing to do so by shareholders owning not less
than one-tenth of all outstanding shares of the Corporation entitled to vote at such meeting. Such
request shall state the purpose or purposes of the proposed special meeting. Such meetings shall be
held at such place and at such time as may be designated in the notice thereof by the officer of
the Corporation calling any such meeting. The business transacted at any special meeting shall be
limited to the purposes stated in the notice.
Section 3. Notice Of Meetings: Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver without
protesting prior to the conclusion thereof the lack of notice to him. If the Corporation shall
issue any class of bearer shares, notice for all meetings shall be given in the manner provided in
the Articles of Incorporation.
Section 4. Quorum: At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present in person or by proxy shareholders holding at least a
majority of the shares issued and outstanding and entitled to vote at such meeting in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
Section 5. Voting: If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and every holder of registered shares then entitled to vote may vote in person
or by proxy and every holder of bearer shares then entitled to vote may vote by tabling the stock
certificate(s) or, if holders of bearer stock have presented their stock to the corporation within
the time specified in the notice of the meeting in order to be considered “holders of record” then
such holders of bearer stock may vote in person or by proxy. Any action required or permitted to be
taken at a meeting, may be taken without a meeting if a consent in writing setting forth the action
so taken, is signed by all the shareholders entitled to vote with respect to the subject matter
thereof.
ARTICLE III
DIRECTORS
Section 1. Number: The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined by either a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation. Corporations may, to the extent permitted by law, be elected
directors.
Section 2. How Elected: Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors if named in the
Articles of Incorporation or designated by the Incorporator) shall be elected at the annual meeting
of shareholders. Each director shall be elected to serve until the next annual meeting of
shareholders and until his/her successor shall have been duly elected and qualified, except in the
event of his/her death, resignation, removal or the earlier termination of his/her term of office.
Section 3. Removal: Any or all of the directors may be removed, with or without cause, by a
vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies: Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings: Regular meetings of the Board of Directors may be held at such
time and place as may be determined by resolution of the Board of Directors and no notice shall be
required for any regular meeting. Except as otherwise provided by law, any business may be
transacted at any regular meeting.
Section 6. Special Meeting: A Special meeting of the Board of Directors may, unless
otherwise prescribed by law, be called from time to time by any officer of the Corporation who is
also a director. The Secretary shall call a special meeting of the Board upon written request
directed to either of them by any two directors stating the time, place and purpose of such special
meeting. Special meetings of the Board shall be held on a date and at such time and at such place
as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting: Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this Section, notice
shall be deemed to have been given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before ort after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum: A majority of the entire board, present in person or by proxy or by
communications equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting: The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and members of Committees: The board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
Section 1. Executive Committee and Other Committees: The Board may, by resolution or
resolutions passed by a majority of the entire Board, designate from among its members an Executive
Committee to consist of one or more of the directors of the Corporation, which, to the extent
provided in said resolution or resolutions, or in these Bylaws, shall have and may exercise, to the
extent permitted by law, the powers of the Board of Directors in the management of the business and
affairs of the Corporation, ands may have power to authorize the seal of the corporation to be
affixed to all papers which may require it. In addition, the Board of Directors may, by resolution
or resolutions passed by a majority of the entire Board, designate from among its members other
committees to consist of one or more directors of the Corporation, each of which shall perform such
function and have such authority and powers as shall be delegated to it by said resolution or
resolutions or as provided for in these Bylaws, except that only the Executive Committee may have
and exercise the powers of the Board of Directors. Members of the Executive committee and any other
committee shall hold office for such period as may be prescribed by the vote of the majority of the
entire Board of Directors, subject, however, to removal at any time by the vote of the Board of
Directors. Vacancies in the membership of such committees shall be filled by vote of the Board of
Directors. Committees may adopt their own rules of procedure and may meet at stated times or on
such notice as they may determine. Each committee shall keep a record of its proceedings and report
the same to the Board when requested.
ARTICLE V
OFFICERS
Section 1. Number and Designation: The Board of Directors shall appoint a secretary. In
addition, the Board of Directors may appoint such other officers as it deems necessary. Officers
may be of any nationality, need not be residents of the Marshall Islands and may be, but are not
required to be, directors. Officers of the Corporation may be natural persons, corporations or
other business entities. If an officer is corporation or other business entity, the duties of such
officer may be carried out by any duly authorized representative of such corporation or other
business entity acting in its name. Any two (2) or more offices may be held by the same natural
person, corporation or other business entity.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to
so appoint any officer, such officer may be appointed at any subsequent meeting of the Board of
Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of such
office by the Board of Directors at any regular or special meeting.
Section 2. President or Managing Director (if applicable): The President or Managing
Director shall be the Chief Executive Officer of the Corporation and shall have the general
management of the affairs of the Corporation, together with the powers and duties usually incident
to the office of President or Managing Director, except as specifically limited by appropriate
written resolution of the Board of Directors and shall have such other powers and perform such
other duties as may be assigned to him/her by the Board of Directors. If a natural person, the
President or Managing Director shall preside at all meetings of shareholders at which he/she is
present and if he/she is a director, at all meetings of the directors.
Section 3. Treasurer (if applicable): The Managing Director or, if there shall be no
Managing Director, the Treasurer shall have general supervision over the care and custody of the
funds, securities and other valuable effects of the Corporation and shall deposit the same or cause
the same to be deposited in the name of the Corporation in such depositories as the board of
directors may designate, shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, shall have supervision over the accounts of all receipts and disbursements of the
Corporation, shall, whenever required by the Board, render or cause to be rendered financial
statements of the Corporation, shall have the power and perform the duties usually incident to the
office of Treasurer; and shall have the powers and perform such other duties as may be assigned to
him/her/it by the Board of Directors, Managing Director or President.
Section 4. Secretary: The Secretary shall, if a natural person, act as Secretary of all
meetings of the shareholders and of the Board of Directors at which he/she is present. The
secretary shall have supervision over the giving and serving of notices of the Corporation; shall
be the custodian of the corporate records and of the corporate seal of the Corporation; shall be
empowered to affix the corporate seal to those documents, the execution of which, on behalf of the
corporation under its seal, is duly authorized and when so affixed may attest the same, and shall
exercise the powers and perform such other duties as may be assigned to him/her/it by the Board of
Directors, Managing Director or the President.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of this
article shall exercise such powers and perform such duties as may be assigned to them by the Board
of Directors or by the President or Managing Director.
Section 6. Bond: The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. Form and Issuance: The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by an Officer and/or a Director. Signatures of the Officer and/or
Director may be facsimiles if the certificate is countersigned by a transfer agent or registered by
a registrar other than the Corporation itself or its employee.
Section 2. Transfer: The board of directors shall have the power to make such rules and
regulations as they may deem expedient concerning the issuance, registration and transfer of
certificates representing shares of the corporation’s stock, and may appoint transfer agents and
registrars thereof.
Section 3. Loss of Stock Certificates: The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its discretion, and as a
condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertize the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct against any claim
that may be made against the Corporation with respect to the certificate alleged to have been lost
or destroyed.
ARTICLE VII
DIVIDENDS
Section 1. Declaration and Form: Dividend may be declared in conformity with law by, and at
the discretion of, the board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
Section 1. Corporate Seal: The seal of the Corporation, if any, shall be circular in form,
with the name of the corporation in the circumference and such other appropriate legend as the
Board of directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
Section 1. Fiscal Year: The fiscal year of the corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
ARTICLE X
AMENDMENTS
Section 1. By the Shareholders: These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors: If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaw as adopted.
ARTICLE XI
INDEMNIFICATION
Section 1. The Corporation shall indemnify its directors and officers to the full extent of its
powers granted under the provisions of, and in the situations described in, Section 60 of the
Business Corporation Act.
Exhibit
3.25.1
ARTICLES
OF INCORPORATION
OF
RUMER HOLDING LTD.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
RUMER HOLDING LTD.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act, and without in any way limiting the generality of the foregoing, the Corporation shall have the power: |
(1) To carry on the business of an investment holding company or corporation and for such purpose
to purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell,
distribute, or otherwise dispose of and generally to deal in shares, stocks, bonds, debentures,
notes, evidences of indebtedness, warrants, rights, certificates, receipts or any other instruments
or interest in the nature of securities created or issued by any person, partnership, firm,
corporation, company, association, or other business organizations, foreign or domestic, or by any
domestic or foreign governmental, municipal or other public authority, and exercise as holder or
owner of any such securities all rights, powers and privileges in respect thereof; to do any and
all acts and things for the preservation, protection, improvement, and enhancement in value of any
such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or
responsible for any such securities, to acquire or
become interested in any such securities by original subscription, underwriting, loan,
participation in syndicates or otherwise, and irrespective of whether such securities be fully
paid or subject to future payments; to make payments thereon as called for or in advance of calls
or otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with
a view to resale or investment or for any other lawful purpose; and in connection therewith or
otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of
trade, exchange or other similar institution where any securities are dealt in and to comply with
the rules of any such institution; as used herein the term “securities” shall include bonds,
debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights,
certificates, receipts or any other instruments or interests in the nature of securities of any
kind whatsoever which a corporation organized under the Marshall Islands Business Corporations Act
is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person”
shall include any person, partnership, firm, corporation, company, association or other business
organization, domestic or foreign; and the term “public authority” shall include any domestic or
foreign governmental, municipal or other public authority.
(2) To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export,
sell, distribute or otherwise dispose of, and generally to deal in, commodities and products
(including any future interest therein) and merchandise, articles of commerce, materials, personal
property and real property of every kind, character and description whatsoever, and wheresoever
situated, either as principal or as factor or broker, or as commercial, sales, business or
financial agent or representative, general or special, or, to the extent permitted by the laws of
the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign
person or public authority, and in connection therewith or otherwise to acquire trading
privileges on any board of trade, exchange or similar institution where any such products
or commodities or personal or real property are dealt in, and to comply with the rules of any
such institution.
(3) To borrow or raise money and contract debts, when necessary, for the transaction of its
business or for the exercise of its corporate rights, privileges or
franchise or for any other lawful purpose of its incorporation; to draw, make, accept, endorse,
execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and
evidences of indebtedness either secured by mortgage, pledge, deed of trust or otherwise, or
unsecured.
(4) To acquire, and take over as a going concern and thereafter to carry on the business of any
person, firm or corporation engaged in any business which this corporation is authorized to
carry on, and in connection therewith to acquire the goodwill and all or any assets, and to assume
or otherwise provide for all or any of the liabilities of any such business.
(5) To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in
any way permitted by law, the formation, merger, reorganization or liquidation of any person, firm
or corporation in the Republic of the Marshall Islands or abroad.
(6) To lend or advance money to or for the account of any other person, firm or corporation and
also to guarantee, endorse or give security for any promissory notes, bonds, or other instruments
of indebtedness of such other person, firm or corporation; and to otherwise invest its funds as
from time to time may be deemed advisable by the Board of Directors,
but this corporation shall
not engage in the banking business or exercise banking powers, and nothing in these Articles
contained shall be deemed to authorize it to do so.
(7) To
make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts,
or any other receipts for or certificates of deposit for, any proxies or powers of attorney or
other privileges pertaining to any securities or interest therein, to hold in trust,
issue
on commission, make advances upon or sell, lease, license, transfer, organize, reorganize,
incorporate or dispose of any of the undertakings or resulting
investments aforesaid, or the stock
or securities thereon; to act as agent for any of the above or like purposes, or any purpose herein
mentioned, and to act as fiscal agent of any other person, firm or corporation.
(8) To render advisory, investigatory, supervisory, managerial or other like services, permitted to
corporations, in connection with the promotion, organization,
reorganization, recapitalization,
liquidation, consolidation or merger of any person, firm
or corporation or in connection with the issuance, underwriting, sale or distribution of any securities
issued in connection therewith or incidental thereto; and to render general investment advisory or
financial advisory or managerial services to any person or public
authority.
(9) To enter into any lawful arrangements for sharing profits, union of interest, reciprocal
concession or cooperation with any person or public authority, in the carrying on of any similar
business which the corporation is authorized to carry on, or any business or transaction deemed
necessary, convenient or incidental to carrying out any of the purposes of this corporation.
(10) To cause or allow the legal title, or any legal or equitable estate, right or interest in any
property,whether real, personal, or mixed, owned, acquired, controlled or operated by this corporation, to remain or
to be vested or registered in the name of, or operated by, any
person, formed or to be formed, either upon trust for or as agents or nominees of,
this corporation, or upon any other proper terms or conditions which the Board of Directors may
consider for the benefit of this corporation.
(11) To the extent suitable or necessary to carry out any of the purposes hereinbefore or
hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation
organized under the Marshall
Islands Business Corporations Act, to buy, sell and deal in foreign
exchange.
(12) To make and give any guarantee so far as the same may be permitted to be done by a corporation
organized under the Marshall Islands Business Corporations Act and to mortgage, pledge or charge
the property of the corporation, of whatsoever nature the property may be, as security for any such
guaranty made or given and to assist financially or otherwise with or without consideration and on
such terms as the corporation thinks fit any person, firm, company or corporation in any part of
the world and in connection therewith undertake and guarantee the liabilities of that person, firm,
company or corporation and to issue or procure the issue of indemnities in respect of the
liabilities of such person, firm, company, or corporation and to
mortgage and hypothecate the
corporation’s vessels or real or personal property or immovable or movable property or other form
of property whatsoever as security for any such undertaking or
guarantee or indemnity given or
issued as aforesaid.
(13) To issue, purchase, hold, sell, transfer, reissue, or cancel the shares of its own capital
stock or any securities of the corporation in the manner and to the extent now or hereafter
permitted by law; and provide further that shares of its own capital stock owned by the corporation
shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any
stockholders’ quorum or vote.
(14) To invest its uninvested funds and/or surplus from time to time to such extent as the Board of
Directors may deem advisable in securities or in call and/or in time loans or otherwise, upon such
security, if any, as the Board of Directors may determine, but the corporation shall not engage in
the banking business or exercise banking powers, and nothing in these Articles contained shall be
deemed to authorize it to do so.
(15) To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease,
charter, subcharter, sell, build, and repair steamships,
motorships, tankers, sailing vessels, yachts, tugs, lighters, barges, and all other vessels and
craft of any and all means of conveyance and transportation by land, water or air, together with
engines, boilers, machinery, equipment and appurtenances of all kinds, including masts, sails,
boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and
belonging, together with all materials, articles, tools, equipment and appliances necessary,
suitable or convenient for the construction, use and operation thereof; and to equip, furnish, and
outfit such vessels and ships.
(16) To engage in ocean, coastwise and inland commerce, and generally in the carriage of
passengers, mail, freight, goods, cargo in bulk and personal effects by water between the various
ports of the world and to engage generally in waterborne and airborne commerce throughout the
world.
(17) To act as broker or agent in the chartering, subchartering, buying, and selling of
steamships, motorships, tankers, sailing vessels, yachts, tugs, lighters, barges, scows, rafts,
dredges, pontoons, airplanes, airships, hydroplanes, and all other vessels and craft of any and all
motive power whatsoever, including aircrafts, landcraft and watercraft, and equipment and
appurtenances of all kinds in connection therewith and to engage in the business of negotiation and
concluding freighting or transportation contracts of every kind and description for its own account
and as the agent for any other corporation, or any firm, association or individual, domestic or
foreign.
(18) To act as ship’s agent, ship chandler, ship broker, ship’s husband, manager of shipping
property, custom house broker, forwarding agent, freight contractor, lighterman, stevedore,
warehouseman and wharfinger, on its own behalf or as agent for any other corporation, or any
firm, association or individual, domestic or foreign.
(19) To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any
manner
dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds,
and any property, real, personal and mixed, in connection
therewith.
(20) To engage in any mercantile, manufacturing or
trading business of any kind or character whatsoever, outside of the Republic of the Marshall
Islands, and to do all things incidental to such business.
(21) To act as agent, attorney-in-fact, broker or representative, general or special, on commission
or otherwise for corporations, firms, associations, or individuals, foreign or domestic, including
governments or governmental authorities; to aid, assist, promote and serve the interests of and
afford facilities for, the convenient transaction of business by its principals and partners in all
parts of the world; and to appoint agents, brokers or representatives.
(22) To carry on the business of warehousing and all business incidental thereto, including the
issuing of warehouse receipts, negotiable or otherwise, and the
making of advances or loans upon the security of goods
warehoused.
(23) To apply for, purchase, or any manner to acquire, hold,
own, use and operate; to sell or in
any manner dispose of, to grant, or license other rights in respect of, and in any manner deal
with, any and all rights, interests, inventions, improvements and processes used in connection with
or secured under letters patent, copyrights, or trademarks and to work, operate, or develop the
same.
(24) To purchase, lease or otherwise acquire, hold, own,
mortgage, pledge, hypothecate, build,
erect, construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of
lands, and improvements, warehouses, factories, buildings,
structures, piers, wharves, mills, dams,
stores and dwellings and all other property and things of whatsoever kind and nature, real,
personal or mixed, tangible or intangible, without the Marshall Islands, and in any part of the world suitable
or
necessary in connection with any of the purposes hereinabove or hereinafter set forth, or
otherwise deal with or in any such properties.
(25) To enter into, make and perform contracts of every kind and description with any person, firm,
association,
corporation, municipality, county, state, body politic,
or government or colony or any dependency thereof.
(26) To carry on its business, to have one or more offices, and to exercise its power in any and
all foreign countries, subject to the laws of the particular country.
(27) To carry on any other business in connection with
the above or calculated directly or indirectly to
enhance the value of or render profitable any of the
corporation’s property or rights.
(28) To do all and everything necessary, suitable, or proper for the accomplishment of any of the purposes,
the attainment of any of the objects of the furtherance of any of the powers hereinbefore set forth either alone
or in connection with other corporations, firms, or individuals and either as principals, or agents, and
to do every other act or acts, thing or things, incidental
or appurtenant to or growing out of or connected with the aforesaid objects, purposes or
powers or any of them.
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. |
The holder of a stock certificate issued to bearer may cause such
certificate to be exchanged
for another certificate in his name for a like number of shares, and the holder of shares issued in
the name of the owner may cause his certificate to be exchanged for another certificate to bearer
for a like number of shares.
E. The Corporation shall have every power which a corporation now or hereafter organized under the
Marshall Islands Business Corporations Act may have.
F. The name and address of the incorporator is:
| Name | Post Office Address | |
| Majuro Nominees Ltd. | P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
G.
The Board of Directors as well as the shareholders of the Corporation shall have the authority to
adopt, amend or repeal the bylaws of the Corporation.
H. Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of
Corporations as of the filing date stated on these Articles.
IN
WITNESS WHEREOF, I have executed this instrument on June 30, 2005.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | 
|
|||
Exhibit 3.25.2
BYLAWS
RUMER HOLDING LTD.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.26.1
“KLEIMAR”
Naamloze Vennootschap (NV — Limited Company)
at 5 Suikerrui, 2000 Antwerp
Liable to VAT — enterprise number 0426.557.894
Legal Entities Register Antwerp
Naamloze Vennootschap (NV — Limited Company)
at 5 Suikerrui, 2000 Antwerp
Liable to VAT — enterprise number 0426.557.894
Legal Entities Register Antwerp
Articles of Association co-ordinated following the
extraordinary general meeting of 9 September 2008.
extraordinary general meeting of 9 September 2008.
TITLE
I: CORPORATE STATUS — NAME — REGISTERED OFFICE
— PURPOSE — DURATION
Article 1: Name
The Company has the corporate status of a limited company — Naamloze Vennootschap — in short NV,
and exists under the name “KLEIMAR”.
Article 2: Registered Office
The registered office of the Company is established at 5 Suikerrui, 2000 Antwerp, Judicial District
of Antwerp.
The registered office may be transferred to another place in Belgium by simple decision of the
Board of Directors, without any change to the Articles of Association, on condition that this
transfer of the registered office does not cause any change for what concerns the language laws
system applicable to the Company.
The transfer of the registered office has to be published in the Appendices to the Belgian Official
Journal.
By simple decision of the Board of Directors, the Company can establish, in Belgium and abroad,
additional administrative offices and places of business, as well as offices and branch offices.
Article 3: Purpose
The purpose of the Company is:
- the purchase, sale, transfer, exchange and administration of all personal securities, shares,
certificates in companies, bonds, state paper and all personal and real property and rights;
- all activities of management and consultancy, all activities which are directly or indirectly
related to analysis and advice in all matters whether economic, financial, technical, social, or
relating to business organization;
- all transport on land, on water and in the air and activities relating to transport operations in
general;
- the purchase, sale, leasing, taking and giving in hire, the trade and operation of vehicles,
aircrafts, ships and all other means of transport.
In order to guarantee its own obligations, as well as the obligations of third parties, the Company
can provide securities, by, among other things, mortgaging or pledging its property, including its
own business activity, or by standing surety.
The Company may perform both in Belgium and in other countries all transactions relating to
industry, commerce, personal and real property or
finance which are of a nature to advance or promote its purpose, whether directly or indirectly.
The Company may hold interests, whether by means of contribution, merger, subscription,
participation, money or other means in all existing companies or companies in promotion or in
enterprises in Belgium and abroad. It may concern itself in every way in all businesses,
enterprises or companies, which have an identical, similar or related purpose or which are of a
nature to promote the growth of its enterprise and may even merge with these companies.
Article 4: Duration
The Company has been formed for an indefinite period of time.
Except for the judicial dissolution,
the Company can only be dissolved by the extraordinary general meeting, in compliance with the
provisions of the Companies Code on the dissolution of companies.
TITLE
II: CAPITAL
Article 5: Nominal Capital
The nominal capital of the Company amounts to three million two hundred and three thousand and
seventy two American dollars and eighty-seven cents (USD 3,203,072.87) and is represented by
fifty-six thousand nine hundred and ninety (56,990) shares of no par value, whereof
| * | forty-three thousand four hundred and twenty-two (43,422) shares are class A shares; | |
| * | and thirteen thousand five hundred and sixty-eight (13,568) shares are class B shares; |
which all enjoy the same rights and benefits except where expressly provided otherwise in the
Articles of Association.
The capital has been entirely and unconditionally subscribed to and paid up in full.
Article 6: Authorized Capital
No
authorization is currently given to the Board of Directors to increase the capital of the
Company.
Article 7: Increase of Capital — Pre-emptive Right
| 1. | The resolution to increase the capital is adopted by the General Meeting resolving in accordance with the rules for the amendment of the Articles of Association. | |
| The issue price and the conditions of issue of new shares are determined by the General Meeting resolving on a proposal of the Board of Directors. | ||
| 2. | In the event of new shares being issued with an issue premium such issue premium must be paid in full at the time the shares are subscribed to. | |
| 3. | Upon each increase in the nominal capital, the shares subscribed to in money must be first offered to the shareholders in proportion to that part of the capital represented by their shares, during a period of at least fifteen days counting from the day on which subscriptions were opened. | |
| 4. | With respect to the exercise of the pre-emptive right for shares to which more than one person is entitled, reference is made to Article 11 of these Articles of Association. | |
| 5. | The pre-emptive right may be limited or suspended in the interest of the Company by the General Meeting acting in compliance with the relevant legal requirements. |
| 6. | The General Meeting or, where applicable, the Board of Directors acting within the limits of the authorized capital may resolve on an increase in capital in favour of the personnel subject to compliance with the provisions of Section 609 of the Companies Code. |
Article 8: Capital Reduction — Acquisition of own shares
The resolution to purchase the Company’s own shares or to reduce the capital may be adopted subject
to compliance with the relevant provisions of law.
TITLE III: SHARES — BONDS
Article 9: Nature of the Shares
The shares
are registered and are recorded in a register of registered shares.
The register of
registered shares may be kept in electronic form.
Article 10:
Shares not paid up in full — Requirement to pay
The undertaking to pay up a share in full is unconditional and indivisible. If shares which have
not been paid up in full belong to several persons in joint ownership, each of them is liable for
the payment of the entire amount of the called payments due.
Additional payment or payment in full is called for by the Board of Directors at the time it
determines. Notice of this is given to the shareholders by registered letter naming the bank
account to which the payment should be made by transfer or cash deposit, to the exclusion of all
other methods of payment. The shareholder is in default merely by the expiry of the period
determined in the notification and the Company is owed interest at the legal interest rate
effective at that time, raised by two percentage points.
As long as the calls for payment due on a share have not been made in accordance with this
provision, the exercise of the rights accruing to it, are suspended.
Premature payments on shares cannot be made without the prior consent of the Board of Directors.
When determining the dividend account must be taken of the extent to which each share participates
in the result for the financial year concerned, as described in Article 42 of these Articles of
Association.
Article 11:
Exercise of rights accruing to a share to which more than one person is entitled
| 1. | The exercise of all rights accruing to shares given in pledge are reserved exclusively to the owner-pledger, except in the event of express notification otherwise given by the owner-pledger and the pledge-holding creditor sent together by registered letter to the Company. | |
| The pledge-holding creditor must give his full cooperation to the owner-pledger to permit this person to freely exercise his rights in full. | ||
| 2. | In all other cases the following rules apply, without prejudice to the application of the provisions of common law: | |
| a) | Appointment of a common representative | |
| The owners of one or more shares in joint ownership, bare owners and usufructuaries or, in general, all persons who for one reason or other are jointly entitled to one and the same share, must cause themselves to be represented by one and the same person for the purposes of the exercise of the associated rights. The full identity of this person is |
| communicated by all the jointly entitled persons acting together by registered letter to the Chairman of the Board of Directors at the registered office of the Company. | ||
| If no agreement can be reached by the jointly entitled persons, the most willing party may turn to the competent court in order to seek the appointment of a joint representative or a provisional administrator (both referred to here below as the “joint representative”). | ||
| As long as no joint representative has been appointed in respect of the Company for the shares concerned, the membership rights accruing to these shares are suspended. | ||
| b) | Convenings, announcements and notifications | |
| All convenings, announcements and notifications by the Company addressed to the jointly entitled persons are solely and validly made to the designated joint representative. | ||
| c) | Admission to the General Meeting | |
| Only the joint representative is admitted to the General Meeting, without prejudice to the right of the joint representative to cause himself to be represented by a proxy of his choice in accordance with Article 34 of these Articles of Association. | ||
| d) | Voting Rights | |
| The voting right always devolves on the joint representative. | ||
| e) | Pre-emptive Right |
| * | Shares in undivided joint ownership | ||
| In the event of an increase in capital or issue of other securities subject to the application of the pre-emptive right of the existing shareholders, the pre-emptive right accrues to the jointly entitled persons acting in unison. | |||
| If the pre-emptive right is exercised the shares thus acquired in undivided joint ownership belong to the jointly entitled persons. | |||
| If the pre-emptive right is not exercised, this right lapses without it accruing either wholly or in part to one or more of the jointly entitled persons, without prejudice to the right of the jointly entitled persons to transfer this pre-emptive right. | |||
| * | Shares in bare ownership and usufruct | ||
| The exercise of the pre-emptive right accrues in principle to the bare owner. | |||
| Should the bare owner not make use of this right, it accrues to the usufructuary. | |||
| The shares thus acquired belong in full ownership to the bare owner or the usufructuary respectively and are thus not subject to the aforementioned rules. |
Article 12: Imposition of Seals
Heirs, creditors, or other successors to the rights of a share-holder may in no circumstances
intervene in the management of the Company, nor cause seals to be laid on the goods and securities
of the Company, nor pursue the liquidation of the Company and the distribution of its assets.
For the exercise of their rights they must abide by the balance sheets and inventories of the
Company and accept the resolutions of the General Meeting.
Article 13: Issue of Bonds
The Board of Directors may proceed to the issue of bonds which may or may
not be secured by collateral securities without prejudice to the provisions of
Section 581 of the Companies Code.
TITLE IV: TRANSFER OF SHARES
Article 14: Transfer of shares
The transfer of shares is not subject to any restrictions.
TITLE V: BOARD OF DIRECTORS
Article 15: Powers of the Board of Directors
The Board of Directors is authorized for the performance of all actions that are necessary or
useful for the realization of the purpose of the Company, with the exception of those for which
according to the law only the General Meeting of Shareholders is authorized.
Article 16: Appointment and Resignation of Directors
The Company is governed by a Board of Directors composed of at least three (3) directors. When it
is determined at a General Meeting that the Company has no more than two (2) shareholders, the
Board of Directors may consist of two (2) members until the day of the General Meeting following
the determination, by any means whatsoever, that there are more than two shareholders. When a
juristic person is appointed as a Director, this juristic person must appoint a permanent
representative from among its shareholders or members, directors, director-managers, members of the
board of management, or employees, who is instructed with the performance of this task in the name
of and for the account of the juristic person appointed as Director. This permanent representative
must ultimately be a physical person.
Only the General Meeting is authorized to determine the number of Directors.
The Directors are appointed by the General Meeting.
The term of their office may not exceed six (6) years.
The term of office expires at the closure of the General Meeting or Board meeting that provides for
their replacement.
Directors may at all times be dismissed by the General Meeting.
Resigning Directors may be reappointed.
When a
Director’s chair becomes vacant, the remaining Directors are jointly authorized to provide a
provisional replacement for the vacancy. The next forthcoming General Meeting will resolve on the
permanent appointment. The newly appointed Director serves for the remainder of the period of
appointment of his predecessor.
Article 17: Remuneration
The General Meeting may resolve on the remuneration or otherwise of the appointment as director by
granting a fixed or variable emolument.
The amount hereof is determined by the General Meeting and
is borne as a general expense of the Company.
In the absence of any express resolution concerning the remuneration of a director his appointment
is assumed to be unremunerated.
Article 18: Chairmanship
The Board of Directors may elect a Chairman from among its members. Should the Chairman be
otherwise engaged he will be replaced by another director designated for this purpose by the
Chairman.
Article 19: Conflict of Interests
Should a Director have a direct or indirect interest in a transaction that touches on matters of
wealth as referred to be Section 523 of the Companies Code which conflicts with a decision or
transaction that falls within the scope of the powers of the Board of Directors he must disclose
this interest to the other Directors and the Statutory Auditor before the Board of Directors takes
a decision.
His statement as well as the reasons for this conflict of interest must be included in the Minutes
of the Board that takes the decision. In these minutes the Board describes the nature of the
decision or transaction, gives the reasons for its decision and states the likely impact on the
Company’s assets. These minutes are to be included in full in the Board’s Annual Report.
Should more than one Director be in such circumstances and the applicable legislation prohibit them
from taking part in the deliberation or voting on the item concerned, this decision may be validly
taken by the remaining Directors, even if in this case no more half the Directors are present or
validly represented.
Article 20: Meetings of the Board of Directors
The Board
of Directors is called by the Chairman or, in his absence, by any Director, as often as
the interests of the Company so require as well as when he receives a request to this end by at
least two Directors.
The Board is chaired by the Chairman.
The meeting is held at the registered office of the Company, or in any other place mentioned in the
notice convening the meeting. The notice convening the meeting mentions the agenda of the meeting.
Article 21: Decision-making by the Board of Directors
Directors who cannot physically attend the meeting, may participate in the deliberations and
votings by means of telecommunications such as conference-call or video-conference, on condition
that all participants in the meeting can directly communicate with all the other participants. The
Directors thus participating in the deliberations and votings of the Board of Directors will be
considered present at the meeting. The minutes of the meeting clearly have to indicate which
Directors thus participated in the deliberations and votings. The Board of Directors can only
validly deliberate and resolve on matters appearing on the agenda and only on condition that at
least half of its members is present, either in person or by means of telecommunication, or validly
represented at the meeting.
On items not appearing on the agenda, the Board can only validly deliberate and resolve when all
the Directors are present at the meeting and all have agreed thereto. This agreement is assumed to
have been given when no objection is recorded in the minutes.
Each Director may instruct one of his colleagues by simple letter, by telegram, telex, telefax or
any other means of communication, bearer of a printed document, to represent
him at a specified meeting of the Board of Directors and to vote for him and in his place. In these
circumstances a Director giving such instructions is regarded as being present.
A Director can represent several of his fellow members.
Resolutions of the Board of Directors are taken by majority vote.
In the event of a tie vote, the Chairman has a deciding vote, except when the Board of Directors is
composed of only two members.
In extraordinary circumstances, when required by urgent necessity and by the interest of the
Company, the decisions of the Board of Directors may be reached by unanimous written consent of all
the Directors. This procedure can however not be used for ascertaining the annual accounts or for
using the authorized capital.
Article 22: Minutes of the Board of Directors
Minutes are kept of the decisions of the Board of Directors. These minutes are bound in a special
register and signed by the Chairman or, in his absence, by the Director who chairs the meeting, and
at least the majority of the members of the Board attending the meeting.
Transcripts and abstracts of the minutes of the Board are signed by two Directors acting jointly or
by a Managing Director acting alone.
TITLE VI: MANAGEMENT COMMITTEE
Article 23: Management Committee — Transfer of Administrative Authority
Further to Section of 524bis of the Companies Code, the Board of Directors may transfer its
administrative powers to a management committee, which acts collectively, but where this transfer
cannot relate to
| • | the general policy of the Company | |
| • | all acts that pursuant to the law are reserved for the Board of Directors. |
The Board of Directors supervises the Management Committee.
Article 24: Conflicts of Interest
Should a member of the Management Committee have a direct or indirect interest in a transaction
that touches on matters of wealth as referred to be Section 524ter of the Companies Code and which
conflicts with a decision or transaction that falls within the scope of the powers of the
Management Committee, he must disclose this interest to the other members of the Management
Committee and the Statutory Auditor.
His statement as well as the reasons for this conflict of interest must be included in the Minutes
of the Management Committee that takes the decision. In these minutes the Management Committee
describes the nature of the decision or transaction, gives the reasons for its decision and states
the likely impact on the Company’s assets. A copy of these minutes is submitted to first
forthcoming meeting of the Board of Directors. These minutes are to be included in full in the
Annual Report of the Board of Directors.
Should more than one member of the Management Committee be in such circumstances and the applicable
legislation prohibits them from taking part in the deliberation or voting on the item concerned,
this decision may be validly taken by the remaining members of
the Management Committee, even if in this case no more half the members of the Management Committee
are present or validly represented.
Article 25: Composition, Powers and Operation of the Management Committee
Insofar these Articles of Association contain no specific rules in this respect, the Board of
Directors determines
| a. | the composition of the Management Committee, which must be constituted of several persons, the conditions of appointment and resignation of the members or the Management Committee, any |
| remuneration they may receive and the duration of their appointment; | ||
| b. | the powers of the Management Committee; | |
| c. | the working procedures of the Committee. |
Unless otherwise decided by the Board of Directors, the usual rules of the deliberating meetings
apply to the Management Committee.
Article 26: Minutes of the Management Committee
Minutes are kept of the decisions of the Management Committee. These minutes are bound in a special
register and signed by all members of the Management Committee attending the meeting.
Transcripts and abstracts of the minutes of the Committee are signed by at least two members of the
Management Committee.
TITLE VII: DELEGATION OF POWERS
Article 27: Daily Management — Delegation of Powers — Advisory Committees
| 1. | The Board of Directors may appoint a Managing Director and grant him the widest powers for the daily management of the Company and the representation of this daily management. | |
| The Board of Directors may also entrust the daily management and the representation of this daily management to |
| • | the Management Committee, should such a committee be established; | ||
| • | one or more persons, Director or otherwise. |
| 2. | The Board of Directors and the persons delegated to daily management, acting within the limits of their powers, may grant special and specific powers to one or persons of their choice. | |
| 3. | The Board of Directors may entrust the management of the whole, a particular part or a department of corporate activities to one or more persons. | |
| 4. | The Board of Directors may and subject to its responsibility establish one or more advisory committees from among its members whereof it determines the composition and tasks. |
TITLE VIII: REPRESENTATION OF THE COMPANY
Article 28: Representation of the Company
Without prejudice to the general representative powers of the Board of Directors as a whole, the
Company shall be validly bound in court and for all extra-judicial purposes by the Chairman of the
Board of Directors and the Managing Director acting jointly or three members of the Board of
Directors acting jointly.
The Company will also be validly represented in law for judicial and extra-judicial purposes of
daily management:
| • | either by one or more delegates to this management, acting jointly or severally in implementation of the Board of Directors’ delegations resolution; | |
| • | or in the way described by the Board of Directors, when the Management Committee is charged with the daily management. |
Moreover the Company is validly bound in law by the special attorneys acting within the limits of
their powers granted to them.
When the Company is appointed as director, manager, liquidator, member of the management committee,
of the management board or of the board of surveillance of another company, it appoints a permanent
representative,
10
physical person, among its shareholders, directors, managers, members of the management board or
employees, who will be charged with the execution of this mission in the name and on behalf of the
Company.
TITLE IX : AUDIT
Article 29: Statutory Auditors
The audit of the financial state, the annual accounts and the correctness of the transactions to be
reproduced in the annual accounts is entrusted to one or more Statutory Auditors should this
obligation be imposed by the Companies Code.
Statutory Auditors are appointed and remunerated in accordance with the rules set out in the
Companies Code.
TITLE X: GENERAL MEETINGS
Article 30: Annual, Special and Extraordinary General Meetings
The Annual General Meeting must be called every year on the last Friday of May at ten hours.
In the event of this day being a public holiday, the meeting will be held on the next following
working day, unless this day is a Saturday.
A Special or Extraordinary General Meeting may be called at all times to consider any subject
whatsoever that falls within its purview.
General Meetings are held at the registered office of the
Company or in any other place indicated in the letter convening the meeting.
Article 31: Convening — Authority — Obligation
The Board of Directors and each Statutory Auditor, acting individually, may call every General
Meeting.
They must call the Annual General Meeting on the day determined by these Articles of Association.
The Board of Directors and the Statutory Auditors are required to call a Special or Extraordinary
General Meeting when one or more shareholders alone or collectively representing one fifth of the
nominal capital so request.
Such a request is sent by registered letter to the offices of the
Company; it must state the items of the agenda which the General Meeting must deliberate and
resolve upon.
The Meeting to be held in consequence must be convened within a period of three weeks of the
request.
Other items may be added in the letter convening the Meeting to the list of items indicated by the
shareholders.
Article 32: Convening Procedure
The Shareholders are convened by registered letter sent at least fifteen (15) days before the date
of the General Meeting unless they have individually expressly agreed in writing to receive the
letter convening the meeting via another means of communication.
The Directors and the Statutory Auditors are convened by ordinary letter sent at least fifteen (15)
days before the date of the General Meeting unless they have individually expressly agreed in
writing to receive the letter convening the meeting via another means of communication.
The letter convening the meeting states the agenda in full, which must specify the items to be
deliberated.
This letter must contain copies of all reports and other documents to
be submitted to the Meeting.
11
Should the case arise, holders of registered bonds and warrants and holders of registered
certificates issued with the collaboration of the Company will be convened to attend the General
Meeting in the same way as the Shareholders.
Article 33:
Notification
Holders of registered shares or their representatives must give notice of their intention to take
part in the Meeting by ordinary letter sent at the latest five (5) days prior to the date of the
planned meeting, which letter will be addressed to the registered office of the Company.
Compliance with these formalities cannot be demanded if no mention is made of same in the letter
convening the Meeting.
Article 34: Representation of Shareholders
Every
shareholder may be represented at the General Meeting by a proxy to
whom written letter of
proxy has been given.
The Board of Directors may determine the form of the letter of proxy and require that these are
deposited at least five (5) full days before the General Meeting at the registered office.
Juristic persons are represented by the officer authorized to represent them by their Articles of
Association, or by a person, who may be a shareholder or otherwise, who has been authorized in
accordance with the requirements of this article.
Furthermore each shareholder has the right to vote by letter.
To be valid such (postal) votes must be made using a form sent at least five (5) calendar days
prior to the date of the Meeting by registered posted letter accompanied by a recorded delivery
card, where the postmark serves as proof of the posting date, and where the form must contain the
following Information:
| • | indication of the correct and complete identification of the shareholder and the number of shares that he votes; | |
| • | the agenda in full; | |
| • | the desired vote of the shareholder (for, against or abstention) with respect to each item of the agenda. The shareholder may clarify his voting intentions and state his reasons. |
Article 35: Officers of the Meeting
The General Meeting is chaired by the Chairman of the Board of Directors or, in his absence, by a
Director nominated by his fellows.
The Chairman appoints a Secretary, who does not necessarily have to be a shareholder. The Meeting
appoints two voting recorders.
These persons are the officers of the meeting.
Article 36: Adjournment of the Meeting
At the meeting the Board of Directors has the right to postpone the resolution concerning the
approval of the Annual Accounts for a period of three weeks. Such adjournment will have no effect
on other resolutions adopted by the meeting, unless the General Meeting should resolve otherwise.
The subsequent Meeting has the right to adopt a final resolution on the annual accounts.
The Board
of Directors also has the right at the Meeting to postpone every other General Meeting on a single
occasion for a period of three weeks. Such adjournment will have no effect on the resolutions
already adopted by the Meeting, unless the General Meeting should resolve otherwise.
12
At the subsequent Meeting all items over which no definitive resolution has been adopted will
be considered in full, and additional items can be added to the original agenda.
Shareholders who have not participated at the first meeting will be admitted to the following
meeting on condition that they have complied with the formalities required by the Articles of
Association.
Article 37: Off-agenda Resolutions — Amendments
The General Meeting cannot deliberate or resolve validly in law about items that are not included
in the announced agenda or which are not implicitly contained in same.
The Board of Directors and every shareholder have the right to submit amendments to all items on
the announced agenda.
Items not included in the Agenda can only be deliberated at a meeting at which all shares are
represented and which unanimously agrees to consider same.
Such agreement is held to be established if no record of opposition is Included in the minutes
of the Meeting.
Article 38: Voting Rights
In accordance with the provisions of Section 541 of the Companies Code:
| * | all shares give a right to one (1) vote when all shares have an equal value, that is they represent an equal amount of the capital. | |
| * | the shares, when they represent a different amount of capital, give by action of law right to a number of votes proportional to the part of the capital that they respectively represent, where it is understood that the share that represents the lowest amount is counted for one (1) vote. Fractions of a vote are ignored, except in those cases mentioned in Section 560 of the Companies Code. |
Holders of bonds, warrants and certificates issued with the cooperation of the Company may attend
the General Meeting, but have only an advisory voice.
Article 39: Resolutions in the General Meeting
Except in those cases provided for by the Companies Code the resolutions of Annual General Meeting
are validly adopted by simple majority vote regardless of the number of shares present or validly
represented.
When the agenda item does not entail an amendment of the Articles of Association, abstentions,
blank votes and invalid votes are not taken into consideration when calculating the required
majority.
In the event of a voting tie, the proposed resolution is rejected.
In principal votes about persons will be secret and made in writing. Votes about things will be by
calling off of names or by show of hands, unless the officers of the meeting or the Meeting itself
has already resolved on a secret ballot
Written Resolutions
Shareholders may adopt unanimously and in writing all resolutions that fall under the purview of
the General Meeting, with the exception of
| • | resolutions that must be recorded by Notarized deed; | |
| • | resolutions adopted in application of Section 633 of the Companies Code. |
To this end the Board of Directors will circulate a letter, by post, fax, email or other form of
carrier of written information, that sets out the agenda and the proposed resolutions, to all
shareholders and the holders of bonds, warrants
13
and certificates issued with the cooperation of the Company, requesting the shareholder to approve
the proposed resolutions and to return the duly signed circular letter within a period of twenty
days to the registered office of the Company or to any other place indicated in this circular
letter.
Should the approval by all shareholders of the proposed resolutions not be received within this
period, all the proposed resolutions shall be held to have been rejected.
The same applies if certain proposed resolutions are unanimously approved within this period but
others are not.
The holders of bonds, warrants and certificates issued with the cooperation of the Company are
entitled to learn the result of the unanimous resolutions adopted in writing.
Article 40: Minutes
Minutes are to be made of each General Meeting, to which the attendance list, any reports, proxy papers and written ballots are to be attached.
Minutes are to be made of each General Meeting, to which the attendance list, any reports, proxy papers and written ballots are to be attached.
The minutes of the General Meeting are signed by the officers of the Meeting and by those
shareholders who so request.
They are then bound in a special register.
Transcripts and abstracts of the minutes of the General Meeting are signed by two Directors acting
jointly or by a Managing Director acting alone.
TITLE
XI— CLOSURE OF THE FINANCIAL YEAR —ANNUAL ACCOUNTS —
DISTRIBUTION OF PROFITS — DIVIDENDS
DISTRIBUTION OF PROFITS — DIVIDENDS
Article 41: Financial Year — Annual Accounts
The financial year of the Company starts on the thirty-first of December and closes on the thirtieth of December of every year
The financial year of the Company starts on the thirty-first of December and closes on the thirtieth of December of every year
At the end of each financial year the Board of Directors makes up the inventory as well as the
annual accounts in accordance with the legal provisions in this respect.
Should the case arise and where applicable, the Board of Directors hands over at least one month
prior to the General Meeting the documents with the annual report to the Statutory Auditors who
must prepare the report required by law.
Article 42: Profits available for distribution
The positive balance on the profit and loss account represents the profit available for distribution on the financial year.
The positive balance on the profit and loss account represents the profit available for distribution on the financial year.
At least five percent is deducted in advance from this profit in order to constitute the legal
reserve, until this reserve amounts to one tenth of the nominal capital. The General Meeting
resolves on the balance by simple majority vote by voting on a proposal of the Board of Directors.
If the General Meeting resolves on the payment of a dividend, every share is entitled to the
dividend in the same way, but where it is understood that when calculating the dividend for each
share account must be taken of:
| a) | the share of the capital that this share represents (pro rata participationis) | |
| b) | the degree to which the share has been paid up (pro rata liberationis) | |
| and | ||
| c) | the number of days for which the share concerned takes part in the financial year concerned (pro rata temporis). |
The General Meeting may acting in accordance with Section 615 of the Companies Code resolve to use
this balance either wholly or in part for the
14
redemption of the share capital by paying out at par those shares selected by
lot.
Article 43: Payment of Dividends — Payment of an Interim Dividend
The Board of Directors determines the time and way in which dividends will be paid. Such payments
must be made before the end of the financial year in which the amount of the dividend is
determined.
The Board of Directors is authorized to pay out an interim dividend on the results of the current
financial year.
TITLE XII: DISSOLUTION — LIQUIDATION
Article 44: Dissolution
Only the Extraordinary General Meeting of the Shareholders acting in accordance with the relevant
provisions of law can resolve on the voluntary dissolution of the Company.
After dissolution the Company legally continues to exist as a juristic person for the purposes of
its liquidation until the conclusion of same.
Article 45: Appointment of Liquidators
If no liquidators should be appointed, the Directors in office at the time of the dissolution will
lawfully be the liquidators.
When a juristic person is appointed as liquidator, the natural person who represents him for the
purposes of the liquidation must be nominated in the resolution of appointment. Every change to
such an appointment must be filed with the Clerk to the Court and published in the appendices to
the Belgian Official Journal.
Nonetheless the liquidators only take office after the Commercial Court has proceeded to the
confirmation of their appointment pursuant to resolution of the General Meeting in accordance with
the provisions of the Companies Code. The General Meeting of the dissolved company may at all times
appoint or dismiss one or more liquidators by simply majority vote. It decides whether the
liquidators, should there be more than one, represent the Company alone, jointly, or collectively
as a Board.
Article 46: Powers of the Liquidators
The liquidators are authorized for the performance of all transactions set out in Sections 186, 187
and 188 of the Companies Code, without any requiring any special authorization by the General
Meeting for this purpose, unless the General Meeting should resolve otherwise by simple majority
vote.
In the sixth and the twelfth month of the first year of the liquidation the liquidators submit a
circumstantial statement of the state of the liquidation to the Clerk to the Commercial Court in
accordance with the provisions of the Companies Code. As of the second year of the liquidation this
circumstantial statement must only be submitted once every year.
Every year the liquidators present the results of the liquidation to the Annual General Meeting
indicating the reasons why the liquidation could not be completed.
They also make up an inventory
and a set of annual accounts up every year.
The annual accounts are published in compliance with the relevant requirements of law.
Article 47: Method of Liquidation
After the settlement of all debts, charges and expenses or after the giving into
15
consignment of the monies required for this purpose, the liquidators distribute the net assets in
monies or in securities among the shareholders according to the number of shares they hold.
Article 48:
Special Provisions for Companies in Liquidation
| 1. | Every change in the name of a company in liquidation is forbidden. | |
| 2. | All documents emanating from a dissolved company must state that the company is in liquidation. | |
| 3. | A resolution to move the registered office of a company in liquidation can only be implemented after approval by the Commercial Court in whose jurisdiction the registered office of the Company is established. Such approval must be applied for by request of the liquidator. A transcript of the decision to grant approval by the Court must be attached when the deed comprising the transfer of the registered office is filed. |
TITLE XIII: GENERAL PROVISIONS
Article 49: Election of Domicile
Directors and Liquidators who are domiciled abroad are held to elect domicile in the registered
office of the Company where all writs of summons and notifications concerning the business of the
Company and the responsibility for their governance can be served on them.
Article 50: Applicable Law
All matters not expressly determined in these Articles of Association or by those provisions of law
which are not validly departed from in these Articles of Association are subject to the provisions
of the Companies Code and other provisions of Belgian law.
Antwerp, 9 September 2009
CERTIFIED
(signature)
Frederik VLAMINCK
Associated Notary Public
(signature)
Frederik VLAMINCK
Associated Notary Public
“Fredrik VLAMINCK — Associated Notary Public”
16
Exhibit 3.27.1
MEMORANDUM
AND
ARTICLES OF ASSOCIATION
OF
NAV HOLDINGS LIMITED
1. NAME:
The name
of the Company is NAV Holdings Limited
2. REGISTERED OFFICE:
The registered office of the Company shall be at 13/16 Vincenti Buildings Strait Street, Valletta,
VLT08 Malta.
3. NATURE
The company is being constituted as a private limited liability company.
4. OBJECTS
The objects for which the company is established are: -
To carry on the following activities which, except for the holding of shares in Maltese companies,
are limited to activities outside Malta and to such other activities as are necessary for its
operations from Malta:-
| (a) | To subscribe for, acquire, hold, manage, administer, dispose of or otherwise deal with, directly or indirectly, any shares, stocks, debentures, debenture stock, bonds, notes, options, interests, in or securities of all kinds of any company, corporation, entity, partnership or other body of persons, only in the name of and on behalf of the company. | |
| (b) | To acquire and undertake the whole or any part of the business, property and liabilities of any person or company carrying on any business which the company is authorised to carry on. | |
| (c) | To hold shares and investment portfolios in corporate bodies engaged in activities similar or ancillary to those performed by the company. |
| (d) | To purchase, take by title of emphyteusis, lease or exchange or otherwise acquire any immovable or movable property, and any rights or licences which the company may deem necessary or convenient for the purposes of its business. | |
| (e) | To construct, improve and manage offices, stores or other buildings which may be required in connection with the company’s business. | |
| (f) | To borrow, or in any manner raise money, without any limit, for the purpose of or in connection the company’s business; to secure the repayment of any monies borrowed or any other obligations by giving hypothecary or other security upon the whole or part of the movable and immovable property of the company. | |
| (g) | To sell, lease, hypothecate or otherwise dispose of the whole or any part of the property or assets of the company. | |
| (h) | To guarantee the performance of obligations on the payment of money by any person and to mortgage or charge its assets for that purpose. | |
| (i) | To lend or advance money, with or without security, to corporate bodies engaged in activities similar on ancillary to those performed by the company or to corporate entities in which the company shall acquire participations or similar holdings, only where necessary and in relation to the business of the company. | |
| (j) | To carry on any other business which may seem to the company capable of being conveniently carried on in connection with its business and calculated directly or indirectly to enhance the value of the company’s property or rights. | |
| (k) | To do such things as are incidental or conducive to the attainment of the objects and the exercise of the powers of the company. |
The objects set forth in this clause shall not be restrictively construed but the widest
interpretation shall be given thereto. None of the above described objects and powers shall be
deemed subsidiary or ancillary to any other object or power mentioned therein. The Company shall
have full power to exercise all or any of the powers and to achieve or to endeavor to achieve all
or any of the objects conferred by and provided in any one or more of the said sub-clauses.
Except as provided in the Income Tax Acts and without prejudice to anything contained therein,
nothing in the foregoing should be construed as enabling or empowering the company to carry on any
Trading Activities with persons resident in Malta, any wholesale or retail trade in Malta, to
compete with local tour operators, to import merchandise for re-sale locally in its imported state
or to deal in real estate situated in Malta.
Furthermore, nothing in the foregoing shall be construed as enabling or empowering the company to
carry on the business of Financial Services as defined in the Banking Act 1994, the Financial
Institutions Act 1994 and the Investment Services Act 1994, without a licence or other appropriate
authorisation from the respective competent authority, to exercise investment discretions on behalf
of another party, or manage or give advice relating to any investment portfolio belonging to
another party or to buy, sell, hold, market, advertise, subscribe for, underwrite or otherwise
handle any security or investment vehicle as agent or to act in the capacity of insurance agent or
broker, or to be engaged in the business of banking, or to carry on the activities of a collective
investment scheme, or to act as manager or custodian of such a scheme.
5. CAPITAL
The authorised share capital of the Company is two thousand United
States Dollars (US$ 2,000)
divided into two thousand ordinary shares of one United States
Dollars (US$ 1.00) each.
The initial Issued Share Capital of the Company is two thousand United States Dollars
(US$ 2,000) divided into two thousand ordinary shares of one United
States Dollars (US$ 1.00) each, fully paid up.
6. DIRECTORS
The administration and management of the company shall be vested in the Board of Directors which
shall be composed of not more than six Directors.
The first directors of the company are-
Anna Kalathakis having her residential address at 30, Xenofontos Street, Athens Greece, holder of
Greek Passport number T 592787
Vasiliki Papaefthymiou having her residential address at 23, Larissis Street, Athens, Greece,
holder of Greek Passport number AB1073211
Angeliki Frangou having his residential address at 85, Akti Miaouli, Piraeus, Greece holder of
Greek passport number AB0641994
7. COMPANY SECRETARY
The first company secretary is: -
Mr. Bernard Zammit (ID No. 281161(M))
5, San Salvatore, Alfred Gauci Street,
St. Julians, Malta.
5, San Salvatore, Alfred Gauci Street,
St. Julians, Malta.
8. JUDICIAL AND LEGAL REPRESENTATION
The legal and judicial representation of the Company shall be exercised by:
Anna Kalathakis having her residential address at 30, Xenofontos Street, Athens Greece, holder of
Greek Passport number T 592787
Vasiliki
Papaefthymiou having her residential address at 23, Larissis Street,
Athens, Greece, holder
of Greek Passport number AB1073211
Angeliki Frangou having his residential address at 85, Akti Miaouli, Piraeus, Greece holder of
Greek passport number AB0641994
9. SUBSCRIBERS
We, the undersigned, hereby agree to form a limited liability company in terms of this Memorandum
of Association, together with the attached Articles of Association, and we hereby agree to take up
the number of shares indicated below against our respective names.
Navios Maritime Holdings Inc.
|
1,999 Ordinary Shares | |
Ajeltake Road, Ajeltake Island |
||
Majuro, Marshall Islands, MH 96960 |
||
(Registration number 8116) |
||
Camco Holdings Ltd (C 20470)
|
1 Ordinary Share | |
13/16 Vincenti Buildings |
||
Strait Street, Valletta, Malta |
||
Signed |
||
/s/ Dr. Robert Radmilli
|
/s/ Mr. Bernard Zammit | |
Dr. Robert Radmilli B.A., LL.D.
|
Mr. Bernard Zammit | |
For and on behalf of
|
For and on behalf of | |
Navios Maritime Holdings Inc.
|
Camco Holdings Limited | |
(Shareholder 1,999/2000)
|
(Shareholder 1/2000) |
Exhibit
3.28.1
FOURTH AMENDED AND RESTATED
ARTICLES OF INCORPORATION
ARTICLES OF INCORPORATION
NAVIOS
CORPORATION
The
undersigned, the President and the Secretary of Navios Corporation, a corporation incorporated
under the laws of the Republic of the Marshall Islands (the
“Corporation”), for the purpose
of amending and restating the Articles of Incorporation of the Corporation pursuant to Sections 88
and 93 of the Associations Law of the Republic of the Marshall Islands, 1990, as amended, hereby
certify as follows:
| 1. | The name of the Corporation is NAVIOS CORPORATION | |
| 2. | The Articles of Incorporation of the Corporation were filed with the Registrar of Corporations of the Republic of the Marshall Islands on August 19, 1999, which is the date upon which existence the Corporation commenced. | |
| 3. | Amended and Restated Articles of Incorporation of the Corporation were filed with the Registrar of Corporations on October 27, 1999. | |
| 4 | Amended and Restated Articles of Incorporation of the Corporation were filed with the Registrar of Corporations on August 31, 2000. | |
| 5. | The Articles of Merger of the Corporation were filed with the Registrar of Corporation on December 5, 2000. | |
| 6. | Third Amended and Restated Articles of Incorporation of the Corporation were flied with the Registrar of Corporations on March 26, 2003. | |
| 7. | The purposes of the amendments effected hereby are to restate in greater detail the purposes of the Corporation. | |
| 8. | This Amendment and Restatement of the Articles of Incorporation has been authorized by actions of the Board of Directors and Shareholders of the Corporation. | |
| 9. | The Articles of Incorporation as heretofore amended and restated are hereby further amended in their entirety and restated as follows: |
| A. | The name of the Corporation is NAVIOS CORPORATION |
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act, including, among others, commercial shipping and activities related thereto, such as chartering, sub-chartering, charter or sales of shipbuilding brokerage activities and trading of contracts or instruments related to or deriving therefrom, in general with regard to vessels flying the Greek or foreign flag, in excess of 500 GRT that are used in international shipping routes. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, Majuro, Marshall Islands, MH96960. The name of the Corporation’s registered agent at such address is Trust Company of the Marshall Islands, Inc. | ||
| D. | The aggregate number of shares of stock that the Corporation is authorized to issue is 200,000 (Two Hundred Thousand) shares of common stock in registered form with a par value of Ten Cents ($0.10) per share. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation. | ||
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN
WITNESS WHEREOF, we have executed this instrument on the
15th day of
October 2004.
| NAVIOS CORPORATION | NAVIOS CORPORATION | |||||
| By: | /s/ Anthony R. Whitworth | By: | /s/ Bruce C. Hoag | |||
| Anthony R. Whitworth | Bruce C. Hoag | |||||
| President | Secretary | |||||
Exhibit 3.28.2
NAVIOS CORPORATION
AMENDMENT NO. 1 TO BY-LAWS
As adopted on March 11, 2003
As adopted on March 11, 2003
The By-Laws of Navios Corporation, a Marshall Islands corporation (the “Corporation’’), shall
be amended, pursuant to Article IX, Section 2, of the By-Laws, as follows:
1. Article III, Section 1, shall be deleted and replaced in its entirety with the
following language, which shall serve as the new Article III, Section 1:
Section 1.
Number. The affairs, business and property of the Corporation
shall be managed by a Board of Directors to consist of at least one director.
Within the limits fixed by the By-Laws, the number of directors may be determined
either by the vote of a majority of the entire Board or by vote of the
shareholders. The directors need not be residents of the Marshall Islands or
shareholders of the Corporation.
2. Article IX, Section 2, shall be deleted and replaced in its entirety with the
following language, which shall serve as the new Article IX, Section 2:
Section 2. By the Directors. If the Articles of Incorporation so provide,
these By-Laws may be amended, added to, altered or repealed, or new By-Laws may be
adopted, at any regular or special meeting of the Board of Directors by the
affirmative vote of a majority of the entire Board, subject, however, to the power
of the shareholders to alter, amend or repeal any By-Laws as adopted.
Except as expressly modified by this Amendment, all terms, conditions and provisions of these
By-Laws shall continue in full force and effect as set forth in these By-Laws.
Dated: March 11, 2003
NEW NAVIOS ACQUISITION CORPORATION
BY-LAWS
As Adopted: October 28, 1999
ARTICLE I
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine The Corporation may also have an office or offices at
such other places within or without the Marshall Islands as the Board of Directors may from time to
time appoint or the business of the Corporation may require.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting: The annual meeting of shareholders of the Corporation
shall be held on such day and at such time and place within or without the Marshall Islands as the
Board of Directors may determine for the purpose of electing Directors and of transacting such
other business as may properly be brought before the meeting.
Section 2. Special Meeting: Special meetings of shareholders, unless otherwise prescribed
by law, may be called for any purpose or purposes at any time by the order of the Board of
Directors or by the President or Secretary or an Assistant Secretary whenever required in writing
to do so by shareholders owning not less than one-tenth of all the outstanding shares of the
Corporation entitled to vote at such meeting. Such request shall state the purpose or purposes of
the proposed special meeting. Such meetings shall be held at such place and on a date and at such
time as may be designated in the notice thereof by the officer of the Corporation calling any such
meeting. The business transacted at any special meeting shall be limited to the purposes stated in
the notice.
Section 3. Notice of Meetings: Notice of every annual and special meeting of
shareholders, other than any meeting the giving of notice of which is otherwise prescribed
by law, stating the date, time, place and purpose thereof, and in the case of special
meetings, the name of the person or persons at whose direction the notice is being issued, shall
be given personally or sent by mail, telefax, telegraph, cablegram, telex, or teleprinter at
least fifteen but not more than sixty days before such meeting, to each shareholder of record
entitled to vote thereat and to each shareholder of record who, by reason of action proposed at
such meeting would be entitled to have his shares appraised if such action were taken, and the
notice shall include a statement of that purpose and to that effect. If mailed, notice shall be
deemed to have been given when deposited in the mail, directed to the shareholder at his address
as the same appears on the record of shareholders of the Corporation or at such address as to
which the shareholder has given notice to the Secretary. Notice of a meeting need not be given
to any shareholder who submits a signed waiver of notice, whether before or after the meeting,
or who attends the meeting without protesting prior to the conclusion thereof the lack of notice
to him. If the Corporation shall issue any class of bearer shares, notice for all meetings shall
be given in the manner provided in the Articles of Incorporation.
| Section 4. Quorum: At all meetings of shareholders, except as otherwise expressly provided by law, there must be present either in person or by proxy shareholders holding at least 60% of the common shares issued and outstanding and entitled to vote at such meetings in order to constitute a quorum, but if less than a quorum is present, a majority of those shares present either in person or by proxy shall have power to adjourn any meeting until a quorum shall be present. |
| Section 5. Voting: If a quorum is present, and except as otherwise expressly provided by law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders. At any meeting of shareholders each shareholder entitled to vote any shares on any matter to be voted upon at such meeting shall be entitled to one vote on such matter for each such share, and may exercise such voting right either in person or by proxy. Any action required to permitted to be taken at a meeting, may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all of the shareholders entitled to vote with respect to the subject matter thereof. |
| Section 6. Fixing of Record Date: The Board of Directors may fix a time not more than sixty nor less than fifteen days prior to the date of any meeting of shareholders, or more than sixty days prior to the last day on which the consent or dissent of shareholders may be expressed for any purpose without a meeting, as the time as of which shareholders entitled to notice of and to vote at such a meeting or whose consent or dissent is required or may be expressed for any purpose, as the case may be, shall be determined, and all persons who were holders of record of voting shares at such time and no others shall be entitled to notice of and to vote at such meeting or to express their consent or dissent, as the case may be. The Board of Directors may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend, the making of any distribution, the allotment |
-2-
of any rights or the taking of any other action, as a record time for the determination of the
shareholders entitled to receive any such dividend, distribution, or allotment or for the purpose
of such other action.
ARTICLE III
DIRECTORS
Section 1. Number: The affairs, business, and property of the corporation shall
be managed by a Board of Directors to consist of 6 voting Directors plus 2 non-voting Directors.
Within the limits fixed by these By-Laws and subject to any applicable Shareholders Agreement, the
number of Directors may be determined either by the vote of a majority of the entire Board or by
vote of the shareholders. The Directors need not be residents of the Marshall Islands nor
shareholders of the Corporation. Corporations may, to the extent permitted by law, be elected
Directors.
Section 2. How Elected: Except as otherwise provided by law, by Section 4 of this
Article, or by any applicable Shareholders Agreement among all of the shareholders of the
Corporation (the “Shareholders Agreement”), the Directors of the Corporation (other than the first
Board of Directors if named in the Articles of Incorporation or designated by the incorporator or
its proxy) shall be elected at the annual meeting of shareholders. Each Director shall be elected
to serve until the next annual meeting of shareholders and until his successor shall have been duly
elected and qualified, except in the event of his death, resignation, removal, or the earlier
termination of his term of office.
Section 3. Removal: Except as may be provided in the Shareholders Agreement, any
or all of the Directors may be removed, with or without cause, by a vote of the shareholders. Any
Director may be removed for cause by action of the Board of Directors.
Section 4. Vacancies: Vacancies in the Board of Directors occurring by death,
resignation, creation of new directorships, failure of the shareholders to elect the whole Board at
any annual election of Directors, or for any other reason, including removal of Directors for
cause, may be filled either by the affirmative vote of a majority of the remaining Directors then
in office, although less than a quorum, at any special meeting called for that purpose or at any
regular meeting of the Board, except as otherwise prescribed in the Shareholders Agreement,
prescribed by law, or unless the articles of incorporation provide that such vacancies or newly
created directorships shall be filled by vote of the shareholders.
Section 5. Regular Meetings: Regular meetings of the Board of Directors may be
held at such time and place as may be determined by resolution of the Board of Directors and no
notice shall be required for any regular meeting. Except as otherwise provided by law, any business
may be transacted at any regular meeting.
-3-
Section 6. Special Meetings: Special meetings of the Board of Directors may,
unless otherwise prescribed by law, be called from time to time by the President, or any officer of
the Corporation who is also a Director. The President or the Secretary shall call a special meeting
of the Board upon written request directed to either of them by any two Directors stating the time,
place, and purpose of such special meeting. Special meetings of the Board shall be held on a date
and at such time and at such place as may be designated in the notice thereof by the officer
calling the meeting.
Section 7.
Notice of Special Meetings: Notice of the date, time and place of each
special meeting of the Board of Directors shall be given to each Director at least forty-eight
hours prior to such meeting, unless the notice is given orally or delivered in person, in which
case it shall be given at least twenty-four hours prior to such meeting. For the purpose of this
section, notice shall be deemed to be duly given to a Director if given to him personally
(including by telephone) or if such notice be delivered to such Director by mail, telegraph,
telefax, cablegram, telex, or teleprinter to his last known address. Notice of a meeting need not
be given to any Director who submits a signed waiver of notice, whether before or after the
meeting, or who attends the meeting without protesting, prior to the conclusion thereof, the lack
of notice to him.
Section 8. Quorum: Four of the six voting Directors at the time in office,
present in person or by proxy or by communication equipment, shall
constitute a quorum for the transaction of business.
Section 9. Voting: The vote of the majority of the Directors, present in person
or by proxy, in communication by telefax or conference telephone, at a meeting at which a quorum
is present shall be the act of the Directors; provided, however, that certain actions enumerated
in the Articles of Incorporation and the Shareholders Agreement require a vote of four of the six
voting directors. Any action required or permitted to be taken at a meeting may be taken without a
meeting if all members of the Board (excluding the non-voting directors) consent thereto in
writing.
Section 10. Compensation of Directors and Members of Committees: The Board may
from time to time, in its discretion, fix the amounts which shall be payable to members of the
Board of Directors and to members of any committee, for attendance at the meetings of the Board or
of such committee and for services rendered to the Corporation.
ARTICLE IV
OFFICERS
-4-
Section 1. Number and Designation: The Board of Directors shall appoint
either (a) a President, Secretary and Treasurer, or (b) a Managing Director and Secretary. In
addition, the Board of Directors may appoint such other officers as it may deem necessary. Officers
may be of any nationality, need not be residents of the Marshall Islands and may be, but are not
required to be, Directors. Officers of the corporation shall be natural persons except the
secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting
following the annual election of Directors, but in the event of the failure of the Board to so
appoint any officer, such officer may be appointed at any subsequent meeting of the Board of
Directors. The salaries of the officers and any other compensation paid to them shall be fixed from
time to time by the Board of Directors. The Board of Directors may at any meeting appoint
additional officers. Each officer shall hold office until the first meeting of the Board of
Directors following the next annual election of Directors and until his successor shall have been
duly appointed and qualified, except in the event of the earlier termination of his term of office,
through death, resignation, removal or otherwise. Any officer may be removed by the Board at any
time with or without cause. Any vacancy in an office may be filled for the unexpired portion of the
term of such office by the Board of Directors at any regular or special meeting.
Section 2. President or Managing Director: The President or Managing Director
shall be the chief executive officer of the Corporation and shall have general management of the
affairs of the Corporation together with the powers and duties usually incident to the office of
President or Managing Director, except as specifically limited by appropriate written resolution of
the Board of Directors and shall have such other powers and perform such other duties as may be
assigned to him by the Board of Directors. The President or Managing Director shall preside at all
meetings of shareholders at which he is present and, if he is a Director, at all meetings of the
Directors.
Section 3. Treasurer: The Managing Director or, if there shall be no Managing
Director, the Treasurer shall have general supervision over the care and custody of the funds,
securities, and other valuable effects of the Corporation and shall deposit the same or cause the
same to be deposited in the name of the Corporation in such depositories as the Board of Directors
may designate, shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall have supervision over the accounts of all receipts and disbursements of the
Corporation, shall, whenever required by the Board, render or cause to be rendered financial
statements of the Corporation, shall have the power and perform the duties usually incident to the
office of Treasurer, and shall have such powers and perform such other duties as may be assigned
to him by the Board of Directors, Managing Director or President.
-5-
Section 4. Secretary: The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he is present, shall have supervision over the
giving and serving of notices of the Corporation, shall be the custodian of the corporate records
and of the corporate seal of the Corporation, shall be empowered to affix the corporate seal to
those documents, the execution of which, on behalf of the Corporation under its seal, is duly
authorized and when so affixed may attest the same, and shall exercise the powers and perform such
other duties as may be assigned to him by the Board of Directors, Managing Director or the
President. If the Secretary is a corporation, the duties of the Secretary may be carried out by any
duly authorized representative of such corporation.
Section 5. Other Officers: Officers other than those treated in Section 2 through 4
of this Article shall exercise such powers and perform such duties as may be assigned to them by
the Board of Directors or the President.
Section 6. Bond: The Board of Directors shall have power to the extent permitted
by law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his duties in such form and with such surety or sureties as the Board of Directors may
deem advisable.
ARTICLE V
CERTIFICATES FOR SHARES
Section 1. Form and Issuance: The shares of the Corporation shall be represented
by certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President, Managing Director, or a Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures
may be facsimiles if the certificate is countersigned by a transfer agent or registered by a
registrar other than the Corporation itself or its employee.
Section 2. Transfer: The Board of Directors shall have power and authority to
make such rules and regulations as they may deem expedient concerning the issuance, registration
and transfer of certificates representing shares of the Corporation’s stock, and may appoint
transfer agents and registrars thereof.
Section 3. Loss of Stock Certificates: The Board of Directors may direct a new
certificate or certificates of stock to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed.
When authorizing such issue of a new certificate or certificates, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof, require the owner of such lost
or destroyed certificate or certificates, or his legal
-6-
representative,
to advertise the same in such manner as it shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been lost or destroyed.
ARTICLE VI
DIVIDENDS
Section 1. Declaration and Form: Except as provided in the Articles of
Incorporation and in the Shareholders Agreement, dividends may be declared in conformity with law
by, and at the discretion of, the Board of Directors at any regular or special meeting. Dividends
may be declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VII
CORPORATE SEAL
Section 1. The seal of the Corporation, if any, shall be circular in form, with the name
of the Corporation in the circumference and such other appropriate legend as the Board of Directors
may from time to time determine.
ARTICLE VIII
FISCAL YEAR
Section 1. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
ARTICLE IX
AMENDMENTS
Section 1. By the Shareholders: These By-Laws may be amended, added to, altered
or repealed or new By-Laws may be adopted, at any meeting of shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors: If the Articles of Incorporation so provide, these
By-Laws may be amended, added to, altered or repealed, or new By-Laws may be adopted, at any
regular or special meeting of the Board of Directors by the affirmative vote of four
-7-
of the six voting Directors, subject, however, to the power of the stockholders to alter,
amend or repeal any By-Law as adopted.
-8-
Exhibit 3.29.1
ARTICLES OF AMENDMENT AND RESTATEMENT OF
ARTICLES OF INCORPORATION
ANEMOS MARITIME HOLDINGS INC.
ARTICLES OF INCORPORATION
ANEMOS MARITIME HOLDINGS INC.
The undersigned, the President and the Secretary of Anemos Maritime Holdings Inc., a corporation
incorporated under the laws of the Republic of The Marshall Islands (the “Corporation”), for the
purpose of amending and restating the Articles of Incorporation of the Corporation pursuant to
Sections 88 and 93 of the Business Corporations Act of the Republic of the Marshall Islands, 1990,
as amended, hereby certify as follows:
| 1. | The name of the Corporation is ANEMOS MARITIME HOLDINGS INC. | |
| 2. | The Articles of Domestication of the Corporation were filed with the Registrar of Corporations of The Republic of The Marshall Islands on November 13, 2003. | |
| 3 | The purpose of the amendments effected hereby is to replace the Memorandum of Association of the Corporation, which was originally formulated and implemented under and in accordance with the laws of the Cayman Islands as the original domicile of the Corporation, with the following Articles of Incorporation. | |
| 4. | These Articles of Incorporation have been authorized by actions of the Board of Directors and Shareholders of the Corporation. | |
| 5. | The Articles of Incorporation of the Corporation are hereby amended and restated in their entirety as follows: |
| A. | The name of the Corporation is ANEMOS MARITIME HOLDINGS NC. | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is 1,000,000 (One Million) shares of common stock in registered form with a par value of One US Dollar (US$1.00) per share. Shares shall not be issued in bearer share form. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation. |
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN
WITNESS WHEREOF, we have executed this instrument on the
14th day of September, 2004.
| ANEMOS MARITIME HOLDINGS INC. |
||||
| By | /s/ Anthony R. Whitworth | |||
| Anthony R. Whitworth | ||||
| President | ||||
| ANEMOS MARITIME HOLDINGS INC. |
||||
| By | /s/ Robert G. Shaw | |||
| Robert G. Shaw | ||||
| Secretary | ||||
Exhibit 3.29.2
BYLAWS
ANEMOS MARITIME HOLDINGS INC.
(A Marshall Islands Corporation)
(A Marshall Islands Corporation)
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office or offices at
such other places within or without the Marshall Islands as the Board of Directors may from time
to time appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at a such time and place within or without the Marshall Islands as the Board
of Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meetings. Special meetings of shareholders, unless otherwise prescribed
by law, may be called for any purpose or purposes at any time by resolution of the Board of
Directors or by the President, and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is otherwise prescribed by law, stating the
date, time place and purpose thereof, and in the case of special meetings, the name of the person
or persons at whose direction the notice is being issued, shall be given personally or sent by
mail, telefax, telegraph, cablegram, telex, or teleprinter at least fifteen but not more than sixty
days before such meeting, to each shareholder of record entitled to vote threat and to each
shareholder of record who, by reason of any action proposed at such meeting would be entitled to
have his/her shares appraised if such action were taken, and the notice shall include a statement
of that purpose and to that effect. If mailed, notice shall be deemed to have been given when
deposited in the mail, directed to the shareholder at his/her address as the same appears on the
record of shareholders of the Corporation or at such address as to which the shareholder has given
notice to the Secretary. Notice of a meeting need not be given to any shareholder who submits a
signed
1
waiver without protesting prior to the conclusion thereof the lack of notice to him. If the
Corporation shall issue any class of bearer shares, notice for all meetings shall be given in the
manner provided in the Articles of Incorporation.
Section 4. Quorum. At all meetings of shareholders, except as otherwise expressly provided
by law, there must be present, either in person or by proxy, shareholders holding at least a
majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meting until a quorum shall be
present.
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders each shareholder entitled to vote any
shares on any matter to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right ether in person or by proxy. Any action,
which may be taken at a meeting of shareholders, may be taken without a meeting if consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of shareholders may be expressed
for any purpose without a meeting, as the time as of which shareholders entitled to notice of and
to vote at such a meeting or whose consent or dissent is required or may be expressed for any
purpose, as the case may be, shall be determined, and all persons who where holders of record of
voting shares at such time and not others shall be entitled to notice of and to vote at such
meeting or to express their consent or dissent, as the case may be. The Board of Directors may fix
a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business, and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
By-Laws, the number of directors may be determined either by the vote of a majority of the entire
Board or by vote of the shareholders. The directors need not be residents of the Marshall Islands
nor shareholders of the Corporation
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal,
or the earlier termination of his/her term of office.
2
Section 3. Removal. Any or all of the directors may be removed, with or without
cause, by a vote of the shareholders. Any director may be removed for cause by action of the Board
of Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
creation of new directorships, failure of the shareholders to elect the whole Board at any annual
election of directors, or for any other reason, including removal of directors for cause, may be
filled either by the affirmative vote of a majority of the remaining directors then the office,
although less than a quorum, at any special meeting called for that purpose or at any regular
meeting of the Board, except as otherwise prescribed by law. Vacancies occurring by removal of
directors without cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place, and purpose of
such special meeting. Special meetings of the Board shall be held on a date and at such time and
at such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is orally or delivered in person, in which case it shall be
given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, telegraph, telefax, cablegram, telex, or
teleprinter to his/her last known address. Notice of meeting need not be given to any director who
submits a signed waiver of notice, whether before or after the meeting, or who attends the meeting
without protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the directors at the time in office, present in person or
by proxy or by communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all members of the Board consent thereto in writing.
Section 10. Compensation of Directors and Members of Committees. The Board may from time to
time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
3
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees: The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or by these By-Laws, shall have
and may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the
seal of the Corporation to be affixed to all papers which may require it. In addition, the Board
of Directors may, by resolution or resolutions passed by a majority of the entire Board designate
from among its members other committees to consist of one or more of the directors of the
Corporation, each of which shall perform such function and have such authority and powers as shall
be delegated to it by said resolution or resolutions or as provided for in these By-Laws, except
that only the Executive Committee may have and exercise the powers of the Board of Directors.
Members of the Executive Committee and any other committee shall hold office for such periods as
may be prescribed by the vote of a majority of the entire Board of Directors, subject, however, to
removal at any time by the vote of the Board of Directors. Vacancies in membership of such
committees shall be filled by vote of the Board of Directors. Committees may adopt their own rules
of procedures and may meet at stated times or on such notice as they may determine. Each committee
shall keep a record it its proceedings and report the same to the Board when requested.
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation: The Board of Directors shall appoint either (a) a
President, Secretary and Treasurer, or (b) a Managing Director and Secretary. In addition, the
Board of Directors may appoint such other officers as it may deem necessary. Officers may be of any
nationality, need not be residents of the Marshall Islands and may be, but are not required to be,
directors. Officers of the corporation shall be natural persons except the Secretary may be a
corporate entity. Any two or more offices may be held by the same natural person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the
next annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office, through
death, resignation, removal or otherwise. Any officer may be removed by the Board at any time with
or
4
without cause. Any vacancy in an office may be filled for the unexpired portion of the term
of such office by the Board of Directors at any regular or special meeting.
Section 2. President or Managing Director: The President or Managing Director shall be the
Chief Executive Officer of the Corporation and shall have general management of the affairs of the
Corporation together with the powers and duties usually incident to the office of President or
Managing Director, except as specifically limited by appropriate written resolution of the Board
of Directors and shall have such other powers and perform such other duties as may be assigned to
him/her by the Board of Directors. The President or Managing Director shall preside at all
meetings of shareholders at which he/she is present and, if he/she is a director, at all meetings
of the directors.
Section 3. Treasurer: The Managing Director or, if there shall be no Managing Director, the
Treasurer shall have general supervision over the care and custody of the funds, securities, and
other valuable effects of the Corporation and shall deposit the same or cause the same to be
deposited in the name of the Corporation in such depositories as the Board of Directs may
designate, shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall have supervision over the accounts of all receipts and disbursements of the
Corporation, shall whenever required by the Board, render or cause to be rendered financial
statements of the Corporation, shall have the power and perform the duties usual incident to the
office of Treasurer, and shall have such powers and perform such other duties as may be assigned
to him/her by the Board of Directors, Managing Director or President.
Section 4. Secretary: The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation, shall be the custodian of the corporate
records and of the corporate seal of the Corporation, shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors, Managing Director or the
President. If the Secretary is a corporation, the duties of the Secretary may be carried out by any
duly authorized representative of such corporation.
Section 5. Other Officers: Officers other than those treated in Section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors of the President.
Section 6. Bond: The Board of Directors shall have power to the extent permitted by law,
to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of
Directors may deem advisable.
5
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance: The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President, Managing Director, or a Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures
may be facsimiles if the certificate is countersigned by a transfer agent or registered by a
registrar other than the Corporation itself or its employee.
Section 2. Transfer: The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates: The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the owner of such lost or
destroyed certificate or certificates, or his/her legal representative, to advertise the same in
such manner as it shall require and/or give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with the law by,
and at the discretion of, the Board of Directors at any regular or special meeting. Dividends may
be declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
6
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period
of twelve consecutive months as the Board of Directors may be resolution designate.
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These By-Laws may be amended, added to, altered or
repealed or new By-Laws may be adopted, at any meeting of shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice at said meeting.
Section 2.
By the Directors. If the Articles of Incorporation so provide, these By-Laws may
be amended, added to, altered or repealed, or new By-Laws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any By-Laws as
adopted.
7
Exhibit 3.30.1
ARTICLES
OF DOMESTICATION OF
NAVIOS SHIPMANAGEMENT INC.
UNDER SECTION 127(2) OF THE BUSINESS CORPORATIONS ACT
NAVIOS SHIPMANAGEMENT INC.
UNDER SECTION 127(2) OF THE BUSINESS CORPORATIONS ACT
Pursuant to Division 14 of the Marshall Islands Business Corporations Act, the
undersigned, Robert G. Shaw, the Treasurer of Navios ShipManagment Inc., a Liberian
corporation, for the purpose of transferring the domicile of the corporation to the Marshall
Islands and continuing its existence, does hereby certify that:
| 1. | The name of the corporation is Navios ShipManagment Inc. hereinafter, the “Corporation”). | |
| 2. | The Corporation was organized (chartered, incorporated, etc.) under the laws of Liberia on the 15th day of July, 1998, and presently has a domicile (seat, registered office, etc.) in Liberia. | |
| 3. | This transfer of domicile has been approved by all necessary corporate action. | |
| 4. | Transfer of domicile is not expressly prohibited under the law of the Corporation’s present domicile. | |
| 5. | This transfer is made in good faith and will not serve to hinder, delay, or defraud existing shareholders, creditors, claimants, or other parties in interest. | |
| 6. | The name of the Corporation’s Registered Agent is The Trust Company of the Marshall Islands, Inc. The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, Majuro, Marshall Islands MH96960. | |
| 7. | These Articles of Domestication shall be effective upon fling with the Registrar or Deputy Registrar of Corporations of the Marshall Islands. | |
| 8. | Annexed hereto is a copy of the Certificate of Incorporation and Memorandum and Articles of Incorporation and all amendments thereto as filed in the Corporation’s present domicile. |
IN WITNESS WHEREOF, I have executed these Articles of Domestication on this 5th day of
January, 2004.
| NAVIOS SHIPMANAGEMENT INC. |
||||
| By: | /s/ Robert G. Shaw | |||
| Robert G.Shaw, Treasurer | ||||
Exhibit 3.30.2
ARTICLES OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
LEVANT MARITIME INTERNATIONAL S.A.
ARTICLES OF INCORPORATION OF
LEVANT MARITIME INTERNATIONAL S.A.
UNDER SECTION 9.5 OF THE BUSINESS CORPORATION ACT
We, the undersigned, the Vice President and Assistant Secretary of LEVANT MARITIME INTERNATIONAL
S.A. a corporation incorporated under the Laws of the Republic of Liberia, for the purpose of
amending the Articles of Incorporation of said corporation hereby certify:
1. The name of the corporation is “LEVANT MARITIME INTERNATIONAL S.A”.
(and the name under which it was formed).
2. The Articles of Incorporation were filed with the Minister of Foreign Affairs as of July, 15,
1998.
3. Section A of the Articles of Incorporation is hereby amended as follows:
The name of the company will be “NAVIOS SHIPMANAGEMENT INC.”
4. The amendment to the Articles of Incorporation was authorized by vote of the holders of a
majority of all outstanding shares entitled to vote at a meeting of shareholders.
IN WITNESS WHEREOF the undersigned have executed these Articles of Amendment this 26th
day of September 2003.
| /s/ Damianos Los | ||||
| Damianos Los Vice President |
||||
| /s/ Nikolaos Anagnostopoulos | ||||
| Nikolaos Anagnostopoulos | ||||
| Assistant Secretary | ||||
ARTICLES OF INCORPORATION
PURSUANT TO THE LIBERIAN BUSINESS CORPORATION ACT
PURSUANT TO THE LIBERIAN BUSINESS CORPORATION ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Liberian Business Corporation Act, does hereby make, subscribe, acknowledge and file in the office
of the Minister of Foreign Affairs this instrument for that purpose, as follows:
A. The name of the Corporation shall be:
LEVANT MARITIME INTERNATIONAL S.A.
B. The purpose of the Corporation is to engage in any lawful act or activity for which corporations
may now or hereafter be organized under the Liberian Business Corporation Act and without in any
way limiting the generality of the foregoing, the corporation shall have the power:
(1) To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease,
charter, sub-charter, sell, build, and repair steamships, motorships, tankers, whaling vessels,
sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive
power whatsoever, including aircraft, landcraft, and any and all means of conveyance and
transportation by land, water or air, together with engines, boilers, machinery equipment and
appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and
all other necessities thereunto appertaining and belonging, together with all materials, articles,
tools, equipment and appliances necessary, suitable or convenient for the construction, equipment,
use and operation thereof; and to equip, furnish, and outfit such vessels and ships.
(2) To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight,
goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of
the world and to engage generally in waterborne commerce.
(3) To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any
manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all
kinds, and any property, real, personal and mixed, in connection therewith.
(4) To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of
shipping property, freight contractors, forwarding agents, warehousemen, wharfingers,
ship chandlers, and general traders.
C. The registered address of the Corporation in Liberia shall be 80 Broad Street, Monrovia,
Liberia. The name of the Corporation’s registered agent at such address shall be The International
Trust Company of Liberia.
D. The aggregate number of shares of stock that the Corporation is authorized to issue is Five
Hundred (500) registered and/or bearer shares without par value.
The Corporation shall mail notices and information to holders of bearer shares to the address
provided to the Corporation by the shareholder for that purpose.
The holder of a stock certificate issued to bearer may cause such certificate to be exchanged
for another certificate in his name for a like number of shares, and the holder of shares issued in
the name of the owner may cause his certificate to be exchanged for another certificate to bearer
for a like number of shares.
E. The Corporation shall have every power which a corporation now or hereafter organized under the
Liberian Business Corporation Act may have.
F. The name and mailing address of each incorporator and subscriber of these Articles of
Incorporation and the number of shares of stock subscribed by each incorporator is:
| No. of Shares of | ||||
| Name | Post office Address | Common Stock Subscribed | ||
S. Spurlock
|
80 Broad Street Monrovia, Liberia |
One |
G. The number of directors constituting the initial board of directors is one (i) and he is
| Name | Address | |
L. Hall
|
80 Broad Street Monrovia, Liberia |
H. The Board of Directors as well as the Shareholders of the Corporation shall have the authority
to adopt, amend or repeal the by-laws of the Corporation.
I. Corporate existence shall begin upon filing these Articles of Incorporation with the Minister
of Foreign Affairs as of the filing date stated on these Articles.
IN WITNESS WHEREOF, I have executed this instrument on July 15, 1998.
| /s/ S. Spurlock | ||||
| S. Spurlock | ||||
$12.00 REVENUE STAMPS ON ORIGINAL
Exhibit 3.30.3
BYLAWS
NAVIOS SHIPMANAGEMENT INC.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit
3.31.1
ARTICLES OF DOMESTICATION OF
AEGEAN SHIPPING CORPORATION
(FORMERLY KNOWN AS VOREIOS SHIPPING COMPANY LIMITED)
UNDER SECTION 127(2) OF THE BUSINESS CORPORATIONS ACT
AEGEAN SHIPPING CORPORATION
(FORMERLY KNOWN AS VOREIOS SHIPPING COMPANY LIMITED)
UNDER SECTION 127(2) OF THE BUSINESS CORPORATIONS ACT
Pursuant to Division 14 of the Marshall Islands Business Corporations Act, the undersigned,
Huntlaw Corporate Services Ltd., the Secretary of Voreios Shipping Company Limited, a Cayman Islands
corporation, for the purpose of transferring the domicile of the corporation to the Marshall
Islands and continuing its existence, do hereby certify that:
| 1. | The name of the corporation immediately prior to the transfer of domicile is Voreios Shipping Company Limited, and the name of the corporation, as amended upon transfer of domicile, is Aegean Shipping Corporation (hereinafter, the “Corporation”). | |
| 2. | The Corporation was organized (chartered, incorporated, etc.) under the laws of the Cayman Islands, on the 26th day of March, 1999, and presently has a domicile (seat, registered office, etc.) in the Cayman Islands. | |
| 3. | This transfer of domicile has been approved by all necessary corporate action. | |
| 4. | Transfer of domicile is not expressly prohibited under the law of the Corporation’s present domicile. | |
| 5. | This transfer is made in good faith and will not serve to hinder, delay, or defraud existing shareholders, creditors, claimants, or other parties in interest. | |
| 6. | The name of the Corporation’s Registered Agent is The Trust Company of the Marshall Islands, Inc. The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, Majuro, Marshall Islands MH96960. | |
| 7. | These Articles of Domestication shall be effective upon filing with the Registrar or Deputy Registrar of Corporations of the Marshall Islands. | |
| 8. | Annexed hereto is a copy of the Certificate of incorporation and Memorandum and Articles of Incorporation and all amendments thereto as filed in the Corporation’s present domicile. |
IN WITNESS WHEREOF, I have executed these
Articles of Domestication on this 29th day of April, 2003.
| HUNTLAW CORPORATE SERVICES LTD. |
||||
| By: | /s/ Allison Nolan | |||
| Name: | Allison Nolan | |||
| Title: | DIRECTOR | |||
Exhibit
3.31.2
| REGISTERED AND FILED AS NO: 88554 THIS 26th DAY OF March 1999 |
||
 ASST REGISTRAR OF COMPANY CAYMAN ISLANDS |
MEMORANDUM
OF ASSOCIATION
OF
VOREIOS
SHIPPING COMPANY LIMITED
| 1. | The name of the Company is Voreios Shipping Company Limited. | |
| 2. | The registered office will be situate at the offices of Huntlaw Corporate Services Limited, P.O. Box 1350, the Huntlaw Bldg., Fort Street in the Island of Grand Cayman or at such other place in the Cayman Islands as the Directors may from time to time decide. | |
| 3. | The objects for which the Company is established are unrestricted and shall include, but without limitation, the following:- |
| (a) | (1) | To build, equip, furnish, outfit, repair, purchase, own, charter and lease steam, motor, sail or other vessels, ships, boats, tugs, barges, lighters or other property to be used in the business of shipping, transportation, chartering and other communication and transport operations for the use of the Company or for others, and to sell, charter, lease, mortgage, pledge or transfer the same or any interest therein to others. |
| (b) | (1) | To lend money with or without security either at interest or without and to invest money of the Company in such manner as the Directors think fit. |
| (2) | To acquire by purchase, lease, exchange, hire or otherwise, lands and hereditaments of any tenure or any interest in the same in any part of the world. | ||
| (3) | To sell, lease, let, mortgage or otherwise dispose of the lands, houses, buildings, hereditaments and other property of the Company. | ||
| (4) | To carry on the business of a commodity, commodity futures and forward contracts trader and for that purpose to enter into spot, future or forward contracts for the purchase and sale of any commodity including, but without prejudice to the generality of the foregoing, any raw materials, processed materials, agricultural products, produce or livestock, gold and silver bullion, specie and precious or semi-precious stones, goods, articles, services, currencies, rights and interests which may now or in the future be bought and sold in commerce and whether such trading is effected on an organised commodity exchange or otherwise and either to take |
| delivery of, or to sell or exchange any such commodities pursuant to any contract capable of being entered into on any such commodities exchange. | |||
| (5) | To carry on the business of a building construction company and to erect and construct either by the Company or through other parties and for the Company’s own use or Investment or for any other person, firm or company, houses, hotels, apartment blocks, marinas, harbours, offices, roads, buildings or works of every description on any land of the Company or upon any other lands or hereditaments and to pull down, build or rebuild marinas, harbours, offices, roads, buildings or works thereon, to convert and appropriate any such land into and for roads, streets, squares, gardens and pleasure grounds and other conveniences and generally to deal with and improve the property of the Company and its clients. | ||
| (6) | To carry on all or any of the businesses of tourist agents and charter services and for such purposes to carry on the safekeeping, cleaning, repairing, refuelling and the general care of motor vehicles, boats, yachts, sport and fishing craft of all kinds, whatever form of propulsion may be used. | ||
| (7) | To carry on all or any of the businesses of general wholesale and/or retail merchants and dealers in hardware and other building requisites, builders merchants, general engineers, metal founders, shipwrights, wharfingers, carriers by sea or land, forwarding agents and commission and general agents, exporters, importers and merchants. | ||
| (8) | To carry on whether as principals, agents or otherwise the business of providing and supplying goods, equipment, materials and services of whatsoever nature, and of financiers, company promoters, realtors, financial agents, land owners and dealers in or managers of companies, estates, lands, buildings, goods, materials, services, stocks, leases, annuities and securities of whatsoever type or kind. | ||
| (9) | To purchase or otherwise acquire and hold any rights, privileges, concessions, patents, patent rights, licences, secret processes and any real or personal property of any kind whatsoever. | ||
| (10) | To carry on the business of an investment company and for that purpose to acquire and hold, either in the name of the Company or in that of any nominee, land and real estate, gold and silver bullion, shares, stocks, debentures, debenture stock, bonds, notes, obligations and securities issued or guaranteed by any company wherever incorporated or carrying on business and debentures, debenture stock, bonds, notes, obligations and securities issued or guaranteed by any government, sovereign, ruler, commissioners, public body or authority, supreme, dependent, municipal, local or otherwise in any part of the world. |
- 2 -
| (11) | To carry on the business of importers, exporters and merchants of goods, produce, stores and articles of all kinds both wholesale and retail, packers, wharfingers, customs brokers, ship agents, ship managers, warehousemen, bonded or otherwise and carriers and to transact every kind of agency factor and brokerage business or transaction which may seem to the Company directly or indirectly conducive to its interests. | ||
| (12) | To carry on the business of consultants in connection with all manner of services and advisers on all matters relating to companies, firms, partnerships, charities, political and non-political persons and organisations, governments, principalities, sovereign and republican states and countries and to carry on all or any of the businesses of financial, industrial, development, architectural, engineering, manufacturing, contracting, management, advertising, professional business and personal consultants and to advise upon the means and methods for extending, developing, marketing and improving all types of projects, developments, businesses or industries and all systems or processes relating to such businesses and the financing, planning, distribution, marketing and sale thereof. | ||
| (13) | To carry on the business of manufacturers, producers, refiners, developers and dealers in all kinds of metals, materials, minerals, chemicals, substances and products, whether natural or artificial and of commodity traders, importers, exporters, manufacturers’ representatives, wholesale and/or retail merchants, forwarding agents, commission and general agents and brokers, and generally to carry on and execute all kinds of commercial, hire purchase, trading and other operations. |
| (c) | To act as a management company in all branches of that activity and without limiting the generality of the foregoing, to act as managers of investments and hotels, estates, real property, buildings and businesses of every kind and generally to carry on business as managers, consultants or agents for or representatives of owners of property of every kind, manufacturers, funds, syndicates, persons, firms and companies for any purpose whatsoever. | |
| (d) | To carry on any other trade or business which may seem to the Company capable of being carried on conveniently in connection with any business of the Company. | |
| (e) | To acquire and take over or undertake all or any part of the real estate, business assets or liabilities of any persons and companies carrying on business of any kind. | |
| (f) | To purchase, take on lease or in exchange, hire or otherwise acquire any real or personal property, patents, licences, rights or privileges which the Company may think necessary or convenient for the purposes of its business and to construct maintain and alter any building or works necessary or convenient for the purposes of the Company. | |
| (g) | To invest and deal with the moneys of the Company not immediately required in such manner as may from time to time be determined. |
- 3 -
| (h) | To borrow or raise money by the issue of ordinary debenture stock or on mortgage or in such other manner as the Company shall think fit. |
| (i) | To draw, make, accept, endorse, discount. execute and issue all instruments both negotiable and non-negotiable and transferable including promissory notes, bills of exchange, bills of lading, warrants, debentures and bonds. | |
| (j) | To take or otherwise acquire and hold shares in any other company for the benefit of this Company and to sell, improve, repair, lease or mortgage or in any way turn into account all or any part of the property and rights of the Company. | |
| (k) | To make, accept or otherwise handle consignments of goods, wares and merchandise or any of them. | |
| (l) | To establish branches or agencies in the Cayman Islands and elsewhere and to regulate and to discontinue the same. | |
| (m) | To establish, promote and otherwise assist any company or companies for the purposes of furthering any of the objects of which company may seem to benefit this Company. | |
| (n) | To sell or dispose of, lease or let the undertaking of this Company or any part thereof for such consideration as the Company may think fit and in particular for shares, fully or partly paid-up debentures or securities of any other company. | |
| (o) | To distribute any of the property of the Company among the Members in specie. | |
| (p) | To acquire and take over the whole or any part of the business, property and liabilities of any person or persons, firm or corporation carrying on any business or possessed of any property or rights suitable for the purposes of this Company. | |
| (q) | To take or otherwise acquire and hold shares, stock, debentures or other securities of or interest in any other company carrying on any business capable of being conducted so as directly or indirectly to benefit this Company. | |
| (r) | To grant pensions, allowances, gratuities and bonuses to employees or ex-employees of the Company or the dependents of such persons and to support, establish or subscribe to any charitable or other institutions, clubs, societies or funds or to any national or patriotic fund. | |
| (s) | To lend and advance moneys or give credit to such persons and on such terms as may be thought fit and to guarantee or stand surety for the obligations of any third party whether such third party is related to the Company or otherwise and whether or not such guarantee or surety is to provide any benefits to the Company and for that purpose to mortgage or charge the Company’s undertaking, property and uncalled capital or any part thereof, on |
- 4 -
| such terms and conditions as may be thought expedient in support of any such obligations binding on the Company whether contingent or otherwise. | ||
| (t) | To enter into partnership or into any arrangements for sharing profits, union of interests, co-operation, joint venture, reciprocal concession, amalgamation or otherwise with any person or persons or company engaged or interested or about to become engaged or interested in the carrying on or conduct of any business or enterprise from which this Company would or might derive any benefit whether direct or indirect and to lend money, guarantee the contracts of or otherwise assist any such person or company and to take subscribe for or otherwise acquire shares and securities of any such company and to sell, hold, re-issue with or without guarantee or otherwise deal with the same. |
| (u) | To enter into any arrangements with any authorities, municipal or local or otherwise and to obtain from any such authority any rights, privileges or concessions which the Company may think it desirable to obtain and to carry out, exercise and comply with any such arrangements, rights, privileges or concessions. | |
| (v) | To do all such things as are incidental to or which the Company may think conducive to the attainment of the above objects or any of them. | |
| AND IT IS HEREBY DECLARED that each and every paragraph of this Clause 3 shall be construed independently and shall be treated as an independent and main object of the Company and the powers conferred on the Company by any paragraph shall not be restricted by reference to any other paragraph or to the name of the Company or by the juxtaposition of two or more objects and that in the event of any ambiguity, this Clause and every other paragraph hereof shall be construed in such a way as to widen and not to restrict powers of the Company. | ||
| 4. | Except as prohibited or limited by the laws of the Cayman Islands, the Company shall have full power and authority to carry out any object and shall have and be capable of from time to time and at all times exercising any and all of the powers at any time or from time to time exercisable by a natural person or body corporate in any part of the world whether as principle, agent, contractor or otherwise. | |
| 5. | The liability of the Members is limited. | |
| 6. | The capital of the Company is Fifty thousand United States Dollars (US$50,000) consisting of 50,000 shares of US$1.00 each with the power for the Company to increase or reduce the said capital and to issue any part of its capital, original or increased, with or without any preference, priority or special privilege or subject to any postponement of rights or to any conditions or restrictions; and so that, unless the condition of issue shall otherwise expressly declare every issue of shares, whether declared to be preference or otherwise, shall be subject to the power hereinfore contained. |
- 5 -
The Subscriber whose name and address is subscribed herein is desirous of being formed into a
Company limited by shares and in pursuance of this shares in the capital of the Company set
opposite his name.
DATED the 26th day of March One Thousand Nine Hundred and Ninety-Nine.
| NAME OF | ||||||
| SUBSCRIBER | ADDRESS | OCCUPATION | NO. OF SHARES | |||
Huntlaw Nominees Ltd.
|
P.O. Box 1350GT | Company | One Ordinary Share | |||
| Grand Cayman | ||||||
| Cayman Islands | ||||||
 |
WITNESS TO THE ABOVE SIGNATURE:
 |
||
- 6 -
Exhibit 3.31.3
THE COMPANIES LAW
Company Limited by Shares
ARTICLES OF ASSOCIATION
OF
VOREIOS SHIPPING COMPANY LIMITED
INTERPRETATION
| 1. | The Regulations contained or incorporated in Table A of the First Schedule of the Companies Law (1998 Revision) shall not apply to this Company. |
| 2. | (a) | In these Articles, the following terms shall have the meanings set opposite unless the context otherwise requires:- |
(i)
|
Articles | these Articles of Association as from time to time amended by Special Resolution | ||
(ii)
|
Auditors | the Auditors for the time being of the Company, if any; | ||
(iii)
|
Company | Voreios Shipping Company Limited; | ||
(iv)
|
Directors | the directors of the Company for the time being or, as the case may be, the directors assembled as a board; | ||
(v)
|
Law | the Companies Law (1998 Revision) of the Cayman Islands and any amendment or other statutory modification thereof and where in these Articles any provision of the Law is referred to, the reference is to that provision as modified by any law for the time being in force; | ||
(vi)
|
Member | a person who is registered in the Register of Members as the holder of any Share in the Company; | ||
(vii)
|
month | a calendar month; | ||
(viii)
|
Ordinary Resolution |
a resolution of a general meeting passed by a majority of the Members entitled to vote present at the meeting or a written resolution signed by all Members entitled to vote; | ||
(ix)
|
Registered Office |
the registered office of the Company as provided in Section 50 of the Law; |
(x)
|
Register of Members | the register of Members to be kept pursuant to Section 40 of the Law; | ||
(xi)
|
Secretary | any person appointed by the Directors to perform any of the duties of the secretary of the Company and including any assistant secretary; | ||
(xii)
|
Seal | the common seal of the Company (if applicable) or any facsimile or official seal (if applicable) for the use outside of the Cayman Islands; | ||
(xii)
|
Share | an ordinary voting share in the capital of the Company; and | ||
(xiii)
|
Special Resolution |
a resolution of a general meeting passed by a two-thirds majority of the Members entitled to vote thereat present at the meeting or a written resolution signed by all Members entitled to vote and otherwise in accordance with Section 60 of the Law. |
| (b) | Unless the context otherwise requires, expressions defined in the Law and used herein shall have the meanings so defined. | ||
| (c) | In these Articles unless the context otherwise requires:- |
| (i) | words importing the singular number shall include the plural number and vice-versa; | ||
| (ii) | words importing the masculine gender only shall include the feminine gender; | ||
| (iii) | words importing persons only shall include companies or associations or bodies of persons whether incorporated or not; | ||
| (iv) | a notice provided for herein shall be in writing unless otherwise specified and all reference herein to “in writing” and “written” shall include printing, lithography, photography and other modes of representing or reproducing words in permanent visible form; and | ||
| (v) | “may” shall be construed as permissive and “shall” shall be construed as imperative. |
| (d) | Heading used herein are intended for convenience only and shall not affect the construction of these Articles. |
2
SHARES
| 3. | (a) | Subject to the provisions, if any, in that behalf in the Memorandum of Association, and without prejudice to any special rights previously conferred on the holders of existing Shares, any Share may be issued with such preferred, deferred, or other special rights, or such restrictions, whether in regard to dividend, voting, return of Share capital or otherwise, as the Company may from time to time by Special Resolution determine, and subject to the provisions of section 37 of the Law, any Share may, with the sanction of a Special Resolution, be issued on the terms that it is, or at the option of the Company or the holder is liable, to be redeemed. |
| (b) | If at any time the share capital is divided into different classes of Shares, the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may be varied with the consent in writing of the holders of three-fourths of the issued Shares of that class or with the sanction of a resolution passed by not less than three-fourths of such holders of the Shares of that class as may be present in person or by proxy at a separate general meeting of the holders of the Shares of that class. To every such separate general meeting, the provisions of these Articles relating to general meetings shall mutatis mutandis apply, but so that the necessary quorum shall be any one or more persons holding or representing by proxy not less than one-third of the issued Shares of the class and that any holder of Shares of the class present in person or by proxy may demand a poll. |
| 4. | (a) | Every person whose name is entered as a Member in the Register of Members shall be entitled, without payment, to a certificate of the Company specifying the Share or Shares held by him and the amount paid up thereon, provided that in respect of a Share or Shares held jointly by several persons, the Company shall not be bound to issue more than one certificate, and delivery of a certificate for a Share to one of several joint holders shall be sufficient delivery to all. |
| (b) | If a Share certificate is defaced, lost or destroyed it may be renewed on payment of such fee, if any, and on such terms, if any, as to evidence and indemnity, as the Directors think fit. |
| 5. | Except as required by law, no person shall be recognised by the Company as holding any Share upon any trust, and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any Share (except only as by these Articles or by law otherwise provided or under an order of a court of competent jurisdiction) or any other rights in respect of any Share except an absolute right to the entirety thereof in the registered holder, but the Company may in accordance with the Law issue fractions of Shares. | |
| 6. | The Shares shall be at the disposal of the Directors, and they may (subject to the provisions of the Law) allot, grant options over, or otherwise dispose of them to such |
3
| persons, on such terms and conditions, and at such times as they think fit, but so that no Share shall be issued at a discount, except in accordance with the provisions of the Law. |
LIEN
| 7. | The Company shall have a first and paramount lien on every Share (not being a fully paid Share) for all moneys (whether presently payable or not) called or payable at a fixed time in respect of that Share, and the Company shall also have a lien on all Shares (other than fully paid-up Shares) standing registered in the name of a single person for all moneys presently payable by him or his estate to the Company; but the Directors may at any time declare any Share to be wholly or in part exempt from the provisions of this Article. The Company’s lien, if any, on a Share shall extend to all dividends payable thereon. | |
| 8. | The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, but no sale shall be made unless some sum in respect of which the lien exists is presently payable nor until the expiration of fourteen days after a notice in writing, stating and demanding payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the registered holder for the time being of the Share, or the persons entitled thereto by reason of his death or bankruptcy. | |
| 9. | For giving effect to any such sale, the Directors may authorise some person to transfer the Shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the Shares comprised in any such transfer and he shall not be bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the sale. | |
| 10. | The proceeds of the sale shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is presently payable, and the residue shall (subject to a like lien for sums not presently payable as existed upon the Shares prior to the sale) be paid to the person entitled to the Shares at the date of the sale. |
CALLS ON SHARES
| 11. | The Directors may from time to time make calls upon the Members in respect of any money unpaid on their Shares provided that no call shall be payable earlier than one month from the last call; and each Member shall (subject to receiving at least fourteen days notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on his Shares. | |
| 12. | The joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof. | |
| 13. | If a sum called in respect of a Share is not paid before or on the day appointed for payment thereof, the person from whom the sum is due shall pay interest upon the sum at the rate of six per cent per annum from the day appointed for the payment thereof to the |
4
| time of the actual payment, but the Directors shall be at liberty to waive payment of that interest wholly or in part. |
| 14. | The provisions of these Articles as to the liability of joint holders and as to payment of interest shall apply in the case of non-payment of any sum which, by the terms of issue of a Share becomes payable at a fixed time, whether on account of the amount of the Share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified. | |
| 15. | The Directors may make arrangements on the issue of Shares for a difference between the holders in the amount of calls to be paid and in the times of payment. | |
| 16. | The Directors may, if they think fit, receive from any Member willing to advance the same all or any part of the moneys uncalled and unpaid upon any Shares held by him and upon all or any of the moneys so advanced may (until the same would, but for such advance, become presently payable) pay interest at such rate (not exceeding without the sanction of the Company in general meeting six per cent) as may be agreed upon between the Member paying the sum in advance and the Directors. |
FORFEITURE OF SHARES
| 17. | If a Member fails to pay any call or installment of a call on the day appointed for payment thereof, the Directors may, at any time thereafter during such time as any part of such call or installment remains unpaid, serve a notice on him requiring payment of so much of the call or installment as is unpaid, together with any interest which may have accrued. | |
| 18. | The notice shall name a further day (not earlier than the expiration of fourteen days from the date of the notice) on or before which the payment required by the notice is to be made and shall state that in the event of non-payment at or before the time appointed, the Shares in respect of which the call was made will be liable to be forfeited. | |
| 19. | If the requirements of any such notice as aforesaid are not complied with, any Share in respect of which the notice has been given may at any time thereafter, before the payment required by the notice has been made, be forfeited by a resolution of the Directors to that effect. | |
| 20. | A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit, and at any time before a sale or disposition, the forfeiture may be cancelled on such terms as the Directors think fit. | |
| 21. | A person whose Shares have been forfeited shall cease to be a Member in respect of the forfeited Shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which at the date of forfeiture were payable by him to the Company in respect of the Shares, but his liability shall cease if and when the Company receives payment in full of the amount due on the Shares. |
5
| 22. | A statutory declaration in writing that the declarant is a Director of the Company, and that a Share in the Company has been duly forfeited on a date stated in the declaration, shall be conclusive evidence of the facts therein stated as against all persons claiming to be entitled to the Share. The Company may receive the consideration, if any, given for the Share on any sale or disposition thereof and may execute a transfer of the Share in favour of the person to whom the Share is sold or disposed of and he shall thereupon be registered as the holder of the Share, and shall not be bound to see to the application of the purchase money, if any, nor shall his title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share. | |
| 23. | The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the amount of the Share, or by way of premium, as if the same had been made payable by virtue of a call duly made and notified. |
TRANSFER AND TRANSMISSION OF SHARES
| 24. | The instrument of transfer of any Share shall be executed by or on behalf of the transferor and transferee, and the transferor shall be deemed to remain a holder of the Share until the name of the transferee is entered in the Register of Members in respect thereof. | |
| 25. | Shares shall be transferred in the following form, or in any usual or common form approved by the Directors: |
I/we, ___________ of _______________ in consideration of the sum of
$________ paid to me/us by ___________________, of
_______________(hereinafter called “the Transferee”) do hereby
transfer to the Transferee the ______ Share (or Shares) numbered
__________ in the Company called Voreios Shipping Company Limited to
hold the same unto the Transferee, subject to the several conditions
on which I/we hold the same and I/we, the Transferee, do hereby
agree to take the said Share (or Shares) subject to the conditions
aforesaid.
As witness our hands on the day of , 19___.
Transferor |
Transferee |
| 26. | (a) | The Directors may, in their absolute discretion and without assigning any reason therefor, decline to register any transfer of Shares to a person of whom they do not approve. |
| (b) | The Directors may also suspend the registration of transfers during the fourteen days immediately preceding the annual general meeting in each year. |
6
| (c) | The Directors may decline to recognise any instrument of transfer unless (a) a fee not exceeding one dollar is paid to the Company in respect thereof, and (b) the instrument of transfer is accompanied by the certificate of the Shares to which it relates, and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. | ||
| (d) | If the Directors refuse to register a transfer of Shares, they shall within one month after the date on which the transfer was lodged with the Company, send to the transferee notice of the refusal. |
| 27. | The legal personal representative of a deceased sole holder of a Share shall be the only person recognised by the Company as having any title to the Share. In case of a Share registered in the names of two or more holders, the survivors or survivor, or the legal personal representative of the deceased survivor, shall be the only persons recognised by the Company as having any title to the Share. | |
| 28. | Any person becoming entitled to a Share in consequence of the death or bankruptcy of a Member shall upon such evidence being produced as may from time to time be properly required by the Directors, having the right either to be registered as a Member in respect of the Share or, instead of being registered himself, to make such transfer of the Share as the deceased or bankrupt person could have made; but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the deceased or bankrupt person before the death or bankruptcy. | |
| 29. | A person becoming entitled to a Share by reason of the death or bankruptcy of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the Share, except that he shall not, before being registered as a Member in respect of the Share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the Company. |
CONVERSION OF SHARES INTO STOCK
| 30. | The Company may by Ordinary Resolution convert any paid-up Shares into stock, and reconvert any stock into paid-up Shares of any denomination. | |
| 31. | The holders of stock may transfer the same, or any part thereof in the same manner and subject to the same regulations as and subject to which the Shares from which the stock arose might prior to conversion have been transferred, or as near thereto as circumstances admit; but the Directors may from time to time fix the minimum amount of stock transferable, and restrict or forbid the transfer of fractions of that minimum, but the minimum shall not exceed the nominal amount of the Shares from which the stock arose. | |
| 32. | The holders of stock shall, according to the amount of the stock held by them, have the same rights, privileges and advantages as regards dividends, voting at meetings of the Company and other matters as if they held the Shares from which the stock arose but no such privilege or advantage (except participation in the dividends and profits of the |
7
| Company) shall be conferred by any such aliquot part of stock as would not, if existing as Shares, have conferred that privilege or advantage. |
| 33. | Such of the Articles of the Company as are applicable to paid-up Shares shall apply to stock, and the words “Share” and “Member” herein shall include “stock” and “stockholder.” |
ALTERATION OF CAPITAL
| 34. | The Company may from time to time by Ordinary Resolution increase the share capital by such sum to be divided into new Shares of such amount, as the resolution shall prescribe. | |
| 35. | Subject to any direction to the contrary that may be given by the Company in general meeting, all new Shares shall be at the disposal of the Directors in accordance with Article 6. | |
| 36. | The new Shares shall be subject to the same provisions with reference to the payment of calls, lien, transfer, transmission, forfeiture and otherwise as the Shares in the original share capital. | |
| 37. | The Company may by Ordinary Resolution: |
| (a) | consolidate and divide all or any of its Share capital into Shares of larger amount than its existing Shares; | ||
| (b) | sub-divide its existing Shares, or any of them, into Shares of smaller amount than is fixed by the Memorandum of Association, subject nevertheless to the provisions of Section 13 of the Law; and | ||
| (c) | cancel any Shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person. |
| 38. | Subject to the provisions of the Law and the Memorandum of Associates, the Company may purchase its own Shares, including any redeemable Shares, provided that the manner of purchase has first been authorised by Ordinary Resolution and may make payment therefor or for any redemption of Shares in any manner authorised by the Law, including out of capital. |
STATUTORY MEETINGS
| 39. | The Company, if registered as an Ordinary Company under the Law, shall hold a general meeting once in every calendar year at such time and place as may be resolved by the Company in general meeting or, in default, at such time and place as the Directors may determine or, in default, at such time in the third month following that in which the anniversary of the Company’s incorporation occurs, and at such place as the Directors |
8
| shall appoint. In default of a general meeting being so held, a general meeting shall be held in the month next following and may be convened by any one or more Members holding in the aggregate not less than one-third of the total issued share capital of the Company entitled to vote and in the same manner as nearly as possible as that in which meetings are to be convened by the Directors. The above mentioned general meetings shall be called annual general meetings; all other general meetings shall be called extraordinary general meetings. |
| 40. | If the Company is registered as an Exempted Company under the Law, the Directors shall hold at least one Directors meeting in the Cayman Islands in each calendar year. |
GENERAL MEETINGS
| 41. | The Directors may whenever they think fit, convene an extraordinary general meeting. If at any time there are not sufficient Directors capable of acting to form a quorum, any Director or any one or more Members holding in the aggregate not less than one-third of the total issued share capital of the Company entitled to vote may convene an extraordinary general meeting in the same manner as nearly as possible as that in which meetings may be convened by the Directors. The Directors shall, upon the requisition in writing of one more Members holding in the aggregate not less than one-tenth of such paid-up capital of the Company as at the date of the requisition carries the right of voting at general meetings, convene an extraordinary general meeting. Any such requisition shall express the object of the meeting proposed to be called, and shall be left at the Registered Office of the Company. If the Directors do not proceed to convene a general meeting within twenty-one days from the date of such requisition being left as aforesaid, the requisitionists or any or either of them or any other Member or Members holding in the aggregate not less than one-tenth of such paid-up capital of the Company as at the date of the requisition carries the right of voting at general meetings, may convene an extraordinary general meeting to be held at the Registered Office of the Company or at some convenient place within the Cayman Islands at such time, subject to the Company’s Articles as to notice, as the persons convening the meeting fix. | |
| 42. | Seven days notice at the least (exclusive of the day on which the notice is served or deemed to be served, but inclusive of the day for which the notice is given) specifying the place, the day and the hour of meeting and, in the case of special business, the general nature of that business shall be given in manner hereinafter provided, or in such other manner (if any) as may be prescribed by the Company in general meetings, to such persons as are entitled to vote or may otherwise be entitled under the Articles of the Company to receive such notices from the Company; but with the consent of all the Members entitled to receive notice of some particular meeting, that meeting may be convened by such shorter notice or without notice and in such manner as those Members may think fit. | |
| 43. | The accidental omission to give notice of a meeting to, or the non-receipt of a notice of a meeting by, any Member entitled to receive notice shall not invalidate the proceedings at any meeting. |
9
| 44. | All business shall be deemed special that is transacted at an extraordinary general meeting, and all that is transacted at an annual general meeting shall be deemed special with the exception of sanctioning a dividend, the consideration of the accounts, balance sheets, the report of the Directors and Auditors, the election of Directors and other officers in the place of those retiring (if any) and the appointment and fixing of remuneration of Auditors. |
| 45. | (a) | No business shall be transacted at any general meeting unless a quorum of Members is present at the time that the meeting proceeds to business; save as herein otherwise provided, one or more Members holding in the aggregate not less than one-third of the total issued share capital of the Company present in person or by proxy and entitled to vote shall be a quorum. |
| (b) | An Ordinary Resolution or a Special Resolution (subject to the provisions of the Law) in writing signed by all the Members for the time being entitled to receive notice of and to attend and vote at general meetings, (or being corporations by their duly authorised representatives) including a resolution signed in counterpart by or on behalf of such Members or by way of signed telefax transmission, shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held. |
| 46. | If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of Members, shall be dissolved. In any other case it shall stand adjourned to the same day in the next week, at the same time and place, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the Members present shall be a quorum. | |
| 47. | The chairman, if any, of the Board of Directors shall preside as chairman at every general meeting of the Company. | |
| 48. | If there is no such chairman, or if at any meeting he is not present within fifteen minutes after the time appointed for holding the meeting or is unwilling to act as chairman, the Members present shall choose one of their number to be chairman. | |
| 49. | The chairman may with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned for ten days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting. | |
| 50. | At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded by one or more Members present in person or by proxy who together hold not less than fifteen per cent of the paid-up capital of the Company entitled to vote, |
10
| and, unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried or carried unanimously, or by a particular majority, or lost and an entry to that effect in the minutes of the proceedings of the Company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of, or against, that resolution. |
| 51. | If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. | |
| 52. | In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote. | |
| 53. | A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs. |
VOTES OF MEMBERS
| 54. | On a show of hands every Member present in person or by proxy and entitled to vote shall have one vote. On a poll every Member present in person or by proxy and entitled to vote shall have one vote for each Share of which he is the holder. | |
| 55. | In the case of joint holders the vote of the senior who tenders a vote whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members. | |
| 56. | A Member of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote, whether on a show of hands or on a poll, by his committee or other person in the nature of a committee appointed by that court, and any such committee or other person may vote by proxy. | |
| 57. | No Member shall be entitled to vote at any general meeting, unless all calls or other sums presently payable by him in respect of Shares in the Company have been paid. | |
| 58. | On a poll votes may be given either personally or by proxy. | |
| 59. | The instrument appointing a proxy shall be in writing under the hand of the Member or, if the Member is a corporation, either under seal or under the hand of a director or officer or attorney duly authorized. A proxy need not be a Member of the Company. A vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy is given Provided that no intimation in writing of such death, insanity or revocation as aforesaid shall have been received by the Company at its |
11
| Registered Office before the commencement of the general meeting, or adjourned meeting, at which it is sought to use the proxy. |
| 60. | The instrument appointing a proxy shall be deposited at the Registered Office of the Company or at such other place as is specified for that purpose in the notice convening the meeting no later than the time for holding the meeting or adjourned meeting at which the person named in the instrument proposes to vote, and in default the instrument of proxy shall not be treated as valid PROVIDED that the chairman of the meeting may in his discretion accept an instrument of proxy sent by telex of telefax upon receipt of telex or telefax confirmation that the signed original thereof has been sent. | |
| 61. | An instrument appointing a proxy may be in the following form or any other form approved by the Directors: |
Voreios Shipping Company Limited
“I, _______________, of _________________________,
hereby appoint _______________ of _______________ as
my proxy, to vote for me and on my behalf at the [annual or
extraordinary, as the case may be] general meeting of the Company to
be held on the _____ day of _______________,
19 ___.
Signed this _____ day of _______________,
19 ___.
| 62. | The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll. |
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETING
| 63. | Any corporation which is a Member of the Company may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members of the Company, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual Member of the Company. |
DIRECTORS AND OFFICERS
| 64. | (a) | The names of the first Directors shall be determined in writing by the subscribers of the Memorandum of Association. |
| (b) | Notwithstanding any provision in these Articles to the contrary, a sole Director shall be entitled to exercise all of the powers and functions of the Directors which may be imposed on them by Law or by these Articles. |
12
| 65. | The remuneration of the Directors shall from time to time be determined by the Company in general meeting. The Directors shall also be entitled to be paid their travelling, hotel and other expenses properly incurred by them in going to, attending and returning from meetings of the Directors, or any committee of the Directors, or general meetings of the Company, or otherwise in connection with the business of the Company, or to receive a fixed allowance in respect thereof as may be determined by the Directors from time to time, or a combination partly of one such method and partly the other. | |
| 66. | No Share holding qualification shall be required for Directors unless otherwise required by the Company by Ordinary Resolution. | |
| 67. | Any Director may in writing appoint another person who is approved by the majority of the Directors to be his alternate to act in his place at any meeting of the Directors at which is unable to be present. Every such alternate shall be entitled to notice of meetings of the Directors and to attend and vote thereat as a Director when the person appointing him is not personally present and where he is a Director to have a separate vote on behalf of the Director he is representing in addition to his own vote. A Director may at any time, in writing, revoke the appointment of an alternate appointed by him. Every such alternate shall be an officer of the Company and shall not be deemed to be the agent of the Director appointing him. The remuneration of such alternate shall be payable out of the remuneration of the Director appointing him and the proportion thereof shall be agreed between them. | |
| 68. | The Directors may by resolution appoint one of their number to be Managing Director or President upon such terms as to duration of office remuneration and otherwise as they may think fit. | |
| 69. | The Directors may also by resolution appoint a Secretary and such other officers as may from time to time be required upon such terms as to duration of office, remuneration and otherwise as they may think fit. Such Secretary or other officers need not be Directors and in the case of the other officers may be ascribed such titles as the Directors may decide. |
POWERS AND DUTIES OF DIRECTORS
| 70. | The business of the Company shall be managed by the Directors, who may pay all expenses incurred in setting up and registering the Company and may exercise all such powers of the Company as are not, by the Law or these Articles, required to be exercised by the Company in general meeting, subject, nevertheless, to any clauses of these Articles, to the provisions of the Law, and to such regulations, being not inconsistent with the aforesaid clauses or provisions, as may be prescribed by the Company in general meeting but no regulation made by the Company in general meeting shall invalidate any prior act of the Directors which would have been valid if that regulation had not been made. | |
| 71. | The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof, to |
13
| issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party. |
| 72. | (a) | The Directors may from time to time and at any time by power of attorney appoint any company, firm or person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Directors may think fit and may also authorise any such attorney to delegate all or any of the powers, authorities and discretions vested in him. |
| (b) | The Directors may delegate any of the powers exercisable by them to a Managing Director or any other person or persons acting individually or jointly as they may from time to time by resolution appoint upon such terms and conditions and with such restrictions as they may think fit, and may from time to time by resolution revoke, withdraw, alter or vary all or any such powers. | ||
| (c) | All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments, and all receipts for moneys paid to the Company shall be signed, drawn, accepted, endorsed, or otherwise executed, as the case may be, in such manner as the Directors shall from time to time by resolution determine. | ||
| (d) | No document or deed otherwise duly executed and delivered by or on behalf of the Company shall be regarded as invalid merely because at the date of delivery of the deed or document, the Director, Secretary or other officer or person who shall have executed the same and/or affixed the Seal (if any) thereto as the case may be for and on behalf of the Company shall have ceased to hold such office or to hold such authority on behalf of the Company. |
| 73. | The Directors shall cause minutes to be prepared: |
| (a) | of all appointments of officers made by the Directors; | ||
| (b) | of the names of the Directors present at each meeting of the Directors and of any committee of the Directors; | ||
| (c) | of all resolutions and proceedings at all meetings of the Members of the Company and of the Directors and of committees of Directors; and the chairman of all such meetings or of any meeting confirming the minutes thereof shall sign the same. |
14
DISQUALIFICATION AND CHANGES OF DIRECTORS
| 74. | The office of Director shall be vacated if the Director:- |
| (a) | becomes bankrupt or makes any arrangement or composition with his creditors generally; or | ||
| (b) | is found to be or becomes of unsound mind; or | ||
| (c) | resigns his office by notice in writing to the Company; or | ||
| (d) | if he ceases to be a Director by virtue of, or becomes prohibited from being a Director by reason of, an order made under any provisions of any law or enactment. |
| 75. | At the annual general meeting of the Company in every year the whole of the Directors shall retire from office, but shall be eligible for re-election. | |
| 76. | The Company at the annual general meeting (if any) at which a Director retires in manner aforesaid may fill the vacated office by electing a person thereto and in default the retiring Director shall be deemed to have been re-elected unless at such meeting it is resolved not to fill such vacated office. | |
| 77. | The number of Directors shall be not less than one, nor unless the Company in general meeting may otherwise determine, more than ten. | |
| 78. | Any casual vacancy occurring in the Board of Directors may be filled by the Directors. | |
| 79. | The Directors shall have the power at any time, and from time to time, to appoint a person as an additional Director or persons as additional Directors. | |
| 80. | The Company may by Ordinary Resolution appoint and remove a Director or Directors. |
PROCEEDINGS OF DIRECTORS
| 81. | The Directors may meet together (either within or without the Cayman Islands) for the dispatch of business, adjourn, and otherwise regulate their meetings and proceedings, as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In case of an equality of votes, the chairman shall have a second or casting vote. | |
| 82. | A Director or alternate Director may, and the Secretary on the requisition of a Director or alternate Director shall, at any time, summon a meeting of Directors by at least five days notice in writing to every Director and alternate Director which notice shall set forth the general nature of the business to be considered PROVIDED HOWEVER that notice may be waived by all the Directors (or their alternates) either at, before or after the meeting is held PROVIDED FURTHER that notice or waiver thereof may be given by telex or telefax. |
15
| 83. | The quorum necessary for the transaction of the business of the Directors, may be fixed by the Directors and unless so fixed by the Directors, shall be two Directors or their proxies, save where the subscriber of the Memorandum of Association or the Members in general meeting have appointed a sole Director when such Director acting alone shall constitute a quorum. For the purpose of this Article, an alternate appointed by a Director shall be counted in a quorum at a meeting at which the Director appointing him is not present. | |
| 84. | The continuing Directors may act not withstanding any vacancy in their body, but, if and so long as their number is reduced below the number fixed by or pursuant to the Articles of the Company as the necessary quorum of Directors, the continuing Directors may act for the purpose of increasing the number of Directors to that number, or of summoning a general meeting of the Company, but for no other purpose. | |
| 85. | Any Director or officer may act by himself or his firm in a professional capacity for the Company, and he or his firm shall be entitled to remuneration for professional services as if he were not a Director or officer Provided that nothing herein contained shall authorise a Director or officer or his firm to act as Auditor of the Company. | |
| 86. | No person shall be disqualified from the office of Director or alternate Director or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director or alternate Director shall be in any way interested be or be liable to be avoided, nor shall any Director or alternate Director so contracting or being so interested by liable to account to the Company for any profit realised by any such contract or transaction by reason of such Director holding office or of the fiduciary relation thereby established. A Director (or his alternate Director in his absence) shall be counted in the quorum of any relevant meeting which he attends and shall be at liberty to vote in respect of any contract or transaction in which he is so interested as aforesaid PROVIDED HOWEVER that the nature of the interest of any Director or alternate Director in any such contract or transaction shall be disclosed by him or the alternate Director appointed by him at or prior to its consideration and any vote thereon and a general notice that a Director or alternate Director is a shareholder of any specified firm or company and/or is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure hereunder and after such general notice it shall not be necessary to give special notice relating to any particular transaction. | |
| 87. | A Director may appoint any person to act as his proxy to attend and vote on his behalf at meetings of the Directors or any committee of Directors. Such appointment must be made in writing under the hand of the appointor, and may at any time be revoked in like manner, and may be general or for a specified period, or for specified meetings, or for specified resolutions, and may authorise and direct the appointee to be chairman if the appointor would, if present, be entitled to preside. The form of appointment of proxy may contain directions to the proxy to vote in accordance with instructions given by that Director or, in the absence of such instructions, the proxy may act in his discretion. Notice of every such appointment or revocation must be presented to the meeting of Directors at which the proxy is to be used or first used prior to the commencement of |
16
| such meeting. A proxy may be given by telex or telefax. The appointee need not be a Director or Member of the Company, but he must furnish the Company with his address. |
| 88. | The Directors may elect a chairman of their meetings and determine the period for which he is to hold office; but if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for holding the same the Directors present may choose one of their number to be chairman of the meeting. | |
| 89. | The Directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit; any committee so formed shall, in the exercise of the powers so delegated, conform to any regulations that may be imposed on it by the Directors. | |
| 90. | A committee may elect a chairman of its meetings; if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for holding the same, the members present may choose one of their number to be chairman of the meeting. | |
| 91. | A committee may meet and adjourn as it thinks proper. Questions arising at any meeting shall be determined by a majority of votes of the members present and in case of an equality of votes the chairman shall have a second or casting vote. | |
| 92. | All acts done by any meeting of the Directors or of a committee of Directors, or by any person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director. |
| 93. | (a) | A resolution signed by all of the Directors or all of the members of a committee of Directors, including a resolution signed in counterpart or by way of signed telefax transmission, shall be as valid and effectual as if it had been passed at a meeting of the Directors or of a committee of Directors duly called and constituted. |
| (b) | To the extent permitted by law, the Directors or a committee of Directors may also meet by telephone conference call where all Directors or committee members are capable of speaking to and hearing the other Directors or committee members at the same time. | ||
| (c) | When the Directors (being in number at least a quorum) sign the minutes of a meeting of the Directors, the same shall be deemed to have been duly held notwithstanding that the Directors have not actually come together or that there may have been a technical defect in the proceedings. |
SEALS AND DEEDS
| 94. | (a) | If the Directors determine that the Company shall have a Seal, the Directors shall provide for the safe custody of the common Seal and the common Seal of the |
17
| Company shall not be affixed to any instrument except by the authority of a resolution of the Directors, and in the presence of a Director or of the Secretary or of such other person as the Directors may appoint for the purpose and that Director or the Secretary or other person as aforesaid shall sign every instrument to which the common Seal of the Company is so affixed in his presence. Notwithstanding the provisions hereof, annual returns and notices filed under the Law may be executed either as a deed in accordance with the Law or by the common Seal being affixed thereto in either case without the authority of a resolution of the Directors by one Director or the Secretary. |
| (b) | The Company may maintain a facsimile of any common Seal in such counties or places as the Directors shall appoint and such facsimile Seal shall not be affixed to any instrument except by the authority of the Directors and in the presence of such person or persons as the Directors shall for this purpose appoint and such person or persons as aforesaid shall sign every instrument to which the facsimile Seal of the Company is so affixed in his presence and such affixing of the facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the common Seal had been affixed in the presence of and the instrument signed by a Director or the Secretary or such other person as the Directors may appoint for the purpose. | ||
| (c) | In accordance with the Law, the Company may execute any deed or other instrument which would otherwise be required to be executed under Seal by the signature of such deed or instrument as a deed by a Director or by the Secretary of the Company or by such other person as the Directors may appoint or by any other person or attorney on behalf of the Company appointed by a deed or other instrument executed as a deed by a Director or the Secretary or such other person as aforesaid. |
DIVIDENDS AND RESERVE
| 95. | The Company by Ordinary Resolution may declare dividends, but no dividend shall exceed the amount recommended by the Directors. | |
| 96. | The Directors may from time to time pay to the Members interim dividends. | |
| 97. | No dividend shall be paid otherwise than out of profits or out of monies otherwise available for dividend in accordance with the Law. | |
| 98. | Subject to the rights of persons, if any, entitled to Shares with special rights as to dividends, all dividends on any class of Shares not fully paid shall be declared and paid according to the amounts paid on the Shares of that class, but if and so long as nothing is paid-up on any of the Shares in the Company, dividends may be declared and paid according to the number of Shares. No amount paid on a Share in advance of calls shall, while carrying interest, be treated for the purposes of this Article as paid on the Share. |
18
| 99. | The Directors may, before recommending any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for meeting contingencies, or for equalising dividends, or for any other purpose to which the profits of the Company may be properly applied, and pending such application may, at the like discretion, either be employed in the business of the Company or be invested in such investments as the Directors may from time to time think fit. | |
| 100. | If several persons are registered as joint holders of any Share, any of them may give effectual receipts for any dividend or other moneys payable on or in respect of the Share. | |
| 101. | Any dividend may be paid by cheque or warrant sent through the post to the registered address of the Member or person entitled thereto or in the case of joint holders to any one of such joint holders at his registered address or to such person and such address as the Member or person entitled or such joint holders as the case may be may direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent or to the order of such other person as the Member or person entitled or such joint holders as the case may be may direct. | |
| 102. | The Directors may declare that any dividend is paid wholly or partly by the distribution of specific assets and in particular of paid-up shares, debentures or debenture stock of any other company or in any one or more of such ways, and the Directors shall give effect to such resolution, and where any difficulty arises in regard to such distribution, the Directors may settle the same as they think expedient, and in particular may issue fractional certificates and fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the footing of the value so fixed in order to adjust the rights of all parties, and may vest any such specific assets in trustees as may seem expedient to the Directors. | |
| 103. | No dividend shall bear interest against the Company. All unclaimed dividends may be invested or otherwise made use of by the Directors for the benefit of the Company until claimed. Any dividend unclaimed by a Member six years after the dividend payment date shall revert to the Company. |
CAPITALISATION OF PROFITS
| 104. | The Company may upon the recommendation of the Directors by Ordinary Resolution authorise the Directors to capitalise any sum standing to the credit of any of the Company’s reserve accounts (including share premium account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution and to appropriate such sums to Members in the proportions in which such sum would have been divisible amongst them had the same been a distribution of profits by way of dividend and to apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid-up to and amongst them in the proportion aforesaid. In such event the Directors shall do all acts and things required to give effect to such capitalisation, with full power to the Directors |
19
| to make such provision as they think fit for the case of Shares becoming distributable in fractions (including provision whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorise any person to enter on behalf of all the Members interested into an agreement with the Company providing for such capitalisation and matters incidental thereto and any agreement made under such authority shall be effective and binding on all concerned. |
ACCOUNTS
| 105. | The books of account relating to the Company’s affairs shall be kept in accordance with the Law and otherwise in such manner as may be determined from time to time by the Company by Ordinary Resolution or failing such determination by the Directors of the Company. | |
| 106. | Such Auditors may be appointed and the accounts relating to the Company’s affairs may be audited in such manner as may be determined from time to time by the Company by Ordinary Resolution or failing such determination by the Directors. |
WINDING UP
| 107. | If the Company shall be wound up, the liquidator may, with the sanction of a Special Resolution of the Company and any other sanction required by the Law, divide amongst the Members in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may for such purpose set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes of Members. The liquidator may with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributories as the liquidator, with the like sanction, shall think fit, but so that no Member shall be compelled to accept any Shares or other securities whereon there is any liability. | |
| 108. | If the Company shall be wound up and the assets available for distribution amongst the Members as such shall be insufficient to repay the whole of the paid-up capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the capital paid up, or which ought to have been paid up, at the commencement of the winding up, on the Shares held by them respectively. And if in a winding up the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the capital paid up at the commencement of the winding up, the excess shall be distributed amongst the Members in proportion to the capital paid up at the commencement of the winding up on the Shares held by them respectively. This Article is to be without prejudice to the rights of the holders of Shares issued upon special terms and conditions. |
20
NOTICES
| 109. | (a) | A notice may be given by the Company to any Member either personally or by sending it by post, telex or telefax to him to his registered address, or (if he has no registered address) to the address, if any, supplied by him to the Company for the giving of notices to him. |
| (b) | Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the notice (by airmail if available) and to have been effected, in the case of a notice of a meeting at the expiration of three days after it was posted. | ||
| (c) | Where a notice is sent by telex or telefax, service of the notice shall be deemed to be effected by properly addressing and sending such notice through the appropriate transmitting medium and to have been effected on the day the same is sent. |
| 110. | If a Member has no registered address and has not supplied to the Company an address for the giving of notice to him, a notice addressed to him and advertised in a newspaper circulating in the Cayman Islands shall be deemed to be duly given to him at noon on the day following the day on which the newspaper is circulated and the advertisement appeared therein. | |
| 111. | A notice may be given by the Company to the joint holders of a Share by giving the notice to the joint holder named first in the register of Members in respect of that Share. | |
| 112. | A notice may be given by the Company to the person entitled to a Share in consequence of the death or bankruptcy of a Member by sending it through the post on prepaid letter addressed to them by name, or by the title of representatives of the deceased or trustee of the bankrupt, or by any like description, at the address, if any, supplied for the purpose by the persons claiming to be so entitled, or (until such an address has been so supplied) by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. | |
| 113. | Notice of every general meeting shall be given in some manner hereinbefore authorised to: |
| (a) | every Member entitled to vote except those Members entitled to vote who (having no registered address) have not supplied to the Company an address for the giving of notices to them; and | ||
| (b) | every person entitled to a Share in consequence of the death or bankruptcy of a Member, who, but for his death or bankruptcy would be entitled to receive notice of the meeting. |
No other persons shall be entitled to receive notices of general meetings.
21
RECORD DATE
| 114. | The Directors may fix in advance a date as the record date for any determination of Members entitled to notice of or to vote at a meeting of the Members and, for the purpose of determining the Members entitled to receive payment of any dividend, the Directors may, at or within 90 days prior to the date of the declaration of such dividend, fix a subsequent date as the record date for such determination. |
AMENDMENT OF MEMORANDUM AND ARTICLES
| 115. | Subject to and insofar as permitted by the provisions of the Law, the Company may from time to time by Special Resolution alter or amend its Memorandum of Association or these Articles in whole or in part Provided however that no such amendment shall affect the rights attaching to any class of Shares without the consent or sanction provided for in Article 3(b). |
ORGANISATION EXPENSES
| 116. | The preliminary and organisation expenses incurred in forming the Company shall be paid by the Company and may be amortised in such manner and over such period of time and at such rate as the Directors shall determine and the amount so paid shall in the accounts of the Company, be charged against income and/or capital. |
OFFICERS OF THE COMPANY
| 117. | The Registered Office of the Company shall be at such address in the Cayman Islands as the Directors shall from time to time determine. The Company, in addition to its Registered Office, may establish and maintain an office in the Cayman Islands or elsewhere as the Directors may from time to time determine. |
INDEMNITY
| 118. | Every Director and officer for the time being of the Company or any trustee for the time being acting in relation to the affairs of the Company and their respective heirs, executors, administrators, personal representatives or successors or assigns shall, in the absence of wilful neglect or default, be indemnified by the Company against, and it shall be the duty of the Directors out of the funds and other assets of the Company to pay, all costs, losses, damages and expenses, including travelling expenses, which any such Director, officer or trustee may incur or become liable in respect of by reason of any contract entered into, or act or thing done by him as such Director, officer or trustee or in any way in or about the execution of his duties and the amount for which such indemnity is provided shall immediately attach as a lien on the property of the Company and have priority as between the Members over all other claims. No such Director, officer or trustee shall be liable or answerable for the acts, receipts, neglects or defaults of any other |
22
| Director, officer or trustee or for joining in any receipt or other act for conformity or for any loss or expense happening to the Company through the insufficiency or deficiency of any security in or upon which any of the monies of the Company shall be invested or for any loss of any of the moneys of the Company which shall be invested or for any loss or damage arising from the bankruptcy, insolvency or tortious act of any person with whom any monies, securities or effects shall be deposited, or for any other loss, damage or misfortune whatsoever which shall happen in or about the execution of the duties of his respective office or trust or in relation thereto unless the same happen through his own wilful neglect or default. |
| DESCRIPTION OF | ||||
| NAME OF SUBSCRIBER | ADDRESS | SUBSCRIBER | ||
Huntlaw Nominees Ltd.
|
P.O. Box 1350GT, | Company | ||
| Grand Cayman | ||||
| Cayman Islands |
DATED the 26h day of March, One Thousand Nine Hundred and Ninety-Nine.
Witness to the above signature:-
23
Exhibit 3.32.1
ARTICLES OF INCORPORATION
OF
ARC SHIPPING CORPORATION
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned,
for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
ARC SHIPPING CORPORATION
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Fifty Thousand (50,000) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. | |
| IN WITNESS WHEREOF, I have executed this instrument on October 12, 2005. |
| Majuro Nominees Ltd. Incorporator |
||||
| by: | 
|
|||
Exhibit 3.32.2
BYLAWS
ARC SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.33.1
ARTICLES OF INCORPORATION
OF
MAGELLAN SHIPPING CORPORATION
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows;
| A. | The name of the Corporation shall be: |
MAGELLAN SHIPPING CORPORATION
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Fifty Thousand (50,000) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on October 12, 2005.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.33.2
BYLAWS
MAGELLAN SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1.
Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held at
such place and on a date and at such time as may be designated in the notice thereof by the officer
of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver without
protesting prior to the conclusion thereof the lack of notice to him. If the Corporation shall
issue any class of bearer shares, notice for all meetings shall be given in the manner provided in
the Articles of Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
1
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6.
Fixing of Record Dates. The Board of Directors may fix a time
not more than sixty nor less than fifteen days prior to the date of any meeting of the shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors may
fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by a
vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may be
transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also
a
2
director. The President or the Secretary shall call a special meeting of the Board upon
written request directed to either of them by any two directors stating the time, place and
purpose of such special meeting. Special meetings of the Board shall be held on a date and at such
time and at such place as may be designated in the notice thereof by the officer calling the
meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by proxy, in
communication by telefax or conference telephone, at a meeting at which a quorum is present shall
be the act of the directors. Any action required or permitted to be taken at a meeting may be taken
without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time to
time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall be
filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and may
meet at stated times or on such notice as they may determine. Each committee shall keep a record of
its proceedings and report the same to the Board when requested.
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint either a President
or Secretary or Treasurer. In addition, the Board of Directors may appoint such other officers as
it
3
may deem necessary. Officers may be of any nationality, need not be residents of the Marshall
Islands and may be, but are not required to be, directors. Officers of the Corporation shall be
natural persons except the Secretary may be a corporate entity. Any two or more offices may be
held by the same natural person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of such
office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of this
Article shall exercise such powers and perform such duties as may be assigned to them by the Board
of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
4
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make such
rules and regulations as they may deem expedient concerning the issuance, registration and transfer
of certificates representing shares of the Corporation’s stock, and may appoint, transfer agents
and registrars thereof.
Section 3.
Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its discretion, and as a
condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or
repealed or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
5
Section 2. By the Directors. If the Articles of Incorporation so provide, these
Bylaws may be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular
or special meeting of the Board of Directors by the affirmative vote of a majority of the entire
Board, subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as
adopted.
6
Exhibit 3.34.1
ARTICLES
OF AMENDMENT AND RESTATEMENT OF
ARTICLES OF INCORPORATION
IONIAN SHIPPING CORPORATION
ARTICLES OF INCORPORATION
IONIAN SHIPPING CORPORATION
The undersigned, the President and the Secretary of Ionian Shipping Corporation, a corporation
incorporated under the laws of the Republic of The Marshall Islands (the “Corporation”),
for the purpose of amending and restating the Articles of Incorporation of the Corporation pursuant
to Sections 88 and 93 of the Business Corporations Act of the Republic of the Marshall Islands,
1990, as amended, hereby certify as follows:
| 1. | The name of the Corporation is IONIAN SHIPPING CORPORATION | |
| 2. | The Articles of Domestication of the Corporation were filed with the Registrar of Corporations of The Republic of The Marshall Islands on September 29, 2003. | |
| 3. | The purpose of the amendments effected hereby is to replace the Memorandum of Association of the Corporation, which was originally formulated and implemented under and in accordance with the laws of the Cayman Islands as the original domicile of the Corporation, with the following Articles of Incorporation. | |
| 4. | These Articles of Incorporation have been authorized by actions of the Board of Directors and Shareholders of the Corporation. | |
| 5. | The Articles of Incorporation of the Corporation are hereby amended and restated in their entirety as follows: |
| A. | The name of the Corporation is IONIAN SHIPPING CORPORATION. | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is 50,000 (Fifty Thousand) shares of common stock in registered form with a par value of One US Dollar (US$1.00) per share. Shares shall not be issued in bearer share form. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation. |
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN WITNESS WHEREOF, we have executed this instrument on the 14th day of September, 2004.
| IONIAN SHIPPING CORPORATION |
||||
| By | /s/ Robert G. Shaw | |||
| Robert G. Shaw | ||||
| President | ||||
| IONIAN SHIPPING CORPORATION |
||||
| By | /s/ Bruce C. Hoag | |||
| Bruce C. Hoag Secretary |
||||
Exhibit 3.34.2
BYLAWS
IONIAN SHIPPING CORPORATION
(A Marshall Islands Corporation)
(A Marshall Islands Corporation)
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office or offices at
such other places within or without the Marshall Islands as the Board of Directors may from time to
time appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at a such time and place within or without the Marshall Islands as the Board
of Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meetings. Special meetings of shareholders, unless otherwise prescribed
by law, may be called for any purpose or purposes at any time by resolution of the Board of
Directors or by the President, and shall be called by the President or Secretary of the Corporation
whenever required in writing to do so by shareholders owning a majority in amount of capital stock
of the Corporation entitled to vote which is issued and outstanding. Such request shall state the
purpose or purposes of the proposed special meeting. Such meetings shall be held at such place and
on a date and at such time as may be designated in the notice thereof by the officer the
Corporation calling any such meeting. Business transacted at any special meeting of shareholders
shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is otherwise prescribed by law, stating the
date, time place and purpose thereof, and in the case of special meetings, the name of the person
or persons at whose direction the notice is being issued, shall be given personally or sent by
mail, telefax, telegraph, cablegram, telex, or teleprinter at least fifteen but not more than sixty
days before such meeting, to each shareholder of record entitled to vote threat and to each
shareholder of record who, by reason of any action proposed at such meeting would be entitled to
have his/her shares appraised if such action were taken, and the notice shall include a statement
of that purpose and to that effect. If mailed, notice shall be deemed to have been given when
deposited in the mail, directed to the shareholder at his/her address as the same appears on the
record of shareholders of the Corporation or at such address as to which the shareholder has given
notice to the Secretary. Notice of a meeting need not be given to any shareholder who submits a
signed
1
waiver without protesting prior to the conclusion thereof the lack of notice to him. If the
Corporation shall issue any class of bearer shares, notice for all meetings shall be given in the
manner provided in the Articles of Incorporation.
Section 4. Quorum. At all meetings of shareholders, except as otherwise expressly provided
by law, there must be present, either in person or by proxy, shareholders holding at least a
majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meting until a quorum shall be
present.
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders each shareholder entitled to vote any
shares on any matter to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right ether in person or by proxy. Any action,
which may be taken at a meeting of shareholders, may be taken without a meeting if consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of shareholders may be expressed
for any purpose without a meeting, as the time as of which shareholders entitled to notice of and
to vote at such a meeting or whose consent or dissent is required or may be expressed for any
purpose, as the case may be, shall be determined, and all persons who where holders of record of
voting shares at such time and not others shall be entitled to notice of and to vote at such
meeting or to express their consent or dissent, as the case may be. The Board of Directors may fix
a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business, and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
By-Laws, the number of directors may be determined either by the vote of a majority of the entire
Board or by vote of the shareholders. The directors need not be residents of the Marshall Islands
nor shareholders of the Corporation
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her
successor shall have been duly elected and qualified, except in the event of his/her death,
resignation, removal, or the earlier termination of his/her term of office.
2
Section 3. Removal. Any or all of the directors maybe removed, with or without cause, by a
vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
creation of new directorships, failure of the shareholders to elect the whole Board at any annual
election of directors, or for any other reason, including removal of directors for cause, may be
filled either by the affirmative vote of a majority of the remaining directors then the office,
although less than a quorum, at any special meeting called for that purpose or at any regular
meeting of the Board, except as otherwise prescribed by law. Vacancies occurring by removal of
directors without cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at such
time and place as may be determined by resolution of the Board of Directors and no notice shall be
required for any regular meeting. Except as otherwise provided by law, any business may be
transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise prescribed
by law, be called by the President or any officer of the Corporation who is also a director. The
President or the Secretary shall call a special meeting of the Board upon written request directed
to either of them by any two directors stating the time, place, and purpose of such special
meeting. Special meetings of the Board shall be held on a date and at such time and at such place
as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is orally or delivered in person, in which case it shall be
given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, telegraph, telefax, cablegram, telex, or
teleprinter to his/her last known address. Notice of meeting need not be given to any director who
submits a signed waiver of notice, whether before or after the meeting, or who attends the meeting
without protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the directors at the time in office, present in person or
by proxy or by communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all members of the Board consent thereto in writing.
Section 10. Compensation of Directors and Members of Committees. The Board may from time to
time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
3
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees: The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or by these By-Laws, shall have
and may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board designate from
among its members other committees to consist of one or more of the directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these By-Laws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of a majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in membership of such committees shall be
filled by vote of the Board of Directors. Committees may adopt their own rules of procedures and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record it its proceedings and report the same to the Board when requested.
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation: The Board of Directors shall appoint either (a) a
President, Secretary and Treasurer, or (b) a Managing Director and Secretary. In addition, the
Board of Directors may appoint such other officers as it may deem necessary. Officers may be of any
nationality, need not be residents of the Marshall Islands and may be, but are not required to be,
directors. Officers of the corporation shall be natural persons except the Secretary may be a
corporate entity. Any two or more offices may be held by the same natural person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event
of the earlier termination of his/her term of office, through death, resignation, removal or
otherwise. Any officer may be removed by the Board at any time with or
4
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of such
office by the Board of Directors at any regular or special meeting.
Section 2. President or Managing Director: The President or Managing Director shall be the
Chief Executive Officer of the Corporation and shall have general management of the affairs of the
Corporation together with the powers and duties usually incident to the office of President or
Managing Director, except as specifically limited by appropriate written resolution of the Board of
Directors and shall have such other powers and perform such other duties as may be assigned to
him/her by the Board of Directors. The President or Managing Director shall preside at all meetings
of shareholders at which he/she is present and, if he/she is a director, at all meetings of the
directors.
Section 3. Treasurer: The Managing Director or, if there shall be no Managing Director, the
Treasurer shall have general supervision over the care and custody of the funds, securities, and
other valuable effects of the Corporation and shall deposit the same or cause the same to be
deposited in the name of the Corporation in such depositories as the Board of Directs may
designate, shall disburse the funds of the Corporation as may be ordered by the Board of Directors,
shall have supervision over the accounts of all receipts and disbursements of the Corporation,
shall whenever required by the Board, render or cause to be rendered financial statements of the
Corporation, shall have the power and perform the duties usual incident to the office of Treasurer,
and shall have such powers and perform such other duties as may be assigned to him/her by the Board
of Directors, Managing Director or President.
Section 4. Secretary: The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation, shall be the custodian of the corporate
records and of the corporate seal of the Corporation, shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors, Managing Director or the
President. If the Secretary is a corporation, the duties of the Secretary may be carried out by any
duly authorized representative of such corporation.
Section 5. Other Officers: Officers other than those treated in Section 2 through 4 of this
Article shall exercise such powers and perform such duties as may be assigned to them by the Board
of Directors of the President.
Section 6. Bond: The Board of Directors shall have power to the extent permitted by law, to
require any officer, agent or employee of the Corporation to give bond for the faithful discharge
of his/her duties in such form and with such surety or sureties as the Board of Directors may deem
advisable.
5
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance: The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President, Managing Director, or a Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures
may be facsimiles if the certificate is countersigned by a transfer agent or registered by a
registrar other than the Corporation itself or its employee.
Section 2. Transfer: The Board of Directors shall have the power and authority to make such
rules and regulations as they may deem expedient concerning the issuance, registration and transfer
of certificates representing shares of the Corporation’s stock, and may appoint transfer agents and
registrars thereof.
Section 3. Loss of Stock Certificates: The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the owner of such lost or
destroyed certificate or certificates, or his/her legal representative, to advertise the same in
such manner as it shall require and/or give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with the law by,
and at the discretion of, the Board of Directors at any regular or special meeting. Dividends may
be declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
6
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may be resolution designate.
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These By-Laws may be amended, added to, altered or repealed
or new By-Laws may be adopted, at any meeting of shareholders of the Corporation by the affirmative
vote of the holders of a majority of the stock present and voting at such meeting provided notice
that an amendment is to be considered and acted upon is inserted in the notice or waiver of notice
at said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these By-Laws may
be amended, added to, altered or repealed, or new By-Laws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any By-Laws as
adopted.
7
Exhibit 3.35.1
ARTICLES OF AMENDMENT AND RESTATEMENT OF
ARTICLES OF INCORPORATION
APOLLON SHIPPING CORPORATION
ARTICLES OF INCORPORATION
APOLLON SHIPPING CORPORATION
The undersigned, the President and the Secretary of Apollon Shipping Corporation, a corporation
incorporated under the laws of the Republic of The Marshall Islands (the “Corporation”),
for the purpose of amending and restating the Articles of Incorporation of the Corporation pursuant
to Sections 88 and 93 of the Business Corporations Act of the Republic of the Marshall Islands,
1990, as amended, hereby certify as follows:
| 1. | The name of the Corporation is APOLLON SHIPPING CORPORATION | |
| 2. | The Articles of Domestication of the Corporation were filed with the Registrar of Corporations of The Republic of The Marshall Islands on August 12, 2003. | |
| 3. | The purpose of the amendments effected hereby is to replace the Memorandum of Association of the Corporation, which was originally formulated and implemented under and in accordance with the laws of the Cayman Islands as the original domicile of the Corporation, with the following Articles of Incorporation. | |
| 4. | These Articles of Incorporation have been authorized by actions of the Board of Directors and Shareholders of the Corporation. | |
| 5. | The Articles of Incorporation of the Corporation are hereby amended and restated in their entirety as follows: |
| A. | The name of the Corporation is APOLLON SHIPPING CORPORATION. | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is 50,000 (Fifty Thousand) shares of common stock in registered form with a par value of One US Dollar (US$l.00) per share. Shares shall not be issued in bearer share form. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation. |
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN WITNESS WHEREOF, we have executed this instrument on the 14th day of
September, 2004.
| APOLLON SHIPPING CORPORATION |
||||
| By | /s/ Robert G. Shaw | |||
| Robert G. Shaw | ||||
| President | ||||
| APOLLON SHIPPING CORPORATION |
||||
| By | /s/ Bruce C. Hoag | |||
| Bruce C. Hoag | ||||
| Secretary | ||||
Exhibit 3.35.2
BYLAWS
APOLLON SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.36.1
ARTICLES OF AMENDMENT AND RESTATEMENT OF
ARTICLES OF INCORPORATION
HERAKLES SHIPPING CORPORATION
ARTICLES OF INCORPORATION
HERAKLES SHIPPING CORPORATION
The undersigned, the President and the Secretary of Herakles Shipping Corporation, a corporation
incorporated under the laws of the Republic of The Marshall Islands (the “Corporation”),
for the purpose of amending and restating the Articles of Incorporation of the Corporation pursuant
to Sections 88 and 93 of the Business Corporations Act of the Republic of the Marshall Islands,
1990, as amended, hereby certify as follows:
| 1. | The name of the Corporation is HERAKLES SHIPPING CORPORATION | |
| 2. | The Articles of Domestication of the Corporation were filed with the Registrar of Corporations of The Republic of The Marshall Islands on July 2, 2003. | |
| 3. | The purpose of the amendments effected hereby is to replace the Memorandum of Association of the Corporation, which was originally formulated and implemented under and in accordance with the laws of the Cayman Islands as the original domicile of the Corporation, with the following Articles of Incorporation. | |
| 4. | These Articles of Incorporation have been authorized by actions of the Board of Directors and Shareholders of the Corporation. | |
| 5. | The Articles of Incorporation of the Corporation are hereby amended and restated in their entirety as follows: |
| A. | The name of the Corporation is HERAKLES SHIPPING CORPORATION. | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is 50,000 (Fifty Thousand) shares of common stock in registered form with a par value of One US Dollar (US$1.00) per share. Shares shall not be issued in bearer share form. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation. |
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN WITNESS WHEREOF, we have executed this instrument on
the 14th
day of September, 2004.
| HERAKLES SHIPPING CORPORATION |
||||
| By | /s/ Robert G. Shaw | |||
| Robert G. Shaw | ||||
| President | ||||
| HERAKLES SHIPPING CORPORATION |
||||
| By | /s/ Bruce C. Hoag | |||
| Bruce C. Hoag | ||||
| Secretary | ||||
Exhibit 3.36.2
BYLAWS
HERAKLES SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.37.1
ARTICLES OF AMENDMENT AND RESTATEMENT OF
ARTICLES OF INCORPORATION
ACHILLES SHIPPING CORPORATION
ARTICLES OF INCORPORATION
ACHILLES SHIPPING CORPORATION
The undersigned, the President and the Secretary of Achilles Shipping Corporation, a corporation
incorporated under the laws of the Republic of The Marshall Islands (the “Corporation”), for the
purpose of amending and restating the Articles of Incorporation of the Corporation pursuant to
Sections 88 and 93 of the Business Corporations Act of the Republic of the Marshall Islands, 1990,
as amended, hereby certify as follows:
| 1. | The name of the Corporation is ACHILLES SHIPPING CORPORATION | |
| 2. | The Articles of Domestication of the Corporation were filed with the Registrar of Corporations of The Republic of The Marshall Islands on November 11, 2003. | |
| 3. | The purpose of the amendments effected hereby is to replace the Memorandum of Association of the Corporation, which was originally formulated and implemented under and in accordance with the laws of the Cayman Islands as the original domicile of the Corporation, with the following Articles of Incorporation. | |
| 4. | These Articles of Incorporation have been authorized by actions of the Board of Directors and Shareholders of the Corporation. | |
| 5. | The Articles of Incorporation of the Corporation are hereby amended and restated in their entirety as follows: |
| A. | The name of the Corporation is ACHILLES SHIPPING CORPORATION. | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is 50,000 (Fifty Thousand) shares of common stock in registered form with a par value of One US Dollar (US$1.00) per share. Shares shall not be issued in bearer share form. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation. |
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN WITNESS
WHEREOF, we have executed this instrument on the __ day of
September, 2004.
| ACHILLES SHIPPING CORPORATION |
||||
| By | /s/ Robert G. Shaw | |||
| Robert G. Shaw | ||||
| President | ||||
| ACHILLES SHIPPING CORPORATION |
||||
| By | /s/ Bruce C. Hoag | |||
| Bruce C. Hoag | ||||
| Secretary | ||||
Exhibit 3.37.2
BYLAWS
ACHILLES SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.38.1
ARTICLES
OF AMENDMENT AND RESTATEMENT OF
ARTICLES OF INCORPORATION
KYPROS SHIPPING CORPORATION
ARTICLES OF INCORPORATION
KYPROS SHIPPING CORPORATION
The undersigned, the President and the Secretary of Kypros Shipping Corporation, a
corporation incorporated under the laws of the Republic of The Marshall Islands (the
“Corporation”), for the purpose of amending and restating the Articles of Incorporation of
the Corporation pursuant to Sections 88 and 93 of the Business Corporations Act of the
Republic of the Marshall Islands, 1990, as amended, hereby certify as follows:
| 1. | The name of the Corporation is KYPROS SHIPPING CORPORATION |
| 2. | The Articles of Domestication of the Corporation were filed with the Registrar of Corporations of The Republic of The Marshall Islands on October 31, 2003. |
| 3. | The purpose of the amendments effected hereby is to replace the Memorandum of Association of the Corporation, which was originally formulated and implemented under and in accordance with the laws of the Cayman Islands as the original domicile of the Corporation, with the following Articles of Incorporation. |
| 4. | These Articles of Incorporation have been authorized by actions of the Board of Directors and Shareholders of the Corporation. |
| 5. | The Articles of Incorporation of the Corporation are hereby amended and restated in their entirety as follows: |
| A. | The name of the Corporation is KYPROS SHIPPING CORPORATION. | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is 50,000 (Fifty Thousand) shares of common stock in registered form with a par value of One US Dollar (US$1.00) per share. Shares shall not be issued in bearer share form. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation. |
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN WITNESS WHEREOF, we have executed this instrument on the 14th day of
September, 2004.
| KYPROS SHIPPING CORPORATION |
||||
| By: | /s/ Robert G. Shaw | |||
| Robert G. Shaw | ||||
| President | ||||
| KYPROS SHIPPING CORPORATION |
||||
| By: | /s/ Bruce C. Hoag | |||
| Bruce C. Hoag | ||||
| Secretary | ||||
Exhibit 3.38.2
BYLAWS
KYPROS SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit
3.39.1
ARTICLES
OF AMENDMENT AND RESTATEMENT OF
ARTICLES OF INCORPORATION
HIOS SHIPPING CORPORATION
ARTICLES OF INCORPORATION
HIOS SHIPPING CORPORATION
The
undersigned, the President and the Secretary of Hios Shipping Corporation, a
corporation incorporated under the laws of the Republic of The Marshall Islands (the
“Corporation”), for the purpose of amending and restating the Articles of
Incorporation of
the Corporation pursuant to Sections 88 and 93 of the Business Corporations Act of the
Republic of the Marshall Islands, 1990, as amended, hereby certify as follows:
| 1. | The name of the Corporation is HIOS SHIPPING CORPORATION |
| 2. | The Articles of Domestication of the Corporation were filed with the Registrar of Corporations of The Republic of The Marshall Islands on October 31, 2003. |
| 3. | The purpose of the amendments effected hereby is to replace the Memorandum of Association of the Corporation, which was originally formulated and implemented under and in accordance with the laws of the Cayman Islands as the original domicile of the Corporation, with the following Articles of Incorporation. |
| 4. | These Articles of Incorporation have been authorized by actions of the Board of Directors and Shareholders of the Corporation. |
| 5. | The Articles of Incorporation of the Corporation are hereby amended and restated in their entirety as follows: |
| A. | The name of the Corporation is HIOS SHIPPING CORPORATION. | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is 50,000 (Fifty Thousand) shares of common stock in registered form with a par value of One US Dollar (US$1.00) per share. Shares shall not be issued in bearer share form. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation. |
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN WITNESS WHEREOF, we have executed this instrument on the 14th day of
September, 2004.
| HIOS SHIPPING CORPORATION |
||||
| By | /s/ Robert G. Shaw | |||
| Robert G. Shaw | ||||
| President | ||||
| HIOS SHIPPING CORPORATION |
||||
| By | /s/ Bruce C. Hoag | |||
| Bruce C. Hoag | ||||
| Secretary | ||||
Exhibit 3.39.2
BYLAWS
HIOS SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.40.1
ARTICLES OF INCORPORATION
OF
MERIDIAN SHIPPING ENTERPRISES INC.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
MERIDIAN SHIPPING ENTERPRISES INC.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Fifty Thousand (50,000) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 Majuro Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN
WITNESS WHEREOF, I have executed this instrument on
September 12, 2005.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |  |
|||
Exhibit 3.40.2
BYLAWS
MERIDIAN SHIPPING ENTERPRISES INC.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.41.1
ARTICLES OF INCORPORATION
OF
MERCATOR SHIPPING CORPORATION
PURSUANT
TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
MERCATOR
SHIPPING CORPORATION
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Fifty Thousand (50,000) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
Name
|
Post Office Address | |
Majuro Nominees Ltd.
|
P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on September 12, 2005.
| Majuro Nominees Ltd. Incorporator |
||
by: |
 |
|
Exhibit 3.41.2
BYLAWS
MERCATOR SHIPPING CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.42.1
ARTICLES OF INCORPORATION
OF
HORIZON SHIPPING ENTERPRISES CORPORATION
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The
undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporation this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
HORIZON SHIPPING ENTERPRISES CORPORATION
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Fifty Thousand (50,000) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a Corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O.Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. | |
| IN WITNESS WHEREOF, I have executed this instrument on October 12, 2005. |
| Majuro Nominees Ltd. Incorporator |
||||
| by: |  |
|||
Exhibit 3.42.2
BYLAWS
HORIZON SHIPPING ENTERPRISES CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.43.1
ARTICLES OF INCORPORATION
OF
STAR MARITIME ENTERPRISES CORPORATION
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
STAR MARITIME ENTERPRISES CORPORATION
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, subcharter, sell, build, and repair steamships, motorships, tankers, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including aircraft, landcraft, and any and all means of conveyance and transportation by land, water or air, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. | ||
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. |
| (5) | To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic, or government or colony or any dependency thereof. | ||
| (6) | To appoint or act as an agent, broker, or representative, general or special, in respect of any or all of the powers expressed herein or implied hereby; to appoint agents, brokers or representatives. | ||
| (7) | To carry on its business, to have one or more offices, and to exercise its powers in foreign countries, subject to the laws of the particular country. | ||
| (8) | To borrow or raise money and contract debts, when necessary, for the transaction of its business or for the exercise of its corporate rights, privileges or franchise or for any other lawful purpose of its incorporation; to draw, make accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured. | ||
| (9) | To give a guarantee not in furtherance of corporate purposes when authorized by majority vote of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be secured by mortgage or pledge or creation of security interest in corporate property. | ||
| (10) | To purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and personal property of every class and description. | ||
| (11) | To apply for, secure by purchase or otherwise hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent, patent rights, licenses, privileges, inventions, improvements and processes, copyrights, trademarks, and trade names, relative to or useful in connection with any business of this corporation. |
| (12) | To purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner, sell, distribute, or otherwise dispose of and generally to deal in, bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other instruments or interests in the nature of securities created or issued by any person, partnership, firm, corporation, company, association, or other business organizations, foreign or domestic, or by any domestic or foreign governmental, municipal or other public authority, and exercise as holder or owner of any such securities all rights, powers and privileges in respect thereof; to do any and all acts and things for the preservation, protection, improvement and enhancement in value of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating or responsible for any such securities; to acquire or become interested in any such securities by original subscription, underwriting, loan, participation in syndicates or otherwise, and irrespective of whether such securities be fully paid or subject to future payments; to make payments thereon as called for or in advance of calls or |
| otherwise and to underwrite or subscribe for the same conditionally or otherwise and either with a view to resale or investment or for any other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or otherwise secure trading privileges on any board of trade, exchange or other similar institution where any securities are dealt in and to comply with the rules of any such institution; as used herein the term “securities” shall include bonds, debentures, notes, evidences of indebtedness, shares of stock, warrants, options, rights, certificates, receipts or any other instruments or interests in the nature of securities of any kind whatsoever which a corporation organized under the Associations Law of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by whomsoever issued or created; the term “person” shall include any person, partnership, firm, corporation, company, association or other business organization, domestic or foreign governmental, municipal or other public authority. |
| (13) | To purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export, sell, distribute or otherwise dispose of, and generally to deal in, commodities and products (including any future interest therein) and merchandise, articles of commerce, materials, personal property and real property of every kind, character and description whatsoever, and any interest therein, either as principal or as a factor or broker, or as commercial, sales, business or financial agent or representative, general or special, or, to the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the account of any domestic or foreign person or public authority, and in connection therewith or otherwise to acquire trading privileges on any board of trade, exchange or other similar institution where any such products or commodities or personal or real property are dealt in, and to comply with the rules of any such institution. | ||
| (14) | To engage in any mercantile, manufacturing or trading business of any kind or character whatsoever and to do all things incidental to such business. | ||
| (15) | To carry on the business of warehousing and all business incidental thereto, including the issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon the security of goods warehoused. | ||
| (16) | To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build, erect, construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams, stores and dwellings and all other property and things of whatsoever kind and nature, real, personal or mixed, tangible or intangible, suitable or necessary in connection with any of the purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties. | ||
| (17) | To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any way permitted by law, the formation, merger, reorganization or liquidation of any person. |
| (18) | To acquire all or any part of the good will, rights, property and business of any person, heretofore or hereafter engaged in any business similar to any business which the Corporation has power to conduct, to pay for the same in cash or in the securities of the Corporation or otherwise, to hold, utilize and in any manner dispose of the whole or any part of the rights and property so acquired, and to assume in connection therewith any liabilities of any such person, and conduct in any lawful manner the whole or any part of the business thus acquired. | ||
| (19) | To make, enter into and carry out any arrangements with any person or public authority, to obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers, rights, privileges, immunities, franchises, guarantees, grants and concessions, to acquire, hold, own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any business dependent thereon provided it is such a business as this Corporation may engage in; and to promote, cause to be formed and aid in any way any person for any such purpose. | ||
| (20) | To make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts, or any other receipts for, or certificates of deposit for, any securities or interest therein; to acquire and exercise any proxies or powers of attorney or other privileges pertaining to any securities or interest therein. | ||
| (21) | To render advisory, investigatory, supervisory, managerial or other like services, permitted to corporations, in connection with the promotion, organization, reorganization, recapitalization, liquidation, consolidation or merger of any person or in connection with the issuance, underwriting, sale or distribution of any securities issued in connection therewith or incidental thereto; and to render general investment advisory or financial advisory or managerial services to any person or public authority. | ||
| (22) | To cause or allow the legal title, or any legal or equitable estate, right or interest in any property, whether real, personal or mixed, owned, acquired, controlled or operated by the Corporation, to remain or to be vested or registered in the name of or operated by, any person, formed or to be formed, either upon trust for or as agents, or nominees of, this Corporation, or upon any other proper terms or conditions which the Board of Directors may consider for the benefit of the Corporation. | ||
| (23) | To enter into any lawful arrangements for sharing profits, union of interest, reciprocal concession or cooperation with any person or public authority, in the carrying on of any similar business which the Corporation is authorized to carry on, or any business or transaction deemed necessary, convenient or incidental to carrying out an of the purposes of the Corporation. | ||
| (24) | To the extent suitable or necessary to carry out any of the purposes hereinbefore or hereinafter set forth, but only in so far as the same may be permitted to be done |
| by a corporation organized under the Associations Law of the Republic of the Marshall Islands, to buy, sell and deal in foreign exchange. | |||
| (25) | To invest its uninvested funds and/or surplus from time to time to such extent as the Corporation may deem advisable in securities or in call and/or in time loans or otherwise, upon such security, if any, as the Board of Directors may determine, but the Corporation shall not engage in the banking business or exercise banking powers, and nothing in these Articles contained shall be deemed to authorize it to do so. | ||
| (26) | To issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock or any securities of the Corporation in the manner and to the extent now or hereafter permitted by the Associations Law of the Republic of the Marshall Islands; and provided further that shares of its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor counted as outstanding for the purpose of any stockholders’ quorum or vote. | ||
| (27) | To act in any and all parts of the world in any capacity whatsoever as agent, broker, or representative, general or special, for any person or public authority. | ||
| (28) | To do any and all of the acts and things herein set forth, as principal, factor, agent, contractor, or otherwise, either alone or in company with others; and in general to carry on any other similar business which is incidental or conducive or convenient or proper to the attainment of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to exercise any or all of its corporate powers and rights. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Fifty Thousand (50,000) registered shares with a par value of One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |||
| Majuro Nominees Ltd. | P.O. Box 1405 Majuro Marshall Islands |
| G. | The board of directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. | |
| IN WITNESS WHEREOF I have executed this instrument on July 17, 2006. |
| Majuro Nominees Ltd. Incorporator |
||||
| by: | ||||
Exhibit 3.43.2
BYLAWS
STAR MARITIME ENTERPRISES CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.44.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
ARTICLES OF INCORPORATION
NAVIOS HANDYBULK INC.
The undersigned, the President and the Secretary of Navios Handybulk Inc., a corporation
incorporated under the laws of the Republic of The Marshall Islands
(the “Corporation”), for
the purpose of amending and restating the Articles of Incorporation of the Corporation pursuant
to Sections 88 and 93 of the Associations Law of the Republic of the Marshall Islands, 1990, as
amended, hereby certify as follows:
| 1. | The name of the Corporation is NAVIOS HANDYBULK INC. | |
| 2. | The Articles of Incorporation of the Corporation were filed with the Registrar of Corporations of The Republic of The Marshall Islands on December 11, 1998, which is the date upon which existence of the Corporation commenced. | |
| 3. | The Articles of Merger of the Corporation were filed on December 23, 1998. | |
| 4. | The Amended and Restated Articles of Incorporation were filed with the Registrar of Corporations on August 31, 2000. | |
| 5. | The purposes of the amendments effected hereby are to eliminate certain restrictions regarding the management of the Corporation, including the number of directors, the specification of certain corporate actions for which approval of at least four of the directors of the Corporation was required, the method of election of directors and the quorum for shareholders’ and directors’ meetings. | |
| 6. | This Amendment and Restatement of the Articles of Incorporation has been authorized by actions of the Board of Directors and Shareholders of the Corporation. | |
| 7. | The Articles of Incorporation as heretofore amended and restated are hereby further amended in their entirety and restated as follows: |
| A. | The name of the Corporation is NAVIOS HANDYBULK INC. | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is 500 (Five Hundred) shares in registered form with a par value of Ten Cents ($0.10) per share. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation | ||
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN
WITNESS WHEREOF, we have executed this instrument on the 21st day of
March, 2003.
| NAVIOS HANDYBULK INC. | NAVIOS HANDYBULK INC. | |||||
| By: | /s/ Anthony R. Whitworth | By: | /s/ Bruce C. Hoag | |||
| Anthony R. Whitworth, | Bruce C. Hoag, | |||||
| President | Secretary | |||||
Exhibit 3.44.2
BYLAWS
NAVIOS HANDYBULK INC.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law or by the Articles of Incorporation of the Corporation, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the shareholders. At any
meeting of shareholders, each shareholder entitled to vote any shares on any manner to be voted
upon at such meeting shall be entitled to one vote on such matter for each such share, and may
exercise such voting right either in person or by proxy. Any action which may be taken at a meeting
of shareholders, may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. For the purpose of
determining shareholders entitled in connection with the following, the Board of Directors may fix
a date not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of any other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
2
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that, subject to
the limitations of law, only the Executive Committee may have and exercise the powers of the Board
of Directors. Members of the Executive Committee and any other committee shall hold office for
such periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the Board
when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
4
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.45.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
ARTICLES OF INCORPORATION
NAVIOS INTERNATIONAL INC.
The undersigned, the President and the Secretary of Navios International Inc., a corporation
incorporated under the laws of the Republic of The Marshall Islands (the “Corporation”), for the
purpose of amending and restating the Articles of Incorporation of the Corporation pursuant to
Sections 88 and 93 of the Associations Law of the Republic of the Marshall Islands, 1990, as
amended, hereby certify as follows:
| 1. | The name of the Corporation is NAVIOS INTERNATIONAL INC. | |
| 2. | The Articles of Incorporation of the Corporation were filed with the Registrar of Corporations of The Republic of The Marshall Islands on December 11, 1998, which is the date upon which existence of the Corporation commenced. | |
| 3. | The Articles of Merger of the Corporation were filed on December 23, 1998. | |
| 4. | The Amended and Restated Articles of Incorporation were filed with the Registrar of Corporations on August 31, 2000. | |
| 5. | The purposes of the amendments effected hereby are to eliminate certain restrictions regarding the management of the Corporation, including the number of directors, the specification of certain corporate actions for which approval of at least four of the directors of the Corporation was required, the method of election of directors and the quorum for shareholders’ and directors’ meetings. | |
| 6. | This Amendment and Restatement of the Articles of Incorporation has been authorized by actions of the Board of Directors and Shareholders of the Corporation. | |
| 7. | The Articles of Incorporation as heretofore amended and restated are hereby further amended in their entirety and restated as follows: |
| A. | The name of the Corporation is NAVIOS INTERNATIONAL INC. | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is 500 (Five Hundred) shares in registered form with a par value of Ten Cents ($0.10) per share. | ||
| E. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the Bylaws of the Corporation. | ||
| F. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
IN
WITNESS WHEREOF, we have executed this instrument on the 21st day of March, 2003.
| NAVIOS INTERNATIONAL INC. | NAVIOS INTERNATIONAL INC. | |||||
| By: | /s/ Anthony R. Whitworth | By: | /s/ Bruce C. Hoag | |||
| Anthony R. Whitworth, | Bruce C. Hoag, | |||||
| President | Secretary | |||||
Exhibit 3.45.2
BYLAWS
NAVIOS INTERNATIONAL INC.
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.46.1
ARTICLES OF INCORPORATION
OF
NOSTOS SHIPMANAGEMENT CORP.
OF
NOSTOS SHIPMANAGEMENT CORP.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
NOSTOS SHIPMANAGEMENT CORP.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality of the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, vessels, sailing vessels, tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever, including aircraft, landcraft, and any and all means of conveyance and transportation by land, water or air, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish, and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, shipbrokers, customhouse brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O Box 1405 Majuro Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall being upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN
WITNESS WHEREOF I have executed this instrument on July 4, 2007.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.46.2
BYLAWS
NOSTOS SHIPMANAGEMENT CORP.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.47.1
ARTICLES OF INCORPORATION
OF
PORTOROSA MARINE CORP.
OF
PORTOROSA MARINE CORP.
PURSUANT TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The
undersigned, for the purpose of forming a corporation pursuant to the
provisions of the Marshall
Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with the
Registrar of Corporations this instrument for that purpose, as follows:
| A. | The name of the Corporation shall be: |
PORTOROSA MARINE CORP.
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act and without in any way limiting the generality the foregoing, the corporation shall have the power: |
| (1) | To purchase or otherwise acquire own, use, operate, pledge, hypothecate, mortgage, lease, charter, sub-charter, sell, build, and repair steamships, motorships, tankers, vessels, sailing vessels, tugs, lighters, barges and all other vessels and craft of any and all motive power whatsoever, including aircraft, landcraft, and any and all means of conveyance and transportation by land, water or air, together with engines, boilers, machinery equipment and appurtenances of all kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto appertaining and belonging, together with all materials, articles, tools, equipment and appliances necessary, suitable or convenient for the construction, equipment, use and operation thereof; and to equip, furnish and outfit such vessels and ships. |
| (2) | To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight, goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of the world and to engage generally in waterborne commerce. | ||
| (3) | To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all kinds, and any property, real, personal and mixed, in connection therewith. | ||
| (4) | To act as ship’s husband, shipbrokers, customhouse brokers, ship’s agents, manager of shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship chandlers, and general traders. |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Five Hundred (500) registered and/or bearer shares without par value. | |
| The Corporation shall mail notices and information to holders of bearer shares to the address provided to the Corporation by the shareholder for that purpose. | ||
| The holder of a stock certificate issued to bearer may cause such certificate to be exchanged for another certificate in his name for a like number of shares, and the holder of shares issued in the name of the owner may cause his certificate to be exchanged for another certificate to bearer for a like number of shares. |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | |
| F. | The name and address of the incorporator is: |
| Name | Post Office Address | |
Majuro Nominees Ltd.
|
P.O Box 1405 Majuro Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. | |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN
WITNESS WHEREOF I have executed this instrument on July 4, 2007.
| Majuro Nominees Ltd. Incorporator |
||||
| by: | |
|||
Exhibit 3.47.2
BYLAWS
PORTOROSA MARINE CORP.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such
other places within or without the Marshall Islands as the Board of Directors may from time to
time appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders
owning a majority in amount of capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held at
such place and on a date and at such time as may be designated in the notice thereof by the officer
of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at
least a majority of the shares issued and outstanding and entitled to vote at such meetings in
order to constitute a quorum, but if less than a quorum is present, a majority of those shares
present either in person or by proxy shall have power to adjourn any meeting until a quorum shall
be present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors may
fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by a
vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also
a director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of
such special meeting. Special meetings of the Board shall be held on a date and at such time and
at such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours
prior to such meeting, unless the notice is given orally or delivered in person, in which case
it shall be given at least twenty-four hours prior to such meeting. For the purpose of this
section, notice shall be deemed to be duly given to a director if given personally (including by
telephone) or if such notice be delivered to such director by mail, E-mail, telefax, cablegram,
telex or teleprinter to his/her last known address. Notice of a meeting need not be given to any
director who submits a signed waiver of notice, whether before or after the meeting, or who
attends the meeting without protesting, prior to the conclusion thereof, the lack of notice to
him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing
thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from
time to time, in its discretion, fix the amounts which shall be payable to members of the Board
of Directors and to members of any committee, for attendance at the meetings of the Board or of
such committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have
and may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the
seal of the Corporation to be affixed to all papers which may require it. In addition, the Board
of Directors may, by resolution or resolutions passed by a majority of the entire Board,
designate from among its members other committees to consist of one or more directors of the
Corporation, each of which shall perform such function and have such authority and powers as
shall be delegated to it by said resolution or resolutions or as provided for in these Bylaws,
except that only the Executive Committee may have and exercise the powers of the Board of
Directors. Members of the Executive Committee and any other committee shall hold office for such
periods as may be prescribed by the vote of the majority of the entire Board of Directors,
subject, however, to removal at any time by the vote of the Board of Directors. Vacancies in the
membership of such committees shall be filled by vote of the Board of Directors. Committees may
adopt their own rules of procedure and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings and report the same to the
Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary
and a Treasurer, and may appoint a President as well as such other officers as it may deem
necessary. Officers may be of any nationality, need not be residents of the Marshall Islands
and may be, but are not required to be, directors. Officers of the Corporation shall be
natural persons except the Secretary may be a corporate entity. Any two or more offices may
be held by the same natural person.
The officers shall be appointed annually by the Board of Directors at its first
meeting following the annual election of directors, but in the event of the failure
of the Board to so appoint any officer, such officer may be appointed at any
subsequent meeting of the Board of Directors. The salaries of the officers and any
other compensation paid to them shall be fixed from time to time by the Board of
Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors
following the next annual election of directors and until his/her successor shall
have been duly appointed and qualified, except in the event of the earlier
termination of his/her term of office through death, resignation, removal or
otherwise. Any officer may be removed by the Board at any time with or without
cause. Any vacancy in an office may be filled for the unexpired portion of the term
of such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together
with the powers and duties usually incident to the office of President, except as
specifically limited by appropriate written resolution of the Board of Directors and shall
have such other powers and perform such other duties as may be assigned to him/her by the
Board of Directors. The President shall preside at all meetings of shareholders at which
he/she is present and if, in the case of the President, he/she is a director, at all meetings
of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall
deposit the same or cause the same to be deposited in the name of the Corporation in such
depositories as the Board of Directors may designate, shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, shall have supervision over the
accounts of all receipts and disbursements of the Corporation, shall, whenever required by
the Board, render or cause to be rendered financial statements of the Corporation, shall have
the power and perform the duties usually incident to the office of Treasurer; and shall have
the powers and perform such other duties as may be assigned to him/her by the Board of
Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have
supervision over the giving and serving of notices of the Corporation; shall be the
custodian of the corporate records and of the corporate seal of the Corporation; shall be
empowered to affix the corporate seal to those documents, the execution of which, on behalf
of the Corporation under its seal, is duly authorized and when so affixed may attest the
same, and shall exercise the powers and perform such other duties as may be assigned to
him/her by the Board of Directors or the President. If the Secretary is a Corporation, the
duties of the Secretary may be carried out by any duly authorized representative of such
corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4
of this Article shall exercise such powers and perform such duties as may be assigned to
them by the Board of Directors or by the President.
Section 6.
Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of
Directors may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make such
rules and regulations as they may deem expedient concerning the issuance, registration and transfer
of certificates representing shares of the Corporation’s stock, and may appoint, transfer agents
and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its discretion, and as a
condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1.
Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2.
By the Directors. If the Articles of Incorporation so provide, these Bylaws may be
amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.48.1
NOTARIA CUARTA
DEL CIRCUITO DE PANAMA
PUBLIC DEED NUMBER SEVEN HUNDRED FORTY TWO (742)
By which
the ARTICLES OF INCORPORATION of WHITE NARCISSUS MARINE S.A., are recorded.
Panama,
January 29, 2003.
ARTICLES OF INCORPORATION OF WHITE NARCISSUS MARINE S.A.
Organized under the General Corporation Law of the Republic of Panama. We
the undersigned, JOSE EUGENIO SILVA, clerk, with Personal Identity Card Nr.
8-225-1020 and LESLIE BARKEMA DE GIRON, secretary, with Personal Identity Card
Nr. 8-219-1965, both of legal age, Panamanian, married, resident of Panama
City, wishing to form a stock corporation pursuant to the provisions of the
General Corporation Law of the Republic of Panama, Law 32 of 1927, do hereby
enter into an agreement of organization of such corporation as follows:
FIRST ARTICLE: NAME OF THE CORPORATION
The name
of the corporation is WHITE NARCISSUS MARINE S.A.
SECOND ARTICLE: PRINCIPAL OBJECT
The principal object of the corporation is to engage in the Republic of Panama or in any
other country, colony or foreign territory in the purchasing, selling, loading, shipowning and
administration of ship or vessels; the operation of maritime lines,
agency, broker, ship owners, shiping agencies, and chartering brokers, and any
kind of businesses related to shipping. The corporation could engage also in
fulfilling all the activities, contracts, operations, businesses or
transactions allowed by Law to corporations. For such purpose the corporation
shall have, in addition to the powers conferred by Law, the
following:
a) To sue and be sued in lawsuit;— b) To adopt and use a corporate seal and alter it at pleasure;— c) To acquire, construct, purchase, hold, use and convey real and personal property of every kind, and make and accept pledges, mortgages, leases, liens and encumbrances of every kind;— d) To appoint officers and agents;— e) To enter into contracts of all kinds;— f) To issue By-laws not inconsistent with the laws in force, for the management, regulation and government of its business and properties, for the transfer of
a) To sue and be sued in lawsuit;— b) To adopt and use a corporate seal and alter it at pleasure;— c) To acquire, construct, purchase, hold, use and convey real and personal property of every kind, and make and accept pledges, mortgages, leases, liens and encumbrances of every kind;— d) To appoint officers and agents;— e) To enter into contracts of all kinds;— f) To issue By-laws not inconsistent with the laws in force, for the management, regulation and government of its business and properties, for the transfer of
NOTARIA CUARTA DEL CIRCUITO DE PANAMA
FIFTH ARTICLE: STOCK REGISTER
The Stock Registry Book required by law shall be kept in Panama or any country in the
world, or in the place fixed by the By-Laws of the Board of Directors.
SIXTH ARTICLE: DOMICILE
The
Corporation shall have its domicile in the city of Panama, Republic of Panama, but the
Board of Directors may establish branches, offices or agencies in any other place within
Panama or abroad, and appoint legal representatives anywhere in the world.
SEVENTH ARTICLE: SHAREHOLDERS MEETINGS
The meeting of stockholders may be held in the Republic of Panama or any other
country, on the time, date and place fixed by resolution of the Board
of Directors. Nonetheless, a resolution adopted in any meeting in which all
shareholders are present shall be valid; and
those resolutions adopted in a meeting in which there is quorum, having all absent
shareholders waived their right to attend, shall be valid as to the ends listed in that waiver.
At all meetings of stockholders any stockholder may be represented and vote by
proxy who need not be a shareholder, and who may be appointed by an instrument
in writing, public or private.— a) The special meetings of shareholders shall
be called by the Board of Directors,
and when so requested by shareholders representing at least one twentieth (20th) of all
shares issued and outstanding, must be called by the President or a VicePresident, as the
case may be, for the purpose or purposes stated in the request.— b) Quorum. At
all meetings of shareholders, the presence of at least a half plus
one of the
shares issued and outstanding shall be necessary to constitute a quorum.— c)
Voting. Except as otherwise determined by the Law, the Articles of Incorporation
and the by-laws, resolutions shall be approved by a majority vote of the shares
present at a meeting.— d) Any business that may be transacted at the annual
meeting may be transacted at a special meeting if included in the notice. — e)
The following shall be duties of the Regular General Meeting of Shareholders:
One: To elect the members of the Board of Directors who shall remain in office
for one year or until their successors are elected and qualified. In electing
the Board of Directors, the Shareholders’ Meeting may also elect the officers of
the corporation; — Two: To discuss and
approve the Balance Sheet.— Three: To fix compensation for the members of the Board of
Directors when necessary;— Four: To amend this deed of incorporation and the corporate
NOTARIA
CUARTA DEL CIRCUITO DE PANAMA
compromise with arbitrators bound by legal principles or amicable compounders.— Two. To
appoint officers, managers, representatives or general or special attorneys as well as agents
and mandataries of any kind, both in the Republic of Panama or in any other country.—
Three: To appoint the successor to every member of the Board who may by
resignation or death, cease in his office, before the end of the annual period
for which he was elected.— Four: To dispose of, assign, transfer, waive, assess,
mortgage, and lease, in whole or in part, the corporation properties and rights
and post bonds.— Five: To agree on the calling of Regular or Special General
Shareholders’ Assemblies.— Six: To submit to the General Assembly a summary
statement of the Operation of the Company.— Seven: To perform and carry out all
acts and things which de facto and de jure may be convenient for the effective
management of the corporate properties, assets, rights or interests, limited
only by those which, according to this instrument, are expressly reserved to the
Regular, General or Special Shareholders Assemblies. And, Eight: To comply with
and enforce the decisions and resolutions of the Regular and Special Shareholders’ Assemblies.
NINTH ARTICLE: OFFICERS
The Officers of the corporation, who shall be elected by ‘the Board of
Directors, may be a President, a Vicepresidents, a Secretary and a Treasurer.
The Board of Directors may from time to time, elect additional Vice presidents,
Assistant Secretaries and Assistant Treasurers and other additional officers and
appoint Agents and Attorneys with the powers it may deem convenient. Any officer
may exercise more than one office.— a) Qualification. Officers
do not need to be shareholders or Directors.— b) The term, powers and
authorizations of the officers shall be determined by the Board of
Directors.—
c) The President shall be the representative of the corporation but he may, upon
absence or inability, be represented by the Vicepresident, and if there is more than one, by order of seniority, and by the Treasurer if
there is no Vice President, and by the Secretary if all are absent and the Board of Directors
may confer its representation on any other officer or person.
TENTH ARTICLE: AMENDMENTS
This Charter may be amended by resolution or resolutions setting forth such amendment
adopted by the majority of all shares issued and outstanding at a special meeting called for
that purpose or at a regular meeting if due notice has been given.
Exhibit
3.49.1
|
MEMORANDUM OF ASSOCIATION | 20 OCT 2005 | ||
| OF | ||||
| HESTIA SHIPPING LTD. |
1. NAME
The name of the Company is HESTIA SHIPPING LTD.
2. PRIVATE COMPANY
The Company shall be a single member, private Company and registered under the Merchant
Shipping (Shipping Organisations — Private Companies) Regulations 2004, Legal Notice 223,
and qualifying as a shipping organisation in terms of Article 84Z of the Merchant Shipping
Act.
3. REGISTERED OFFICE
The registered office of the Company shall be situate at 13/16, Vincenti Buildings, Strait
Street, Valletta, Malta or at such other address as may be determined by the Board of
Directors of the Company.
4. OBJECTS
The main object of the Company is:
(a) To buy or acquire on any title, sell, operate, charter on a bare boat or on a fully
equipped basis or exchange, administer, and manage ships, yachts, boats and any other
vessel, and to register same under and in accordance with the Merchant Shipping Act,
1973 or in any jurisdiction whatsoever, as well as to enter into charters and
contracts of affreightment for carriage of cargoes world wide.
Other objects shall be the following:
(b) To obtain loans, overdrafts, credits and other financial and monetary facilities either alone
or jointly and severally with third parties for the purposes of purchasing, selling, chartering,
hiring and generally operating ships and to provide by way of security for the repayment of the
principal and interest thereon, and the fulfillment of any obligations, a hypothec, privilege, lien
and/or mortgage over the assets and/or seacraft of the Company.
1
(c) To guarantee and or undertake the repayment of any indebtedness of any
person, corporation or firm of any kind, whether associated to or forming part of the same
group as the company or not, although not in furtherance of its corporate purpose and
although not for the direct or indirect benefit of the Company and to secure such
guarantee and or undertaking by a mortgage, charge, hypothec, pledge or the creation of a
security interest in the company’s vessels or sea-craft and/or any part of the corporate
assets or property or any interest therein wherever situated.
(d) To do all other things as may be considered conducive or ancillary to the
fulfillment of the foregoing objects or any of them and in particular to buy, sell,
charter, own and otherwise operate any vessel end to hold shares or other equity interests
in other companies with similar objects.
5. LIMITED LIABILITY
The liability of its single member is limited to the unpaid capital subscribed by
such single member in the Company.
6. CAPITAL
The authorised share capital shall be of Lm500 (five hundred Maltese Liri) divided into
500 (five hundred) Ordinary shares of Lm1 (one Maltese Lira) each.
The issued
share capital shall be of Lm500 (five hundred Maltese Liri) divided into
500 (five hundred) Ordinary shares of Lm1 (one Maltese Lira) each. Each issued share shall
be 20% paid up.
7. SUBSCRIBER
NAVIOS CORPORATION
Trust Company Complex,
Ajeltake Island, PO Box 1405
Majuro,
Marshall Islands
Trust Company Complex,
Ajeltake Island, PO Box 1405
Majuro,
Marshall Islands
Incorporated
on 19th August 1999 with incorporation number 2885
Holder of 500 ordinary shares of Lm1 each, 20 per cent paid up.
2
8. DIRECTORS
(a) The Company’s affairs shall be entrusted to a Board of Directors which shall consist
of not less than one (1) and not more than five (5) Directors.
(b) The first Director of the Company shall be:
Mr. Robert G Shaw holder of UK Passport Number 702966801 with registered address at
20 Marshall Street, Suite 200, South Norwalk, CT 06854, USA.
(c) Any one director is empowered to appoint another person as the Company’s attorney with
full power of substitution to enter into any agreement, whether by public deed or by
private writing or instrument on behalf of the Company and to sign and execute any
document on behalf of the Company, including in particular any loan agreement, deed of
covenant, mortgage form, or other related documents in connection with the raising of
loans (a) for the purchase and operation of ships by the Company and/or (b) for the giving
of collateral security for the purchase and operation of ships by any other company and
any bill of sale in connection with the purchase and/or sale by the Company of any ship,
vessel or sea-craft.
(d) The legal and judicial representation of the Company shall be vested in any ONE
Director or, in addition and without prejudice to the aforesaid, the Board of Directors
may, from time to time, appoint any other person or persons to represent the Company in a
particular case or cases or classes of cases.
(e) Any Power of Attorney issued by the company shall be executed by any director or
any person authorised by the board of directors for the purpose and such power of attorney
shall be considered as executed by the company.
(f) A director of the Company is empowered to appoint another person in his stead as an
alternate director by means of a written instrument and such person so appointed shall
enjoy all the powers and rights of the said Director including the right to attend and
vote at meetings of the Board of Directors. Such alternate Director shall have a vote or
votes in addition to his own vote, if any. Written instrument includes a telefax, telex,
or e-mail message.
3
9. SPECIAL ATTORNEYS
Without prejudice to the rights and powers conferred upon the Board of Directors in
terms of law or by virtue of any of the provisions contained in the foregoing Clauses, Dr.
Mark Camilleri and/or Dr. Benedict Delia and/or Mr. Bernard Zammit and/or Mr. Robert
Radmilli and/or Ms Tania Attard and/or Ms Joanne Baldacchino and/or
Ms Rodianne Farrugia
all of 13/16, Vincenti Buildings, Strait Street, Valletta, Malta, are hereby jointly and
severally authorised and empowered to act on behalf of the Company for the purpose of
registering, whether provisionally and/or permanently, any boat,
ship, vessel or other
sea-craft, under the Malta Flag, and, but without prejudice to the generality of the
foregoing, to pay all fees relative to such registration, to make any declarations that
may be necessary on behalf of the Company, to apply to any Competent Authority on behalf
of the said Company for any exemption, licence or permit, and to take all such steps, to
do all such things, sign, execute and deliver all such acts, deeds or documents as may be
necessary or conducive for the better fulfillment of all or any of the powers conferred
above.
To sign, execute, deliver any and all documents including but not limited to Loan
Agreements, Deed of Covenants, Statutory Mortgage/s and to agree to the terms and
conditions in the form and substance as any Attorneys in his/their absolute discretion
approve and any amendments thereto.
For any or all of the purpose mentioned herein and as and when the Attorney(s) may deem
necessary or expedient to appear before and make applications to Registrars, Consuls,
Consular Agents, Commissioners, Deputy Commissioners, Harbour Masters, Port Officers,
Maritime Administrations, Public Registry Officials, Notaries, Customs and Excise and any
other authorities.
The said Attorneys are jointly and severally empowered to sign, execute and deliver any
act, deed or document and generally to do or perform any act, deed or thing which may be
necessary or conducive to effect the deletion from the Maltese Registry of Shipping of the
company’s Maltese-registered vessel/s and accordingly to obtain the issuance of the
relative Closed Transcript/s of Registry in terms of law.
Furthermore the said Attorneys are jointly and severally empowered to do the following on
behalf of the Company:
a. to sign and submit the Company’s Annual Return to the Registrar of Companies in Malta.
b. to sign and submit the Company’s Tax Return and any other supporting documents as may
be required to the Commissioner of Inland Revenue in Malta.
c. to pay any fees, penalties or any other dues or charges relative to the above returns.
d. to make any declaration, do all such things, and to sign, execute and deliver any
other act, deed or document that may be necessary in furtherance of any of the above named
powers.
4
We, the several persons whose names and addresses are subscribed are desirous of being
formed into a Company in pursuance of this Memorandum of Association, and we respectively
agree to take the number of shares in the capital of the Company set opposite our
respective names.
| /s/ Dr. Mark Camilleri | ||||
| Signed by | ||||
| Dr. Mark Camilleri LL.D. Attorney in fact NAVIOS CORPORATION |
||||
5
ARTICLES OF ASSOCIATION
OF
HESTIA SHIPPING LTD.
1. PRELIMINARY
Regulations
for the Management of a Private Company
The Company is established as a single member, private company as defined in the Merchant
Shipping (Shipping Organisations — Private Companies) Regulations 2004, Legal Notice 223
(hereinafter called the “Regulations”) and accordingly:
| (i) | the right to transfer shares is restricted in the manner hereinafter prescribed; | ||
| (ii) | the number of members of the company is limited to one; | ||
| (iii) | the invitation to the public to subscribe to shares or debentures of the company is prohibited; | ||
| (iv) | the company shall not have the power to issue shares to bearer; and | ||
| (v) | the number of persons holding debentures of the company is limited to fifty. |
Regulations
for the Management of a Limited Liability Company
The regulations contained in Part I of the First Schedule of the Regulations shall apply,
save as amended by these Articles and subject to Regulations 1, 2, and 3 of Part II of
the Schedule.
2. RESOLUTIONS
A resolution in writing signed by:
(a) the sole member or
(b) all the Directors, or if there is only one, the Sole Director, appearing as
directors of the company from time to time in the public register of the company
at the Registry of Companies,
shall be valid and effectual as if it had been passed at a meeting of the relevant body
duly convened and held.
Several distinct copies (including fax copies) of the same document or resolution
signed by the sole member or directors shall when placed together constitute one writing
for the purposes of this regulation.
6
3. BORROWING POWERS
Any Director may from time to time borrow or raise any sum or sums of money upon any terms
as to interest or otherwise as they may deem fit, and for the purpose of securing the same
and interest, or for any other purpose, grant any mortgage or hypothec on any of the
assets of the company and/or create and issue any perpetual or redeemable debentures or
debenture stock or charge on the undertaking or the whole or any part of the property,
present or future; and any debentures, debenture stock and other securities may be issued
at a discount, premium or otherwise, and with any special privileges as to redemption,
surrender, drawing, allotments of shares, attending and voting at general meetings of the
Company, appointment of Directors and otherwise.
4. WINDING-UP
If the Company shall be wound up the liquidator may, with the sanction of an extraordinary
resolution of the Company and any other sanction required by Regulations, divide amongst
the members in specie or in kind the whole or any part of the assets of the Company
(whether they shall consist of property of the said kind or not) and may, for such
purpose, set such value as he deems fair upon any property to be divided as aforesaid and
may determine how such division shall be carried out as between the numbers of different
classes of members. The liquidator, with the like sanction, shall think fit, but so that
no member shall be compelled to accept any shares or other securities whereon there is any
liability.
5. PROXIES
Proxies may be given by means of a telex, telefax or cable and the person so appointed
shall enjoy all the rights of the person issuing such proxy, provided the veracity of the
source of the telex, telefax or cable is confirmed or accepted by the directors.
6. NOTICE
Any notice must be served by registered post or telex or telefax, and shall be deemed
to have been served in the case of registered post on the day immediately following that
on which it was posted and in the case of a telex or a telefax on the day of transmission,
and in proving such service it shall be sufficient to prove that the notice was addressed
properly and posted or transmitted to such telex or telefax number as may be notified by
the shareholder and directors of the company.
A registered member for the time being of the Company shall be entitled to receive
the notice of general meeting.
7
7. MEETINGS BY TELEPHONE
It shall be permissible for a person to participate at a meeting of the Board of
Directors or at any General meeting by means of a telephone link provided the member or
directors agree. The Chairman, in such cases, shall sign on behalf of the person
participating by telephone and shall declare the fact that all persons present have
agreed to such participation.
8.
PLEDGING OF SECURITIES
(a) The single member may enter into any agreement relating to the pledging of his/ its
shares or the creation of any rights in connection with the said shares for any reason he
may deem fit and with such third parties as he may deem appropriate.
(b) The holders of other securities issued by the Company may enter into any
agreement relating to the pledging of their securities or the creation of any rights in
connection with the said securities for any reason they may deem fit and with such third
parties as they deem appropriate.
(c) Upon the Company being notified of such a pledge agreement, the Company shall
record that fact in its register of members or debentures and the Company shall recognize
all rights validly granted to any third parties and shall act according to and
consistently with the terms of such agreement in all matters.
(d) Insofar as and to the extent that such a pledge agreement validly vests third parties
with rights pertaining to the shares or debentures normally exercisable respectively by
the members or the debenture holders of the Company, such rights shall be exercisable by
the third parties as though they were the members or debenture holders of the Company to
the exclusion of the member or members or holder or holders of the relevant securities.
| /s/ Dr. Mark Camilleri | ||||
| Signed by | ||||
| Dr. Mark Camilleri LL.D. Attorney in fact NAVIOS CORPORATION |
||||
| This
20th day
of October 2005. filed by [ILLEGIBLE] with 1 doc/s. |
||||
| f/Dr Mark Camilleri |
||||
| /s/ Susan Deguara | ||||
| f/Registrar of Companies | ||||
| SUSAN DEGUARA | ||||
8
Exhibit 3.50.1
ARTICLES OF INCORPORATION
OF
KLEIMAR LTD.
PURSUANT
TO THE MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
The undersigned for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with the Registrar of Corporations this instrument for that
purpose, as follows:
| A. | The name of the Corporation shall be: |
KLEIMAR LTD.
| B. | The purpose of the Corporation is to engage in any lawful act of activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act. | |
| C. | 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. | The aggregate number of shares of stock that the Corporation is authorized to issue is Fifty Thousand (50,000) registered shares with One US Dollar (US$1.00) per share. | |
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. |
| F. | The name and address of the incorporator is : |
| Name | Post Office Address | |
| Majuro Nominees Ltd. | P.O. Box 1405 | |
| Majuro | ||
| Marshall Islands |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt , amend or repeal the bylaws of the Corporation . | ||
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN
WITNESS WHEREOF , I have executed this instrument on
September 13, 2007.
| Majuro Nominees Ltd. Incorporator |
||||
| by: |
|
|||
Exhibit 3.50.2
ARTICLES OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
Kleimar Ltd.
UNDER SECTION 90 OF THE BUSINESS CORPORATIONS ACT
ARTICLES OF INCORPORATION OF
Kleimar Ltd.
UNDER SECTION 90 OF THE BUSINESS CORPORATIONS ACT
The undersigned, George Akhniotis, Director and Secretary of Kleimar Ltd., a corporation
incorporated under the laws of the Republic of the Marshall Islands, for the purpose of amending
the Articles of Incorporation of said Corporation hereby certify:
| 1. | The name of the Corporation is: Kleimar Ltd. | ||
| 2. | The Articles of Incorporation were filed with the Registrar of Corporations as of the l3th day of September 2007. | ||
| 3. | Section B of the Articles of Incorporation is hereby amended as follows: |
B. The purpose of the Corporation is to engage in any lawful act or activity for which corporations
may now or hereafter be organized under the Marshall Islands Business Corporations Act and without
in any way limiting the generality of the foregoing, the corporation shall have the power:
(1) To purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage, lease,
charter, sub-charter, sell, build, and repair steamships, motorships, tankers, sailing vessels,
tugs, lighters, barges, and all other vessels and craft of any and all motive power whatsoever,
including landcraft, and any and all means of conveyance and transportation by land, or water,
together with engines, boilers, machinery equipment and appurtenances of all kinds, including
masts, sails, boats, anchors, cables, tackle, furniture and all other necessities thereunto
appertaining and belonging, together with all materials, articles, tools, equipment and appliances
necessary, suitable or convenient for the construction, equipment, use and operation thereof; and
to equip, furnish, and outfit such vessels and ships.
(2) To engage in ocean, coastwise and inland commerce, and generally in the carriage of freight,
goods, cargo in bulk, passengers, mail and personal effects by water between the various ports of
the world and to engage generally in waterborne commerce.
(3) To purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or in any
manner dispose of docks, piers, quays, wharves, dry docks, warehouses and storage facilities of all
kinds, and any property, real, personal and mixed, in connection therewith.
(4) To act as ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of
shipping property, freight contractors, forwarding agents, warehousemen, wharfingers, ship
chandlers, and general traders.
(5) To enter into, make and perform contracts of every kind and description with any person, firm,
association, corporation, municipality, county, state, body politic, or government or colony or any
dependency thereof.
To appoint
or act as an agent, broker, or representative, general or special, in respect of any or
all of the powers expressed herein or implied hereby; to appoint agents, brokers or
representatives.
(7) To carry on its business, to have one or more offices, and to exercise its powers in foreign
countries, subject to the laws of the particular country.
(8) To borrow or raise money and contract debts, when necessary, for the transaction of its
business or for the exercise of its corporate rights, privileges or franchise or for any other
lawful purpose of its incorporation; to draw, make, accept, endorse, execute and issue promissory
notes, bills of exchange, bonds, debentures, and other instruments and evidences of indebtedness
either secured by mortgage, pledge, deed of trust, or otherwise, or unsecured.
(9) To give a guarantee not in furtherance of corporate purposes when authorized by majority vote
of shareholders entitled to vote thereon and, when authorized by like vote, such guarantee may be
secured by mortgage or pledge or creation of security interest in corporate property.
(10) To
purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of
real and personal property of every class and description.
(11) To apply for, secure by purchase or otherwise hold, use, sell, assign, lease, grant licenses
in respect of, mortgage or otherwise dispose of letters patent, patent rights, licenses,
privileges, inventions, improvements and processes, copyrights, trademarks, and trade names,
relative to or useful in connection with any business of this corporation.
(12) To purchase or otherwise acquire, underwrite, hold, pledge, turn to account in any manner,
sell, distribute, or otherwise dispose of and generally to deal in, bonds, debentures, notes,
evidences of indebtedness, shares of stock, warrants, rights, certificates, receipts or any other
instruments or interests in the nature of securities created or issued by any person, partnership,
firm, corporation, company, association, or other business organizations, foreign or domestic, or
by any domestic or foreign governmental, municipal or other public authority, and exercise as
holder or owner of any such securities all rights, powers and privileges in respect thereof; to do
any and all acts and things for the preservation, protection, improvement and enhancement in value
of any such securities and to aid by loan, subsidy, guaranty or otherwise those issuing, creating
or responsible for any such securities; to acquire or become interested in any such securities by
original subscription, underwriting, loan, participation in syndicates or otherwise, and
irrespective of whether such securities be fully paid or subject to future payments; to make
payments thereon as called for or in advance of calls or otherwise and to underwrite or subscribe
for the same conditionally or otherwise and either with a view to resale or investment or for any
other lawful purpose; and in connection therewith or otherwise to acquire and hold membership in or
otherwise secure trading privileges on any board of trade, exchange or other similar institution
where any securities are dealt in and to comply with the rules of any such institution; as used
herein the term “securities”shall include bonds, debentures, notes, evidences of indebtedness, shares of stock,
warrants, options, rights, certificates, receipts or any other instruments or interests in the
nature of securities of any kind whatsoever which a corporation organized under the Associations
Law of the Republic of the Marshall Islands is legally permitted to acquire or deal in, by
whomsoever issued or created; the term “person” shall include any person, partnership, firm,
corporation, company, association or other business organization, domestic or
foreign governmental, municipal or other public authority.
(13) To
purchase or otherwise acquire, hold, pledge, turn to account in any manner, import, export,
sell, distribute or otherwise dispose of, and generally to deal in, commodities and products
(including any future interest therein) and merchandise, articles of commerce, materials, personal
property and real property of every kind, character and description whatsoever, and any interest
therein, either as principal or as a factor or broker, or as commercial, sales, business or
financial agent or representative, general or special, or, to
the extent permitted by the laws of the Marshall Islands, in any other capacity whatsoever for the
account of any domestic or foreign person or public authority, and in connection therewith or
otherwise to acquire trading privileges on any board of trade, exchange or other similar
institution where any such products or commodities or personal or real property are dealt in, and
to comply with the rules of any such institution.
(14) To engage in any mercantile, manufacturing or trading business of any kind or character
whatsoever and to do all things incidental to such business.
(15) To carry on the business of warehousing and all business incidental thereto, including the
issuing of warehouse receipts, negotiable or otherwise, and the making of advances or loans upon
the security of goods warehoused.
(16) To purchase, lease or otherwise acquire, hold, own, mortgage, pledge, hypothecate, build,
erect, construct, maintain and operate, develop, improve and sell, lease or otherwise dispose of
lands, and improvements, warehouses, factories, buildings, structures, piers, wharves, mills, dams,
stores and dwellings and all other property and things of whatsoever kind and nature, real,
personal or mixed, tangible or intangible, suitable or necessary in connection with any of the
purposes hereinabove or hereinafter set forth, or otherwise deal with or in any such properties.
To cause to be formed, merged, reorganized or liquidated, and to promote, take charge of, in any
way permitted by law, the formation, merger, reorganization or liquidation of any person.
(18) To acquire all or any part of the good will, rights, property and business of any person,
heretofore or hereafter engaged in any business similar to any business which the Corporation has
power to conduct, to pay for the same in cash or in the securities of the Corporation or otherwise,
to hold, utilize and in any manner dispose of the whole or any part of the rights and property so
acquired, and to assume in connection therewith any liabilities of
any such person, and conduct
in any lawful manner the whole or any part of the business thus acquired.
(19) To make, enter into and carry out any arrangements with any person or public authority, to
obtain therefrom or otherwise to acquire by purchase, lease, assignment or otherwise any powers,
rights, privileges, immunities, franchises, guarantees, grants and concessions, to acquire, hold,
own, exercise, exploit, dispose of and realize upon the same, and to undertake and prosecute any
business dependent thereon provided it is such a business as this Corporation may engage in; and to
promote, cause to be formed and aid in any way any person for any such purpose.
(20) To
make and issue trust receipts, deposit receipts, certificates of deposit, interim receipts,
or any other receipts for, or certificates of deposit for, any securities or interest therein; to
acquire and exercise any proxies or powers of attorney or other privileges pertaining to any
securities or interest therein.
To render advisory, investigatory, supervisory, managerial or other like services, permitted to
corporations, in connection with the promotion, organization, reorganization, recapitalization,
liquidation, consolidation
or merger of any person or in connection with the issuance, underwriting, sale or distribution of
any securities issued in connection therewith or incidental thereto; and to render general
investment advisory or
financial advisory or managerial services to any person or public authority.
(22) To cause or allow the legal title, or any legal or equitable estate, right or interest in any
property, whether real, personal or mixed, owned, acquired, controlled or operated by the
Corporation, to remain or to be vested or registered in the name of or operated by, any person,
formed or to be formed, either upon trust for or as agents or
nominees of, this Corporation, or
upon any other proper terms or conditions which
the Board of Directors may consider for the benefit of the Corporation.
(23) To enter into any lawful arrangements for sharing profits, union of interest, reciprocal
concession or cooperation with any person or public authority, in the carrying on of any similar
business which the Corporation is authorized to carry on, or any business or transaction deemed
necessary, convenient or incidental to carrying out any of the purposes of the Corporation.
(24) To the extent suitable or necessary to carry out any of the purposes hereinbefore or
hereinafter set forth, but only in so far as the same may be permitted to be done by a corporation
organized under the Associations Law of the Republic of the Marshall Islands, to buy, sell and deal
in foreign exchange.
(25) To invest its uninvested funds and/or surplus from time to time to such extent as the
Corporation may deem advisable in securities or in call and/or in time loans or otherwise, upon
such security, if any, as the Board of Directors may determine, but the Corporation shall not
engage in the banking business or exercise banking powers, and nothing in these Articles contained
shall be deemed to authorize it to do so.
(26) To
issue, purchase, hold, sell, transfer, reissue or cancel the shares of its own capital stock
or any securities of the Corporation in the manner and to the extent now or hereafter permitted by
the Associations Law of the Republic of the Marshall Islands; and provided further that shares of
its own capital stock owned by the Corporation shall not be voted upon directly or indirectly, nor
counted as outstanding for the purpose of any stockholders’ quorum or vote.
(27) To act in any and all parts of the world in any capacity whatsoever as agent, broker, or
representative, general or special, for any person or public authority.
(28) To do any and all of the acts and things herein set forth, as principal, factor, agent,
contractor, or otherwise, either alone or in company with others; and in general to carry on any
other similar business which is incidental or conducive or convenient or proper to the attainment
of the foregoing purposes or any of them and which is not forbidden by law; and to exercise any and
all powers which now or hereafter may be lawful for the Corporation to exercise under the laws of
the Marshall Islands; to establish and maintain offices and agencies wherever situated; and to
exercise any or all of its corporate powers and rights.
| 4. | The amendment to the Articles of Incorporation was authorized by vote of the holders of a majority of all outstanding shares entitled to vote thereon at a meeting of shareholders. | ||
| IN WITNESS WHEREOF, the undersigned has executed these Articles of Amendment on this 6th day of August, 2008. |
| /s/ George Akhniotis | ||||
| George Akhniotis | ||||
| Director/Secretary | ||||
Exhibit 3.50.3
BYLAWS
KLEIMAR LTD.
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
1
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
2
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 3.51.1
ARTICLES OF INCORPORATION
OF
NAVIMAX CORPORATION
PURSUANT TO THE MARSHALL ISLANDS
BUSINESS CORPORATIONS ACT
OF
NAVIMAX CORPORATION
PURSUANT TO THE MARSHALL ISLANDS
BUSINESS CORPORATIONS ACT
The undersigned, for the purpose of forming a corporation pursuant to the provisions of the
Marshall Islands Business Corporations Act, does hereby make, subscribe, acknowledge and file with
the Registrar of Corporations this instrument for that purpose as follows:
| A. | The name of the Corporation shall be: NAVIMAX CORPORATION | ||
| B. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now of hereafter be organized under the Marshall Islands Business Corporations Act. | ||
| C. | The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Island, P.O. Box 1405, Majuro, Marshall Islands MH 96960. The name of the Corporation’s Registered Agent at such address is The Trust Company of the Marshall Islands, Inc. | ||
| D. | The aggregate number of shares of stock that the Corporation is authorized to issue is Ten Thousand (10,000) registered shares with a par value of Ten (0.10) cents per share. | ||
| E. | The Corporation shall have every power which a corporation now or hereafter organized under the Marshall Islands Business Corporations Act may have. | ||
| F. | The name and address of the Incorporator is: |
Name
|
Post Office Address | |
Robert G. Shaw
|
c/o Healy & Baillie, LLP | |
| 29 Broadway | ||
| New York, New York 10006 |
| G. | The Board of Directors as well as the shareholders of the Corporation shall have the authority to adopt, amend or repeal the bylaws of the Corporation. |
| H. | Corporate existence shall begin upon filing these Articles of Incorporation with the Registrar of Corporations as of the filing date stated on these Articles. |
IN WITNESS WHEREOF, I have executed this instrument on this 20th day of September, 2000.
| Robert G. Shaw Incorporator |
||||
| By: | /s/ Robert G. Shaw | |||
NOTARIAL STATEMENT
|
||||
State of New York
|
) | |||
| ss.: | ||||
County of New York
|
) | |||
On
this 20th day
of September, 2000, before me personally came Robert G. Shaw, known to me to be the
individual described in and who executed the foregoing instrument
and he duly acknowledged to me
that the execution thereof was his act and deed.
| /s/ Dolores M. Fleck | ||||
| Notary Public |
||||
DOLORES
M. FLECK
Notary
Public, State of New York
No. 24-1249267
Qualified
in Kings County
Certificate Filed in New York County
Commission Expires Feb. 28, 2002 |
||||
2
Exhibit 3.51.2
BYLAWS
NAVIMAX CORPORATION
A Marshall Islands Corporation
A Marshall Islands Corporation
ARTICLE I
OFFICES
OFFICES
The principal place of business of the Corporation shall be at such place or places as the
Directors shall from time to time determine. The Corporation may also have an office at such other
places within or without the Marshall Islands as the Board of Directors may from time to time
appoint or the business of the Corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
MEETING OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of shareholders of the Corporation shall be
held on such day and at such time and place within or without the Marshall Islands as the Board of
Directors may determine for the purpose of electing Directors and of transacting such other
business as may properly be brought before the meeting.
Section 2. Special Meeting. Special meetings of the shareholders, unless otherwise
prescribed by law, may be called for any purpose or purposes at any time by resolution of the Board
of Directors or by the President and shall be called by the President or Secretary of the
Corporation whenever required in writing to do so by shareholders owning a majority in amount of
capital stock of the Corporation entitled to vote which is issued and outstanding. Such request
shall state the purpose or purposes of the proposed special meeting. Such meetings shall be held
at such place and on a date and at such time as may be designated in the notice thereof by the
officer of the Corporation calling any such meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
Section 3. Notice of Meetings. Notice of every annual and special meeting of shareholders,
other than any meeting the giving of notice of which is prescribed by law, stating the date, time,
place and purpose thereof, and in the case of special meetings, the name of the person or persons
at whose direction the notice is being issued, shall be given personally or sent by mail, E-mail,
telefax, cablegram, telex or teleprinter at least fifteen but not more than sixty days before such
meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record
who, by reason of any action proposed at such meeting would be entitled to have his/her shares
appraised if such action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail,
directed to the shareholder at his/her address as the same appears on the record of shareholders of
the Corporation or at such address as to which the shareholder has given notice to the Secretary.
Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice,
whether before or after the meeting or who attends the meeting without protesting prior to the
conclusion thereof the lack of notice to him. If the Corporation shall issue any class of bearer
shares, notice for all meetings shall be given in the manner provided in the Articles of
Incorporation.
Section 4. Quorum. At all meetings of the shareholders, except as otherwise expressly
provided by law, there must be present, either in person or by proxy, shareholders holding at least
a majority of the shares issued and outstanding and entitled to vote at such meetings in order to
constitute a quorum, but if less than a quorum is present, a majority of those shares present
either in person or by proxy shall have power to adjourn any meeting until a quorum shall be
present.
1
Section 5. Voting. If a quorum is present, and except as otherwise expressly provided by
law, the affirmative vote of a majority of the shares of stock represented at the meeting shall be
the act of the shareholders. At any meeting of shareholders, each shareholder entitled to vote any
shares on any manner to be voted upon at such meeting shall be entitled to one vote on such matter
for each such share, and may exercise such voting right either in person or by proxy. Any action
which may be taken at a meeting of shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken or to be taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 6. Fixing of Record Dates. The Board of Directors may fix a time not more than
sixty nor less than fifteen days prior to the date of any meeting of the shareholders, or more than
sixty (60) days prior to the last day on which the consent or dissent of shareholders may be
expressed for any purpose without a meeting, as the time as of which shareholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who were holders of
record of voting shares at such time and not others shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The Board of Directors
may fix a time not exceeding sixty days preceding the date fixed for the payment of any dividend,
distribution, or allotment or for the purpose of such other action.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number. The affairs, business and property of the Corporation shall be managed
by a Board of Directors to consist of at least one director. Within the limits fixed by these
Bylaws, the number of directors may be determined either by a vote of a majority of the entire
Board or by vote of shareholders. The directors need not be residents of the Marshall Islands nor
shareholders of the Corporation.
Section 2. How Elected. Except as otherwise provided by law or Section 4 of this Article,
the directors of the Corporation (other than the first Board of Directors designated by the
Incorporator) shall be elected at the annual meeting of shareholders. Each director shall be
elected to serve until the next annual meeting of shareholders and until his/her successor shall
have been duly elected and qualified, except in the event of his/her death, resignation, removal or
the earlier termination of his/her term of office.
Section 3. Removal. Any or all of the directors may be removed, with or without cause, by
a vote of the shareholders. Any director may be removed for cause by action of the Board of
Directors.
Section 4. Vacancies. Vacancies in the Board of Directors occurring by death, resignation,
the creation of new directorships, the failure of the shareholders to elect the whole Board at any
annual election of directors, or, except as herein provided, for any other reason, including
removal of directors for cause, may be filled either by the affirmative vote of a majority of the
remaining directors then in office, although less than a quorum, at any special meeting called for
that purpose or at any regular meeting of the Board, except as otherwise prescribed by law or
unless the Articles of Incorporation provide that such vacancies or newly created directorships
shall be filled by vote of the shareholders. Vacancies occurring by removal of directors without
cause may be filled only by vote of the shareholders.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place as may be determined by resolution of the Board of Directors and no notice
shall be required for any regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
2
Section 6. Special Meetings. Special meetings of the Board may, unless otherwise
prescribed by law, be called by the President or any other officer of the Corporation who is also a
director. The President or the Secretary shall call a special meeting of the Board upon written
request directed to either of them by any two directors stating the time, place and purpose of such
special meeting. Special meetings of the Board shall be held on a date and at such time and at
such place as may be designated in the notice thereof by the officer calling the meeting.
Section 7. Notice of Special Meeting. Notice of the date, time and place of each special
meeting of the Board of Directors shall be given to each director at least forty-eight hours prior
to such meeting, unless the notice is given orally or delivered in person, in which case it shall
be given at least twenty-four hours prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a director if given personally (including by telephone) or if
such notice be delivered to such director by mail, E-mail, telefax, cablegram, telex or teleprinter
to his/her last known address. Notice of a meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to him/her.
Section 8. Quorum. A majority of the entire board, present in person or by proxy or by
communicating equipment, shall constitute a quorum for the transaction of business.
Section 9. Voting. The vote of the majority of the directors, present in person or by
proxy, in communication by telefax or conference telephone, at a meeting at which a quorum is
present shall be the act of the directors. Any action required or permitted to be taken at a
meeting may be taken without a meeting if all the members of the Board consent in writing thereto.
Section 10. Compensation of Directors and Members of Committees. The Board may from time
to time, in its discretion, fix the amounts which shall be payable to members of the Board of
Directors and to members of any committee, for attendance at the meetings of the Board or of such
committee and for services rendered to the Corporation.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 1. Executive Committee and Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate from among its
members an Executive Committee to consist of one or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions, or in these Bylaws, shall have and
may exercise, to the extent permitted by law, the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require it. In addition, the Board of
Directors may, by resolution or resolutions passed by a majority of the entire Board, designate
from among its members other committees to consist of one or more directors of the Corporation,
each of which shall perform such function and have such authority and powers as shall be delegated
to it by said resolution or resolutions or as provided for in these Bylaws, except that only the
Executive Committee may have and exercise the powers of the Board of Directors. Members of the
Executive Committee and any other committee shall hold office for such periods as may be prescribed
by the vote of the majority of the entire Board of Directors, subject, however, to removal at any
time by the vote of the Board of Directors. Vacancies in the membership of such committees shall
be filled by vote of the Board of Directors. Committees may adopt their own rules of procedure and
may meet at stated times or on such notice as they may determine. Each committee shall keep a
record of its proceedings and report the same to the Board when requested.
3
ARTICLE V
OFFICERS
OFFICERS
Section 1. Number and Designation. The Board of Directors shall appoint a Secretary and a
Treasurer, and may appoint a President as well as such other officers as it may deem necessary.
Officers may be of any nationality, need not be residents of the Marshall Islands and may be, but
are not required to be, directors. Officers of the Corporation shall be natural persons except the
Secretary may be a corporate entity. Any two or more offices may be held by the same natural
person.
The officers shall be appointed annually by the Board of Directors at its first meeting following
the annual election of directors, but in the event of the failure of the Board to so appoint any
officer, such officer may be appointed at any subsequent meeting of the Board of Directors. The
salaries of the officers and any other compensation paid to them shall be fixed from time to time
by the Board of Directors. The Board of Directors may at any meeting appoint additional officers.
Each officer shall hold office until the first meeting of the Board of Directors following the next
annual election of directors and until his/her successor shall have been duly appointed and
qualified, except in the event of the earlier termination of his/her term of office through death,
resignation, removal or otherwise. Any officer may be removed by the Board at any time with or
without cause. Any vacancy in an office may be filled for the unexpired portion of the term of
such office by the Board of Directors at any regular or special meeting.
Section 2. President. The President shall be the Chief Executive Officer of the
Corporation and shall have the general management of the affairs of the Corporation, together with
the powers and duties usually incident to the office of President, except as specifically limited
by appropriate written resolution of the Board of Directors and shall have such other powers and
perform such other duties as may be assigned to him/her by the Board of Directors. The President
shall preside at all meetings of shareholders at which he/she is present and if, in the case of the
President, he/she is a director, at all meetings of the directors.
Section 3. Treasurer. The Treasurer shall have general supervision over the care and
custody of the funds, securities and other valuable effects of the Corporation and shall deposit
the same or cause the same to be deposited in the name of the Corporation in such depositories as
the Board of Directors may designate, shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render or cause to be
rendered financial statements of the Corporation, shall have the power and perform the duties
usually incident to the office of Treasurer; and shall have the powers and perform such other
duties as may be assigned to him/her by the Board of Directors, or President.
Section 4. Secretary. The Secretary shall act as Secretary of all meetings of the
shareholders and of the Board of Directors at which he/she is present, shall have supervision over
the giving and serving of notices of the Corporation; shall be the custodian of the corporate
records and of the corporate seal of the Corporation; shall be empowered to affix the corporate
seal to those documents, the execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall exercise the powers and perform
such other duties as may be assigned to him/her by the Board of Directors or the President. If the
Secretary is a Corporation, the duties of the Secretary may be carried out by any duly authorized
representative of such corporation acting in its name.
Section 5. Other Officers: Officers other than those treated in section 2 through 4 of
this Article shall exercise such powers and perform such duties as may be assigned to them by the
Board of Directors or by the President.
Section 6. Bond. The Board of Directors shall have the power to the extent permitted by
4
law, to require any officer, agent or employee of the Corporation to give bond for the faithful
discharge of his/her duties in such form and with such surety or sureties as the Board of Directors
may deem advisable.
ARTICLE VI
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. Form and Issuance. The shares of the Corporation shall be represented by
certificates in a form meeting the requirements of law and approved by the Board of Directors.
Certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. These signatures may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee.
Section 2. Transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as they may deem expedient concerning the issuance, registration and
transfer of certificates representing shares of the Corporation’s stock, and may appoint, transfer
agents and registrars thereof.
Section 3. Loss of Stock Certificates. The Board of Directors may direct a new certificate
or certificates of stock to be issued in place of any certificate or certificates thereof issued by
the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in its discretion,
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his/her representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed.
ARTICLE VII
DIVIDENDS
DIVIDENDS
Section 1. Declaration and Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board of Directors at any regular or special meeting. Dividends may be
declared and paid in cash, stock, or other property of the Corporation.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
Section 1. Corporate Seal. The seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such other appropriate legend as the
Board of Directors may from time to time determine.
ARTICLE IX
FISCAL YEAR
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such period of twelve
consecutive months as the Board of Directors may by resolution designate.
5
ARTICLE X
AMENDMENTS
AMENDMENTS
Section 1. By the Shareholders. These Bylaws may be amended, added to, altered or repealed
or new Bylaws may be adopted, at any meeting of the shareholders of the Corporation by the
affirmative vote of the holders of a majority of the stock present and voting at such meeting
provided notice that an amendment is to be considered and acted upon is inserted in the notice or
waiver of notice of said meeting.
Section 2. By the Directors. If the Articles of Incorporation so provide, these Bylaws may
be amended, added to, altered or repealed or new Bylaws may be adopted, at any regular or special
meeting of the Board of Directors by the affirmative vote of a majority of the entire Board,
subject, however, to the power of the shareholders to alter, amend or repeal any Bylaws as adopted.
6
Exhibit 5.1
June 16, 2011
Navios Maritime Holdings Inc.
85 Akti Miaouli Street
Piraeus, Greece 185 38
85 Akti Miaouli Street
Piraeus, Greece 185 38
Ladies and Gentlemen:
We are acting as special United States and New York counsel to Navios Maritime Holdings Inc.,
a Marshall Islands corporation (the “Issuer”), Navios Maritime Finance II (US) Inc., a
Delaware corporation (the “Co-Issuer” and, together with the Issuer, the “Issuers”)
and certain of the Issuer’s subsidiaries listed on Exhibit A hereto (each, a “Guarantor”), in
connection with a Registration Statement on Form F-4 (the “Registration Statement”) filed
with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the
“Securities Act”), relating to the proposed offer to exchange up to $350,000,000 in aggregate
principal amount of new 8 1/8% Senior Notes due 2019 (the “Exchange Notes”), which are
being registered under the Securities Act, for a like principal amount of the Co-Issuers’ issued
and outstanding 8 1/8% Senior Notes due 2019 (the “Outstanding Notes”). The Outstanding
Notes and the Exchange Notes are collectively referred to herein as the “Notes.” Pursuant to the
Indenture (as defined below), the Outstanding Notes are, and the Exchange Notes will be,
unconditionally guaranteed, jointly and severally, on the terms and subject to the conditions set
forth in the Indenture (the “Outstanding Note Guarantees” and the “Exchange Note
Guarantees,” respectively).
All capitalized terms used herein that are defined in, or by reference in, the Indenture have
the meanings assigned to such terms therein or by reference therein, unless otherwise defined
herein. With your permission, all assumptions and statements of reliance herein have been made
without any independent investigation or verification on our part except to the extent otherwise
expressly stated, and we express no opinion with respect to the subject matter or accuracy of such
assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such questions of law, (ii) examined
originals or certified, facsimile, conformed, electronic, photostatic or reproduction copies of
such agreements, instruments, documents and records of the Issuers and the Guarantors, such
certificates of public officials and such other documents and (iii) received such information from
officers and representatives of the Issuers, the Guarantors and others, in each case, as we have
deemed necessary or appropriate for the purposes of this opinion. We have examined, among other
documents, the following:
| (a) | The Indenture dated January 28, 2011 between the Issuers, the Guarantors listed therein and Wells Fargo Bank, N.A., as Trustee with respect to the 8 1/8% Senior Notes due 2019 (the “Indenture”); |
| (b) | The Notes; and | ||
| (c) | The Notations of Guarantee (as defined in the Indenture). |
The documents referred to in items (a) through (c) above, inclusive, are collectively referred
to as the “Documents.”
In all such examinations, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of original and certified documents and the
conformity to original or certified documents of all copies submitted to us as conformed,
facsimile, electronic or reproduction copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and assume the accuracy of, representations and
warranties contained in the Documents and certificates and oral or written statements and other
information of or from public officials, officers or other appropriate representatives of the
Issuers, the Guarantors and others, and assume compliance on the part of all parties to the
Documents with their respective covenants and agreements contained therein.
To the extent it may be relevant to the opinions expressed herein, we have assumed that (i)
the Registration Statement has become effective under the Securities Act and the Indenture has been
qualified under the TIA; (ii) the Exchange Notes have been duly authorized and executed by the
Issuers and Guarantors (other than the Co-Issuer); (iii) the Exchange Notes have been duly
authenticated and delivered by the Trustee; (iv) all of the parties to the Documents (other than
the Co-Issuer) are validly existing and in good standing under the laws of their respective
jurisdictions of organization and have the power and authority to (a) execute and deliver the
Documents, (b) perform their obligations thereunder and (c) consummate the transactions
contemplated thereby; (v) each of the Documents has been duly authorized, executed and delivered by
all of the parties thereto (other than the Co-Issuer), the execution thereof does not violate the
charter, the by-laws or any other organizational document of any such parties or the laws of the
jurisdiction of incorporation of any such parties (other than the Co-Issuer), and each of the
Documents constitutes valid and binding obligations of all the parties thereto (other than as
expressly addressed in the opinions below as to the Issuers and the Guarantors) enforceable against
such parties in accordance with their respective terms; and (vi) all of the parties to the
Documents will comply with all laws applicable thereto.
Based upon the foregoing, and subject to the limitations, qualifications and assumptions set
forth herein, we are of the opinion that:
| 1. | The Exchange Notes, when executed, issued and delivered in accordance with the terms of the Indenture in exchange for the Outstanding Notes, will constitute valid and binding obligations of the Issuers, enforceable against the Issuers in accordance with their terms. | ||
| 2. | The Exchange Note Guarantees by the Guarantors, when the Exchange Notes have been duly executed, issued and delivered in accordance with the terms of the Indenture in exchange for the Outstanding Notes, will constitute a valid and binding obligation of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms. |
- 2 -
The opinions set forth above are subject to the following qualifications:
(A) We express no opinion as to the legality, validity, binding effect or enforceability of
any provision of the Documents:
(i) relating to indemnification, contribution or exculpation;
(ii) (a) containing any purported waiver, release, variation, disclaimer, consent or
other agreement of similar effect (all of the foregoing, collectively, a “Waiver”) by the
Issuers or any Guarantor under any of such Documents, agreements or instruments to the
extent limited by provisions of applicable law (including judicial decisions), or to the
extent that such a Waiver applies to a right, claim, duty, defense or ground for discharge
otherwise existing or occurring as a matter of law (including judicial decisions), except
to the extent that such a Waiver is effective under, and is not prohibited by or void or
invalid under, provisions of applicable law (including judicial decisions); or (b) with
respect to any Waiver in the Guarantees insofar as it relates to causes or circumstances
that would operate as a discharge or release of, or defense available to, the Guarantors
thereunder as a matter of law (including judicial decisions), except to the extent such
Waiver is effective under and is not prohibited by or void or invalid under applicable law
(including judicial decisions);
(iii) related to (a) forum selection or submission to jurisdiction (including, without
limitation, any waiver of any objection to venue in any court or of any objection that a
court is an inconvenient forum) to the extent that the legality, validity, binding effect
or enforceability of any such provision is to be determined by any court other than a court
of the State of New York, (b) choice of governing law to the extent that the legality,
validity, binding effect or enforceability of any such provision is to be determined by any
court other than a court of the State of New York or a federal district court sitting in
the State of New York in each case applying the law and choice of law principles of the
State of New York, (c) service of process except in accordance with applicable law, or (d)
waivers of any rights to trial by jury;
(iv) specifying that provisions thereof may be waived only in writing, to the extent
that an oral agreement or an implied agreement by trade practice or course of conduct has
been created that modifies any provision of such agreement;
(v) purporting to give any person or entity the power to accelerate obligations, at
will or without any notice to the Issuers;
(vi) which may be construed to be in the nature of a penalty; and
(vii) with respect to the effect of any law of any jurisdiction other than the State
of New York wherein any party to the Documents may be located.
(B) The opinions expressed above are subject to the effect of, and we express no opinions
herein as to, the application of state or foreign securities or Blue Sky laws or any rules or
regulations thereunder.
- 3 -
(C) We express no opinion as to any agreement, instrument or other document referred to, or
incorporated by reference, in any of the Documents, other than the Documents listed in this opinion
letter.
(D) Our opinions above are subject to the following:
(i) bankruptcy, insolvency, reorganization, moratorium and other laws (or related
judicial doctrines) now or hereafter in effect affecting creditors’ rights and remedies
generally;
(ii) general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and limits as
to the availability of equitable remedies) whether such principles are considered in a
proceeding in equity or at law;
(iii) the application of any applicable fraudulent conveyance, fraudulent transfer,
fraudulent obligation, or preferential transfer law or any law governing the distribution
of assets of any person now or hereafter in effect affecting creditors’ rights and remedies
generally; and
(iv) the qualification that certain provisions of the Documents may be unenforceable
in whole or in part, but the inclusion of such provisions does not affect the validity of
the Documents as a whole, and the Documents and the laws of the State of New York contain
adequate provisions for enforcing payment of the obligations governed or secured thereby,
subject to the other qualifications in this letter.
(E) We express no opinion as to compliance with the rules and regulations of the FINRA.
(F) Provisions in the Guarantees and the Indenture that provide that the Guarantors’ liability
thereunder shall not be affected by (i) actions or failures to act on the part of the recipient,
the holders or the Trustee, (ii) amendments or waivers of provisions of documents governing the
guaranteed obligations or (iii) other actions, events or circumstances that make more burdensome or
otherwise change the obligations and liabilities of the Guarantors, might not be enforceable under
circumstances and in the event of actions that change the essential nature of the terms and
conditions of the guaranteed obligations. We have assumed consideration that is fair and sufficient
to support the agreements of each Guarantor under the Guarantees and Article Ten of the Indenture
has been, and would be deemed by a court of competent jurisdiction to have been, duly received by
each Guarantor.
(G) We express no opinion as to the legality, validity, binding effect or enforceability of
Section 11.16(a) of the Indenture providing for the Issuers and the Guarantors’ indemnity against
loss in connection with obtaining a court judgment in another currency.
(H) We express no opinion as to the legality, validity, binding effect or enforceability of
any document that is or may be deemed to be or purports to create a power of attorney.
- 4 -
The opinions expressed herein are limited solely to the federal laws of the United States of
America, the laws of the State of New York and, to the extent relevant to the opinions expressed
herein, the General Corporation Law of the State of Delaware, each as currently in effect, together
with applicable provisions of the Constitution of Delaware and relevant decisional law, and no
opinion is expressed with respect to any other laws or any effect that such other laws may have on
the opinions expressed herein.
The opinions expressed herein are limited to the matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated herein. The opinions expressed
herein are given solely as of the date of effectiveness of the Registration Statement, and we
undertake no obligation to supplement this letter if any applicable laws change after the date
hereof or if we become aware of any facts that might change the opinions expressed herein or for
any other reason.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement
and to the reference to this firm under the caption “Legal Matters” in the prospectus that is
included in the Registration Statement. In giving this consent, we do not hereby admit that we are
in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, |
||||
| /s/ FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP |
||||
| FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP | ||||
- 5 -
Exhibit A
Faith Marine Ltd.
Vector Shipping Corporation
Aramis Navigation Inc.
Ducale Marine Inc.
Highbird Management Inc.
Floral Marine Ltd.
Red Rose Shipping Corp.
Ginger Services Co.
Quena Shipmanagement Inc.
Astra Maritime Corporation
Primavera Shipping Corporation
Pueblo Holdings Ltd.
Beaufiks Shipping Corporation
Rowboat Marine Inc.
Corsair Shipping Ltd.
Pharos Navigation S.A.
Sizzling Ventures Inc.
Shikhar Ventures S.A.
Taharqa Spirit Corp.
Rheia Associates Co.
Rumer Holding Ltd.
Kleimar N.V.
NAV Holdings Limited
Navios Corporation
Anemos Maritime Holdings Inc.
Navios Shipmanagement Inc.
Aegean Shipping Corporation
Arc Shipping Corporation
Magellan Shipping Corporation
Ionian Shipping Corporation
Apollon Shipping Corporation
Herakles Shipping Corporation
Achilles Shipping Corporation
Kypros Shipping Corporation
Hios Shipping Corporation
Meridian Shipping Enterprises Inc.
Mercator Shipping Corporation
Horizon Shipping Enterprises Corporation
Star Maritime Enterprises Corporation
Navios Handybulk Inc.
Navios International Inc.
Nostos Shipmanagement Corp.
Vector Shipping Corporation
Aramis Navigation Inc.
Ducale Marine Inc.
Highbird Management Inc.
Floral Marine Ltd.
Red Rose Shipping Corp.
Ginger Services Co.
Quena Shipmanagement Inc.
Astra Maritime Corporation
Primavera Shipping Corporation
Pueblo Holdings Ltd.
Beaufiks Shipping Corporation
Rowboat Marine Inc.
Corsair Shipping Ltd.
Pharos Navigation S.A.
Sizzling Ventures Inc.
Shikhar Ventures S.A.
Taharqa Spirit Corp.
Rheia Associates Co.
Rumer Holding Ltd.
Kleimar N.V.
NAV Holdings Limited
Navios Corporation
Anemos Maritime Holdings Inc.
Navios Shipmanagement Inc.
Aegean Shipping Corporation
Arc Shipping Corporation
Magellan Shipping Corporation
Ionian Shipping Corporation
Apollon Shipping Corporation
Herakles Shipping Corporation
Achilles Shipping Corporation
Kypros Shipping Corporation
Hios Shipping Corporation
Meridian Shipping Enterprises Inc.
Mercator Shipping Corporation
Horizon Shipping Enterprises Corporation
Star Maritime Enterprises Corporation
Navios Handybulk Inc.
Navios International Inc.
Nostos Shipmanagement Corp.
Portorosa Marine Corp.
White Narcissus Marine S.A.
Hestia Shipping Ltd.
Kleimar Ltd.
Navimax Corporation
Aquis Marine Corp.
Navios Tankers Management Inc.
White Narcissus Marine S.A.
Hestia Shipping Ltd.
Kleimar Ltd.
Navimax Corporation
Aquis Marine Corp.
Navios Tankers Management Inc.
Exhibit 5.2
REEDER & SIMPSON P.C.
Attorneys-at-Law
Attorneys-at-Law
| RRE Commercial Center | Raymond E. Simpson Law Offices | |||||
| Ace Building, Suite 205 | 53-55 Akti Miaouli, 6th floor | |||||
| 1 Lagoon Drive | 185 36 Piraeus, Greece | |||||
| Majuro, Marshall Islands MH 96960, | Telephone: | +30 210 429 3323 | ||||
Telephone:
|
+692 625 3602 | Fax: | +30 210 429 3309 | |||
Fax:
|
+692 625 3603 | E-mail: | simpson@otenet.gr | |||
E-mail:
|
dreeder@ntamar.net | Mobile phone: | +30 6945 465 173 | |||
June 16, 2011
Navios Maritime Holdings Inc.
85 Akti Miaouli Street
Piraeus, Greece 185 38
85 Akti Miaouli Street
Piraeus, Greece 185 38
| Re: | Navios Maritime Holdings Inc. |
Dear Sirs:
We are licensed to practice law in the Republic of the Marshall Islands and are members in
good standing of the Bar of the Marshall Islands.
We have acted as counsel to Navios Maritime Holdings Inc., a Marshall Islands corporation (the
“Company”) and the Covered Guarantors (as defined below) on matters of Marshall Islands and
Liberian law in connection with the offer by the Company and Navios Maritime Finance II (US) Inc.,
a Delaware corporation (“NMFI” and together with the Company, the “Co-Issuers”), to
exchange up to $350,000,000 in aggregate principal amount of its new 8 1/8% Senior Notes due 2019
(the “Exchange Notes”), which are being registered under the Securities Act of 1933, as
amended (the “Securities Act”), for a like principal amount of its 8 1/8% Senior Notes due
2019 (the “Outstanding Notes”) in each case pursuant to the Registration Statement on Form
F-4 filed with the Securities and Exchange Commission (the “Registration Statement”). The
Outstanding Notes and the Exchange Notes are collectively referred to herein as the
“Notes.” As used herein, the “Covered Guarantors” means the Guarantors listed on
Schedule I hereto.
In connection herewith we have examined originals or copies of:
| 1. | The Indenture dated January 28, 2011, between the Co-Issuers, the Guarantors listed therein and Wells Fargo Bank, N.A., as Trustee with respect to the 8 1/8% Senior Notes due 2019; | ||
| 2. | The Notes; and | ||
| 3. | The Notations of Guarantee (as defined in the Indenture). |
The documents referred to in Items 1, 2 and 3 are collectively referred to as the
“Documents.”
We have also examined and relied upon originals, or copies certified to our satisfaction, of
all such records, documents, certificates of officers of the Company, the Covered Guarantors and of
public officials and such other instruments, and made such other inquiries as, in our judgment, are
necessary or appropriate to enable us to render the opinion expressed below.
As to questions of fact material to this opinion, we have, with your approval, where relevant
facts were not independently established, relied upon, among other things, the representations made
in the Documents and certificates of officers of the Company and the Covered Guarantors.
For the purpose of this opinion, we have further assumed:
| (a) | the power, authority and legal right of all parties to the Documents (other than the Company and the Covered Guarantors) to enter into and to perform their respective obligations thereunder and that the Documents have been duly authorized, executed and delivered by each such party; | ||
| (b) | the genuineness of all signatures on all documents and the completeness, and the conformity to original documents, of all copies submitted to us; | ||
| (c) | the due compliance of each of the Documents with all matters of, and the validity and enforceability thereof under, all such laws as govern or relate to it (other than the laws of the Republic of the Marshall Islands and Liberia as to which we are opining); | ||
| (d) | that each of the parties to the Documents (other than the Company and the Covered Guarantors) has duly and validly executed and delivered the Documents to which it is a party and has complied with all legal requirements pertaining to its status as such status relates to its rights to seek benefits of and enforce the Documents against the Company or the Covered Guarantors, as the case may be; and | ||
| (e) | that any required consents, licenses, permits, approvals, exemptions, qualifications or authorizations of or by, and any required registrations or filings with, any governmental authority or regulatory body of any jurisdiction other than the Republic of the Marshall Islands and Liberia in connection with the transactions contemplated by the Documents have been duly obtained or made. |
Based upon and subject to the foregoing and having regard to legal considerations we deem
relevant, we are of the opinion that, insofar as the laws of the Republic of the Marshall Islands
and Liberia are concerned:
| (i) | Each of the Company and each Covered Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Republic of Marshall Islands or Liberia, as the case may be. |
- 2 -
| (ii) | Each of the Company and each Covered Guarantor has full power, authority and legal right to execute, deliver and perform its obligations under the Documents. | ||
| (iii) | Each of the Company and each Covered Guarantor has duly authorized, executed and delivered the Documents. | ||
| (iv) | No consent, approval, license or exemption by, order or authorization of, or filing, recording or registration with, any governmental authority is required to be obtained or made by the Company or any Covered Guarantor under the laws of the Republic of the Marshall Islands or Liberia, as the case may be, in connection with its execution and delivery of the Documents or the performance by it of its obligations thereunder other than those that have been obtained or made. |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement
and to the reference to this firm under the caption “Legal Matters” in the prospectus that is
included in the Registration Statement. In giving this consent, we do not hereby admit that we are
in the category of persons whose consent is required under Section 7 of the Securities Act.
| Yours faithfully, REEDER & SIMPSON P.C. |
||||
| By: | /s/ Raymond E. Simpson | |||
- 3 -
Schedule I
Faith Marine Ltd.
Vector Shipping Corporation
Aramis Navigation Inc.
Ducale Marine Inc.
Highbird Management Inc.
Floral Marine Ltd.
Red Rose Shipping Corp.
Ginger Services Co.
Quena Shipmanagement Inc.
Astra Maritime Corporation
Primavera Shipping Corporation
Pueblo Holdings Ltd.
Beaufiks Shipping Corporation
Rowboat Marine Inc.
Corsair Shipping Ltd.
Pharos Navigation S.A.
Sizzling Ventures Inc.
Shikhar Ventures S.A.
Taharqa Spirit Corp.
Rheia Associates Co.
Rumer Holding Ltd.
Navios Corporation
Anemos Maritime Holdings Inc.
Navios Shipmanagement Inc.
Aegean Shipping Corporation
Arc Shipping Corporation
Magellan Shipping Corporation
Ionian Shipping Corporation
Apollon Shipping Corporation
Herakles Shipping Corporation
Achilles Shipping Corporation
Kypros Shipping Corporation
Hios Shipping Corporation
Meridian Shipping Enterprises Inc.
Mercator Shipping Corporation
Horizon Shipping Enterprises Corporation
Star Maritime Enterprises Corporation
Navios Handybulk Inc.
Navios International Inc.
Nostos Shipmanagement Corp.
Portorosa Marine Corp.
Kleimar Ltd.
Navimax Corporation
Aquis Marine Corp.
Navios Tankers Management Inc.
Vector Shipping Corporation
Aramis Navigation Inc.
Ducale Marine Inc.
Highbird Management Inc.
Floral Marine Ltd.
Red Rose Shipping Corp.
Ginger Services Co.
Quena Shipmanagement Inc.
Astra Maritime Corporation
Primavera Shipping Corporation
Pueblo Holdings Ltd.
Beaufiks Shipping Corporation
Rowboat Marine Inc.
Corsair Shipping Ltd.
Pharos Navigation S.A.
Sizzling Ventures Inc.
Shikhar Ventures S.A.
Taharqa Spirit Corp.
Rheia Associates Co.
Rumer Holding Ltd.
Navios Corporation
Anemos Maritime Holdings Inc.
Navios Shipmanagement Inc.
Aegean Shipping Corporation
Arc Shipping Corporation
Magellan Shipping Corporation
Ionian Shipping Corporation
Apollon Shipping Corporation
Herakles Shipping Corporation
Achilles Shipping Corporation
Kypros Shipping Corporation
Hios Shipping Corporation
Meridian Shipping Enterprises Inc.
Mercator Shipping Corporation
Horizon Shipping Enterprises Corporation
Star Maritime Enterprises Corporation
Navios Handybulk Inc.
Navios International Inc.
Nostos Shipmanagement Corp.
Portorosa Marine Corp.
Kleimar Ltd.
Navimax Corporation
Aquis Marine Corp.
Navios Tankers Management Inc.
- 4 -
Exhibit 5.3
CAMILLERI, DELIA, RANDON & ASSOCIATES
Dr. Mark Camilleri LL.D.
|
13/16 Vincenti Buildings | |
Dr. Benedict Delia LL.D.
|
Strait Street, Valletta VLT 1432, Malta | |
Dr. Robert Radmilli B.A., M.Jur., LL.D
|
Tel: (+356) 21-234128 | |
| Fax: (+356) 21-240021 | ||
| Email: camco@camco.com.mt |
June 16, 2011
Navios Maritime Holdings Inc.
85 Akti Miaouli Street
Piraeus, Greece 185 38
85 Akti Miaouli Street
Piraeus, Greece 185 38
| Re: | Hestia Shipping Ltd. and NAV Holdings Limited |
Ladies and Gentlemen:
We are licensed to practice law in the Republic of Malta and are members in good standing
of the Chamber of Advocates.
We have acted as Malta counsel to Navios Maritime Holdings Inc., a Marshall Islands
corporation (the “Company”) and the Covered Guarantors (as defined below) in connection
with the offer by the Company and Navios Maritime Finance II (US) Inc., a Delaware corporation
(“NMFI” and together with the Company, the “Co-Issuers”), to exchange up to
$350,000,000 in aggregate principal amount of its new 8 1/8% Senior Notes due 2019 (the
“Exchange Notes”), which are being registered under the Securities Act of 1933, as amended
(the “Securities Act”), for a like principal amount of its 8 1/8% Senior Notes due 2019
(the “Outstanding Notes”) in each case pursuant to the Registration Statement on Form F-4
filed with the Securities and Exchange Commission (the “Registration Statement”). The
Outstanding Notes and the Exchange Notes are collectively referred to herein as the
“Notes.” As used herein, the “Covered Guarantors” means Hestia Shipping Ltd. and
NAV Holdings Limited.
In connection herewith we have examined originals or copies of:
| 1. | the Indenture dated January 28, 2011, between the Co-Issuers, the Guarantors listed therein and Wells Fargo Bank, N.A., as Trustee with respect to the 8 1/8% Senior Notes due 2019; | ||
| 2. | the Notes; and | ||
| 3. | the Notations of Guarantee (as defined in the Indenture). |
The documents referred to in Items 1, 2 and 3 are collectively referred to as the “Documents.”
We have also examined and relied upon originals, or copies certified to our satisfaction,
of all such records, documents, certificates of officers of the Covered Guarantors and of public
officials and such other instruments, and made such other inquiries as, in our judgment, are
necessary or appropriate to enable us to render the opinion expressed below.
www.camco.com.mt
1
CAMILLERI, DELIA, RANDON & ASSOCIATES
Dr. Mark Camilleri LL.D.
|
13/16 Vincenti Buildings | |
Dr. Benedict Delia LL.D.
|
Strait Street, Valletta VLT 1432, Malta | |
Dr. Robert Radmilli B.A., M.Jur., LL.D
|
Tel: (+356) 21-234128 | |
| Fax: (+356) 21-240021 | ||
| Email: camco@camco.com.mt |
As to questions of fact material to this opinion, we have, with your approval, where
relevant facts were not independently established, relied upon, among other things, the
representations made in the Documents and certificates of officers of the Company and the Covered
Guarantors. We have further assumed the genuineness of all signatures on all documents and the
completeness, and the conformity to original documents, of all copies submitted to us.
Based upon and subject to the foregoing and having regard to legal considerations we deem
relevant, we are of the opinion that, insofar as the laws of the Republic of Malta are
concerned:
| (i) | Each Covered Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Republic of Malta. | ||
| (ii) | Each Covered Guarantor has full power, authority and legal right to execute, deliver and perform its obligations under the Documents. | ||
| (iii) | Each Covered Guarantor has duly authorized, executed and delivered the Documents. | ||
| (iv) | No consent, approval, license or exemption by, order or authorization of, or filing, recording or registration with, any governmental authority is required to be obtained or made by any Covered Guarantor under the laws of the Republic of Malta in connection with its execution and delivery of the Documents or the performance by it of its obligations thereunder other than those that have been obtained or made. |
We hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus
that is included in the Registration Statement. In giving this consent, we do not hereby admit that
we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Yours faithfully, |
||||
| /s/ Dr. Mark Camilleri LLD | ||||
| Camilleri, Delia, Randon & Associates | ||||
www.camco.com.mt
2
Exhibit 5.4
|
office address | Woluwe Atrium | ||
advocaten • avocats
|
Neerveldstraat 101-103 | |||
| 1200 BRUSSELS | ||||
| Belgium | ||||
| telephone | +32 (0)2 743 43 43 | |||
| fax | +32 (0)2 743 43 10 | |||
| internet | www.loyensloeff.com |
To the attention of the Company (as defined below);
Brussels, 16 June 2011
Dear Madam,
Dear Sir,
Dear Sir,
We have acted as special Belgian law counsel to the Company in connection with the exchange offer
of up to USD 350,000,000 in aggregate principal amount of the Company’s new 8 1/8% Senior Notes due
2019 together with Navios Maritime Finance II (US) Inc., a Delaware corporation.
| 1 | DEFINITIONS AND SCOPE OF OPINION | |
| 1.1 | Unless otherwise defined herein, capitalised terms and expressions used in this Opinion Letter will have the meaning ascribed to such terms in the Indenture and the Schedules to this Opinion Letter. In addition: | |
| Company means Navios Maritime Holdings Inc., a Marshall Islands corporation, located at 85 Akti Miaouli Street, Piraeus, Greece 185 38, in its capacity of Co-Issuer under the Opinion Documents. | ||
| Covered Guarantor means Kleimar NV, a limited liability company (naamloze vennootschap/société anonyme), incorporated under the laws of Belgium and having its registered office at 2000 Antwerp, Suikerrui 5, registered under no. 0426.557.894 RPR Antwerp. | ||
| Corporate Documents means, collectively, the documents referred to in Schedule 1 (Corporate Documents) to this Opinion Letter. | ||
| Indenture means an executed copy of the Indenture dated 28 January 2011 between the Company and Navios Maritime Finance II (US) Inc., as Co-Issuers, the guarantors named therein, including the Covered Guarantor, and Wells Fargo Bank, National Association as Trustee relating to Navios Maritime Holdings Inc.’s 8 1/8 % Senior Notes due 2019. | ||
| Opinion Documents means, collectively, the Indenture, the Notes and the Notation of Guarantee (as defined in the Indenture). | ||
| Opinion Letter means this Opinion Letter as issued on the date hereof. |
Burgerlijke vennootschap met handelsvorm/ Societe civile a forme commerciale Loyens & Loeff
CVBA/SCRL, Neerveldstraat 101-103 Rue Neerveld, 1200 Brussel/Bruxelles, Belgie/Belgique. RPR
Brussel/RPM Bruxelles 0821.233.870 — IBAN: BE83 7350 2462 1315 — BIC: KREDBEBB. Subject to further
restrictions, the liability of the company and of its lawyers is limited to the amounts paid out
under its liability insurance. Any legal relationship with the company is governed by Belgian law
and is subject to the exclusive jurisdiction of the courts of Brussels.
amsterdam • arnhem • brussels • eindhoven • luxembourg • rotterdam • aruba
curacao • dubai • frankfurt • geneva • london • new york • paris • singapore • tokyo • zurich
1/8
| Parties means all parties to the Opinion Documents, including the Covered Guarantor. | ||
| 1.2 | In this Opinion Letter Belgian legal concepts are expressed in English terms and not in their original Dutch or French terms. The concepts concerned may not be identical to the concepts described by the same English term as they exist under the law of other jurisdictions. | |
| 1.3 | For the purpose of this Opinion Letter, we have only reviewed the Opinion Documents and the Corporate Documents. Our review of the Opinion Documents was strictly limited for the purpose of rendering the opinions expressed herein. We have not reviewed any other documents or made any other inquiries, save as expressly stated in this Opinion Letter. Nothing in this Opinion Letter should be construed as implying that we are familiar with the affairs of the Covered Guarantor. | |
| 1.4 | We are only competent to render opinions on issues of Belgian law. We express no opinion as to any laws other than Belgian law, in full force and effect and as published on the date hereof and as applied by Belgian courts on the date hereof. We will not take into account any new or retroactive legislation which, when introduced, may in any way affect or prejudice any opinion given in this Opinion Letter. There is no intention on our part to amend or update this Opinion Letter in the event of changes after the date hereof with respect to any matters described in this Opinion Letter or in any Belgian laws or regulations relevant to the opinions given in this Opinion Letter. | |
| 1.5 | This Opinion Letter is strictly limited to the matters addressed herein and is not to be used or extended by implication to any other matter, whether in connection with any of the Opinion Documents, or otherwise. In particular, we do not express any opinion as to (i) any matters of fact; (ii) the legal, valid, binding and enforceable character of the Opinion Documents under all applicable laws, including the laws of Belgium; (iii) the accounting treatment of the transactions contemplated by the Opinion Documents; (iv) European Community law except to the extent it forms part of Belgian law or to the extent it has direct effect in Belgium; (v) public international law and the rules promulgated under or by any treaty or treaty organisation except to the extent it forms part of Belgium law, (vi) any matters of direct or indirect taxation and (vii) the applicable regulatory framework in relation to investment firms and/or public offerings of financial instruments under all applicable laws, including the laws of Belgium. | |
| 2 | ASSUMPTIONS | |
| For the purposes of the opinions expressed in this Opinion Letter, we have assumed and not verified: |
| 9494973 | ||
| LO Kleimar NV — Exchange Offer June 2011 | 2/8 |
| Accuracy of documents |
| 2.1 | the genuineness of all signatures and stamp, the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies; |
| Corporate status |
| 2.2 | the reliability and accuracy on the date hereof of (i) all search results obtained by electronic data transmission, (ii) any printed or computer search of offices of public record, (iii) the Belgian Official Gazette Extracts, and (iv) the Certificate of Non-Insolvency; | |
| 2.3 | that the Extract of the Deed of Incorporation refers to a valid notarial deed (authentieke akte/acte authentique), the contents whereof is complete and accurate, which is not void or otherwise affected by any defects for which a court might dissolve the Covered Guarantor; | |
| 2.4 | that the information recorded in the Articles of Association is correct and that since the date of the Articles of Association there have been no further amendments to the Articles of Association (although not constituting conclusive evidence, this assumption is supported by the Belgian Official Gazette Extracts); | |
| 2.5 | that since the date of its incorporation, the Covered Guarantor has (i) its principal establishment (as determined in accordance with article 4 of the Belgian International Private Law Code) in Belgium, and (ii) its centre of main interest (as determined in accordance with the Council Regulation EC no 1346/2000 of 29 May 2000 on insolvency proceedings) in Belgium; | |
| 2.6 | that the Covered Guarantor is not in a situation of cessation of payments, has not been declared bankrupt, is not in judicial composition or judicial reorganisation nor has been subjected to any other insolvency proceedings, including but not limited to those listed in Annex A of Council Regulation (EC) no 1346/2000 of 29 May 2000 on insolvency proceedings as amended from time to time (although not constituting conclusive evidence, as far as Belgium and the Covered Guarantor are concerned, this assumption is supported by the Certificate of Non-Insolvency and by the Belgian Official Gazette Extracts); |
| Corporate Formalities |
| 2.7 | that (i) the Board Minutes truly and accurately reflect what was deliberated, adopted and resolved at the relevant meeting, (ii) that the relevant resolutions (including any powers of attorney) in the Board Minutes were duly adopted, have not been revoked, amended or declared null and void and remain in full force and effect on the date of this Opinion Letter |
| 9494973 | ||
| LO Kleimar NV — Exchange Offer June 2011 | 3/8 |
| and (iii) that no events have taken place between the date of the Board Minutes and the date of this Opinion Letter which would have a director of the Covered Guarantor take a decision contrary to those set out in the Board Minutes; |
| 2.8 | that the relevant resolutions (including any powers of attorney) in the 556 Resolutions were duly adopted, have not been revoked, amended or declared null and void and remain in full force and effect on the date of this Opinion Letter and that no events have taken place between the date of the 556 Resolutions and the date of this Opinion Letter which would have a shareholder of the Covered Guarantor take a decision contrary to those set out in the 556 Resolutions; | |
| 2.9 | that none of the directors of the Covered Guarantor had a direct or indirect economic interest which conflicted with the decisions of, or with the transactions to be approved by, the Covered Guarantor, and which was not properly disclosed at the time of the adoption of the decision set forth in the Board Minutes in accordance with the relevant provisions of the Belgian Companies Code. |
| Other assumptions |
| 2.10 | the legality, validity and enforceability of the Opinion Documents under all applicable laws, including the laws of Belgium and New York; | |
| 2.11 | that all individuals acting on behalf of the Parties in relation to the execution of the Opinion Documents had legal capacity (handelingsbekwaamheid/capacité juridique) and no given consent is vitiated (wilsgebreken/vices de consentement); | |
| 2.12 | that there is no unpublished case law in Belgium that affects the opinions given in this Opinion Letter; | |
| 2.13 | that there are no dealings, agreements or arrangements, actions or events between, by or involving any of the Parties which terminate, modify or supersede any of the terms of the Opinion Documents, or which otherwise affect the opinions given in this Opinion Letter; | |
| 2.14 | that the terms of the Opinion Documents are entered into (i) in view of pursuing profit; (ii) to serve the Covered Guarantor’s corporate purpose; and (iii) within the Covered Guarantor’s corporate interest; | |
| 2.15 | that the terms of the Opinion Documents (i) do not infringe public policy or moral standards; and (ii) are entered into for commercial purposes and without any fraudulent intent; and | |
| 2.16 | that the proceeds of the Opinion Documents are not applied towards or have not facilitated the direct or indirect acquisition of the shares of the Covered Guarantor. |
| 9494973 | ||
| LO Kleimar NV — Exchange Offer June 2011 | 4/8 |
| 3 | OPINIONS | |
| Based upon the foregoing and subject to (i) any factual matters or documents not disclosed to us in the course of our investigation and (ii) the qualifications, reservations and the terms and conditions stated hereafter, we are of the opinion that: | ||
| 3.1 | the Covered Guarantor has been validly incorporated and is validly existing as a public limited liability company (naamloze vennootschap/société anonyme); | |
| 3.2 | the entry into and the performance by the Covered Guarantor of the Opinion Documents has been authorised by all requisite corporate action on the part of the Covered Guarantor; | |
| 3.3 | the execution of the Opinion Documents does not and will not result in any violation of the provisions of the Articles of Association or any provisions of Belgian company law applicable to the Company generally; | |
| 3.4 | the Covered Guarantor has the full corporate power to enter into the Opinion Documents and, once executed, to perform its obligations thereunder; and | |
| 3.5 | No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of any court or governmental authority or agency of Belgium is necessary or required in connection with the due authorization and execution of the Opinion Documents by the Covered Guarantor. | |
| 4 | QUALIFICATIONS AND RESERVATIONS | |
| The opinions expressed in this Opinion Letter are subject to the following qualifications and reservations: | ||
| 4.1 | According to Belgian company law, a company may only enter into transactions which are in its corporate interest. The assessment whether or not the transactions contemplated by the Opinion Documents are in the corporate interest of the Covered Guarantor is largely dependent on factual matters and any decision in this regard rests with the board of directors of the Covered Guarantor. Therefore we cannot express any opinion whether the transactions under the Opinion Documents are in the best corporate interest of the Covered Guarantor. In the Board Minutes, the board of directors of the Covered Guarantor has determined that the entering into the contemplated transactions by the Covered Guarantor is in the corporate intrest of the Covered Guarantor. If the entering into the Opinion Documents by the Covered Guarantor would be against its corporate interest, the transactions thereunder could, upon certain conditions, be held null and void. In addition, the directors of the Covered Guarantor could be held liable for having approved the entering into the Opinion Documents against the corporate interest of the Covered |
| 9494973 | ||
| LO Kleimar NV — Exchange Offer June 2011 | 5/8 |
| Guarantor. The foregoing is a customary qualification for an opinion addressing an upstream guarantee by a subsidiary to its parent company. | ||
| 4.2 | In principle, a power of attorney or agency provision can be revoked by the principal at any time without prior notice or justification. A power of attorney or agency provision can however be made irrevocable, provided that it is limited in time. A termination of an irrevocable power of attorney or agency provision can give rise to damages. Any appointment of an attorney or agent may be limited in circumstances of conflict of interest between the principal and the attorney-in-fact or agent and terminates in principle upon bankruptcy or liquidation of the principal. | |
| 4.3 | The opinions expressed herein may be further affected or limited by, and the validity and enforceability of the Opinion Documents is subject to, the provisions of any applicable bankruptcy, insolvency, judicial reorganisation, fraudulent conveyance, suspension of payments and other or similar laws of any jurisdiction and of general application now or hereafter in effect, relating to or affecting the enforcement or protection of creditors’ rights generally. | |
| 5 | TERMS AND CONDITIONS | |
| 5.1 | This Opinion Letter is issued by Loyens & Loeff CVBA/SCRL. Any persons who are involved in the services provided by or on behalf of Loyens & Loeff CVBA/SCRL cannot be held liable in any manner whatsoever. Our liability is limited to any amount paid out under our professional liability insurance policy (details of which can be obtained on www.loyensloeff.com). | |
| 5.2 | This Opinion Letter is governed by Belgian law. | |
| 5.3 | The courts of Brussels have exclusive jurisdiction to settle any dispute arising out of or in connection with this Opinion Letter. | |
| 5.4 | We hereby consent to the filing of this Opinion Letter as an exhibit to the Registration Statement and to the reference under the caption “Legal Matters” in the prospectus that is included in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, as amended. |
| 9494973 LO Kleimar NV — Exchange Offer June 2011 |
6/8 |
Yours sincerely,
On behalf of Loyens & Loeff CVBA/SCRL
|
 |
|
| Marc Vermylen* | Stefaan Deckmyn* |
| * | EBVBA |
| 9494973 | ||
| LO Kleimar NV — Exchange Offer June 2011 | 7/8 |
Schedule 1
CORPORATE DOCUMENTS
| 1. | a copy of the excerpt of the deed of incorporation of the Covered Guarantor of 13 November 1984, as published in the Belgian Official Gazette Extracts on 22 December 1984 under number 27290 (the Extract of the Deed of Incorporation); | |
| 2. | a copy of the co-ordinated articles of association of the Covered Guarantor of 27 December 2010, following the modification to the articles of association on 27 December 2010 before notary public Denis Deckers (the Articles of Association); | |
| 3. | All publications in the Belgian Official Gazette and its annexes from 10 February 2005 until 15 June 2011 in respect of the Covered Guarantor (the Belgian Official Gazette Extracts); | |
| 4. | an executed copy of the minutes of the meeting of the board of directors of the Covered Guarantor held on 13 January 2011 (the Board Minutes); | |
| 5. | an executed copy of the written shareholders resolutions of 13 January 2011 of the Covered Guarantor approving the change of control provisions in the Indenture (the 556 Resolutions); | |
| 6. | written confirmation obtained from the Clerk’s office of the Commercial Court of Antwerp of 9 November 2010 confirming that the Covered Guarantor has not been declared bankrupt or entered into judicial reorganisation on the date thereof (the Certificate of Non-Insolvency); and | |
| 7. | an extract of the Cross Road Bank of Legal Enterprises dated 9 November 2010 with respect to the Covered Guarantor. |
| 9494973 | ||
| LO Kleimar NV — Exchange Offer June 2011 | 8/8 |
Exhibit 5.5
June 16, 2011
Navios Maritime Holdings Inc.
85 Akti Miaouli Street
Piraeus, Greece 185 38
85 Akti Miaouli Street
Piraeus, Greece 185 38
| Re: | Navios Maritime Holdings Inc. |
Dear Sirs:
We are licensed to practice law in the Republic of Panama.
We have acted as counsel to Navios Maritime Holdings Inc., a Marshall Islands corporation (the
“Company”) and White Narcissus Marine S.A., a Panamanian company (the “Covered
Guarantor”), on matters of Panamanian law in connection with the offer by the Company and
Navios Maritime Finance II (US) Inc., a Delaware corporation (“NMFI” and together with the
Company, the “Co-Issuers”), to exchange up to $350,000,000 in aggregate principal amount of
its new 8 1/8% Senior Notes due 2019 (the “Exchange Notes”), which are being registered
under the Securities Act of 1933, as amended (the “Securities Act”), for a like principal
amount of its 8 1/8% Senior Notes due 2019 (the “Outstanding Notes”) in each case pursuant
to the Registration Statement on Form F-4 filed with the Securities and Exchange Commission (the
“Registration Statement”). The Outstanding Notes and the Exchange Notes are collectively
referred to herein as the “Notes.”
In connection herewith we have examined originals or copies of:
| 1. | The Indenture dated January 28, 2011, between the Co-Issuers, the Guarantors listed therein and Wells Fargo Bank, N.A., as Trustee with respect to the 8 1/8% Senior Notes due 2019; | ||
| 2. | The Notes; and | ||
| 3. | The Notations of Guarantee (as defined in the Indenture). |
The documents referred to in Items 1, 2 and 3 are collectively referred to as the
“Documents.”
For the purpose of this opinion, we have further assumed:
| a. | The power, authority and legal right of all parties (other than the Covered Guarantor) to the Documents to enter into and to perform their respective obligations thereunder and that the Documents have been duly authorized, |
| executed and delivered by each such party. | |||
| b. | The genuineness of all signatures on all documents and the completeness, and the conformity to original documents, of all copies submitted to us; | ||
| c. | The due compliance of each of the Documents (other than the Covered Guarantor) with all matters of, and the validity and enforceability thereof under, all such laws as governed or related to it (other than the laws of the Republic of the Panama as to which we are opining); | ||
| d. | That each of the parties to the Documents, excluding the Covered Guarantor, has duly and validly executed and delivered the Documents to which it is a party and has complied with all legal requirements pertaining to its status as such status relates to its rights to seek benefits of and enforce the against the Company or the Covered Guarantors, as the case may be; and | ||
| e. | That any required consents, licenses, permits, approvals, exemptions, qualifications or authorizations of or by, and any required registrations or filings with, any governmental authority or regulatory body of any jurisdiction other than the Republic of Panama in connection with the transactions contemplated by the Documents have been duly obtained or made. |
Based upon and subject to the foregoing and having regard to legal considerations we deem
relevant, we are of the opinion that, insofar as the laws of the Republic of Panama are concerned,
that:
| 1. | The Covered Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of Panama. | ||
| 2. | The Covered Guarantor has full power, authority and legal right to execute, deliver and perform its obligations under the Documents. | ||
| 3. | The Covered Guarantor has duly authorized, executed and delivered the Documents. | ||
| 4. | No consent, approval, license or exemption by, order or authorization of, or filing, recording or registration with, any governmental authority is required to be obtained or made by the Covered Guarantor under the laws of the Republic of Panama, in connection with its execution and delivery of the Documents or the performance by it of its obligations thereunder other than those that have been obtained or made. |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement
and to the reference to this firm under the caption “Legal Matters” in the prospectus that is
included in the Registration Statement. In giving this consent, we do not hereby admit that we are
in the category of persons whose consent is required under Section 7 of the Securities Act.
| Yours faithfully, |
||||
| By: | /s/ Marco Antonio Saavedra C. | |||
- 2 -
Exhibit 12.1
Ratio of Earnings to Fixed Charges
| March 31, | December 31, | |||||||||||||||||||||||||||
| 2011 | 2010 | 2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||||||||
Earnings: |
||||||||||||||||||||||||||||
(a) pre-tax income (loss) from continuing operations
before adjustment for income or loss from equity
investees |
(44,776 | ) | 18,027 | 105,098 | 40,177 | 46,706 | 273,523 | 20,395 | ||||||||||||||||||||
(b) fixed charges |
44,156 | 38,675 | 170,047 | 145,103 | 353,672 | 185,719 | 67,700 | |||||||||||||||||||||
(c) amortization of capitalized interest |
— | — | — | — | — | — | — | |||||||||||||||||||||
(d) distributed income of equity investees |
6,126 | 5,377 | 22,197 | 18,944 | 13,250 | 678 | 583 | |||||||||||||||||||||
(e) share of pre-tax losses of equity investees for
which charges arising from guarantees are included in
fixed charges |
— | — | — | — | — | — | — | |||||||||||||||||||||
Less: |
||||||||||||||||||||||||||||
(a) Interest capitalized |
— | — | — | — | — | — | — | |||||||||||||||||||||
(b) preference security dividend requirements of
consolidated subsidiaries |
(27) | — | — | — | — | — | — | |||||||||||||||||||||
(c) noncontrolling interest in pre-tax income of
subsidiaries that have not incurred fixed charges |
— | — | — | — | — | — | — | |||||||||||||||||||||
Total |
5,479 | 62,079 | 297,342 | 204,224 | 413,628 | 459,920 | 88,678 | |||||||||||||||||||||
Fixed charges: |
||||||||||||||||||||||||||||
(a) Interest expensed and capitalized |
32,462 | 21,086 | 105,565 | 68,790 | 51,438 | 49,287 | 39,425 | |||||||||||||||||||||
(b)amortization
of debt expense and discount or premium and capitalized expenses related to indebtedness |
1,331 | 1,614 | 11,752 | 6,682 | 2,077 | 1,856 | 8,004 | |||||||||||||||||||||
(c) an estimate of the interest within rental expense |
10,336 | 15,975 | 52,730 | 69,631 | 300,157 | 134,576 | 20,271 | |||||||||||||||||||||
(d) preference security dividend requirements of
consolidated subsidiaries |
27 | — | — | — | — | — | — | |||||||||||||||||||||
Total |
44,156 | 38,675 | 170,047 | 145,103 | 353,672 | 185,719 | 67,700 | |||||||||||||||||||||
Earnings to fixed charges |
(A | ) | 1.61 | 1.75 | 1.41 | 1.17 | 2.48 | 1.31 | ||||||||||||||||||||
(A)
Additional pre-tax income from continuing operations before
adjustment for income or loss from equity investees of $38,667 would
be necessary to generate a ratio of earnings to fixed charges of 1.00. |
||||||||||||||||||||||||||||
Exhibit 21.1
List of Subsidiaries of Navios Maritime Holdings Inc.
| Effective | ||||||||
| Nature / | Ownership | Country of | ||||||
| Company Name | Vessel Name | Interest | Incorporation | |||||
Navios Maritime Holdings Inc.
|
Holding Company | 100 | % | Marshall Is. | ||||
Navios Corporation
|
Sub-Holding Company | 100 | % | Marshall Is. | ||||
Navios International Inc.
|
Operating Company | 100 | % | Marshall Is. | ||||
Navimax Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Navios Handybulk Inc.
|
Operating Company | 100 | % | Marshall Is. | ||||
Hestia Shipping Ltd.
|
Operating Company | 100 | % | Malta | ||||
Anemos Maritime Holdings Inc.
|
Sub-Holding Company | 100 | % | Marshall Is. | ||||
Navios ShipManagement Inc.
|
Management Company | 100 | % | Marshall Is. | ||||
NAV Holdings Limited
|
Sub-Holding Company | 100 | % | Malta | ||||
Kleimar N.V.
|
Operating Company/Vessel Owning Company | 100 | % | Belgium | ||||
Kleimar Ltd.
|
Operating Company | 100 | % | Marshall Is. | ||||
Bulkinvest S.A.
|
Operating Company | 100 | % | Luxembourg | ||||
Primavera Shipping Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Ginger Services Co.
|
Operating Company | 100 | % | Marshall Is. | ||||
Aquis Marine Corp.
|
Sub-Holding Company | 100 | % | Marshall Is. | ||||
Navios Tankers Management Inc.
|
Management Company | 100 | % | Marshall Is. | ||||
Astra Maritime Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Achilles Shipping Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Apollon Shipping Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Herakles Shipping Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Hios Shipping Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Ionian Shipping Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Kypros Shipping Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Meridian Shipping Enterprises Inc.
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Mercator Shipping Corporation
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Arc Shipping Corporation
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Horizon Shipping Enterprises
Corporation
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
| Effective | ||||||||
| Nature / | Ownership | Country of | ||||||
| Company Name | Vessel Name | Interest | Incorporation | |||||
Magellan Shipping Corporation
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Aegean Shipping Corporation
|
Operating Company | 100 | % | Marshall Is. | ||||
Star Maritime Enterprises
Corporation
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Corsair Shipping Ltd.
|
Vessel Owning Company | 100 | % | Marshall Is | ||||
Rowboat Marine Inc.
|
Vessel Owning Company | 100 | % | Marshall Is | ||||
Beaufiks Shipping Corporation
|
Vessel Owning Company | 100 | % | Marshall Is | ||||
Nostos Shipmanagement Corp.
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Portorosa Marine Corporation
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Shikhar Ventures S.A.
|
Vessel Owning Company | 100 | % | Liberia | ||||
Sizzling Ventures Inc.
|
Operating Company | 100 | % | Liberia | ||||
Rheia Associates Co.
|
Operating Company | 100 | % | Marshall Is. | ||||
Taharqa Spirit Corp.
|
Operating Company | 100 | % | Marshall Is. | ||||
Rumer Holding Ltd.
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Pharos Navigation S.A.
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Pueblo Holdings Ltd.
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Quena Shipmanagement Inc.
|
Operating Company | 100 | % | Marshall Is. | ||||
Aramis Navigation
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
White Narcissus Marine S.A.
|
Vessel Owning Company | 100 | % | Panama | ||||
Navios G.P. L.L.C.
|
Operating Company | 100 | % | Marshall Is. | ||||
Floral Marine Ltd.
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Red Rose Shipping Corp.
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Highbird Management Inc.
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Ducale Marine Inc.
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Vector Shipping Corporation
|
Vessel Owning Company | 100 | % | Marshall Is. | ||||
Faith Marine Ltd.
|
Vessel Owning Company | 100 | % | Liberia | ||||
Navios Maritime Finance (US) Inc.
|
Operating Company | 100 | % | Delaware | ||||
Solange
Shipping Ltd.
|
Operating Company | 100 | % | Marshall Is. | ||||
Tulsi
Shipmanagement Co.
|
Operating Company | 100 | % | Marshall Is. | ||||
Cinthara
Shipping Ltd.
|
Operating Company | 100 | % | Marshall Is. | ||||
Mauve
International S.A.
|
Operating Company | 100 | % | Marshall Is. | ||||
Rawlin
Services Company
|
Operating Company | 100 | % | Marshall Is. | ||||
Navios South American Logistics and Subsidiaries:
| Effective | ||||||||
| Nature / | Ownership | Country of | ||||||
| Company Name | Vessel Name | Interest | Incorporation | |||||
Navios South American Logistics Inc.
|
Sub-Holding Company | 63.8 | % | Marshall Is. | ||||
Corporacion Navios S.A.
|
Operating Company | 63.8 | % | Uruguay | ||||
Nauticler S.A.
|
Sub-Holding Company | 63.8 | % | Uruguay | ||||
Compania Naviera Horamar S.A.
|
Vessel Operating Company/Management Company | 63.8 | % | Argentina | ||||
Compania de Transporte Fluvial Int S.A.
|
Sub-Holding Company | 63.8 | % | Uruguay | ||||
Ponte Rio S.A.
|
Operating Company | 63.8 | % | Uruguay | ||||
Thalassa Energy S.A.
|
Barge Owning Company | 39.9 | % | Argentina | ||||
HS Tankers Inc.
|
Vessel Owning Company | 32.5 | % | Panama | ||||
HS Navegation Inc.
|
Vessel Owning Company | 32.5 | % | Panama | ||||
HS Shipping Ltd Inc.
|
Vessel Owning Company | 39.9 | % | Panama | ||||
HS South Inc.
|
Vessel Owning Company | 39.9 | % | Panama | ||||
Mercopar Internacional S.A.
|
Sub-Holding Company | 63.8 | % | Uruguay | ||||
Nagusa Internacional S.A.
|
Sub-Holding Company | 63.8 | % | Uruguay | ||||
Hidrovia OSR Internacional S.A.
|
Sub-Holding Company | 63.8 | % | Uruguay | ||||
Petrovia Internacional S.A.
|
Land-Owning Company | 63.8 | % | Uruguay | ||||
Mercopar S.A.
|
Operating/Barge Owning Company | 63.8 | % | Paraguay | ||||
Navegacion Guarani S.A.
|
Operating Barge and Pushboat Owning Company | 63.8 | % | Paraguay | ||||
Hidrovia OSR S.A.
|
Oil Spill Response & Salvage Services/Vessel Owning Company | 63.8 | % | Paraguay | ||||
Petrovia S.A.
|
Shipping Company | 63.8 | % | Paraguay | ||||
Mercofluvial S.A.
|
Operating Barge and Pushboat Owning Company | 63.8 | % | Paraguay | ||||
Petrolera San Antonio S.A. (PETROSAN)
|
Port Facility Operating Company | 63.8 | % | Paraguay | ||||
Flota Mercante Paraguaya S.A.
|
Shipping Company | 63.8 | % | Paraguay | ||||
Compania de Transporte Fluvial S.A.
|
Shipping Company | 63.8 | % | Paraguay | ||||
Hidrogas S.A.
|
Shipping Company | 63.8 | % | Paraguay | ||||
Stability Oceanways S.A.
|
Operating Barge and Pushboat Owning Company | 63.8 | % | Panama | ||||
Hidronave S.A.
|
Pushboat Owning Company | 32.5 | % | Brazil | ||||
Navarra Shipping Corporation
|
Tanker Owning Company | 63.8 | % | Marshall Is. | ||||
Pelayo Shipping Corporation
|
Tanker Owning Company | 63.8 | % | Marshall Is. | ||||
Varena Maritime Services S.A. |
Operating Barge and Pushboat Owning Company | 63.8 | % | Panama | ||||
Affiliates included in the financial statements accounted for under the equity method:
| Nature / | Ownership | Country of | ||||||
| Company Name | Vessel Name | Interest (*) | Incorporation | |||||
Navios Maritime Acquisition Corporation
|
Sub-Holding Company | 53.7 | % | Marshall Is. | ||||
Aegean Sea Maritime Holdings Inc.
|
Sub-Holding Company | 53.7 | % | Marshall Is. | ||||
Amorgos Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Andros Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Antiparos Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Ikaria Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Kos Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Mytilene Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Skiathos Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Syros Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Skopelos Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Cayman Is. | ||||
Sifnos Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Ios Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Cayman Is. | ||||
Thera Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Shinyo Dream Limited
|
Vessel Owning Company | 53.7 | % | Hong Kong | ||||
Shinyo Kannika Limited
|
Vessel Owning Company | 53.7 | % | Hong Kong | ||||
Shinyo Kieran Limited
|
Vessel Owning Company | 53.7 | % | British Virgin Is. | ||||
Shinyo Loyalty Limited
|
Vessel Owning Company | 53.7 | % | Hong Kong | ||||
Shinyo Navigator Limited
|
Vessel Owning Company | 53.7 | % | Hong Kong | ||||
Shinyo Ocean Limited
|
Vessel Owning Company | 53.7 | % | Hong Kong | ||||
Shinyo Saowalak Limited
|
Vessel Owning Company | 53.7 | % | British Virgin Is. | ||||
Crete Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Rhodes Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Tinos Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Folegandros Shipping Corporatio
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Navios Acquisition Finance (US) Inc
|
Operating Company | 53.7 | % | Delaware | ||||
Serifos Shipping Corporation
|
Vessel Owning Company | 53.7 | % | Marshall Is. | ||||
Navios Maritime Partners L.P. (*)
|
Sub-Holding Company | 18.76 | % | Marshall Is. | ||||
Navios Maritime Operating L.L.C. (*)
|
Operating Company | 18.76 | % | Marshall Is. | ||||
Libra Shipping Enterprises Corporation (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Alegria Shipping Corporation (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Felicity Shipping Corporation (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Gemini Shipping Corporation (*)
|
Vessel Owning Company | 18.76 | % | Marshal Is. | ||||
Galaxy Shipping Corporation (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Prosperity Shipping Corporation (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Fantastiks Shipping Corporation (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Aldebaran Shipping Corporation (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Aurora Shipping Enterprises Ltd. (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Sagittarius Shipping Corporation (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Palermo Shipping S.A. (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Customized Development S.A.
|
Vessel Owning Company | 18.76 | % | Liberia | ||||
Pandora Marine Inc.
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Hyperion Enterprises Inc. (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Chilali Corp. (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
JTC Shipping Trading Ltd. (*)
|
Operating Company | 18.76 | % | Malta | ||||
Surf Maritime Co. (*)
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Kohylia Shipmanagement S.A.
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Orbiter
Shipping Corp.
|
Vessel Owning Company | 18.76 | % | Marshall Is. | ||||
Acropolis Chartering & Shipping Inc.
|
Brokerage Company | 50 | % | Liberia | ||||
| (*) | Percentage does not include the ownership of 3,131,415, 1,174,219 and 788,370 common units relating to the sale of the Navios Hope, the Navios Aurora II and both the Navios Fulvia and the Navios Melodia, respectively, to Navios Partners since these are considered available-for-sale securities. |
Exhibit 23.6
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-4 of
our report dated April 6, 2011 relating to the consolidated financial statements, and the
effectiveness of internal control over financial reporting, which appears in Navios Maritime
Holdings Inc.’s Annual Report on Form 20-F/A for the year ended December 31, 2010. We also consent to
the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers S.A.
Athens, Greece
June 21, 2011
Athens, Greece
June 21, 2011
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
o
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2)
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
| A National Banking Association (Jurisdiction of incorporation or organization if not a U.S. national bank) |
94-1347393 (I.R.S. Employer Identification No.) |
|
| 101 North Phillips Avenue Sioux Falls, South Dakota (Address of principal executive offices) |
57104 (Zip code) |
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth Street and Marquette Avenue, 17th Floor
Minneapolis, Minnesota 55479
(612) 667-4608
Law Department, Trust Section
MAC N9305-175
Sixth Street and Marquette Avenue, 17th Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)
NAVIOS MARITIME HOLDINGS INC.
NAVIOS MARITIME FINANCE II (US) INC.
NAVIOS MARITIME FINANCE II (US) INC.
(Exact name of registrant as specified in its charter)
| Republic of Marshall Islands Delaware |
4412 | 98-0384348 33-1219789 |
||
| (State or other
jurisdiction of incorporation or organization) |
(Primary Standard
Industrial Classification Code Number) |
(I.R.S. Employer
Identification Number) |
SEE TABLE OF ADDITIONAL REGISTRANT GUARANTORS
Navios Maritime Holdings Inc.
85 Akti Miaouli Street\Piraeus, Greece 185 38
(011) +30-210-4595000
85 Akti Miaouli Street\Piraeus, Greece 185 38
(011) +30-210-4595000
(Address, including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
| 712 Fifth Avenue, 18th Floor New York, New York (Address of principal executive offices) |
10019 (Zip code) |
8 1/8% Senior Notes due 2019
(Title of the indenture securities)
(Title of the indenture securities)
TABLE OF ADDITIONAL REGISTRANT GUARANTORS
| State or Other | ||||
| Jurisdiction of | ||||
| Exact Name of Registrant as | Incorporation or | I.R.S. Employer | ||
| Specified in its Charter (1) | Organization | Identification Number | ||
Faith Marine Ltd.
|
Liberia | 98-1006677 | ||
Vector Shipping Corporation
|
Marshall Islands | 66-0742469 | ||
Aramis Navigation Inc.
|
Marshall Islands | 98-0645621 | ||
Ducale Marine Inc.
|
Marshall Islands | 98-0633431 | ||
Highbird Management Inc.
|
Marshall Islands | 98-0633432 | ||
Floral Marine Ltd.
|
Marshall Islands | 98-0628840 | ||
Red Rose Shipping Corp.
|
Marshall Islands | 98-0628836 | ||
Ginger Services Co.
|
Marshall Islands | 98-0609514 | ||
Quena Shipmanagement Inc.
|
Marshall Islands | 98-0599808 | ||
Astra Maritime Corporation
|
Marshall Islands | 98-0599803 | ||
Primavera Shipping Corporation
|
Marshall Islands | 98-0599806 | ||
Pueblo Holdings Ltd.
|
Marshall Islands | 98-0594673 | ||
Beaufiks Shipping Corporation
|
Marshall Islands | 75-3269445 | ||
Rowboat Marine Inc.
|
Marshall Islands | 75-3269444 | ||
Corsair Shipping Ltd.
|
Marshall Islands | 75-3269443 | ||
Pharos Navigation S.A.
|
Marshall Islands | 98-0563832 | ||
Sizzling Ventures Inc.
|
Liberia | 98-0563838 | ||
Shikhar Ventures S.A.
|
Liberia | 98-0563837 | ||
Taharqa Spirit Corp.
|
Marshall Islands | 98-0563839 | ||
Rheia Associates Co.
|
Marshall Islands | 98-0563834 | ||
Rumer Holding Ltd.
|
Marshall Islands | 98-0563835 | ||
Kleimar N.V.
|
Belgium | 98-0386679 | ||
NAV Holdings Limited
|
Malta | 98-0386684 | ||
Navios Corporation
|
Marshall Islands | 13-3023670 | ||
Anemos Maritime Holdings Inc.
|
Marshall Islands | 98-0418747 | ||
Navios Shipmanagement Inc.
|
Marshall Islands | 98-0418748 | ||
Aegean Shipping Corporation
|
Marshall Islands | 47-0938383 | ||
Arc Shipping Corporation
|
Marshall Islands | 98-0386672 | ||
Magellan Shipping Corporation
|
Marshall Islands | 98-0386681 | ||
Ionian Shipping Corporation
|
Marshall Islands | 98-0418750 | ||
Apollon Shipping Corporation
|
Marshall Islands | 98-0418751 | ||
Herakles Shipping Corporation
|
Marshall Islands | 98-0418752 | ||
Achilles Shipping Corporation
|
Marshall Islands | 51-0495540 | ||
Kypros Shipping Corporation
|
Marshall Islands | 51-0795616 | ||
Hios Shipping Corporation
|
Marshall Islands | 51-0495614 | ||
Meridian Shipping Enterprises Inc.
|
Marshall Islands | 98-0386683 | ||
Mercator Shipping Corporation
|
Marshall Islands | 98-0386682 | ||
Horizon Shipping Enterprises Corporation
|
Marshall Islands | 98-0386677 | ||
Star Maritime Enterprises Corporation
|
Marshall Islands | 98-0386685 | ||
Navios Handybulk Inc.
|
Marshall Islands | 98-0156162 | ||
Navios International Inc.
|
Marshall Islands | 98-0163555 | ||
Nostos Shipmanagement Corp.
|
Marshall Islands | 66-0715101 | ||
Portorosa Marine Corp.
|
Marshall Islands | 66-0715102 | ||
White Narcissus Marine S.A.
|
Panama | 75-3252951 | ||
Hestia Shipping Ltd.
|
Malta | 98-0386676 | ||
Kleimar Ltd.
|
Marshall Islands | 75-3268633 | ||
Navimax Corporation
|
Marshall Islands | 06-1624242 | ||
Aquis Marine Corp.
|
Marshall Islands | 66-0751682 | ||
Navios Tankers Management Inc.
|
Marshall Islands | 42-1771241 |
| (1) | The address for each of the additional registrant guarantors is 85 Akti Miaouli Street, Piraeus, Greece 185 38. |
Item 1. General Information. Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. | ||
| Comptroller of the Currency Treasury Department Washington, D.C. |
|||
| Federal Deposit Insurance Corporation Washington, D.C. |
|||
| Federal Reserve Bank of San Francisco San Francisco, California 94120 |
|||
| (b) | Whether it is authorized to exercise corporate trust powers. | ||
| The trustee is authorized to exercise corporate trust powers. |
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee,
describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as
provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibit 1.
|
A copy of the Articles of Association of the trustee now in effect.* | |
Exhibit 2.
|
A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo Bank, National Association, dated February 4, 2004.** | |
Exhibit 3.
|
See Exhibit 2 | |
Exhibit 4.
|
Copy of By-laws of the trustee as now in effect.*** | |
Exhibit 5.
|
Not applicable. | |
Exhibit 6.
|
The consent of the trustee required by Section 321(b) of the Act. | |
Exhibit 7.
|
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |
Exhibit 8.
|
Not applicable. | |
Exhibit 9.
|
Not applicable. |
| * | Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated December 30, 2005 of file number 333-130784-06. | |
| ** | Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form T-3 dated March 3, 2004 of file number 022-28721. | |
| *** | Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated May 26, 2005 of file number 333-125274. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells
Fargo Bank, National Association, a national banking association organized and existing under the
laws of the United States of America, has duly caused this statement of eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of
New York on the 3rd day of June, 2011.
| WELLS FARGO BANK, NATIONAL ASSOCIATION |
||||
| /s/ Martin G. Reed | ||||
| Martin G. Reed | ||||
| Vice President | ||||
EXHIBIT 6
June 3, 2011
Securities and Exchange Commission
Washington, D.C. 20549
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the
undersigned hereby consents that reports of examination of the undersigned made by Federal,
State, Territorial, or District authorities authorized to make such examination may be
furnished by such authorities to the Securities and Exchange Commission upon its request
therefor.
| Very truly yours, WELLS FARGO BANK, NATIONAL ASSOCIATION |
||||
| /s/ Martin G. Reed | ||||
| Martin G. Reed | ||||
| Vice President | ||||
EXHIBIT
7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business March 31, 2011, filed in accordance with 12 U.S.C. §161 for National Banks.
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business March 31, 2011, filed in accordance with 12 U.S.C. §161 for National Banks.
| Dollar Amounts | ||||||||
| In Millions | ||||||||
ASSETS |
||||||||
Cash and balances due from depository institutions: |
||||||||
Noninterest-bearing balances and currency and coin |
$ | 17,369 | ||||||
Interest-bearing balances |
74,672 | |||||||
Securities: |
||||||||
Held-to-maturity securities |
0 | |||||||
Available-for-sale securities |
145,551 | |||||||
Federal funds sold and securities purchased under agreements to resell: |
||||||||
Federal funds sold in domestic offices |
6,481 | |||||||
Securities purchased under agreements to resell |
10,955 | |||||||
Loans and lease financing receivables: |
||||||||
Loans and leases held for sale |
19,408 | |||||||
Loans and leases, net of unearned income |
686,307 | |||||||
LESS: Allowance for loan and lease losses |
18,779 | |||||||
Loans and leases, net of unearned income and allowance |
667,528 | |||||||
Trading Assets |
34,595 | |||||||
Premises and fixed assets (including capitalized leases) |
8,062 | |||||||
Other real estate owned |
5,290 | |||||||
Investments in unconsolidated subsidiaries and associated companies |
588 | |||||||
Direct and indirect investments in real estate ventures |
108 | |||||||
Intangible assets |
||||||||
Goodwill |
20,936 | |||||||
Other intangible assets |
27,181 | |||||||
Other assets |
54,306 | |||||||
Total assets |
$ | 1,093,030 | ||||||
LIABILITIES |
||||||||
Deposits: |
||||||||
In domestic offices |
$ | 749,729 | ||||||
Noninterest-bearing |
171,738 | |||||||
Interest-bearing |
577,991 | |||||||
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
93,508 | |||||||
Noninterest-bearing |
1,895 | |||||||
Interest-bearing |
91,613 | |||||||
Federal funds purchased and securities sold under agreements to repurchase: |
||||||||
Federal funds purchased in domestic offices |
1,809 | |||||||
Securities sold under agreements to repurchase |
14,094 | |||||||
| Dollar Amounts | ||||
| In Millions | ||||
Trading liabilities |
19,802 | |||
Other borrowed money |
||||
(includes mortgage indebtedness and obligations under capitalized leases) |
38,506 | |||
Subordinated notes and debentures |
17,445 | |||
Other liabilities |
32,953 | |||
Total liabilities |
$ | 967,846 | ||
EQUITY CAPITAL |
||||
Perpetual preferred stock and related surplus |
0 | |||
Common stock |
519 | |||
Surplus (exclude all surplus related to preferred stock) |
98,980 | |||
Retained earnings |
19,029 | |||
Accumulated other comprehensive income |
5,381 | |||
Other equity capital components |
0 | |||
Total bank equity capital |
123,909 | |||
Noncontrolling (minority) interests in consolidated subsidiaries |
1,275 | |||
Total equity capital |
125,184 | |||
Total liabilities, and equity capital |
$ | 1,093,030 | ||
I, Timothy J. Sloan, EVP & CFO of the above-named bank do hereby declare that this Report of
Condition has been prepared
in conformance with the instructions issued by the appropriate Federal regulatory authority and is
true to the best of my knowledge
and belief.
Timothy J. Sloan
EVP & CFO
EVP & CFO
We, the undersigned directors, attest to the correctness of this Report of Condition and declare
that it has been examined by us
and to the best of our knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate
Federal regulatory authority and is true and correct.
John Stumpf
|
Directors | |
Dave Hoyt |
||
Michael Loughlin |
Exhibit 99.1
LETTER OF
TRANSMITTAL
OFFER TO EXCHANGE
81/8% SENIOR NOTES DUE 2019,
WHICH HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OUTSTANDING
81/8% SENIOR NOTES DUE 2019
OF
NAVIOS MARITIME HOLDINGS INC.
NAVIOS MARITIME FINANCE II (US) INC.
OFFER TO EXCHANGE
81/8% SENIOR NOTES DUE 2019,
WHICH HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OUTSTANDING
81/8% SENIOR NOTES DUE 2019
OF
NAVIOS MARITIME HOLDINGS INC.
NAVIOS MARITIME FINANCE II (US) INC.
THE EXCHANGE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME,
ON ,
2011 (THE “EXPIRATION DATE”), UNLESS EXTENDED BY
NAVIOS MARITIME HOLDINGS INC. AND NAVIOS MARITIME FINANCE II
(US) INC. IN THEIR SOLE DISCRETION
THE
EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WELLS FARGO BANK, NATIONAL ASSOCIATION
WELLS FARGO BANK, NATIONAL ASSOCIATION
| By Registered or Certified Mail: | By Regular Mail or Overnight Courier: | |
|
WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 PO Box 1517 Minneapolis, MN 55480 |
WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 Sixth & Marquette Avenue Minneapolis, MN 55479 |
|
| In Person by Hand Only: | By Facsimile: | |
|
WELLS FARGO BANK, N.A. 12th Floor - Northstar East Building Corporate Trust Operations 608 Second Avenue South Minneapolis, MN 55479 |
(For Eligible Institutions only): fax. (612) 667-6282 Attn. Bondholder Communications |
For
Information or Confirmation by
Telephone: (800) 344-5128, Option 0
Attn. Bondholder Communications
Telephone: (800) 344-5128, Option 0
Attn. Bondholder Communications
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF
TRANSMITTAL VIA A FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN
AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges receipt of the prospectus,
dated ,
2011, (the “Prospectus”), of Navios Maritime Holdings
Inc. and Navios Maritime Finance II (US) Inc. (together, the
“Company”), and this Letter of Transmittal (the
“Letter of Transmittal”), which together describe the
Company’s offer (the “Exchange Offer”) to
exchange its
81/8%
Senior Notes due 2019 (the “Exchange Notes”), which
have been registered under the Securities Act, for each of its
outstanding
81/8%
Senior Notes due 2019 (the “Outstanding Notes”) from
the holders thereof.
The terms of the Exchange Notes are identical in all material
respects (including principal amount, interest rate and
maturity) to the terms of the Outstanding Notes for which they
may be exchanged pursuant to the Exchange Offer, except that the
Exchange Notes are freely transferable by holders thereof
(except as provided herein or in the Prospectus).
Capitalized terms used but not defined herein shall have the
same meaning given them in the Prospectus.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM.
THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL
MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR
ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF
TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
The undersigned has checked the appropriate boxes below and
signed this Letter of Transmittal to indicate the action the
undersigned desires to take with respect to the Exchange Offer.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE
PROSPECTUS CAREFULLY BEFORE CHECKING ANY BOX BELOW.
2
List below the Outstanding Notes to which this Letter of
Transmittal relates. If the space provided below is inadequate,
the certificate numbers and aggregate principal amounts should
be listed on a separate signed schedule affixed hereto.
| DESCRIPTION OF NOTES | |||||||||
|
Name(s) and Address(es) of |
|||||||||
|
Registered Holder(s) |
Certificate |
Aggregate Principal |
Principal Amount |
||||||
| (Please fill in) | Number(s)* | Amount Represented** | Tendered** | ||||||
|
Total Principal Amount of Notes
|
|||||||||
|
* Need not be completed by holders delivering by book-entry
transfer (see below).
|
|||||||||
|
** Outstanding Notes may be tendered in whole or in part in
minimum denominations of U.S.$2,000 and integral multiples of
U.S.$1,000 in excess thereof. All Outstanding Notes held shall
be deemed tendered unless a lesser number is specified in this
column. See instruction 4.
|
|||||||||
Holders of Outstanding Notes whose Outstanding Notes are not
immediately available or who cannot deliver all other required
documents to the Exchange Agent on or prior to the Expiration
Date or who cannot complete the procedures for book-entry
transfer on a timely basis, must tender their Outstanding Notes
according to the guaranteed delivery procedures set forth in the
Prospectus.
Unless the context otherwise requires, the term
“holder” for purposes of this Letter of Transmittal
means any person in whose name Outstanding Notes are registered
or any other person who has obtained a properly completed bond
power from the registered holder or any person whose Outstanding
Notes are held of record by The Depository Trust Company
(“DTC”).
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY
BEFORE COMPLETING THE BOXES BELOW.
| o | CHECK HERE IF CERTIFICATES FOR TENDERED OUTSTANDING NOTES ARE ENCLOSED HEREWITH. |
| o | CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE DTC AND COMPLETE THE FOLLOWING: |
| Name of Tendering Institution: |
| Account Number with DTC: |
| Transaction Code Number: |
| o | CHECK HERE IF YOU TENDERED BY BOOK-ENTRY TRANSFER AND DESIRE ANY NON-EXCHANGED NOTES TO BE RETURNED TO YOU BY CREDITING THE BOOK-ENTRY TRANSFER FACILITY ACCOUNT NUMBER SET FORTH ABOVE. |
3
Use of Guaranteed Delivery
(See Instruction 1)
(See Instruction 1)
To be completed only if tendered notes are being delivered
pursuant to a notice of guaranteed delivery previously sent to
the exchange agent. Complete the following (please enclose a
photocopy of such notice of guaranteed delivery):
| Name of Registered Holder(s): |
| Window Ticket Number (if any): |
| Date of Execution of the Notice of Guaranteed Delivery: |
| Name of Eligible Institution that Guaranteed Delivery: |
If Delivered By Book-Entry Transfer, Complete The Following:
| Name of Tendering Institution: |
| Account Number at DTC: |
| Transaction Code Number: |
Broker-Dealer
Status
| o | Check here if you are a broker-dealer that acquired your tendered notes for your own account as a result of market-making or other trading activities and wish to receive 10 additional copies of the Prospectus and any amendments or supplements thereto. |
| Name: |
| Address: |
Note:
signatures must be provided below
4
PLEASE
READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange
Offer, the undersigned hereby tenders to the Company the
principal amount of the Outstanding Notes indicated above.
Subject to, and effective upon, the acceptance for exchange of
all or any portion of the Outstanding Notes tendered herewith in
accordance with the terms and conditions of the Exchange Offer
(including, if the Exchange Offer is extended or amended, the
terms and conditions of any such extension or amendment), the
undersigned hereby exchanges, assigns and transfers to, or upon
the order of, the Company all right, title and interest in and
to such Outstanding Notes as are being tendered herewith. The
undersigned hereby irrevocably constitutes and appoints the
Exchange Agent as its true and lawful agent and attorney-in-fact
of the undersigned (with full knowledge that the Exchange Agent
also acts as the agent of the Company, in connection with the
Exchange Offer) to cause the Outstanding Notes to be assigned,
transferred and exchanged.
The undersigned represents and warrants that it has full power
and authority to tender, exchange, assign and transfer the
Outstanding Notes and to acquire Exchange Notes issuable upon
the exchange of such tendered Outstanding Notes, and that, when
the same are accepted for exchange, the Company will acquire
good and unencumbered title to the tendered Outstanding Notes,
free and clear of all liens, restrictions, charges and
encumbrances and not subject to any adverse claim. The
undersigned also warrants that it will, upon request, execute
and deliver any additional documents deemed by the Exchange
Agent or the Company to be necessary or desirable to complete
the exchange, assignment and transfer of the tendered
Outstanding Notes or transfer ownership of such Outstanding
Notes on the account books maintained by the book-entry transfer
facility. The undersigned further agrees that acceptance of any
and all validly tendered Outstanding Notes by the Company and
the issuance of Exchange Notes in exchange therefor shall
constitute performance in full by the Company of its obligations
under the Registration Rights Agreement, dated January 28,
2011, among the Company, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities LLC, Citigroup Global
Markets Inc., S. Goldman Capital LLC, Commerz Markets LLC, DVB
Capital Markets LLC and DnB NOR Markets Inc. (the
“Registration Rights Agreement”), and that the Company
shall have no further obligations or liabilities thereunder. The
undersigned will comply with its obligations under the
Registration Rights Agreement. The undersigned has read and
agrees to all terms of the Exchange Offer.
The Exchange Offer is subject to certain conditions as set forth
in the Prospectus under the caption “The Exchange
Offer — Conditions.” The undersigned recognizes
that as a result of these conditions (which may be waived, in
whole or in part, by the Company), as more particularly set
forth in the Prospectus, the Company may not be required to
exchange any of the Outstanding Notes tendered hereby and, in
such event, the Outstanding Notes not exchanged will be returned
to the undersigned at the address shown above, promptly
following the expiration or termination of the Exchange Offer.
In addition, the Company may amend the Exchange Offer at any
time prior to the Expiration Date if any of the conditions set
forth under “The Exchange Offer —
Conditions” occur.
The undersigned understands that tenders of Outstanding Notes
pursuant to any one of the procedures described in the
Prospectus and in the instructions attached hereto will, upon
the Company’s acceptance for exchange of such tendered
Outstanding Notes, constitute a binding agreement between the
undersigned and the Company upon the terms and subject to the
conditions of the Exchange Offer. The undersigned recognizes
that, under circumstances set forth in the Prospectus, the
Company may not be required to accept for exchange any of the
Outstanding Notes.
By tendering Outstanding Notes and executing this Letter of
Transmittal, the undersigned represents that (1) the
Exchange Notes acquired pursuant to the exchange offer are being
acquired in the ordinary course of business of the undersigned,
(2) the undersigned is not engaging in and does not intend
to engage in a distribution of the Exchange Notes, (3) the
undersigned does not have an arrangement or understanding with
any person to participate in the distribution of such Exchange
Notes, (4) the undersigned is not an “affiliate”
of the Company or the guarantors within the meaning of
Rule 405 under the Securities Act of 1933, as amended, and
(5) the undersigned is not acting on behalf of any person
who could not truthfully make the foregoing representations. If
the undersigned is a broker-dealer holding registrable
securities acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of exchange securities received in
respect of such registrable securities pursuant to the exchange
offer. By acknowledging that it will deliver and by delivering a
Prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes, the
undersigned is not deemed to admit that it is an
“underwriter” within the meaning of the Securities
Act. If the
5
undersigned is a person in the United Kingdom, the undersigned
represents that its ordinary activities involve it in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of its business.
Any holder of Outstanding Notes using the Exchange Offer to
participate in a distribution of the Exchange Notes
(i) cannot rely on the position of the staff of the
Securities and Exchange Commission enunciated in its
interpretive letter with respect to Exxon Capital Holdings
Corporation (available May 13, 1988) or similar
interpretive letters and (ii) must comply with the
registration and Prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction.
All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the undersigned and every
obligation of the undersigned hereunder shall be binding upon
the heirs, personal representatives, successors and assigns of
the undersigned. Tendered Outstanding Notes may be withdrawn at
any time prior to the Expiration Date in accordance with the
terms of this Letter of Transmittal. Except as stated in the
Prospectus, this tender is irrevocable.
Certificates for all Exchange Notes delivered in exchange for
tendered Outstanding Notes and any Outstanding Notes delivered
herewith but not exchanged, and registered in the name of the
undersigned, shall be delivered to the undersigned at the
address shown below the signature of the undersigned.
The undersigned, by completing the box entitled
“Description of Outstanding Notes Tendered
Herewith” above and signing this letter, will be deemed to
have tendered the Outstanding Notes as set forth in such box.
6
PLEASE SIGN HERE
(To Be Completed By All Tendering Holders of
Outstanding Notes Regardless of Whether Notes
Are Being Physically Delivered Herewith, unless an Agent’s
Message
Is Delivered in Connection with a Book-Entry Transfer of Such
Notes)
This Letter of Transmittal must be signed by the registered
holder(s) of Outstanding Notes exactly as their name(s)
appear(s) on certificate(s) for Outstanding Notes or on a
security position listing, or by person(s) authorized to become
registered holder(s) by endorsements and documents transmitted
with this Letter of Transmittal. If the signature is by a
trustee, executor, administrator, guardian, attorney-in-fact,
officer or other person acting in a fiduciary or representative
capacity, such person must set forth his or her full title below
under “Capacity” and submit evidence satisfactory to
the exchange agent of such person’s authority to so act.
See Instruction 5 below.
If the signature appearing below is not of the registered
holder(s) of the Outstanding Notes, then the registered
holder(s) must sign a valid power of attorney.
| X | |
| X |
Signature(s) of Holder(s) or
Authorized Signatory
| Dated |
| Name(s) |
| Capacity |
| Address |
(Including Zip Code)
| Area Code and Telephone No. |
Please
Complete Substitute
Form W-9
Herein or Appropriate
Form W-8
SIGNATURE GUARANTEE (If required — see
Instructions 2 and 5 below)
Certain Signatures Must be Guaranteed by a Signature Guarantor
(Name of Signature Guarantor
Guaranteeing Signatures)
(Address (including zip code)
and Telephone Number (including area code) of Firm)
(Authorized Signature)
(Printed Name)
(Title)
Dated
7
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 4 through 7)
(See Instructions 4 through 7)
To be completed ONLY if certificates for Outstanding Notes in a
principal amount not tendered are to be issued in the name of,
or Exchange Notes issued pursuant to the exchange offer are to
be issued in the name of, someone other than the person or
persons whose name(s) appear(s) within this Letter of
Transmittal or issued to an address different from that shown in
the box entitled “Description of Notes” within this
Letter of Transmittal.
Issue:
o
Exchange Notes
o
Outstanding Notes
(Complete as applicable)
| Name |
(Please Print)
| Address |
(Please Print)
(Zip Code)
Tax Identification or Social
Security Number
(See Substitute
Form W-9
herein)
Credit Outstanding Notes not tendered, but represented by
certificates tendered by this Letter of Transmittal, by
book-entry transfer to:
o
The Depository Trust Company
| Account Number |
Credit Exchange Notes issued pursuant to the exchange offer by
book-entry transfer to:
| o The Depository Trust Company |
| o |
| Account Number |
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4 through 7)
(See Instructions 4 through 7)
To be completed ONLY if certificates for Outstanding Notes in a
principal amount not tendered, or Exchange Notes, are to be sent
to someone other than the person or persons whose name(s)
appear(s) within this Letter of Transmittal to an address
different from that shown in the box entitled “Description
of Notes” within this Letter of Transmittal.
Deliver:
o
Exchange Notes
o
Outstanding Notes
(Complete
as applicable)
| Name |
(Please Print)
| Address |
(Please Print)
(Zip Code)
Is this a permanent address change?
o
Yes o
No (check one box)
8
INSTRUCTIONS TO
LETTER OF TRANSMITTAL
Forming Part of the Terms and Conditions
of the Exchange Offer
Forming Part of the Terms and Conditions
of the Exchange Offer
1. Delivery of this Letter of Transmittal and Notes.
This Letter of Transmittal is to be completed by holders of
Outstanding Notes if certificates representing such notes are to
be forwarded herewith, or, unless an agent’s message is
utilized, if delivery of such certificates is to be made by
book-entry transfer to the account maintained by DTC, pursuant
to the procedures set forth in the Prospectus under “The
Exchange Offer — Procedures for Tendering.” For a
holder to properly tender notes pursuant to the exchange offer,
a properly completed and duly executed Letter of Transmittal (or
a manually signed facsimile thereof), together with any
signature guarantees and any other documents required by these
Instructions, or a properly transmitted agent’s message in
the case of a book entry transfer, must be received by the
Exchange Agent at its address set forth herein on or prior to
the expiration date, and either (1) certificates
representing such notes must be received by the exchange agent
at its address, or (2) such notes must be transferred
pursuant to the procedures for book-entry transfer described in
the Prospectus under “The Exchange Offer —
Book-Entry Transfer” and a book-entry confirmation must be
received by the exchange agent on or prior to the expiration
date. A holder who desires to tender notes and who cannot comply
with procedures set forth herein for tender on a timely basis or
whose notes are not immediately available must comply with the
guaranteed delivery procedures discussed below.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE
OUTSTANDING NOTES AND ALL OTHER REQUIRED DOCUMENTS TO THE
EXCHANGE AGENT IS AT THE ELECTION AND SOLE RISK OF THE HOLDER.
INSTEAD OF DELIVERY BY MAIL, HOLDERS SHOULD USE AN OVERNIGHT OR
HAND DELIVERY SERVICE. IN ALL CASES, HOLDERS SHOULD ALLOW FOR
SUFFICIENT TIME TO ENSURE DELIVERY TO THE EXCHANGE AGENT PRIOR
TO THE EXPIRATION OF THE EXCHANGE OFFER. HOLDERS MAY REQUEST
THEIR BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR
NOMINEE TO EFFECT THESE TRANSACTIONS FOR SUCH HOLDER. HOLDERS
SHOULD NOT SEND ANY NOTE, LETTER OF TRANSMITTAL OR OTHER
REQUIRED DOCUMENT TO THE COMPANY.
If a holder desires to tender notes pursuant to the exchange
offer and (1) certificates representing such notes are not
immediately available, (2) time will not permit such
holder’s Letter of Transmittal, certificates representing
such notes or other required documents to reach the exchange
agent on or prior to the expiration date, or (3) the
procedures for book-entry transfer (including delivery of an
agent’s message) cannot be completed on or prior to the
expiration date, such holder may nevertheless tender such notes
with the effect that such tender will be deemed to have been
received on or prior to the expiration date if the guaranteed
delivery procedures set forth in the Prospectus under “The
Exchange Offer — Guaranteed Delivery Procedures”
are followed. Pursuant to such procedures, (1) the tender
must be made by or through an eligible guarantor institution (as
defined in Instruction 2 below), (2) a properly
completed and duly executed notice of guaranteed delivery,
substantially in the form provided by the Company herewith, or
an agent’s message with respect to a guaranteed delivery
that is accepted by the Company, must be received by the
exchange agent on or prior to the expiration date, and
(3) the certificates for the tendered notes, in proper form
for transfer (or a book-entry confirmation of the transfer of
such notes into the exchange agent’s account at DTC as
described in the Prospectus) together with a Letter of
Transmittal (or manually signed facsimile thereof) properly
completed and duly executed, with any required signature
guarantees and any other documents required by the Letter of
Transmittal, or a properly transmitted agent’s message,
must be received by the exchange agent within three New York
Stock Exchange, Inc. trading days after the execution of the
notice of guaranteed delivery.
Upon request to the exchange agent, a notice of guaranteed
delivery will be sent to holders who wish to tender their
Outstanding Notes according to the guaranteed delivery
procedures set forth above.
2. Guarantee of Signatures. Signatures on this
Letter of Transmittal or a notice of withdrawal must be
guaranteed by a member firm of a registered national securities
exchange or of the National Association of Securities Dealers,
Inc., a commercial bank or trust company having an office or
correspondent in the United States or by an “eligible
guarantor institution” within the meaning of
Rule 17Ad-15
promulgated under the Securities Exchange Act of 1934, as
amended (banks; brokers and dealers; credit unions; national
securities exchanges; registered securities associations;
learning agencies; and savings associations) unless the notes
tendered hereby are tendered (1) by a registered holder of
notes (or by a participant in DTC whose name appears on a
security position listing as the owner of such notes) who has
not completed any of the boxes entitled “Special Issuance
Instructions” or “Special Delivery Instructions,”
on the Letter of Transmittal, or (2) for the account of an
“eligible guarantor institution.” If the notes are
registered in the name of a person other than the person who
signed the Letter
9
of Transmittal or if notes not tendered are to be returned to,
or are to be issued to the order of, a person other than the
registered holder or if notes not tendered are to be sent to
someone other than the registered holder, then the signature on
this Letter of Transmittal accompanying the tendered notes must
be guaranteed as described above. Beneficial owners whose notes
are registered in the name of a broker, dealer, commercial bank,
trust company or other nominee must contact such broker, dealer,
commercial bank, trust company or other nominee if they desire
to tender notes. See “The Exchange Offer —
Procedures for Tendering Outstanding Notes,” in the
Prospectus.
3. Withdrawal of Tenders. Except as otherwise
provided in the Prospectus, tenders of notes may be withdrawn at
any time on or prior to the expiration date. For a withdrawal of
tendered notes to be effective, a written or facsimile
transmission notice of withdrawal must be received by the
exchange agent on or prior to the expiration date at its address
set forth on the cover of this Letter of Transmittal. Any such
notice of withdrawal must (1) specify the name of the
person who tendered the notes to be withdrawn, (2) identify
the notes to be withdrawn, including the certificate number or
numbers shown on the particular certificates evidencing such
notes (unless such notes were tendered by book-entry transfer)
and the aggregate principal amount represented by such notes,
and (3) be signed by the holder of such notes in the same
manner as the original signature on the Letter of Transmittal by
which such notes were tendered (including any required signature
guarantees), or be accompanied by (i) documents of transfer
sufficient to have the trustee register the transfer of the
notes into the name of the person withdrawing such notes, and
(ii) a properly completed irrevocable proxy authorizing
such person to effect such withdrawal on behalf of such holder.
If the notes to be withdrawn have been delivered or otherwise
identified to the exchange agent, a signed notice of withdrawal
is effective immediately upon written or facsimile notice of
such withdrawal even if physical release is not yet effected.
Any permitted withdrawal of notes may not be rescinded. Any
notes properly withdrawn will thereafter be deemed not validly
tendered for purposes of the exchange offer. However, properly
withdrawn notes may be retendered by following one of the
procedures described in the Prospectus under the caption
“The Exchange Offer — Procedures for
Tendering” at any time prior to the expiration date.
4. Partial Tenders. Tenders of notes pursuant to the
exchange offer will be accepted only in principal amounts of at
least U.S.$2,000 and in integral multiples of U.S.$1,000 in
excess thereof. If less than the entire principal amount of any
notes evidenced by a submitted certificate is tendered, the
tendering holder must fill in the principal amount tendered in
the last column of the box entitled “Description of
Notes” herein. The entire principal amount represented by
the certificates for all notes delivered to the exchange agent
will be deemed to have been tendered unless otherwise indicated.
If the entire principal amount of all notes held by the holder
is not tendered, certificates for the principal amount of notes
not tendered and Exchange Notes issued in exchange for any notes
tendered and accepted will be sent (or, if tendered by
book-entry transfer, returned by credit to the account at DTC
designated herein) to the holder unless otherwise provided in
the appropriate box on this Letter of Transmittal (see
Instruction 6), as soon as practicable following the
expiration date.
5. Signature on this Letter of Transmittal; Bond Powers
and Endorsements; Guarantee of Signatures. If this Letter of
Transmittal is signed by the registered holder(s) of the
Outstanding Notes tendered hereby, the signature must correspond
with the name(s) as written on the face of certificates without
alteration, enlargement or change whatsoever. If this Letter of
Transmittal is signed by a participant in DTC whose name is
shown as the owner of the notes tendered hereby, the signature
must correspond with the name shown on the security position
listing the owner of the notes.
If any of the notes tendered hereby are owned of record by two
or more joint owners, all such owners must sign this Letter of
Transmittal. If any tendered notes are registered in different
names on several certificates, it will be necessary to complete,
sign and submit as many copies of this Letter of Transmittal and
any necessary accompanying documents as there are different
names in which certificates are held.
If this Letter of Transmittal is signed by the holder, and the
certificates for any principal amount of notes not tendered are
to be issued (or if any principal amount of notes that is not
tendered is to be reissued or returned) to or, if tendered by
book-entry transfer, credited to the account of DTC of the
registered holder, and Exchange Notes exchanged for Outstanding
Notes in connection with the exchange offer are to be issued to
the order of the registered holder, then the registered holder
need not endorse any certificates for tendered notes nor provide
a separate bond power. In any other case (including if this
Letter of Transmittal is not signed by the registered holder),
the registered holder must either properly endorse the
certificates for notes tendered or transmit a separate properly
completed bond power with this Letter of Transmittal (in either
case, executed exactly as the name(s) of the registered
holder(s) appear(s) on such notes, and, with respect to a
participant in DTC whose name appears on a security position
listing as the owner of notes, exactly as the name(s) of the
participant(s) appear(s) on such security
10
position listing), with the signature on the endorsement or bond
power guaranteed by a signature guarantor or an eligible
guarantor institution, unless such certificates or bond powers
are executed by an eligible guarantor institution. See
Instruction 2.
Endorsements on certificates for notes and signatures on bond
powers provided in accordance with this Instruction 5 by
registered holders not executing this Letter of Transmittal must
be guaranteed by an eligible institution. See Instruction 2.
If this Letter of Transmittal or any certificates representing
notes or bond powers are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and
proper evidence satisfactory to the exchange agent of their
authority so to act must be submitted with this Letter of
Transmittal.
6. Special Issuance and Special Delivery Instructions.
Tendering holders should indicate in the applicable box or
boxes the name and address to which notes for principal amounts
not tendered or Exchange Notes exchanged for Outstanding Notes
in connection with the exchange offer are to be issued or sent,
if different from the name and address of the holder signing
this Letter of Transmittal. In the case of issuance in a
different name, the taxpayer-identification number of the person
named must also be indicated. If no instructions are given,
notes not tendered will be returned to the registered holder of
the notes tendered. For holders of notes tendered by book-entry
transfer, notes not tendered will be returned by crediting the
account at DTC designated above.
7. Taxpayer Identification Number and Substitute
Form W-9;
Non-U.S. Holders. Each tendering holder (or other
payee) that is a “United States person” as
defined below) (such holder, a “U.S. holder”) is
required to provide the exchange agent with its correct taxpayer
identification number, which, in the case of a U.S. holder
(or other payee) who is an individual, is his or her social
security number. If the exchange agent is not provided with the
correct taxpayer identification number, the U.S. holder may
be subject to backup withholding and a U.S. $50 penalty imposed
by the Internal Revenue Service. If withholding results in an
over-payment of taxes, a refund may be obtained. Certain
U.S. holders (including, among others, all corporations)
are not subject to these backup withholding and reporting
requirements. See the enclosed “Guidelines for
Certification of Taxpayer Identification Number on substitute
Form W-9”
for additional instructions.
For these purposes, a “United States person” is
(i) an individual who is a U.S. citizen or
U.S. resident alien; (ii) a partnership, corporation,
company, or association created or organized in the United
States or under the laws of the United States; (iii) an
estate (other than a foreign estate); or (iv) a domestic
trust (as defined in U.S. Treasury Regulations
section 301.7701-7).
To prevent backup withholding, each U.S. holder tendering
Outstanding Notes must provide such U.S. holder’s
correct taxpayer identification number by completing the
Substitute
Form W-9,
certifying that the taxpayer identification number provided is
correct (or that such holder is awaiting a taxpayer
identification number), and that (i) the U.S. holder
has not been notified by the Internal Revenue Service that such
holder is subject to backup withholding as a result of failure
to report all interest or dividends or (ii) the Internal
Revenue Service has notified the U.S. holder that such holder is
no longer subject to backup withholding. If the outstanding
notes are registered in more than one name or are not in the
name of the actual owner, consult the “Guidelines for
Certification of Taxpayer Identification Number on Substitute
Form W-9”
for information on which tax payer identification number to
report.
Each
non-U.S. holder
or other payee must submit the appropriate completed IRS
Form W-8
(generally
Form W-8BEN)
to avoid backup withholding. The appropriate form may be
obtained via the Internal Revenue Service website at www.irs.gov
or by contacting the exchange agent at the address on the front
cover of this Letter of Transmittal. For these purposes, a
non-U.S. holder
is any holder of Outstanding Notes other than a U.S. holder
(as defined above).
The Company reserves the right in its sole discretion to take
whatever steps are necessary to comply with its obligation
regarding backup withholding.
8. Transfer Taxes. The Company will pay all transfer
taxes, if any, required to be paid by the Company in connection
with the exchange of the Outstanding Notes for the Exchange
Notes. If, however, Exchange Notes, or Outstanding Notes for
principal amounts not tendered or accepted for exchange, are to
be delivered to, or are to be issued in the name of, any person
other than the registered holder of the Outstanding Notes
tendered, or if a transfer tax is imposed for any reason other
than the exchange of the Outstanding Notes in connection with
the exchange offer, then the amount of any transfer tax (whether
imposed on the registered holder or any other persons) will be
payable by the tendering holder. If satisfactory evidence of
payment of the
11
transfer taxes or exemption therefrom is not submitted with the
Letter of Transmittal, the amount of such transfer taxes will be
billed directly to the tendering holder.
9. Mutilated, Lost, Stolen or Destroyed Outstanding
Notes. Any holder whose Exchange Notes have been mutilated,
lost, stolen or destroyed should contact the exchange agent at
the address indicated above for further instructions.
10. Irregularities. All questions as to the
validity, form, eligibility, time of receipt, acceptance and
withdrawal of any tenders of notes pursuant to the procedures
described in the Prospectus and the form and validity of all
documents will be determined by the Company, in its sole
discretion, which determination shall be final and binding on
all parties. The Company reserves the absolute right, in its
sole discretion, to reject any or all tenders of any notes
determined by it not to be in proper form or the acceptance of
which may, in the opinion of the Company’s counsel, be
unlawful. The Company also reserves the absolute right, in its
sole discretion, to waive or amend any of the conditions of the
exchange offer or to waive any defect or irregularity in the
tender of any particular notes, whether or not similar defects
or irregularities are waived in the case of other tenders. The
Company’s interpretations of the terms and conditions of
the exchange offer (including, without limitation, the
instructions in this Letter of Transmittal) shall be final and
binding. No alternative, conditional or contingent tenders will
be accepted. Unless waived, any irregularities in connection
with tenders must be cured within such time as the Company shall
determine. None of the Company, the exchange agent or any other
person will be under any duty to give notification of any
defects or irregularities in such tenders or will incur any
liability to holders for failure to give such notification.
Tenders of such notes shall not be deemed to have been made
until such irregularities have been cured or waived. Any notes
received by the exchange agent that are not properly tendered
and as to which the irregularities have not been cured or waived
will be returned by the exchange agent to the tendering holders,
unless such holders have otherwise provided herein, promptly
following the expiration date.
11. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well
as requests for assistance or additional copies of the
Prospectus and this Letter of Transmittal, may be directed to
the exchange agent at the address and telephone number set forth
above. Holders may also contact their broker, dealer, commercial
bank, trust company or other nominee for assistance concerning
the exchange offer.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A
FACSIMILE THEREOF (TOGETHER WITH CERTIFICATES FOR OUTSTANDING
NOTES AND ALL OTHER REQUIRED DOCUMENTS) OR A NOTICE OF
GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
12
PAYER’S
NAME: Wells Fargo Bank, National Association
| PAYEE INFORMATION (please print or type) | ||||||||||||
|
Individual or business name:
|
||||||||||||
|
Check appropriate box:
|
o Individual/Sole Proprietor | o C Corporation | o S Corporation | |||||||||
|
o Partnership
|
o Trust/Estate | o Other | o Exempt from backup withholding | |||||||||
|
o Limited
Liability Company. Enter tax classification (D=disregarded
entity, C=corporation, P=partnership) ►
|
||||||||||||
|
Address (number, street, and apt. or suite no.):
|
||||||||||||
|
City, state, and ZIP code:
|
||||||||||||
|
SUBSTITUTE FORM W-9 |
Part 1 — PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. |
OR Employer Identification Number(s) |
|||||||
|
Department of the Treasury Internal Revenue Service |
Part 2 — CERTIFICATION — Under Penalties of Perjury, I certify that: |
Part 3 — Awaiting TIN o |
|||||||
| Payer’s Request for Taxpayer Identification Number (“TIN”) |
(1) The number shown on this form is my correct taxpayer
identification number (or I am waiting for a number to be issued
to me), and
|
||||||||
|
(2) I am not subject to backup withholding because: (a) I
am exempt from backup withholding, (b) I have not been notified
by the Internal Revenue Service (the “IRS”) that I am
subject to backup withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has notified me that I
am no longer subject to backup withholding, and
|
|||||||||
|
(3) I am a U.S. person (including a U.S. resident
alien).
|
|||||||||
| CERTIFICATION INSTRUCTIONS — You must cross out item (2) above if you have been notified by the IRS that you are subject to backup withholding because of underreporting interest or dividends on your tax return. However, if after being notified by the IRS that you are subject to backup withholding you receive another notification from the IRS stating that you are no longer subject to backup withholding, do not cross out item (2). | |||||||||
|
SIGNATURE
|
DATE
|
||||||||
|
NAME
|
|||||||||
| (Please Print) | |||||||||
13
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF THE SUBSTITUTE
FORM W-9.
CERTIFICATION OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either
(1) I have mailed or delivered an application to receive a
taxpayer identification number to the appropriate Internal
Revenue Service Center or Social Security Administration office,
or (2) I intend to mail or deliver an application in the
near future. I understand that if I do not provide a taxpayer
identification number by the time of payment, the applicable
percentage (currently 28%) of all reportable payments made to me
thereafter will be withheld until I provide a taxpayer
identification number to the payer and that, if I do not provide
my taxpayer identification number within sixty days, such
retained amounts shall be remitted to the IRS as backup
withholding.
SIGNATURE
DATE
| NAME (please print) |
| NOTE: | FAILURE TO COMPLETE AND RETURN THIS FORM W-9 MAY RESULT IN BACKUP WITHHOLDING AND A U.S.$50 PENALTY IMPOSED BY THE INTERNAL REVENUE SERVICE. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. |
14
GUIDELINES
FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER FOR
THE PAYEE (YOU) TO GIVE THE PAYER. —
Social security numbers have nine digits separated by two
hyphens: i.e.,
000-00-0000.
Employee identification numbers have nine digits separated by
only one hyphen: i.e.,
00-0000000.
The table below will help determine the number to give the
payer. All “Section” references are to the Internal
Revenue Code of 1986, as amended. “IRS” is the
Internal Revenue Service.
|
GIVE THE SOCIAL SECURITY |
|||||
| FOR THIS TYPE OF ACCOUNT: | NUMBER OF — | ||||
|
1.
|
Individual | The individual | |||
|
2.
|
Two or more individuals (joint account) | The actual owner of the account or, if combined funds, the first individual on the account (1) | |||
|
3.
|
Custodian account of a minor (Uniform Gift to Minors Act) | The minor (2) | |||
|
4.
|
a. The usual revocable savings trust account (grantor is
also trustee)
|
The grantor trustee (1) | |||
|
b. So-called trust account that is not a legal or valid
trust under state law
|
The actual owner (1) | ||||
|
5.
|
Sole proprietorship | The owner (1) | |||
|
6.
|
Sole proprietorship | The owner (1) | |||
|
GIVE THE EMPLOYER |
|||||
|
IDENTIFICATION NUMBER |
|||||
| FOR THIS TYPE OF ACCOUNT: | OF — | ||||
|
7.
|
A valid trust, estate, or pension trust | The legal entity (4) | |||
|
8.
|
Corporate | The corporation | |||
|
9.
|
Association, club, religious, charitable, educational, or other tax-exempt organization account | The organization | |||
|
10.
|
Partnership | The partnership | |||
|
11.
|
A broker or registered nominee | The broker or nominee | |||
|
12.
|
Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments | The public entity | |||
| (1) | List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person’s number must be furnished. | |
| (2) | Circle the minor’s name and furnish the minor’s social security number. | |
| (3) | You must show your individual name, but you may also enter your business or “doing business as” name. You may use either your social security number or your employer identification number (if you have one). | |
| (4) | List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title). |
| Note: | If no name is circled when there is more than one name, the number will be considered to be that of the first name listed. |
15
OBTAINING
A NUMBER
If you do not have a taxpayer identification number or you do
not know your number, obtain
Form SS-5,
Application for a Social Security Card, at the local Social
Administration Office, or
Form SS-4,
Application for Employer Identification Number, by calling 1
(800) TAX-FORM, and apply for a number.
PAYEES
EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from withholding include:
| • | An organization exempt from tax under Section 501(a), an individual retirement account (IRA), or a custodial account under Section 403(b)(7), if the account satisfies the requirements of Section 401(f)(2). | |
| • | The United States or a state thereof, the District of Columbia, a possession of the United States, or a political subdivision or wholly-owned agency or instrumentality of any one or more of the foregoing. | |
| • | An international organization or any agency or instrumentality thereof. | |
| • | A foreign government and any political subdivision, agency or instrumentality thereof. |
Payee that may be exempt from backup withholding include:
| • | A corporation. | |
| • | A financial institution. | |
| • | A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States. | |
| • | A real estate investment trust. | |
| • | A common trust fund operated by a bank under Section 584(a). | |
| • | An entity registered at all times during the tax year under the Investment Company Act of 1940. | |
| • | A middleman known in the investment community as a nominee or who is listed in the most recent publication of the American Society of Corporate Secretaries, Inc., Nominee List. | |
| • | A futures commission merchant registered with the Commodity Futures Trading Commission. | |
| • | A foreign central bank of issue. |
Payments of dividends and patronage dividends generally exempt
from backup withholding include:
| • | Payments to nonresident aliens subject to withholding under Section 1441. | |
| • | Payments to partnerships not engaged in a trade or business in the United States and that have at least one nonresident alien partner. | |
| • | Payments of patronage dividends not paid in money. | |
| • | Payments made by certain foreign organizations. | |
| • | Section 404(k) payments made by an ESOP. |
Payments of interest generally exempt from backup withholding
include:
| • | Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and you have not provided your correct taxpayer identification number to the payer. | |
| • | Payments of tax-exempt interest (including exempt-interest dividends under Section 852). | |
| • | Payments described in Section 6049(b)(5) to nonresident aliens. | |
| • | Payments on tax-free covenant bonds under Section 1451. |
16
| • | Payments made by certain foreign organizations. | |
| • | Mortgage interest paid to you. |
Certain payments, other than payments of interest, dividends,
and patronage dividends, that are exempt from information
reporting are also exempt from backup withholding. For details,
see the regulations under sections 6041, 6041A, 6042, 6044,
6045, 6049, 6050A and 6050N.
EXEMPT PAYEES DESCRIBED ABOVE MUST FILE
FORM W-9
OR A SUBSTITUTE
FORM W-9
TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE THIS
FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION
NUMBER, WRITE “EXEMPT” IN PART II OF THE FORM,
AND RETURN IT TO THE PAYER. IF THE PAYMENTS ARE OF INTEREST,
DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE FORM.
PRIVACY ACT NOTICE — Section 6109 requires you to
provide your correct taxpayer identification number to payers,
who must report the payments to the IRS. The IRS uses the number
for identification purposes and may also provide this
information to various government agencies for tax enforcement
or litigation purposes. Payers must be given the numbers whether
or not recipients are required to file tax returns. Payers must
generally withhold up to 28% of taxable interest, dividends, and
certain other payments to a payee who does not furnish a
taxpayer identification number to payer. Certain penalties may
also apply.
PENALTIES
(1) FAILURE TO FURNISH TAXPAYER IDENTIFICATION
NUMBER — If you fail to furnish your taxpayer
identification number to a payer, you are subject to a penalty
of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO
WITHHOLDING — If you make a false statement with no
reasonable basis that results in no backup withholding, you are
subject to a $500 penalty.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION —
Willfully falsifying certifications or affirmations may subject
you to criminal penalties including fines
and/or
imprisonment.
FOR
ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT
OR THE INTERNAL REVENUE SERVICE.
OR THE INTERNAL REVENUE SERVICE.
17
Exhibit 99.2
NOTICE
OF GUARANTEED DELIVERY
TO TENDER FOR EXCHANGE
81/8% SENIOR NOTES DUE 2019
OF
NAVIOS MARITIME HOLDINGS INC.
NAVIOS MARITIME FINANCE II (US) INC.
TO TENDER FOR EXCHANGE
81/8% SENIOR NOTES DUE 2019
OF
NAVIOS MARITIME HOLDINGS INC.
NAVIOS MARITIME FINANCE II (US) INC.
THE EXCHANGE OFFER AND WITHDRAWAL
RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON ,
2011 (THE “EXPIRATION DATE”), UNLESS EXTENDED BY
NAVIOS MARITIME HOLDINGS INC. AND NAVIOS MARITIME
FINANCE II (US) INC. IN THEIR SOLE DISCRETION
THE
EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WELLS
FARGO BANK, NATIONAL ASSOCIATION
| By Registered or Certified Mail: | By Regular Mail or Overnight Courier: | |
|
WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 PO Box 1517 Minneapolis, MN 55480 |
WELLS FARGO BANK, N.A. Corporate Trust Operations MAC N9303-121 Sixth & Marquette Avenue Minneapolis, MN 55479 |
In Person by Hand Only:
WELLS FARGO BANK, N.A.
12th
Floor — Northstar East Building
Corporate Trust Operations
608 Second Avenue South
Minneapolis, MN 55479
FOR ANY QUESTIONS REGARDING THIS NOTICE OF GUARANTEED DELIVERY
OR FOR ANY ADDITIONAL INFORMATION, YOU MAY CONTACT THE EXCHANGE
AGENT BY TELEPHONE AT 1-(800)
344-5128, OR
BY FACSIMILE AT
(612) 667-6282.
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS
OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF
GUARANTEED DELIVERY VIA A FACSIMILE TRANSMISSION TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
Registered holders of outstanding
81/8%
Senior Notes due 2019 (the “Outstanding Notes”) who
wish to tender their Outstanding Notes in exchange for a like
principal amount of
81/8%
Senior Exchange Notes due 2019 (the “Exchange Notes”)
may use this Notice of Guaranteed Delivery or one substantially
equivalent hereto to tender Outstanding Notes pursuant to the
Exchange Offer (as defined below) if: (1) their Outstanding
Notes are not immediately available or (2) they cannot
deliver their Outstanding Notes (or a confirmation of book-entry
transfer of Outstanding Notes into the account of the Exchange
Agent at The Depository Trust Company), the Letter of
Transmittal or any other documents required by the Letter of
Transmittal to the Exchange Agent prior to the Expiration Date
or (3) they cannot complete the procedure for book-entry
transfer on a timely basis. This Notice of Guaranteed Delivery
may be delivered by hand or sent by facsimile transmission or
mail to the Exchange Agent. See “The Exchange
Offer — Procedures for Tendering” in the
prospectus
dated ,
2011, (the “Prospectus”), which together with the
related Letter of Transmittal constitutes the “Exchange
Offer” of Navios Maritime Holdings Inc. and Navios Maritime
Finance II (US) Inc.
Ladies and Gentlemen:
The undersigned hereby tenders the principal amount of
Outstanding Notes indicated below pursuant to the guaranteed
delivery procedures set forth in the Prospectus and the Letter
of Transmittal, upon the terms and subject to the conditions
contained in the Prospectus and the Letter of Transmittal,
receipt of which is hereby acknowledged.
All authority herein conferred or agreed to be conferred by this
Notice of Guaranteed Delivery shall survive the death or
incapacity of the undersigned and every obligation of the
undersigned under this Notice of Guaranteed Delivery shall be
binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and
other legal representatives of the undersigned.
PLEASE
SIGN AND COMPLETE
| Signature(s) of Registered Holder(s) or Authorized Signatory: | Date: | |
| Address: | ||
| Area Code and Telephone No.: | ||
|
Name(s) of Registered Holder(s):
|
If Notes will be delivered by book-entry transfer, provide information below: | |
|
Principal Amount of Notes Tendered:*
|
Name of Tendering Institution: | |
|
Certificate No.(s) of Notes (if available):
|
Depositary Account No. with DTC: | |
| Transaction Code Number: |
| * | Must be in minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof. |
This notice of guaranteed delivery must be signed by the
registered holder(s) exactly as their name(s) appear(s) on
certificate(s) for notes or on a security position listing as
the owner of notes, or by person(s) authorized to become
registered holder(s) by endorsements and documents transmitted
with this notice of guaranteed delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact,
officer or other person acting in a fiduciary or representative
capacity, such person must provide the following information:
Please
print name(s) and address(es)
| Name(s): |
| Capacity: |
| Address(es): |
2
DO NOT SEND NOTES WITH THIS FORM. NOTES SHOULD BE SENT
TO THE EXCHANGE AGENT TOGETHER WITH A PROPERLY COMPLETED AND
DULY EXECUTED LETTER OF TRANSMITTAL OR PROPERLY TRANSMITTED
AGENT’S MESSAGE.
THE
GUARANTEE BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, an “eligible guarantor institution”
within the meaning of
Rule 17Ad-15
promulgated under the Securities Exchange Act of 1934, as
amended, hereby guarantees that the notes to be tendered hereby
are in proper form for transfer (pursuant to the procedures set
forth in the prospectus under “The Exchange
Offer — Guaranteed Delivery Procedures”), and
that the exchange agent will receive (a) such notes, or a
book-entry confirmation of the transfer of such notes into the
exchange agent’s account at The Depository
Trust Company, and (b) a properly completed and duly
executed letter of transmittal (or facsimile thereof) with any
required signature guarantees and any other documents required
by the letter of transmittal, or a properly transmitted
agent’s message, within three New York Stock Exchange, Inc.
trading days after the date of execution hereof.
The eligible guarantor institution that completes this form must
communicate the guarantee to the exchange agent and must deliver
the letter of transmittal, or a properly transmitted
agent’s message, and notes, or a book-entry confirmation in
the case of a book-entry transfer, to the exchange agent within
the time period described above. Failure to do so could result
in a financial loss to such eligible guarantor institution.
| Name of Firm: |
| Authorized Signature: |
| Title: |
| Address: |
(Zip Code)
| Area Code and Telephone Number: |
Dated:
3
Exhibit 99.3
INSTRUCTIONS TO
REGISTERED HOLDER AND/OR
BOOK-ENTRY TRANSFER FACILITY PARTICIPANT
FROM BENEFICIAL OWNER
OF
NAVIOS MARITIME HOLDINGS INC.
AND
NAVIOS MARITIME FINANCE II (US) INC.
81/8% SENIOR NOTES DUE 2019
BOOK-ENTRY TRANSFER FACILITY PARTICIPANT
FROM BENEFICIAL OWNER
OF
NAVIOS MARITIME HOLDINGS INC.
AND
NAVIOS MARITIME FINANCE II (US) INC.
81/8% SENIOR NOTES DUE 2019
To Registered Holders
and/or
Participant of the Book-Entry Transfer Facility:
The undersigned hereby acknowledges receipt of the prospectus
dated ,
2011, of Navios Maritime Holdings Inc. and Navios Maritime
Finance II (US) Inc. (together, the “Company”) and
accompanying letter of transmittal, that together constitute the
Company’s offer to exchange U.S. $1,000 principal amount of
81/8%
Senior Notes due 2019, which have been registered under the
Securities Act of 1933, as amended, of the Company, for each
U.S. $1,000 principal amount of outstanding
81/8%
Senior Notes due 2019, of the Company, of which U.S.
$350,000,000 aggregate principal amount is outstanding (provided
that each new note will be issued in denominations of $2,000 and
integral multiples of $1,000 in excess thereof).
This will instruct you, the registered holder
and/or
book-entry transfer facility participant, as to the action to be
taken by you relating to the exchange offer with respect to the
outstanding notes held by you for the account of the undersigned.
The aggregate face amount of the outstanding notes held by you
for the account of the undersigned is (FILL IN THE AMOUNT):
U.S. $ of
81/8%
Senior Notes due 2019.
With respect to the exchange offer, the undersigned hereby
instructs you (CHECK APPROPRIATE BOX):
| o | To TENDER ALL of the outstanding notes held by you for the account of the undersigned. | |
| o | To TENDER the following outstanding notes held by you for the account of the undersigned (INSERT PRINCIPAL AMOUNT OF OUTSTANDING NOTES TO BE TENDERED (IF ANY)): U.S. $ of 81/8% Senior Notes due 2019. | |
| o | NOT to TENDER any outstanding notes held by you for the account of the undersigned. |
If the undersigned instructs you to tender outstanding notes
held by you for the account of the undersigned, it is understood
that you are authorized to make, on behalf of the undersigned
(and the undersigned, by its signature below, hereby makes to
you), the representations and warranties contained in the letter
of transmittal that are to be made with respect to the
undersigned as a beneficial owner, including but not limited to
the representations, that (1) the exchange notes acquired
pursuant to the exchange offer are being acquired in the
ordinary course of business of the undersigned; (2) the
undersigned is not engaging in and does not intend to engage in
a distribution of the exchange notes, (3) the undersigned
does not have an arrangement or understanding with any person to
participate in the distribution of such exchange notes,
(4) the undersigned is not an “affiliate” of the
Company or the guarantors within the meaning of Rule 405
under the Securities Act of 1933, as amended, and (5) the
undersigned is not acting on behalf of any person who could not
truthfully make the foregoing representations. If any Holder or
any other person, including the undersigned, is an
“affiliate,” as defined under Rule 405 of the
Securities Act, of us, or is engaged in or intends to engage in
or has an arrangement or understanding with any person to
participate in a distribution of the notes to be acquired in the
Exchange Offer, the Holder or any other person, including the
undersigned: (i) may not rely on applicable interpretations
of the staff of the SEC; and (ii) must comply with the
registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. If the
undersigned is a broker-dealer that will receive exchange notes
for its own account in exchange for outstanding notes that were
acquired as a result of market-making activities or other
trading activities, it acknowledges that it will deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of such exchange notes. By
acknowledging that it will deliver and by delivering a
prospectus meeting the requirements of the Securities Act in
connection with any resale of such exchange notes, the
undersigned is not deemed to admit that it is an
“underwriter” within the meaning of the Securities
Act. If the undersigned is a person in the United Kingdom, the
undersigned represents that its ordinary activities involve it
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of its business.
The undersigned acknowledges that if an executed copy of this
letter of transmittal is returned, the entire principal amount
of outstanding notes held for the undersigned’s account
will be tendered unless otherwise specified above.
The undersigned hereby represents and warrants that the
undersigned (1) owns the notes tendered and is entitled to
tender such notes, and (2) has full power and authority to
tender, sell, exchange, assign and transfer the outstanding
notes and to acquire exchange notes issuable upon the exchange
of such tendered notes, and that, when the same are accepted for
exchange, the Company will acquire good and marketable title to
the tendered notes, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim or
right or restriction of any kind.
SIGN
HERE
| Name of beneficial owner(s) (please print): |
| Signature(s): |
| Address: |
| Telephone Number: |
| Taxpayer Identification Number or Social Security Number: |
| Date: |
2
Exhibit 99.4
NAVIOS
MARITIME HOLDINGS INC.
NAVIOS MARITIME FINANCE II (US) INC.
TENDER FOR EXCHANGE OF
81/8% SENIOR NOTES DUE 2019
FOR
81/8% SENIOR EXCHANGE NOTES DUE 2019
NAVIOS MARITIME FINANCE II (US) INC.
TENDER FOR EXCHANGE OF
81/8% SENIOR NOTES DUE 2019
FOR
81/8% SENIOR EXCHANGE NOTES DUE 2019
THE EXCHANGE OFFER AND WITHDRAWAL
RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON 2011
(THE “EXPIRATION DATE”), UNLESS EXTENDED BY NAVIOS
MARITIME HOLDINGS INC. AND NAVIOS MARITIME FINANCE II (US)
INC. IN THEIR SOLE DISCRETION
To Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees:
Enclosed for your consideration is the material listed below
relating to the offer by Navios Maritime Holdings Inc. and
Navios Maritime Finance II (US) Inc. (together, the
“Company”), to exchange U.S. $1,000 principal amount
of
81/8%
Senior Notes due 2019, which have been registered under the
Securities Act of 1933, as amended, of the Company, for each
U.S. $1,000 principal amount of
81/8%
Senior Notes due 2019 of the Company, of which U.S. $350,000,000
aggregate principal amount is outstanding (provided that each
new note will be issued in denominations of $2,000 and integral
multiples of $1,000 in excess thereof).
We are asking you to contact your clients for whom you hold
outstanding notes registered in your name or in the name of your
nominee. In addition, we ask you to contact your clients who, to
your knowledge, hold outstanding notes registered in their own
names.
Enclosed herewith are copies of the following documents for
forwarding to your clients:
1. The prospectus
dated ,
2011;
2. A letter of transmittal for your use and for the
information of your clients, together with Guidelines for
Certification of Taxpayer Identification Number on Substitute
Form W-9
providing information relating to backup U.S. federal income tax
withholding;
3. A form of notice of guaranteed delivery to be used to
accept the exchange offer if certificates and all other required
documents are not immediately available or if time will not
permit all required documents to reach the exchange agent on or
prior to the expiration date or if the procedure for book-entry
transfer (including a properly transmitted agent’s message)
cannot be completed on a timely basis;
4. Instructions to a registered holder from the beneficial
owner for obtaining your clients’ instructions with regard
to the exchange offer; and
5. A form of letter which may be sent to your clients for
whose account you hold outstanding notes in your name or in the
name of your nominee, to accompany the instruction form referred
to above.
DTC participants will be able to execute tenders through the DTC
Automated Tender Offer Program.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE IN
ORDER TO OBTAIN THEIR INSTRUCTIONS.
The Company will not pay any fees or commissions to any broker,
dealer or other person (other than the exchange agent as
described in the prospectus) in connection with the solicitation
of tenders of outstanding notes pursuant to the exchange offer.
You will, however, be reimbursed by the Company for customary
mailing and handling expenses incurred by you in forwarding any
of the enclosed materials to your clients. The Company will pay
or cause to be paid any transfer taxes applicable to the tender
of outstanding notes to it or its order, except as otherwise
provided in the prospectus and the letter of transmittal.
Please refer to “The Exchange Offer — Procedures
for Tendering” in the prospectus for a description of the
procedures which must be followed to tender notes in the
exchange offer.
Any inquiries you may have with respect to the exchange offer
may be directed to the exchange agent at
(800) 344-5128
or at the address set forth on the cover of the letter of
transmittal. Additional copies of the enclosed material may be
obtained from the exchange agent.
Very truly yours,
Navios Maritime Holdings Inc.
Navios Maritime Finance II (US) Inc.
Navios Maritime Finance II (US) Inc.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL
CONSTITUTE YOU OR ANY OTHER PERSON, THE AGENT OF THE COMPANY OR
THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE
ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN
CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE DOCUMENTS
ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
1
Exhibit 99.5
NAVIOS
MARITIME HOLDINGS INC.
NAVIOS MARITIME FINANCE II (US) INC.
TENDER FOR EXCHANGE OF
81/8% SENIOR NOTES DUE 2019
FOR
81/8% SENIOR EXCHANGE NOTES DUE 2019
NAVIOS MARITIME FINANCE II (US) INC.
TENDER FOR EXCHANGE OF
81/8% SENIOR NOTES DUE 2019
FOR
81/8% SENIOR EXCHANGE NOTES DUE 2019
THE EXCHANGE OFFER AND WITHDRAWAL
RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON ,
2011 (THE “EXPIRATION DATE”), UNLESS EXTENDED BY
NAVIOS MARITIME HOLDINGS INC. AND NAVIOS MARITIME
FINANCE II (US) INC. IN THEIR SOLE DISCRETION
To Our Clients:
Enclosed for your consideration is a prospectus
dated ,
2011 of Navios Maritime Holdings Inc. and Navios Maritime
Finance II (US) Inc. (together, the “Company”),
and a related letter of transmittal, that together constitute
the Company’s offer to exchange U.S. $1,000 principal
amount of
81/8%
Senior Notes due 2019, which have been registered under the
Securities Act of 1933, as amended, of the Company, for each
U.S. $1,000 principal amount of outstanding
81/8%
Senior Notes due 2019, of the Company, of which U.S.
$350,000,000 aggregate principal amount is outstanding (provided
that each new note will be issued in denominations of $2,000 and
integral multiples of $1,000 in excess thereof).
The materials relating to the exchange offer are being forwarded
to you as the beneficial owner of outstanding notes carried by
us for your account or benefit but not registered in your name.
A tender of any outstanding notes may only be made by us as the
registered holder and pursuant to your instructions. Therefore,
we urge beneficial owners of outstanding notes registered in the
name of a broker, dealer, commercial bank, trust company or any
other nominee to contact such registered holder promptly if they
wish to tender outstanding notes in the exchange offer.
Accordingly, we request instructions as to whether you wish us
to tender any or all such outstanding notes held by us for your
account or benefit pursuant to the terms and conditions set
forth in the prospectus and the letter of transmittal. We urge
you to read carefully the prospectus and letter of transmittal
and other material provided herewith before instructing us to
tender your outstanding notes. THE LETTER OF TRANSMITTAL IS
FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY
YOU TO EXCHANGE OUTSTANDING NOTES HELD BY US FOR YOUR
ACCOUNT OR BENEFIT.
Your instructions to us should be forwarded as promptly as
possible in order to permit us to tender notes on your behalf in
accordance with the provisions of the exchange offer.
Your attention is directed to the following:
1. The exchange offer will expire at 5:00 p.m., New
York City time,
on ,
2011, unless extended by the Company in its sole discretion.
Tendered outstanding notes may be withdrawn, subject to the
procedures described in the prospectus, at any time prior to
5:00 p.m. New York City time, on the expiration date.
2. The outstanding notes will be exchanged for the exchange
notes at the rate of U.S. $1,000 principal amount of exchange
notes for each U.S. $1,000 principal amount of outstanding notes
validly tendered and not validly withdrawn prior to the
expiration date (provided that each new note will be issued in
denominations of $2,000 and integral multiples of $1,000 in
excess thereof). The exchange notes will bear interest from the
most recent interest payment date to which interest has been
paid on the notes or, if no interest has been paid, from
August 15, 2011. The form and terms of the exchange notes
are identical in all material respects to the form and terms of
the outstanding notes, except that the exchange notes have been
registered under the Securities Act of 1933, as amended.
3. Notwithstanding any other term of the exchange offer,
the Company may terminate or amend the exchange offer as
provided in the prospectus and will not be required to accept
for exchange, or exchange any exchange notes for, any
outstanding notes not accepted for exchange prior to such
termination.
4. Any transfer taxes applicable to the exchange of the
outstanding notes pursuant to the exchange offer will be paid by
the Company except as otherwise provided in the prospectus and
in Instruction 8 of the letter of transmittal.
5. Based on an interpretation of the Securities Act by the
staff of the Securities and Exchange Commission, the Company
believes that exchange notes issued pursuant to the exchange
offer in exchange for outstanding notes may be offered for
resale, resold and otherwise transferred by holders thereof
without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that:
(a) the holder is acquiring exchange notes in its ordinary
course of business;
(b) the holder is not engaging in and does intend to engage
in a distribution of the exchange notes;
(c) the holder is not participating, and has no arrangement
or understanding with any person to participate, in the
distribution of the exchange notes;
(d) the holder is not an “affiliate” of the
Company or the guarantors, as such term is defined under
Rule 405 of the Securities Act; and
(e) the holder is not acting on behalf of any person who
could truthfully make these statements.
To participate in the exchange offer, holders must represent to
the Company that each of these statements is true. If the holder
is a broker-dealer that will receive exchange notes for its own
account in exchange for outstanding notes that were acquired as
a result of market-making activities or other trading
activities, it must acknowledge that it will deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of such exchange notes.
If you wish to have us tender any or all of your outstanding
notes, please so instruct us by completing and returning to us
the form entitled “Instructions To Registered Holder
And/Or Book-Entry Transfer Facility Participant From Beneficial
Owner” attached hereto. An envelope to return your
instructions is enclosed. If you authorize a tender of your
outstanding notes, the entire principal amount of outstanding
notes held for your account will be tendered unless otherwise
specified on the instruction form. Your instructions should be
forwarded to us with ample time to permit us to submit a tender
on your behalf by the expiration date.
2
Direct Line: 202.639.7078
Fax: 202.639.7003
vasiliki.tsaganos@friedfrank.com
Fax: 202.639.7003
vasiliki.tsaganos@friedfrank.com
June 21, 2011
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
100 F Street, N.E.
Washington, D.C. 20549
Re: Navios Maritime Holdings Inc. and Navios Acquisition Finance II (US) Inc.
Ladies and Gentlemen:
On behalf of Navios Holdings Inc., a Marshall Islands corporation and Navios Acquisition
Finance II (US) Inc., a Delaware corporation (together, the “Company”) and pursuant to the
Securities Act of 1933, as amended, we are filing by direct electronic transmission the Company’s
Registration Statement on Form F-4 (the “Registration Statement”) relating to the registration of
$350,000,000 in aggregate principal amount of 8 1/8% Senior Notes due 2019. Except as noted in the
Registration Statement, all of the exhibits have been previously filed or are included within the
direct electronic transmission.
The Company paid the filing fee of $40,635.
Please direct any questions or comments that the Staff may have with regard to the filing to
Stuart H. Gelfond at (212) 859-8272 or the undersigned at the above-referenced number.
| Sincerely, |
||||
| /s/ VASILIKI B. TSAGANOS | ||||
| Vasiliki B. Tsaganos | ||||
cc: Vasiliki Papaefthymiou
Secretary
Secretary