fv1za
As
filed with the Securities and Exchange Commission June 8,
2011
Registration
No. 333-174053
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
AMENDMENT NO. 3
TO
Form F-1
REGISTRATION
STATEMENT
UNDER THE SECURITIES ACT OF
1933
DIANA CONTAINERSHIPS
INC.
(Exact name of Registrant as
specified in its charter)
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Republic of The Marshall Islands
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4412
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N/A
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(State or other jurisdiction
of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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DIANA CONTAINERSHIPS INC.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece
011 30 210 947 0000
(Address and telephone
number of
Registrants principal executive offices)
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Seward & Kissel LLP
Attention: Gary J. Wolfe, Esq.
One Battery Park Plaza
New York, New York 10004
(212) 574-1223
(Name, address and
telephone
number of agent for service)
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Copies to:
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Gary J. Wolfe, Esq.
Edward S. Horton, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
(212) 574-1223
(telephone number)
(212) 480-8421
(facsimile number)
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Gary L. Sellers, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
(212) 455-2000 (telephone number)
(212) 455-2502 (facsimile number)
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Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
Registration Statement becomes effective.
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act, check the following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, 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
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Title of Each Class of
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Aggregate
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Amount of
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Securities to be Registered
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Offering Price(1)(2)
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Registration Fee
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Common Shares, $0.01 par value per share
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$
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175,329,000
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$
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20,355.70(3
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Preferred Stock Purchase Rights(4)
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(1)
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Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c) under
the Securities Act of 1933, as amended, based on the average of
the high and low sales prices of our common shares as reported
by the Nasdaq Global Market on May 27, 2011.
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(2)
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Includes common shares that may be
sold pursuant to the underwriters over-allotment option.
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(4)
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Preferred stock purchase rights are
not currently separable from the common stock and are not
currently exercisable. The value attributable to the preferred
stock purchase rights, if any, will be reflected in the market
price of the common stock.
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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 or until the Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This Amendment No. 3 to the Registration Statement on
Form F-1
of Diana Containerships Inc. (Amendment No. 3)
does not relate to our preliminary prospectus which is not
amended hereby. As such, this Amendment No. 3 does not
include a copy of our preliminary prospectus. This Amendment
No. 3 is being filed solely for the purpose of filing
Exhibit 4.6 to the Registration Statement.
PART II:
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 6. Indemnification
of Directors and Officers
Article VIII of the Amended and Restated Bylaws of the of
the Registrant provides as follows:
1. 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, partnership,
joint venture, trust or other enterprise shall be entitled to be
indemnified by the Corporation upon the same terms, under the
same conditions, and to the same extent as authorized by
Section 60 of the BCA, if he or she acted in good faith and
in a manner he or she 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 or her conduct was unlawful. The
Corporation shall have the power to pay in advance expenses a
director or officer incurred while defending a civil or criminal
proceeding, provided that the director or officer will repay the
amount if it shall ultimately be determined that he or she is
not entitled to indemnification under this section.
2. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a
Director or officer of the Corporation or is or was serving at
the request of the Corporation as a director or officer against
any liability asserted against such person and incurred by such
person in such capacity whether or not the Corporation would
have the power to indemnify such person against such liability
by law or under the provisions of these Bylaws.
II. Section 60 of the Associations Law of the Republic
of the Marshall Islands provides as follows:
1. Actions Not by or in Right of the
Corporation. A corporation shall have power
to 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 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 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 no contest, 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 bests interests of the corporation, and, with
respect to any criminal action or proceedings, had reasonable
cause to believe that his conduct was unlawful.
2. Actions by or in Right of the
Corporation. A corporation shall have the
power to 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 or officer of the corporation, or is or was
serving at the request 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 expenses (including attorneys fees)
actually and reasonably incurred by him or in connection with
the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except
that no indemnification shall be made in respect of any claims,
issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of
his duty to the corporation unless and only to the extent that
the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all
II-1
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
court shall deem proper.
3. When Director or Officer
Successful. To the extent that 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 subsections (1) or (2) of this section, or in
the defense of a claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees)
actually and reasonably incurred by him in connection therewith.
4. Payment of Expenses in
Advance. Expenses incurred in defending a
civil or criminal action, suit or proceeding may be paid in
advance of the final disposition of such action, suit or
proceeding as authorized by the board of directors in the
specific case upon receipt of an undertaking by or on behalf of
the director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section.
5. Indemnification Pursuant To Other
Rights. The indemnification and advancement
of expenses provided by, or granted pursuant to, the other
subsections of this section shall not be deemed exclusive of any
other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
6. Continuation Of
Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to,
this section shall, unless otherwise provided when authorized or
ratified, 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.
7. Insurance. A corporation shall
have the power to purchase and maintain insurance on behalf of
any person who is or was a director or officer of the
corporation or is or was serving at the request of the
corporation as a director or officer against any liability
asserted against him and incurred by him in such capacity
whether or not the corporation would have the power to indemnify
him against such liability under the provisions of this section.
Item 7. Recent
Sales of Unregistered Securities.
On January 7, 2010 the Company issued 500 common shares at
par value to Diana Shipping Inc. in connection with our initial
capitalization. On April 6, 2010, the Company sold
5,602,330 common shares in a private offering at a price of
$15.00 per share. FBR Capital Markets & Co. acted as
initial purchaser/placement agent for this private offering. The
net proceeds of this private offering were $82,011,889. On
April 29, 2010, the Company issued 290,000 common shares in
a private offering at a price of $15.00 per share pursuant to
the exercise of FBR Capital Markets & Co.s
option to purchase additional shares for net proceeds of
$4,089,000. On May 4, 2010, the Company issued common
shares under the Companys 2010 Equity Incentive Plan as
follows: (a) 76,190 common shares at par value to Taracan
Investments S.A., a company controlled by the Companys
Chairman and Chief Executive Officer; (b) 66,165 common
shares to Weever S.A., a company controlled by the
Companys President and Director; (c) 36,090 common
shares to Love Boat S.A., a company controlled by the
Companys Chief Financial Officer and Treasurer; and
(d) 34,886 common shares to D&G S.A., a company
controlled by the Companys Chief Operating Officer,
Director and Secretary. Each of the above transactions was
exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) of the Securities Act as a
transaction by an issuer not involving a public offering.
II-2
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Date
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Consideration
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Total
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Registration
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Securities Sold
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Sold
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Per Share
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Consideration
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Exemption
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Purchasers
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500 Common Shares
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January 7, 2010
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$
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1.00 per share
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$
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500
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Section 4
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(2)
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Diana Shipping Inc.
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5,602,330 Common Shares
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April 6, 2010
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$
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15.00 per share
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$
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82,011,889
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Section 4
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(2)
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Rule 144A,
Regulation S and
Regulation D
Purchasers
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290,000 Common Shares
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April 29, 2010
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$
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15.00 per share
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$
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4,089,000
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Section 4
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(2)
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Regulation S
purchasers
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76,190 Common Shares
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May 4, 2010
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N/A
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N/A
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Section 4
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(2)
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Taracan Investments S.A.
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66,165 Common Shares
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May 4, 2010
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N/A
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N/A
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Section 4
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(2)
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Weever S.A.
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36,090 Common Shares
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May 4, 2010
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N/A
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N/A
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Section 4
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(2)
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Love Boat S.A.
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34,886 Common Shares
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May 4, 2010
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N/A
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N/A
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Section 4
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(2)
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D&G S.A.
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II-3
Item 8. Exhibits
and Financial Statement Schedules
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Number
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Description of Exhibit
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1
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Form of Underwriting Agreement*
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3
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.1
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Amended and Restated Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3.1 of the
Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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3
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.2
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Amended and Restated Bylaws of the Company, incorporated by
reference to Exhibit 3.2 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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4
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.1
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Form of Share Certificate, incorporated by reference to
Exhibit 4.1 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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4
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.2
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Registration Rights Agreement dated April 6, 2010 by and
among the Company, FBR Capital Markets & Co. and Diana
Shipping Inc., incorporated by reference to Exhibit 4.2 of
the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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4
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.3
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Stockholders Rights Agreement, dated August 2, 2010 by and
between the Company and Mellon Investor Services LLC,
incorporated by reference to Exhibit 4.3 of the
Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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4
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.4
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Statement of Designations of Rights, Preferences and Privileges
of Series A Participating Preferred Stock of Diana
Containerships Inc., dated August 2, 2010, incorporated by
reference to Exhibit 4.4 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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4
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.5
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Form of Share Purchase Agreement between the Company and Diana
Shipping Inc.*
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4
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.6
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Form of Registration Rights Agreement between the Company and
Diana Shipping Inc.
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5
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.1
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Legal Opinion of Seward & Kissel LLP*
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8
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.1
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Tax Opinion of Seward & Kissel LLP*
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10
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.1
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2010 Equity Incentive Plan, incorporated by reference to
Exhibit 10.1 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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10
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.2
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Administrative Services Agreement, incorporated by reference to
Exhibit 10.2 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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10
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.3
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Broker Services Agreement, incorporated by reference to
Exhibit 10.3 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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10
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.4
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Form of Vessel Management Agreement, incorporated by reference
to Exhibit 10.4 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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10
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.5
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Non-Competition Agreement with Diana Shipping Inc., incorporated
by reference to Exhibit 10.5 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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10
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.6
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Loan Agreement, dated July 7, 2010, by and between Likiep
Shipping Company Inc. and Orangina Inc., as Borrowers, and DnB
NOR Bank ASA, incorporated by reference to Exhibit 10.6 of
the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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10
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.7
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Loan Agreement, dated May 4, 2011, by and between DnB NOR
Bank ASA , and Likiep Shipping Company Inc., Orangina Inc., Mili
Shipping Company Inc., Ebon Shipping Company Inc., and Ralik
Shipping Company Inc.*
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10
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.8
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Memorandum of Agreement for m/v Maersk Madrid*
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10
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.9
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Addendum No. 1 to the Memorandum of Agreement for m/v
Maersk Madrid*
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10
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.10
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Memorandum of Agreement for m/v Maersk Malacca*
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10
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.11
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Memorandum of Agreement for m/v Maersk Merlion*
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21
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.1
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List of Subsidiaries*
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23
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.1
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Consent of Independent Registered Public Accounting Firm
(Ernst & Young (Hellas) Certified Auditors
Accountants S.A.)*
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23
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.2
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Consent of Drewry Shipping Consultants Ltd.*
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23
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.3
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Consent of Seward & Kissel LLP (included in
Exhibit 5.1)*
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Power of Attorney*
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II-4
The undersigned registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting
agreements certificates in such denominations and registered in
such names as required by the underwriter to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)
(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time
it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
II-5
Signatures
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form F-1
and has duly caused this Amendment No. 3 to the
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, the City of Athens,
Republic of Greece, on the
8th day
of June, 2011.
DIANA CONTAINERSHIPS INC.
Name: Symeon Palios
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Title:
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Chairman and Chief Executive Officer
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Power of
Attorney
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gary J. Wolfe, Robert E.
Lustrin and Edward S. Horton or either of them, with full power
to act alone, his or her true lawful attorneys-in-fact and
agents, with full powers of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and
all capacities, to sign any or all amendments or supplements to
this registration statement, whether pre-effective or
post-effective, including any subsequent registration statement
for the same offering which may be filed under Rule 462(b)
under the Securities Act of 1933, as amended, and to file the
same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and
thing necessary to be done, as fully for all intents and
purposes as he or she might or could do in person hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or his substitute, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities indicated on June 8,
2011.
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Name
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Position
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/s/ Symeon
Palios*
Symeon
Palios
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Chief Executive Officer, Chairman and Director (principal
executive officer)
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/s/ Andreas
Michalopoulos*
Andreas
Michalopoulos
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Chief Financial Officer and Treasurer (principal financial
officer and principal accounting officer)
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/s/ Anastasios
Margaronis*
Anastasios
Margaronis
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Director and President
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/s/ Ioannis
Zafirakis*
Ioannis
Zafirakis
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Director, Chief Operating Officer and Secretary
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/s/ Giannakis
Evangelou*
Giannakis
Evangelou
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Director
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II-6
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Name
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Position
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/s/ Antonios
Karavias*
Antonios
Karavias
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Director
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/s/ Nikolaos
Petmezas*
Nikolaos
Petmezas
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Director
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/s/ Reidar
Brekke*
Reidar
Brekke
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Director
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*By Gary J. Wolfe, attorney-in-fact.
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II-7
Authorized
Representative
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned, the duly authorized representative of
the Registrant in the United States, has signed this
registration statement on June 8, 2011.
BULK CARRIERS (USA) LLC
BY: Diana Shipping Inc., its Sole Member
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By:
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/s/ Ioannis
Zafirakis*
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Ioannis Zafirakis
Director, Executive Vice President and Secretary Authorized
Representative in the United States
*By Gary J.
Wolfe, attorney-in-fact.
II-8
INDEX TO
EXHIBITS
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Number
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Description of Exhibit
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1
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Form of Underwriting Agreement*
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3
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.1
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Amended and Restated Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3.1 of the
Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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3
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.2
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Amended and Restated Bylaws of the Company, incorporated by
reference to Exhibit 3.2 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
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4
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.1
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Form of Share Certificate, incorporated by reference to
Exhibit 4.1 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
4
|
.2
|
|
Registration Rights Agreement dated April 6, 2010 by and
among the Company, FBR Capital Markets & Co. and Diana
Shipping Inc., incorporated by reference to Exhibit 4.2 of
the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
4
|
.3
|
|
Stockholders Rights Agreement, dated August 2, 2010 by and
between the Company and Mellon Investor Services LLC,
incorporated by reference to Exhibit 4.3 of the
Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
4
|
.4
|
|
Statement of Designations of Rights, Preferences and Privileges
of Series A Participating Preferred Stock of Diana
Containerships Inc., dated August 2, 2010, incorporated by
reference to Exhibit 4.4 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
4
|
.5
|
|
Form of Share Purchase Agreement between the Company and Diana
Shipping Inc.*
|
|
4
|
.6
|
|
Form of Registration Rights Agreement between the Company and
Diana Shipping Inc.
|
|
5
|
.1
|
|
Legal Opinion of Seward & Kissel LLP*
|
|
8
|
.1
|
|
Tax Opinion of Seward & Kissel LLP*
|
|
10
|
.1
|
|
2010 Equity Incentive Plan, incorporated by reference to
Exhibit 10.1 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
10
|
.2
|
|
Administrative Services Agreement, incorporated by reference to
Exhibit 10.2 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
10
|
.3
|
|
Broker Services Agreement, incorporated by reference to
Exhibit 10.3 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
10
|
.4
|
|
Form of Vessel Management Agreement, incorporated by reference
to Exhibit 10.4 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
10
|
.5
|
|
Non-Competition Agreement with Diana Shipping Inc., incorporated
by reference to Exhibit 10.5 of the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
10
|
.6
|
|
Loan Agreement, dated July 7, 2010, by and between Likiep
Shipping Company Inc. and Orangina Inc., as Borrowers, and DnB
NOR Bank ASA, incorporated by reference to Exhibit 10.6 of
the Companys
Form F-4
filed with the Securities and Exchange Commission on
October 15, 2010.
|
|
10
|
.7
|
|
Loan Agreement, dated May 4, 2011, by and between DnB NOR
Bank ASA , and Likiep Shipping Company Inc., Orangina Inc., Mili
Shipping Company Inc., Ebon Shipping Company Inc., and Ralik
Shipping Company Inc.*
|
|
10
|
.8
|
|
Memorandum of Agreement for m/v Maersk Madrid*
|
|
10
|
.9
|
|
Addendum No. 1 to the Memorandum of Agreement for m/v
Maersk Madrid*
|
|
10
|
.10
|
|
Memorandum of Agreement for m/v Maersk Malacca*
|
|
10
|
.11
|
|
Memorandum of Agreement for m/v Maersk Merlion*
|
|
21
|
.1
|
|
List of Subsidiaries*
|
|
23
|
.1
|
|
Consent of Independent Registered Public Accounting Firm
(Ernst & Young (Hellas) Certified Auditors
Accountants S.A.)*
|
|
23
|
.2
|
|
Consent of Drewry Shipping Consultants Ltd.*
|
|
23
|
.3
|
|
Consent of Seward & Kissel LLP (included in
Exhibit 5.1)*
|
|
24
|
|
|
Power of Attorney*
|