The
Republic of the Marshall Islands
(State
or other jurisdiction of
incorporation
or organization)
|
N/A
(I.R.S.
Employer
Identification
No.)
|
||||
42
Hatzikyriakou Avenue
185
38 Piraeus
Athens,
Greece
011
30 (210) 458-6200
(Address
and telephone number of
Registrant's
principal executive offices)
|
Seward
& Kissel LLP
Attention: Gary
J. Wolfe, Esq.
One
Battery Park Plaza
New
York, New York 10004
(212)
574-1200
(Name,
address and telephone
number
of agent for service)
|
Copies
to:
Gary
J. Wolfe, Esq.
Seward
& Kissel LLP
One
Battery Park Plaza
New
York, New York 10004
(212)
574-1200
|
||
Title
of Each Class of
Securities
to be Registered
|
Amount
to be
Registered
(1)(5)
|
Proposed
Maximum
Aggregate
Price Per
Unit
(2)
|
Proposed
Maximum
Aggregate
Offering
Price
(2)
|
Amount
of
Registration
Fee
|
||||||
Primary
Offering
|
||||||||||
Common Stock, par value $0.01 per share (3)
|
||||||||||
Preferred
Stock, par value $1.00 per share (3)
|
||||||||||
Preferred
Stock Purchase Rights (4)
|
||||||||||
Debt
Securities (3)(5)
|
||||||||||
Warrants
(6)
|
||||||||||
Purchase
Contracts (7)
|
||||||||||
Units
(8)
|
||||||||||
Primary
Offering Total
|
$ | 125,000,000 | $ | 6,975 | (11) | |||||
Secondary
Offering
|
||||||||||
Common Stock, par value $0.01 per share, to be offered
by selling shareholders (9)
|
3,250,000 | $ | 75,985,000 | (10) | $ | 4,240 | ||||
Preferred
Stock Purchase Rights (4)
|
||||||||||
Secondary
Offering Total
|
3,250,000 | $ | 75,985,000 | $ | 4,240 | |||||
Total
|
$ | 200,985,000 | $ | 11,215 |
(1)
|
Such
amount in U.S. dollars or the equivalent thereof in foreign currencies as
shall result in an aggregate initial public offering price for all
securities not to exceed $125,000,000.
|
(2)
|
Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(o) under the Securities Act of 1933, as amended, or the
Securities Act. Pursuant to General Instruction II(C) of Form F-3, the
table does not specify by each class information as to the proposed
maximum aggregate offering price. Any securities registered hereunder may
be sold separately or as units with other securities registered
hereunder. In no event will the aggregate offering price of all
securities sold by Aegean Marine Petroleum Network Inc. pursuant to this
registration statement exceed $125,000,000.
|
(3)
|
Also
includes such indeterminate amount of debt securities and number of shares
of preferred stock and common stock as may be issued upon conversion of or
in exchange for any other debt securities or preferred shares that provide
for conversion or exchange into other securities.
|
(4)
|
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 shares of common stock.
|
(5)
|
If
any debt securities are issued at an original issue discount, then the
offering may be in such greater principal amount as shall result in a
maximum aggregate offering price not to exceed
$125,000,000.
|
(6)
|
There
is being registered hereunder an indeterminate number of warrants as may
from time to time be sold at indeterminate prices not to exceed an
aggregate offering price of $125,000,000.
|
(7)
|
There
is being registered hereunder an indeterminate number of purchase
contracts as may from time to time be sold at indeterminate prices not to
exceed an aggregate offering price of $125,000,000.
|
(8)
|
There
is being registered hereunder an indeterminate number of units as may from
time to time be sold at indeterminate prices not to exceed an aggregate
offering price of $125,000,000. Units may consist of any
combination of the securities registered hereunder.
|
(9)
|
These
common shares may be sold by or on behalf of the selling
shareholders.
|
(10)
|
Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(c) of the Securities Act, based upon the average of the high and
low sales prices on the New York Stock Exchange on November 3, 2009 of the
common shares of the Registrant ($23.38).
|
(11)
|
Calculated
pursuant to Rule 457(o) of the rules and regulations under the Securities
Act.
|
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants 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 Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. |
TABLE
OF CONTENTS
|
PROSPECTUS
SUMMARY
|
3
|
RISK
FACTORS
|
5
|
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
|
6
|
RATIO
OF EARNINGS TO FIXED CHARGES
|
8
|
USE
OF PROCEEDS
|
9
|
CAPITALIZATION
|
9
|
PLAN
OF DISTRIBUTION
|
9
|
ENFORCEABILITY
OF CIVIL LIABILITIES
|
10
|
SELLING
SHAREHOLDERS
|
11
|
DESCRIPTION
OF CAPITAL STOCK
|
11
|
DESCRIPTION
OF RIGHTS
|
16
|
DESCRIPTION
OF WARRANTS
|
17
|
DESCRIPTION
OF DEBT SECURITIES
|
18
|
DESCRIPTION
OF PURCHASE CONTRACTS
|
26
|
DESCRIPTION
OF UNITS
|
26
|
EXPENSES
|
27
|
LEGAL
MATTERS
|
27
|
EXPERTS
|
27
|
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
|
27
|
·
|
shares
of common stock, including related preferred stock purchase
rights,
|
·
|
shares
of preferred stock,
|
·
|
debt
securities,
|
·
|
warrants,
|
·
|
purchase
contracts, and
|
·
|
units.
|
·
|
our
future operating or financial
results;
|
·
|
our
future payment of dividends and the availability of cash for payment of
dividends;
|
·
|
our
ability to retain and attract senior management and other key
employees;
|
·
|
our
ability to manage growth;
|
·
|
our
ability to maintain our business in light of our proposed business and
location expansion;
|
·
|
our
ability to obtain double hull bunkering tankers given the scarcity of such
vessels in general;
|
·
|
the
outcome of legal, tax or regulatory proceedings to which we may become a
party;
|
·
|
adverse
conditions in the shipping or the marine fuel supply
industries;
|
·
|
our
ability to retain our key suppliers and key
customers;
|
·
|
our
contracts and licenses with governmental entities remaining in full force
and effect;
|
·
|
material
disruptions in the availability or supply of crude oil or refined
petroleum products;
|
·
|
changes
in the market price of petroleum, including the volatility of spot
pricing;
|
·
|
increased
levels of competition;
|
·
|
compliance
or lack of compliance with various environmental and other applicable laws
and regulations;
|
·
|
our
ability to collect accounts
receivable;
|
·
|
changes
in the political, economic or regulatory conditions in the markets in
which we operate, and the world in
general;
|
·
|
our
future, pending or recent acquisitions, business strategy, areas of
possible expansion, and expected capital spending or operating
expenses;
|
·
|
our
failure to hedge certain financial risks associated with our
business;
|
·
|
uninsured
losses;
|
·
|
our
ability to maintain our current tax
treatment;
|
·
|
our
failure to comply with restrictions in our credit
agreements;
|
·
|
increases
in interest rates; and
|
·
|
other
important factors described from time to time in our filings with the
SEC.
|
|
|
Six Months
|
||||||||||||||||
(Expressed in thousands of U.S. dollars) | Year Ended December 31, | Ended |
|
2004
|
2005
|
2006
|
2007
|
2008
|
June 30, 2009
|
||||||||||||||||||
|
|
|
|
|
|
|
Earnings
|
||||||||||||||||||||||||
Pre-tax
income from continuing operations
|
$ | 17,623 | 21,499 | 24,227 | 27,746 | 41,794 | 21,242 | |||||||||||||||||
Add:
Fixed charges
|
838 | 1,986 | 5,891 | 4,420 | 14,078 | 5,066 | ||||||||||||||||||
18,461 | 23,485 | 30,118 | 32,166 | 55,872 | 26,308 | |||||||||||||||||||
Less:
Interest capitalized
|
- | 155 | 1,295 | 2,314 | 2,868 | 1,048 | ||||||||||||||||||
Total
Earnings
|
$ | 18,461 | 23,330 | 28,823 | 29,852 | 53,004 | 25,260 | |||||||||||||||||
Fixed
Charges
|
||||||||||||||||||||||||
Interest
expensed and capitalized
|
$ | 682 | 1,936 | 5,618 | 4,040 | 12,879 | 4,460 | |||||||||||||||||
Amortization
and write-off of capitalized expenses related to
indebtedness
|
133 | 18 | 171 | 233 | 830 | 356 | ||||||||||||||||||
Interest
portion of rental expense
|
23 | 32 | 102 | 147 | 369 | 250 | ||||||||||||||||||
Total
Fixed Charges
|
$ | 838 | 1,986 | 5,891 | 4,420 | 14,078 | 5,066 | |||||||||||||||||
Ratio
of Earnings to fixed Charges
|
22.0 | 11.7 | 4.9 | 6.8 | 3.8 | 5.0 | ||||||||||||||||||
·
|
a
block trade in which a broker-dealer may resell a portion of the block, as
principal, in order to facilitate the
transaction;
|
·
|
purchases
by a broker-dealer, as principal, and resale by the broker-dealer for its
account; or
|
·
|
ordinary
brokerage transactions and transactions in which a broker solicits
purchasers.
|
·
|
enter
into transactions involving short sales of our shares of common stock by
broker-dealers;
|
·
|
sell
shares of common stock short themselves and deliver the shares to close
out short positions;
|
·
|
enter
into option or other types of transactions that require us or any selling
shareholder to deliver shares of common stock to a broker-dealer, who will
then resell or transfer the shares of common stock under this prospectus;
or
|
·
|
loan
or pledge the shares of common stock to a broker-dealer, who may sell the
loaned shares or, in the event of default, sell the pledged
shares.
|
·
|
the
designation of the series;
|
·
|
the
preferences and relative, participating, option or other special rights,
if any, and any qualifications, limitations or restrictions of such
series; and
|
·
|
the
voting rights, if any, of the holders of the
series.
|
·
|
prior
to the date of the transaction that resulted in the shareholder becoming
an interested shareholder, our board of directors approved either the
business combination or the transaction that resulted in the shareholder
becoming an interested shareholder;
|
·
|
upon
consummation of the transaction that resulted in the shareholder becoming
an interested shareholder, the interested shareholder owned at least 85%
of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding those shares owned (i) by persons who are directors and
also officers and (ii) employee stock plans in which employee participants
do not have the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange
offer;
|
·
|
at
or subsequent to the date of the transaction that resulted in the
shareholder becoming an interested shareholder, the business combination
is approved by the board of directors and authorized at an annual or
special meeting of shareholders, and not by written consent, by the
affirmative vote of at least 70% of the outstanding voting stock that is
not owned by the interested shareholder;
or
|
·
|
the
shareholder became an interested shareholder prior to the consummation of
the initial public offering of shares of our common stock under the
Securities Act.
|
·
|
the
board of directors shall be divided into three
classes;
|
·
|
directors
may only be removed for cause and by an affirmative vote of the holders of
70% or more of the outstanding shares of our capital stock entitled to
vote generally in the election of
directors;
|
·
|
the
directors are authorized to make, alter, amend, change or repeal our
bylaws by vote not less than 70% of the entire board of
directors;
|
·
|
the
shareholders are authorized to alter, amend or repeal our bylaws by an
affirmative vote of 70% or more of the outstanding shares of our capital
stock entitled to vote generally in the election of
directors;
|
·
|
the
Company may not engage in any business combination with any interested
shareholder for a period of three years following the transaction in which
the person became an interested shareholder;
and
|
·
|
the
Company shall indemnify directors and officers to the full extent
permitted by law, and the company shall advance certain expenses
(including attorneys' fees and disbursements and court costs) to the
directors and officers.
|
·
|
the
title of such warrants;
|
·
|
the
aggregate number of such warrants;
|
·
|
the
price or prices at which such warrants will be
issued;
|
·
|
the
currency or currencies, in which the price of such warrants will be
payable;
|
·
|
the
securities or other rights, including rights to receive payment in cash or
securities based on the value, rate or price of one or more specified
commodities, currencies, securities or indices, or any combination of the
foregoing, purchasable upon exercise of such
warrants;
|
·
|
the
price at which and the currency or currencies, in which the securities or
other rights purchasable upon exercise of such warrants may be
purchased;
|
·
|
the
date on which the right to exercise such warrants shall commence and the
date on which such right shall
expire;
|
·
|
if
applicable, the minimum or maximum amount of such warrants which may be
exercised at any one time;
|
·
|
if
applicable, the designation and terms of the securities with which such
warrants are issued and the number of such warrants issued with each such
security;
|
·
|
if
applicable, the date on and after which such warrants and the related
securities will be separately
transferable;
|
·
|
information
with respect to book-entry procedures, if
any;
|
·
|
if
applicable, a discussion of any material United States federal income tax
considerations; and
|
·
|
any
other terms of such warrants, including terms, procedures and limitations
relating to the exchange and exercise of such
warrants.
|
·
|
the
designation, aggregate principal amount and authorized
denominations;
|
·
|
the
issue price, expressed as a percentage of the aggregate principal
amount;
|
·
|
the
maturity date;
|
·
|
the
interest rate per annum, if any;
|
·
|
if
the offered debt securities provide for interest payments, the date from
which interest will accrue, the dates on which interest will be payable,
the date on which payment of interest will commence and the regular record
dates for interest payment dates;
|
·
|
any
optional or mandatory sinking fund provisions or conversion or
exchangeability provisions;
|
·
|
the
date, if any, after which and the price or prices at which the offered
debt securities may be optionally redeemed or must be mandatorily redeemed
and any other terms and provisions of optional or mandatory
redemptions;
|
·
|
if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which offered debt securities of the series will be
issuable;
|
·
|
if
other than the full principal amount, the portion of the principal amount
of offered debt securities of the series which will be payable upon
acceleration or provable in
bankruptcy;
|
·
|
any
events of default not set forth in this
prospectus;
|
·
|
the
currency or currencies, including composite currencies, in which
principal, premium and interest will be payable, if other than the
currency of the United States of
America;
|
·
|
if
principal, premium or interest is payable, at our election or at the
election of any holder, in a currency other than that in which the offered
debt securities of the series are stated to be payable, the period or
periods within which, and the terms and conditions upon which, the
election may be made;
|
·
|
whether
interest will be payable in cash or additional securities at our or the
holder's option and the terms and conditions upon which the election may
be made;
|
·
|
if
denominated in a currency or currencies other than the currency of the
United States of America, the equivalent price in the currency of the
United States of America for purposes of determining the voting rights of
holders of those debt securities under the applicable
indenture;
|
·
|
if
the amount of payments of principal, premium or interest may be determined
with reference to an index, formula or other method based on a coin or
currency other than that in which the offered debt securities of the
series are stated to be payable, the manner in which the amounts will be
determined;
|
·
|
any
restrictive covenants or other material terms relating to the offered debt
securities, which may not be inconsistent with the applicable
indenture;
|
·
|
whether
the offered debt securities will be issued in the form of global
securities or certificates in registered or bearer
form;
|
·
|
any
terms with respect to
subordination;
|
·
|
any
listing on any securities exchange or quotation
system;
|
·
|
additional
provisions, if any, related to defeasance and discharge of the offered
debt securities; and
|
·
|
the
applicability of any guarantees.
|
·
|
the
principal, premium, if any, interest and any other amounts owing in
respect of our indebtedness for money borrowed and indebtedness evidenced
by securities, notes, debentures, bonds or other similar instruments
issued by us, including the senior debt securities or letters of
credit;
|
·
|
all
capitalized lease obligations;
|
·
|
all
hedging obligations;
|
·
|
all
obligations representing the deferred purchase price of property;
and
|
·
|
all
deferrals, renewals, extensions and refundings of obligations of the type
referred to above.
|
·
|
subordinated
debt securities; and
|
·
|
any
indebtedness that by its terms is subordinated to, or ranks on an equal
basis with, our subordinated debt
securities.
|
·
|
the
ability of us or our subsidiaries to incur either secured or unsecured
debt, or both;
|
·
|
the
ability to make certain payments, dividends, redemptions or
repurchases;
|
·
|
our
ability to create dividend and other payment restrictions affecting our
subsidiaries;
|
·
|
our
ability to make investments;
|
·
|
mergers
and consolidations by us or our
subsidiaries;
|
·
|
sales
of assets by us;
|
·
|
our
ability to enter into transactions with
affiliates;
|
·
|
our
ability to incur liens; and
|
·
|
sale
and leaseback transactions.
|
(1)
|
changes
the amount of securities whose holders must consent to an amendment,
supplement or waiver;
|
|
(2)
|
reduces
the rate of or changes the interest payment time on any security or alters
its redemption provisions (other than any alteration to any such section
which would not materially adversely affect the legal rights of any holder
under the indenture) or the price at which we are required to offer to
purchase the securities;
|
|
(3)
|
reduces
the principal or changes the maturity of any security or reduces the
amount of, or postpones the date fixed for, the payment of any sinking
fund or analogous obligation;
|
|
(4)
|
waives
a default or event of default in the payment of the principal of or
interest, if any, on any security (except a rescission of acceleration of
the securities of any series by the holders of at least a majority in
principal amount of the outstanding securities of that series and a waiver
of the payment default that resulted from such
acceleration);
|
|
(5)
|
makes
the principal of or interest, if any, on any security payable in any
currency other than that stated in the security;
|
|
(6)
|
makes
any change with respect to holders' rights to receive principal and
interest, the terms pursuant to which defaults can be waived, certain
modifications affecting shareholders or certain currency-related issues;
or
|
|
(7)
|
waives
a redemption payment with respect to any security or changes any of the
provisions with respect to the redemption of any
securities
|
·
|
default
in any payment of interest when due which continues for 30
days;
|
·
|
default
in any payment of principal or premium when
due;
|
·
|
default
in the deposit of any sinking fund payment when
due;
|
·
|
default
in the performance of any covenant in the debt securities or the
applicable indenture which continues for 60 days after we receive notice
of the default;
|
·
|
default
under a bond, debenture, note or other evidence of indebtedness for
borrowed money by us or our subsidiaries (to the extent we are directly
responsible or liable therefor) having a principal amount
in excess of a minimum amount set forth in the applicable subsequent
filing, whether such indebtedness now exists or is hereafter created,
which default shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, without such acceleration having been
rescinded or annulled or cured within 30 days after we receive notice of
the default; and
|
·
|
events
of bankruptcy, insolvency or
reorganization.
|
·
|
the
depository for such global securities notifies us that it is unwilling or
unable to continue as depository or such depository ceases to be a
clearing agency registered under the Exchange Act and, in either case, a
successor depository is not appointed by us within 90 days after we
receive the notice or become aware of the
ineligibility;
|
·
|
we
in our sole discretion determine that the global securities shall be
exchangeable for certificated debt securities;
or
|
·
|
there
shall have occurred and be continuing an event of default under the
applicable indenture with respect to the debt securities of that
series.
|
·
|
debt
or equity securities issued by us or securities of third parties, a basket
of such securities, an index or indices of such securities or any
combination of the above as specified in the applicable prospectus
supplement;
|
·
|
currencies;
or
|
·
|
commodities.
|
·
|
the
terms of the units and of the purchase contracts, warrants, debt
securities, preferred stock and common stock comprising the units,
including whether and under what circumstances the securities comprising
the units may be traded separately;
|
·
|
a
description of the terms of any unit agreement governing the units;
and
|
·
|
a
description of the provisions for the payment, settlement, transfer or
exchange or the units.
|
SEC
registration fee
|
$________*
|
Blue
sky fees and expenses
|
$________*
|
Printing
and engraving expenses
|
$________*
|
Legal
fees and expenses
|
$________*
|
Rating
agency fees
|
$________*
|
Accounting
fees and expenses
|
$________*
|
Indenture
trustee fees and experts
|
$________*
|
Transfer
agent and registrar
|
$________*
|
Miscellaneous
|
$________*
|
---------------
|
|
Total
|
$________*
|
=========
|
|
·
|
our
Annual Report on Form 20-F for the year ended December 31, 2008, filed
with the SEC on April 22, 2009, which contains audited consolidated
financial statements for the most recent fiscal year for which those
statements have been filed;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on May 4, 2009, containing
our press release announcing that we had taken delivery of a double-hull
bunkering tanker;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on May 12, 2009, containing
our press release announcing that we had entered into an agreement to sell
two of our specialty tankers;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on May 14, 2009, containing
our press release announcing our first quarter 2009 financial results and
enclosing our interim unaudited consolidated financial
statements;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on June 2, 2009, containing
our press release announcing that we had taken delivery of a double hull
barge;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on August 13, 2009,
containing our press release announcing our second quarter 2009 financial
results and enclosing our interim unaudited consolidated financial
statements;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on August 26, 2009,
containing our press release announcing that we had taken delivery of a
double hull bunkering tanker;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on August 26, 2009,
containing our press release announcing that we had commenced operations
in Tanger-Med, Morocco;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on September 15, 2009,
containing our press release announcing that we had taken delivery of a
double hull bunkering tanker;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on September 24, 2009,
containing our press release announcing that we had entered into a $50
million senior secured revolving credit facility, guarantee, and letter of
credit;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on October 19, 2009,
containing our press release announcing that we had taken delivery of a
double hull bunkering tanker;
|
·
|
our
Current Report on Form 6-K, filed with the SEC on November 5, 2009,
containing the Management’s Discussion and Analysis of Financial Condition
and Results of Operations and the unaudited interim condensed consolidated
financial statements and related information and data of the Company as of
and for the period ended June 30, 2009;
and
|
·
|
our
Form 8-A12B, filed with the SEC on August 14, 2009, registering our Series
A Preferred Stock Purchase Rights under Section 12(b) of the Exchange
Act.
|
Exhibit
Number
|
Description
|
1.1
|
Underwriting
Agreement (for equity securities)(1)
|
1.2
|
Underwriting
Agreement (for debt securities)(1)
|
3.1
|
Amended
and Restated Articles of Incorporation of Aegean Marine Petroleum Network
Inc.(2)
|
3.2
|
Amended
and Restated Bylaws of Aegean Marine Petroleum Network Inc.(3)
|
4.1
|
Form
of Common Stock Certificate(4)
|
4.2
|
Preferred
Stock Certificate(1)
|
4.3
|
Form
of Debt Securities Indenture(1)
|
4.4
|
Form
of Warrant Agreement(1)
|
4.5
|
Form
of Purchase Contract(1)
|
4.6
|
Form
of Unit Agreement(1)
|
5.1
|
Opinion
of Seward & Kissel LLP, United States and Marshall Islands counsel to
the Company as to the validity of the common stock, preferred stock, debt
securities, warrants, purchase contracts and units
|
8.1
|
Opinion
of Seward & Kissel LLP, with respect to certain tax
matters
|
23.1
|
Consent
of Seward & Kissel LLP (included in Exhibit 5.1)
|
23.2
|
Consent
of Independent Registered Public Accounting Firm
|
24.1
|
Power
of Attorney (contained in signature page)
|
25.1
|
T-1
Statement of Eligibility (senior indenture)(1)
|
25.2
|
T-1
Statement of Eligibility (subordinated indenture)(1)
|
(1)
|
To
be filed either as an amendment or as an exhibit to a report filed
pursuant to the Securities Exchange Act of 1934 of the Registrant and
incorporated by reference into this registration
statement.
|
(2)
|
Incorporated
herein by reference to Exhibit 3.1 to the registration statement of Aegean
Marine Petroleum Network Inc. on Form F-1/A, Registration No. 333-129768
filed with the SEC on November 3,
2006.
|
(3)
|
Incorporated
herein by reference to Exhibit 3.2 to the registration statement of Aegean
Marine Petroleum Network Inc. on Form F-1/A, registration statement No.
333-129768 filed with the SEC on November 3,
2006.
|
(4)
|
Incorporated
herein by reference to Exhibit 4.1 to the registration statement of Aegean
Marine Petroleum Network Inc. on Form F-1/A, registration statement No.
333-129768 filed with the SEC on November 24,
2006.
|
|
Item
10. Undertakings.
|
|
(a)
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 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
|
|
(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, as amended, 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. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not
be filed to include financial statements and information required by
Section 10(a)(3) of the Securities Act of 1933 or Rule 3-19 of Regulation
S-X if such financial statements and information are contained in periodic
reports filed with or furnished to the SEC by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Form
F-3.
|
|
(5)
|
That,
for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
|
|
(i)
|
If
the registrant is relying on Rule
430B:
|
|
(A)
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part
of this registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement;
and
|
|
|
|
(B)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of 314 securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona
fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective
date.
|
|
(6)
|
The
undersigned registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
|
|
(i)
|
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
|
(ii)
|
Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
(iii)
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
|
(iv)
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
|
(b)
|
The
undersigned registrant hereby undertakes 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.
|
(c) - (d) Not applicable. |
|
(e)
|
The
undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to
be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom
the prospectus is sent or given, the latest quarterly
report that is specifically incorporated by reference in the prospectus to
provide such interim financial
information.
|
|
(f) – (g) Not applicable. |
|
|
(h)
|
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 advised 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
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
|
|
(i)
|
Not
applicable.
|
|
(j)
|
The
undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules an regulations prescribed by the SEC under Section
305(b)(2) of the Trust Indenture
Act.
|
|
(k) – (l) Not applicable. |
|
AEGEAN
MARINE PETROLEUM NETWORK INC.
|
||||
By:
|
/s/ E. Nikolas Tavlarios | |||
Name: E.
Nikolas Tavlarios
Title: President
|
||||
Date:
November 5, 2009
|
Signature
|
Title
|
Date
|
/s/ Peter C. Georgiopoulos |
Chairman
of the Board of Directors
|
November
5, 2009
|
||
Peter
C. Georgiopoulos
|
||||
/s/ E. Nikolas Tavlarios |
President
(Principal Executive Officer)
|
November
5, 2009
|
||
E.
Nikolas Tavlarios
|
||||
Chief
Financial Officer
|
||||
(Principal
Financial Officer and Principal
|
||||
/s/ Spyros Gianniotis |
Accounting
Officer)
|
November
5, 2009
|
||
Spyros
Gianniotis
|
|
|||
|
||||
Director,
General Counsel and
|
||||
/s/ Spyridon Fokas |
Corporate
Secretary
|
November
5, 2009
|
||
Spyridon
Fokas
|
|
|||
/s/ Yiannis Papanicolaou |
Director
|
November
5, 2009
|
||
Yiannis
Papanicolaou
|
||||
/s/ Abel L. Rasterhoff |
Director
|
November
5, 2009
|
||
Abel
L. Rasterhoff
|
||||
/s/ John P. Tavlarios |
Director
|
November
5, 2009
|
||
John
P. Tavlarios
|
||||
/s/ Constantine D. Koutsomitpoulos |
Director
|
November
5, 2009
|
||
Constantine
D. Koutsomitpoulos
|
||||
/s/ George J. Konomos |
Director
|
November
5, 2009
|
||
George
J. Konomos
|
Exhibit
Number
|
Description
|
1.1
|
Underwriting
Agreement (for equity securities)(1)
|
1.2
|
Underwriting
Agreement (for debt securities)(1)
|
3.1
|
Amended
and Restated Articles of Incorporation of Aegean Marine Petroleum Network
Inc.(2)
|
3.2
|
Amended
and Restated Bylaws of Aegean Marine Petroleum Network Inc.(3)
|
4.1
|
Form
of Common Stock Certificate(4)
|
4.2
|
Preferred
Stock Certificate(1)
|
4.3
|
Form
of Debt Securities Indenture(1)
|
4.4
|
Form
of Warrant Agreement(1)
|
4.5
|
Form
of Purchase Contract(1)
|
4.6
|
Form
of Unit Agreement(1)
|
5.1
|
Opinion
of Seward & Kissel LLP, United States and Marshall Islands counsel to
the Company as to the validity of the common stock, preferred stock, debt
securities, warrants, purchase contracts and units
|
8.1
|
Opinion
of Seward & Kissel LLP, with respect to certain tax
matters
|
23.1
|
Consent
of Seward & Kissel LLP (included in Exhibit 5.1)
|
23.2
|
Consent
of Independent Registered Public Accounting Firm
|
24.1
|
Power
of Attorney (contained in signature page)
|
25.1
|
T-1
Statement of Eligibility (senior indenture)(1)
|
25.2
|
T-1
Statement of Eligibility (subordinated indenture)(1)
|
(1)
|
To
be filed either as an amendment or as an exhibit to a report filed
pursuant to the Securities Exchange Act of 1934 of the Registrant and
incorporated by reference into this registration
statement.
|
(2)
|
Incorporated
herein by reference to Exhibit 3.1 to the registration statement of Aegean
Marine Petroleum Network Inc. on Form F-1/A, Registration No. 333-129768
filed with the SEC on November 3,
2006.
|
(3)
|
Incorporated
herein by reference to Exhibit 3.2 to the registration statement of Aegean
Marine Petroleum Network Inc. on Form F-1/A, registration statement No.
333-129768 filed with the SEC on November 3,
2006.
|
(4)
|
Incorporated
herein by reference to Exhibit 4.1 to the registration statement of Aegean
Marine Petroleum Network Inc. on Form F-1/A, registration statement No.
333-129768 filed with the SEC on November 24,
2006.
|