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Registration Statement No. 333-129726
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM F-1/A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIANA SHIPPING INC.
(Exact name of registrant as specified in its charter)
Republic of the Marshall Islands
(State or other jurisdiction of
incorporation or organization) |
|
4412
(Primary Standard Industrial
Classification Code Number) |
|
N/A
(I.R.S. Employer
Identification No.) |
Diana Shipping Inc.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece
(30) 210 947-0100
(Address and telephone number
of Registrant's 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) 574-1200
(Name, address and telephone
number of agent for service) |
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|
Copies to: |
|
|
Gary J. Wolfe, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
(212) 574-1200 (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) |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
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 of
1933, 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
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following
box. o
CALCULATION OF REGISTRATION FEE
|
Title of Each Class of
Securities to be Registered
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Amount to be
Registered(1)
|
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Proposed Maximum
Offering Price
Per Security(2)
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Proposed Maximum
Aggregate
Offering Price(1)
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Amount of
Registration Fee
|
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| Common Stock, par value $.01 |
|
6,000,000 |
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$15.12 |
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$90,720,000 |
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$10,677.74 |
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- (1)
- Includes
shares of Common Stock, if any, that may be sold pursuant to the underwriters' over-allotment option.
- (2)
- Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, based on the closing price of the Registrant's
common stock as reported on the New York Stock Exchange on November 15, 2005.
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. 1 to the registration statement of Diana Shipping Inc. ("Amendment No. 1") does not relate to our preliminary prospectus, which
is not amended hereby. As such, this Amendment No. 1 does not include a copy of our preliminary prospectus. This Amendment No. 1 is being filed solely for the purpose of amending the
table "Calculation of Registration Fee" to list an offering price, solely for purposes of calculating the fee, of $15.12 per share.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 6. Indemnification of Directors and Officers.
The bylaws of the Registrant provide that every director and officer of the Registrant shall be indemnified out of the funds of the Registrant against:
- (1)
- all
civil liabilities, loss, damage or expense (including but not limited to liabilities under contract, tort and statute or any applicable foreign law or regulation and all
reasonable legal and other costs and expenses properly payable) incurred or suffered by him as such director or officer acting in the reasonable belief that he has been so appointed or elected
notwithstanding any defect in such appointment or election, provided always that such indemnity shall not extend to any matter which would render it void pursuant to any Marshall Islands statute from
time to time in force concerning companies insofar as the same applies to the Registrant (the "Companies Acts"); and
- (2)
- all
liabilities incurred by him as such director or officer in defending any proceedings, whether civil or criminal, in which judgment is given in his favor, or in which he is
acquitted, or in connection with any application under the Companies Acts in which relief from liability is granted to him by the court.
- Section 60
of the Associations Law of the Republic of the Marshall Islands provides as follows:
- Indemnification
of directors and officers.
- (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 reasonable 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
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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 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)
- 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.
- (6)
- Insurance. A corporation shall have 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.
Not applicable.
Item 8. Exhibits and Financial Statement Schedules.
Exhibit
Number
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Description
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| 1 |
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Form of Underwriting Agreement*** |
3.1 |
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Amended and Restated Articles of Incorporation of the Company* |
3.2 |
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Amended and Restated Bylaws of the Company* |
4 |
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Form of Share Certificate of the Company* |
5 |
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Form of Opinion of Seward & Kissel LLP, United States and Marshall Islands Counsel to the Company, as to the validity of the Shares**** |
8 |
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Form of Opinion of Seward & Kissel LLP, United States Counsel to the Company, with respect to certain tax matters**** |
10.1 |
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Form of Amended and Restated Stockholders' Rights Agreement**** |
10.2 |
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Form of Registration Rights Agreement* |
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10.3 |
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Form of 2005 Stock Incentive Plan* |
10.4 |
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Form of Technical Manager Purchase Option Agreement* |
10.5 |
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Form of Management Agreement* |
21 |
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Subsidiaries of the Company**** |
23.1 |
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Consent of Seward & Kissel LLP (included in Exhibit 5 and Exhibit 8)**** |
23.2 |
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Consent of Ernst & Young (Hellas) Certified Auditors Accountants S.A.**** |
23.3 |
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Consent of Drewry Shipping Consultants Ltd.**** |
24 |
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Powers of Attorney**** |
- *
- Previously
filed as an exhibit to the Company's Registration Statement filed on Form F-1 (File No. 333-123052), as amended.
- **
- Contained
on the signature page hereto.
- ***
- To
be filed by amendment.
- ****
- Previously
filed as an exhibit to the Company's Registration Statement filed on November 16, 2005 (File No. 333-129726).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
- (1)
- To
provide to the underwriters at the closing specified in the underwriting agreement shares certificates in such denominations and registered in such names as required by the
underwriters to permit prompt delivery to each purchaser.
- (2)
- That
for purposes of determining any liability under the Securities Act of 1933, as amended (the "Act"), the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) under the Act shall be deemed
to be part of this Registration Statement as of the time it was declared effective.
- (3)
- That
for purposes of determining any liability under the Act, 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.
- (4)
- That
insofar as indemnification for liabilities arising under the 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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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-l and has duly caused this amended Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
New York, NY on November 16, 2005.
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DIANA SHIPPING INC. |
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By: |
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/s/ SIMEON P. PALIOS
Name: Simeon P. Palios
Title: Director, Chief Executive Officer and
Chairman of the Board |
Pursuant to the requirements of the Securities Act of 1933, this amended Registration Statement has been signed by the following persons on November 16, 2005 in the capacities
indicated.
Signature
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Title
|
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/s/ SIMEON P. PALIOS
Simeon P. Palios |
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Director, Chief Executive Officer and Chairman of the Board |
/s/ ANASTASSIS MARGARONIS
Anastassis Margaronis |
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Director and President |
*
Ioannis Zafirakis |
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Director, Vice President and Secretary |
*
Konstantinos Koutsomitopoulos |
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Chief Financial Officer and Treasurer |
*
Maria Dede |
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Chief Accounting Officer |
*
Apostolos Kontoyannis |
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Director |
*
William Lawes |
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Director |
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*
Boris Nachamkin |
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Director |
*
Konstantinos Psaltis |
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Director |
*By: |
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/s/ ANASTASSIS MARGARONIS
Anastassis Margaronis
Attorney-in-Fact |
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Authorized Representative in the United States
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Diana Shipping Inc., has signed this
amended registration statement in the City of Newark, State of Delaware, on November 16, 2005.
| PUGLISI & ASSOCIATES |
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By: |
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/s/ GREGORY F. LAVELLE
Name: Gregory F. Lavelle
Title: Managing Director |
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Explanatory Note
PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS
SIGNATURES
Authorized Representative in the United States