Republic of the Marshall Islands
(State or other jurisdiction of
incorporation or organization)
|
N/A
(I.R.S. Employer
Identification No.)
|
Diana Shipping Inc.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece
011 (30) 210 947-0100
(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.
Edward S. Horton, 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)
|
Proposed Maximum
Aggregate Offering Price
(1)(2)
|
Amount of
Registration Fee
(3)(4)
|
Common stock, par value $0.01 per share
|
|||
Preferred stock purchase rights
(5)
|
|||
Preferred stock, par value $0.01 per share
|
|||
Debt securities
(6)
|
|||
Warrants
(7)
|
|||
Purchase contracts
(8)
|
|||
Rights
(9)
|
|||
Units
(10)
|
|||
Total
|
$500,000,000
|
$15,497.45
|
(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 of $500,000,000. Also includes such indeterminate amount of debt securities, common shares and preferred shares as may be issued upon conversion or exchange for any other debt securities or preferred shares that provide for conversion or exchange into other securities. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. 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 Diana Shipping Inc. pursuant to this registration statement exceed $500,000,000. |
(3) | As discussed below, pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended, this Registration Statement includes unsold securities that had been previously registered and for which the registration fee had previously been paid. Accordingly, the amount of the registration fee to be paid is reduced by $42,602.55, the amount of the registration fee applied to such unsold securities. |
(4) | Calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
(5) | 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. |
(6) | 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 $500,000,000. |
(7) | 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 $500,000,000. |
(8) | 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 $500,000,000. |
(9) | There is being registered hereunder an indeterminate number of rights as may from time to time be sold at indeterminate prices not to exceed an aggregate offering price of $500,000,000. |
(10) | 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 $500,000,000. Units may consist of any combination of the securities registered hereunder. |
Pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended, the securities registered pursuant to this Registration Statement include unsold securities previously registered under registration statement No. 333-181540 (the "Prior Registration Statement"). In connection with the registration of the unsold securities on the Prior Registration Statement, the Registrant paid a registration fee of $42,602.55, which continues to be applied to such securities. Pursuant to Rule 415(a)(6), the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this Registration Statement.
|
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
|
PROSPECTUS SUMMARY
|
1
|
RISK FACTORS
|
6
|
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
|
7
|
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERENCE DIVIDENDS
|
8
|
USE OF PROCEEDS
|
9
|
CAPITALIZATION
|
10
|
DILUTION
|
11
|
PRICE RANGE OF CAPITAL STOCK
|
12
|
ENFORCEABILITY OF CIVIL LIABILITIES
|
13
|
PLAN OF DISTRIBUTION
|
14
|
DESCRIPTION OF CAPITAL STOCK
|
15
|
DESCRIPTION OF DEBT SECURITIES
|
22
|
DESCRIPTION OF WARRANTS
|
30
|
DESCRIPTION OF PURCHASE CONTRACTS
|
31
|
DESCRIPTION OF RIGHTS
|
32
|
DESCRIPTION OF UNITS
|
33
|
EXPENSES
|
34
|
LEGAL MATTERS
|
35
|
EXPERTS
|
36
|
WHERE YOU CAN FIND ADDITIONAL INFORMATION
|
37
|
Vessel
|
Sister Ships*
|
Gross Rate (USD Per Day)
|
Com**
|
Charterers
|
Delivery Date to Charterers
|
Redelivery Date to Owners***
|
Notes
|
|
BUILT DWT
|
||||||||
20 Panamax Bulk Carriers
|
||||||||
1
|
DANAE
|
A
|
$7,650
|
3.75%
|
Glencore Grain B.V., Rotterdam
|
16-Jan-15
|
16-Dec-15 16-Mar-16
|
1
|
2001 75,106
|
||||||||
2
|
DIONE
|
A
|
$9,250
|
5.00%
|
RWE Supply & Trading GmbH, Essen
|
12-Sep-14
|
12-Oct-15 - 27-Feb-16
|
|
2001 75,172
|
||||||||
3
|
NIREFS
|
A
|
$7,500
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
25-Dec-14
|
25-Nov-15 25-Feb-16
|
|
2001 75,311
|
||||||||
4
|
ALCYON
|
A
|
$7,750
|
5.00%
|
EDF Trading Limited, UK
|
21-Dec-12
|
5-Jul-15
|
2,3
|
2001 75,247
|
||||||||
5
|
TRITON
|
A
|
$9,250
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
24-Oct-14
|
24-Sep-15 - 24-Dec-15
|
|
2001 75,336
|
||||||||
6
|
OCEANIS
|
A
|
$4,500
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
22-Mar-15
|
11-May-15
|
|
$7,200
|
5.00%
|
11-May-15
|
22-Feb-16 - 22-May-16
|
|||||
2001 75,211
|
||||||||
7
|
THETIS
|
B
|
$8,300
|
5.00%
|
EDF Trading Limited, UK
|
1-Sep-13
|
8-Jul-15
|
2
|
2004 73,583
|
8
|
PROTEFS
|
B
|
$6,250
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
3-Apr-15
|
3-Mar-16 - 3-Jun-16
|
|
2004 73,630
|
||||||||
9
|
CALIPSO
|
B
|
$8,100
|
4.75%
|
Cargill International S.A., Geneva
|
29-Jul-13
|
29-Apr-15
|
4
|
$4,000
|
5.00%
|
Centurion Bulk Pte. Ltd., Singapore
|
8-May-15
|
9-Jun-15
|
5
|
|||
$6,000
|
5.00%
|
China Shipping Bulk Carrier Co., Ltd., Hong Kong
|
9-Jun-15
|
9-Apr-16 - 9-Aug-16
|
||||
2005 73,691
|
||||||||
10
|
CLIO
|
B
|
$8,600
|
4.75%
|
Cargill International S.A., Geneva
|
22-Aug-13
|
29-May-15
|
|
$4,500
|
5.00%
|
Jaldhi Overseas Pte Ltd, Singapore
|
1-Jun-15
|
7-Jul-15
|
6
|
|||
2005 73,691
|
||||||||
11
|
NAIAS
|
B
|
$8,500
|
5.00%
|
Bunge S.A., Geneva
|
3-Sep-14
|
10-Jul-15
|
2
|
2006 73,546
|
||||||||
12
|
ARETHUSA
|
B
|
$8,250
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
20-Nov-14
|
5-Mar-15
|
|
$7,100
|
5.00%
|
5-Mar-15
|
5-Feb-16 - 5-May-16
|
|||||
2007 73,593
|
||||||||
13
|
ERATO
|
C
|
$7,100
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
9-Mar-15
|
9-Feb-16 - 9-May-16
|
|
2004 74,444
|
||||||||
14
|
CORONIS
|
C
|
$11,550
|
5.00%
|
Oberon Holdings Limited
|
12-Jun-14
|
4-May-15
|
7,8
|
$5,300
|
5.00%
|
Norvic Shipping North America Inc., Toronto
|
29-May-15
|
3-Jul-15
|
9
|
|||
2006 74,381
|
||||||||
15
|
MELITE
|
D
|
$7,250
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
29-Jan-15
|
29-Sep-15 - 29-Jan-16
|
|
2004 76,436
|
||||||||
16
|
MELIA
|
D
|
$12,000
|
3.75%
|
Rio Tinto Shipping Pty, Ltd., Melbourne
|
10-May-14
|
7-Apr-15
|
10
|
$5,050
|
5.00%
|
Bunge S.A., Geneva
|
9-Apr-15
|
19-May-15
|
||||
$7,050
|
5.00%
|
19-May-15
|
9-Aug-15 - 9-Nov-15
|
|||||
2005 76,225
|
||||||||
17
|
ARTEMIS
|
$9,375
|
3.75%
|
Rio Tinto Shipping Pty, Ltd., Melbourne
|
26-Aug-13
|
10-Jul-15
|
2
|
|
2006 76,942
|
||||||||
18
|
LETO
|
$11,350
|
4.75%
|
Cargill International S.A., Geneva
|
19-Jul-14
|
19-Jun-15
|
||
$7,100
|
4.75%
|
19-Jun-15
|
4-Sep-16 - 3-Jan-17
|
|||||
2010 81,297
|
||||||||
19
|
CRYSTALIA
|
E
|
$15,800
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
21-Feb-14
|
21-Aug-15 - 21-Nov-15
|
|
2014 77,525
|
||||||||
20
|
ATALANDI
|
E
|
$13,500
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
13-May-14
|
21-Apr-15
|
|
$7,000
|
5.00%
|
21-Apr-15
|
21-May-15
|
|||||
$8,000
|
5.00%
|
21-May-15
|
21-Mar-16 - 21-Jun-16
|
|||||
2014 77,529
|
· | common stock (including preferred stock purchase rights); |
· | preferred stock; |
· | debt securities; |
· | warrants; |
· | purchase contracts; |
· | rights; and |
· | units. |
· | the failure of securities analysts to publish research about us after this offering, or analysts making changes in their financial estimates; |
· | announcements by us or our competitors of significant contracts, acquisitions or capital commitments; |
· | variations in quarterly operating results; |
· | general economic conditions; |
· | terrorist or piracy acts; |
· | future sales of our common shares or other securities; and |
· | investors' perception of us and the international drybulk shipping sector. |
· | our existing shareholders' proportionate ownership interest in us will decrease; |
· | the amount of cash available for dividends payable on our common shares may decrease; |
· | the relative voting strength of each previously outstanding common share may be diminished; and |
· | the market price of our common shares may decline. |
For the years ended December 31,
|
Three months ended
|
|||||||||||||||||||||||
2010
|
2011
|
2012
|
2013
|
2014
|
March 31, 2015
|
|||||||||||||||||||
(Loss) Earnings:
|
(In thousands of US Dollars)
|
|||||||||||||||||||||||
Net income / (loss) before adjustment for income or loss from equity investees and minority interest
|
$
|
127,869
|
$
|
106,288
|
$
|
56,412
|
$
|
(15,111
|
)
|
$
|
(22,936
|
)
|
(10,011
|
)
|
||||||||||
Add: Distributed income of equity investees
|
-
|
600
|
3,333
|
3,000
|
763
|
48
|
||||||||||||||||||
Add: Fixed charges
|
5,245
|
5,407
|
7,721
|
8,541
|
8,740
|
2,608
|
||||||||||||||||||
$
|
133,114
|
$
|
112,295
|
$
|
67,466
|
$
|
(3,570
|
)
|
$
|
(13,433
|
)
|
$
|
(7,355
|
)
|
||||||||||
Less: Interest capitalized
|
340
|
635
|
321
|
468
|
406
|
109
|
||||||||||||||||||
Total earnings/(loss)
|
$
|
132,774
|
$
|
111,660
|
$
|
67,145
|
$
|
(4,038
|
)
|
$
|
(13,839
|
)
|
$
|
(7,464
|
)
|
|||||||||
Fixed Charges:
|
||||||||||||||||||||||||
Interest expense and capitalized
|
$
|
4,982
|
$
|
5,129
|
$
|
7,342
|
$
|
8,068
|
$
|
8,221
|
$
|
2,281
|
||||||||||||
Amortization and write-off of deferred financing fees
|
263
|
278
|
379
|
473
|
519
|
327
|
||||||||||||||||||
Total Fixed Charges
|
$
|
5,245
|
$
|
5,407
|
$
|
7,721
|
$
|
8,541
|
$
|
8,740
|
$
|
2,608
|
||||||||||||
Preferred Dividends (1)
|
-
|
-
|
-
|
-
|
5,080
|
1,442
|
||||||||||||||||||
Total fixed charges and preferred dividends
|
$
|
5,245
|
$
|
5,407
|
$
|
7,721
|
$
|
8,541
|
$
|
13,820
|
$
|
4,050
|
||||||||||||
Ratio of Earnings to Fixed Charges
|
25.3 | x | 20.7 | x | 8.7 | x | - | - | - | |||||||||||||||
Dollar amount of coverage deficiency
|
n/a | n/a | n/a | (12,579 | ) | (22,579 | ) | (10,072 | ) | |||||||||||||||
Ratio of Earnings to Fixed Charges and Preference Dividends (2)
|
25.3
|
x
|
20.7
|
x
|
8.7
|
x
|
-
|
|
-
|
|
-
|
|
||||||||||||
Dollar amount of coverage deficiency
|
n/
|
a
|
n/
|
a
|
n/
|
a
|
(12,579
|
)
|
(27,659
|
)
|
(11,514
|
)
|
||||||||||||
(1)
|
Prior to February 14, 2014, we had not issued any preferred shares. Accordingly, the ratio of earnings to combined fixed charges and preference dividends is equivalent to the ratio of earnings to fixed charges for the years ended December 31, 2012, 2011 and 2010.
|
||||||
(2)
|
For purposes of calculating the ratios of earnings to combined fixed charges and preference dividends:
|
•
|
"earnings" consist of net income available to common stockholders, before adjustment for minority interests in consolidated subsidiaries and before income or loss from equity investees, plus distributed income of equity investees and fixed charges less interest capitalized;
|
•
|
"fixed charges" consist of interest expensed and capitalized and amortization and write-off of capitalized expenses relating to indebtedness; and
|
•
|
"preference dividends" refers to the amount of pre-tax earnings that is required to pay the cash dividends on outstanding preference securities and is computed as the amount of the dividend divided by the result of 1 minus the effective income tax rate applicable to continuing operations. It also includes the redemption of preferred shares.
|
FOR THE YEAR ENDED
|
HIGH
|
LOW
|
||||||
December 31, 2014
|
$
|
13.55
|
$
|
6.31
|
||||
December 31, 2013
|
$
|
13.64
|
$
|
7.47
|
||||
December 31, 2012
|
$
|
9.87
|
$
|
6.31
|
||||
December 31, 2011
|
$
|
12.64
|
$
|
6.93
|
||||
December 31, 2010
|
$
|
16.27
|
$
|
11.19
|
FOR THE QUARTER ENDED
|
HIGH
|
LOW
|
||||||
June 30, 2015
|
$
|
7.75
|
$
|
6.02
|
||||
March 31, 2015
|
$
|
7.24
|
$
|
6.12
|
||||
December 31, 2014
|
$
|
9.03
|
$
|
6.31
|
||||
September 30, 2014
|
$
|
11.13
|
$
|
8.94
|
||||
June 30, 2014
|
$
|
12.26
|
$
|
10.68
|
||||
March 31, 2014
|
$
|
13.55
|
$
|
11.61
|
||||
December 31, 2013
|
$
|
13.64
|
$
|
10.49
|
||||
September 30, 2013
|
$
|
12.83
|
$
|
9.65
|
||||
June 30, 2013
|
$
|
10.79
|
$
|
9.12
|
||||
March 31, 2013
|
$
|
10.71
|
$
|
7.47
|
FOR THE MONTH
|
HIGH
|
LOW
|
||||||
July 2015 (through and including July 1, 2015)
|
$
|
7.27
|
$
|
7.27
|
||||
June 2015
|
$
|
7.75
|
$
|
6.40
|
||||
May 2015
|
$
|
7.23
|
$
|
6.25
|
||||
April 2015
|
$
|
6.40
|
$
|
6.02
|
||||
March 2015
|
$
|
7.02
|
$
|
6.12
|
||||
February 2015
|
$
|
7.24
|
$
|
6.63
|
||||
January 2015
|
$
|
6.80
|
$
|
6.31
|
FOR THE YEAR ENDED
|
HIGH
|
LOW
|
||||||
December 31, 2014 (beginning February 21, 2014)
|
$
|
26.98
|
$
|
22.76
|
FOR THE QUARTER ENDED
|
HIGH
|
LOW
|
||||||
June 30, 2015
|
$
|
25.59
|
$
|
24.60
|
||||
March 31, 2015
|
$
|
25.59
|
$
|
24.08
|
||||
December 31, 2014
|
$
|
26.74
|
$
|
22.76
|
||||
September 30, 2014
|
$
|
26.89
|
$
|
25.89
|
||||
June 30, 2014
|
$
|
26.98
|
$
|
25.37
|
||||
March 31, 2014 (beginning February 21, 2014)
|
$
|
25.35
|
$
|
24.57
|
FOR THE MONTH
|
HIGH
|
LOW
|
||||||
July 2015 (through and including July 1, 2015)
|
$
|
24.95
|
$
|
24.95
|
||||
June 2015
|
$
|
25.37
|
$
|
24.67
|
||||
May 2015
|
$
|
25.33
|
$
|
24.60
|
||||
April 2015
|
$
|
25.59
|
$
|
25.10
|
||||
March 2015
|
$
|
25.59
|
$
|
24.85
|
||||
February 2015
|
$
|
25.00
|
$
|
24.08
|
||||
January 2015
|
$
|
25.43
|
$
|
24.35
|
· | 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 common shares by broker-dealers; |
· | sell common shares short and deliver the shares to close out short positions; |
· | enter into option or other types of transactions that require us to deliver common shares to a broker-dealer, who will then resell or transfer the common shares under this prospectus; or |
· | loan or pledge the common shares to a broker-dealer, who may sell the loaned shares or, in the event of default, sell the pledged shares. |
Ÿ | the 10th day after public announcement that a person or group has acquired ownership of 15% or more of the Company's common stock; or |
Ÿ | the 10th business day (or such later date as determined by the Company's board of directors) after a person or group announces a tender or exchange offer which would result in that person or group holding 15% or more of the Company's common stock. |
Ÿ | our common stock certificates will evidence the rights, and the rights will be transferable only with those certificates; and |
Ÿ | any new common stock will be issued with rights and new certificates will contain a notation incorporating the rights agreement by reference. |
Ÿ | we are acquired in a merger or other business combination transaction, other than specified mergers that follow a permitted offer of the type we describe above; or |
Ÿ | 50% or more of our assets or earning power is sold or transferred. |
Ÿ | to cure any ambiguity, defect or inconsistency; |
Ÿ | to make changes that do not materially adversely affect the interests of holders of rights, excluding the interests of any acquiring person; or |
Ÿ | to shorten or lengthen any time period under the rights agreement, except that we cannot lengthen the time period governing redemption or lengthen any time period that protects, enhances or clarifies the benefits of holders of rights other than an acquiring person. |
· | 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 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; |
· | but senior debt does not include: |
· | 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. |
· | changes the amount of securities whose holders must consent to an amendment, supplement or waiver; |
· | 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; |
· | reduces the principal or changes the maturity of any security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation; |
· | 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); |
· | makes the principal of or interest, if any, on any security payable in any currency other than that stated in the security; |
· | 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 |
· | waives a redemption payment with respect to any security or change 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. |
· | 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 U.S. 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. |
· | 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; or |
· | currencies. |
· | the exercise price for the rights; |
· | the number of rights issued to each stockholder; |
· | the extent to which the rights are transferable; |
· | any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights; |
· | the date on which the right to exercise the rights will commence and the date on which the right will expire; |
· | the amount of rights outstanding; |
· | the extent to which the rights include an over-subscription privilege with respect to unsubscribed securities; and |
· | the material terms of any standby underwriting arrangement entered into by us in connection with the rights offering. |
· | the terms of the units and of the rights, purchase contracts, warrants, debt securities, preferred shares and common shares 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; |
· | if applicable, a discussion of any material U.S. federal income tax considerations; and |
· | a description of the provisions for the payment, settlement, transfer or exchange of the units. |
Commission Registration Fee
|
$15,497.45
|
|||
Blue Sky Fees and Expenses
|
*
|
|||
Printing and Engraving Expenses
|
*
|
|||
Legal Fees and Expenses
|
*
|
|||
Accounting Fees and Expenses
|
*
|
|||
Indenture Trustee Fees and Expenses
|
*
|
|||
FINRA Fee
|
*
|
|||
NYSE Listing Fee
|
*
|
|||
Transfer Agent and Registrar Fees
|
*
|
|||
Miscellaneous
|
*
|
|||
Total
|
*
|
* | To be provided by a prospectus supplement or as an exhibit to a Report on Form 6-K that is incorporated by reference into this prospectus. |
Ÿ | Our Annual Report on Form 20-F for the year ended December 31, 2014, filed with the Commission on March 25, 2015, which contains our audited consolidated financial statements for the most recent fiscal year for which those statements have been filed; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on June 22, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on June 15, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on June 9, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on June 2, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on May 28, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on May 22, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on May 13, 2015, containing a press release announcing our financial results for the first quarter of 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on May 8, 2015; |
Ÿ | Our two Reports of Foreign Private Issuer on Form 6-K, furnished with the Commission on May 7, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on April 30, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on April 28, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on April 9, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on April 6, 2015; |
Ÿ | Our Report of Foreign Private Issuer on Form 6-K, furnished with the Commission on April 1, 2015; |
Ÿ | Our Form 8-A12B, filed with the Commission on March 15, 2005, registering our common shares, par value $0.01 per share, and our preferred stock purchase rights under Section 12(b) of the Exchange Act, and any amendment filed thereto; and |
Ÿ | Our Form 8-A12B, filed with the Commission on February 13, 2014, registering our 8.875% Series B Cumulative Redeemable Perpetual Preferred Shares, par value $0.01 per share, under Section 12(b) of the Exchange Act, and any amendment filed thereto. |
(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; 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 any Marshall Islands statute from time to time in force concerning companies in which relief from liability is granted to him by the court. |
(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 best 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 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 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. |
(a) | Under Rule 415 of the Securities Act, |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement unless the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of a prospectus filed pursuant to Rule 424(b) that is part of the registration statement; |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended; |
(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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 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 under the Securities Act of 1933 if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3. |
(5) | (i) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, to any purchaser; |
(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 this 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 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) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: 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 and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. |
(k) – (l) | Not applicable. |
DIANA SHIPPING INC.
|
||
By:
|
/s/ Simeon P. Palios
|
|
Name:
|
Simeon P. Palios
|
|
Title:
|
Director, Chief Executive Officer and Chairman of the Board
|
|
Signature
|
Title
|
/s/ Simeon P. Palios
|
Director, Chief Executive Officer and Chairman of the Board
|
Simeon P. Palios
|
(Principal Executive Officer)
|
/s/ Anastassis Margaronis
|
Director and President
|
Anastassis Margaronis
|
|
/s/ Ioannis Zafirakis
|
Director, Chief Operating Officer and Secretary
|
Ioannis Zafirakis
|
|
/s/ Andreas Michalopoulos
|
Chief Financial Officer and Treasurer
|
Andreas Michalopoulos
|
(Principal Financial Officer)
|
/s/ Maria Dede
|
Chief Accounting Officer
|
Maria Dede
|
(Principal Accounting Officer)
|
/s/ William Lawes
|
Director
|
William Lawes
|
|
/s/ Konstantinos Psaltis
|
Director
|
Konstantinos Psaltis
|
|
/s/ Kyriacos Riris
|
Director
|
Kyriacos Riris
|
|
/s/ Boris Nachamkin
|
Director
|
Boris Nachamkin
|
|
/s/ Apostolos Kontoyannis
|
Director
|
Apostolos Kontoyannis
|
|
/s/ Semiramis Paliou
|
Director
|
Semiramis Paliou
|
By:
|
/s/ Simeon P. Palios
|
|
Name:
|
Simeon P. Palios
|
|
Title:
|
Director, Chief Executive Officer and Chairman of the Board
|
Exhibit
Number
|
Description
|
1.1
|
Form of Underwriting Agreement (for equity securities) (1)
|
1.2
|
Form of Underwriting Agreement (for debt securities) (1)
|
3.1
|
Amended and Restated Articles of Incorporation of Diana Shipping Inc. (2)
|
3.2
|
Amended and Restated By Laws of Diana Shipping Inc. (3)
|
4.1
|
Specimen common stock certificate (4)
|
4.2
|
Specimen preferred stock certificate (1)
|
4.3
|
Form of warrant agreement (1)
|
4.4
|
Form of purchase contract (1)
|
4.5
|
Form of unit agreement (1)
|
4.6
|
Form of senior debt security indenture
|
4.7
|
Form of subordinated debt security indenture
|
4.8
|
Second Amended and Restated Stockholders Rights Agreement dated October 7, 2008 (5)
|
5.1
|
Opinion of Seward & Kissel LLP, United States and Marshall Islands counsel to Diana Shipping Inc.
|
23.1
|
Consent of Seward & Kissel (included in Exhibit 5.1)
|
23.2
|
Consent of Independent Registered Public Accounting Firm
|
24.1
|
Power of Attorney (contained on signature page)
|
25.1
|
Form of T-1 Statement of Eligibility (senior indenture) (1)
|
25.2
|
Form of T-1 Statement of Eligibility (subordinated indenture) (1)
|
PAGE
|
||
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
|
1
|
|
SECTION 1.01.
|
Definitions.
|
1
|
SECTION 1.02.
|
Other Definitions.
|
5
|
SECTION 1.03.
|
Incorporation by Reference of Trust Indenture Act.
|
5
|
SECTION 1.04.
|
Rules of Construction.
|
6
|
ARTICLE II THE SECURITIES
|
6
|
|
SECTION 2.01.
|
Issuable in Series.
|
6
|
SECTION 2.02.
|
Establishment of Terms of Series of Securities.
|
7
|
SECTION 2.03.
|
Execution and Authentication.
|
9
|
SECTION 2.04.
|
Registrar and Paying Agent.
|
10
|
SECTION 2.05.
|
Paying Agent to Hold Money in Trust.
|
10
|
SECTION 2.06.
|
Securityholder Lists.
|
11
|
SECTION 2.07.
|
Transfer and Exchange.
|
11
|
SECTION 2.08.
|
Mutilated, Destroyed, Lost and Stolen Securities.
|
12
|
SECTION 2.09.
|
Outstanding Securities.
|
12
|
SECTION 2.10.
|
Treasury Securities.
|
13
|
SECTION 2.11.
|
Temporary Securities.
|
13
|
SECTION 2.12.
|
Cancellation.
|
13
|
SECTION 2.13.
|
Defaulted Interest.
|
14
|
SECTION 2.14.
|
Global Securities.
|
14
|
SECTION 2.15.
|
CUSIP Numbers.
|
16
|
ARTICLE III REDEMPTION
|
16
|
|
SECTION 3.01.
|
Notice to Trustee.
|
16
|
SECTION 3.02.
|
Selection of Securities to be Redeemed.
|
16
|
SECTION 3.03.
|
Notice of Redemption.
|
17
|
SECTION 3.04.
|
Effect of Notice of Redemption.
|
17
|
SECTION 3.05.
|
Deposit of Redemption Price.
|
18
|
SECTION 3.06.
|
Securities Redeemed in Part.
|
18
|
ARTICLE IV COVENANTS
|
18
|
|
SECTION 4.01.
|
Payment of Principal and Interest.
|
18
|
SECTION 4.02.
|
SEC Reports.
|
18
|
SECTION 4.03.
|
Compliance Certificate.
|
19
|
SECTION 4.04.
|
Stay, Extension and Usury Laws.
|
20
|
SECTION 4.05.
|
Corporate Existence.
|
20
|
SECTION 4.06.
|
Taxes.
|
20
|
SECTION 4.07.
|
Additional Interest Notice.
|
20
|
SECTION 4.08.
|
Further Instruments and Acts.
|
20
|
ARTICLE V SUCCESSORS
|
21
|
|
SECTION 5.01.
|
When Company May Merge, Etc.
|
21
|
SECTION 5.02.
|
Successor Corporation Substituted.
|
21
|
ARTICLE VI DEFAULTS AND REMEDIES
|
21
|
|
SECTION 6.01.
|
Events of Default.
|
21
|
SECTION 6.02.
|
Acceleration of Maturity; Rescission and Annulment.
|
23
|
SECTION 6.03.
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
25
|
SECTION 6.04.
|
Trustee May File Proofs of Claim.
|
25
|
SECTION 6.05.
|
Trustee May Enforce Claims Without Possession of Securities.
|
26
|
SECTION 6.06.
|
Application of Money Collected.
|
26
|
SECTION 6.07.
|
Limitation on Suits.
|
26
|
SECTION 6.08.
|
Unconditional Right of Holders to Receive Principal and Interest.
|
27
|
SECTION 6.09.
|
Restoration of Rights and Remedies.
|
27
|
SECTION 6.10.
|
Rights and Remedies Cumulative.
|
27
|
SECTION 6.11.
|
Delay or Omission Not Waiver.
|
27
|
SECTION 6.12.
|
Control by Holders.
|
28
|
SECTION 6.13.
|
Waiver of Past Defaults.
|
28
|
SECTION 6.14.
|
Undertaking for Costs.
|
28
|
ARTICLE VII TRUSTEE
|
29
|
|
SECTION 7.01.
|
Duties of Trustee.
|
29
|
SECTION 7.02.
|
Rights of Trustee.
|
30
|
SECTION 7.03.
|
Individual Rights of Trustee.
|
31
|
SECTION 7.04.
|
Trustee's Disclaimer.
|
31
|
SECTION 7.05.
|
Notice of Defaults.
|
31
|
SECTION 7.06.
|
Reports by Trustee to Holders.
|
31
|
SECTION 7.07.
|
Compensation and Indemnity.
|
32
|
SECTION 7.08.
|
Replacement of Trustee.
|
32
|
SECTION 7.09.
|
Successor Trustee by Merger, etc.
|
33
|
SECTION 7.10.
|
Eligibility; Disqualification.
|
33
|
SECTION 7.11.
|
Preferential Collection of Claims Against Company.
|
34
|
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE
|
34
|
|
SECTION 8.01.
|
Satisfaction and Discharge of Indenture.
|
34
|
SECTION 8.02.
|
Application of Trust Funds; Indemnification.
|
35
|
SECTION 8.03.
|
Legal Defeasance of Securities of any Series.
|
36
|
SECTION 8.04.
|
Covenant Defeasance.
|
37
|
SECTION 8.05.
|
Repayment to Company.
|
38
|
ARTICLE IX AMENDMENTS AND WAIVERS
|
38
|
|
SECTION 9.01.
|
Without Consent of Holders.
|
38
|
SECTION 9.02.
|
With Consent of Holders.
|
39
|
SECTION 9.03.
|
Limitations.
|
40
|
SECTION 9.04.
|
Compliance with Trust Indenture Act.
|
40
|
SECTION 9.05.
|
Revocation and Effect of Consents.
|
41
|
SECTION 9.06.
|
Notation on or Exchange of Securities.
|
41
|
SECTION 9.07.
|
Trustee Protected.
|
41
|
SECTION 9.08.
|
Effect of Supplemental Indenture.
|
41
|
ARTICLE X MISCELLANEOUS
|
42
|
|
SECTION 10.01.
|
Trust Indenture Act Controls.
|
42
|
SECTION 10.02.
|
Notices.
|
42
|
SECTION 10.03.
|
Communication by Holders with Other Holders.
|
43
|
SECTION 10.04.
|
Certificate and Opinion as to Conditions Precedent.
|
43
|
SECTION 10.05.
|
Statements Required in Certificate or Opinion.
|
43
|
SECTION 10.06.
|
Record Date for Vote or Consent of Holders.
|
44
|
SECTION 10.07.
|
Rules by Trustee and Agents.
|
44
|
SECTION 10.08.
|
Legal Holidays.
|
44
|
SECTION 10.09.
|
No Recourse Against Others.
|
44
|
SECTION 10.10.
|
Counterparts.
|
44
|
SECTION 10.11.
|
Governing Laws and Submission to Jurisdiction.
|
45
|
SECTION 10.12.
|
No Adverse Interpretation of Other Agreements.
|
45
|
SECTION 10.13.
|
Successors.
|
45
|
SECTION 10.14.
|
Severability.
|
45
|
SECTION 10.15.
|
Table of Contents, Headings, Etc.
|
45
|
SECTION 10.16.
|
Securities in a Foreign Currency or in ECU.
|
46
|
SECTION 10.17.
|
Judgment Currency.
|
46
|
SECTION 10.18.
|
Compliance with Applicable Anti-Terrorism and Money Laundering Regulations.
|
47
|
ARTICLE XI SINKING FUNDS
|
47
|
|
SECTION 11.01.
|
Applicability of Article.
|
47
|
SECTION 11.02.
|
Satisfaction of Sinking Fund Payments with Securities.
|
48
|
SECTION 11.03.
|
Redemption of Securities for Sinking Fund.
|
48
|
Section 310(a)(1)
|
7.10
|
(a)(2)
|
7.10
|
(a)(3)
|
Not Applicable
|
(a)(4)
|
Not Applicable
|
(a)(5)
|
7.10
|
(b)
|
7.10
|
(c)
|
Not Applicable
|
Section 311(a)
|
7.11
|
(b)
|
7.11
|
(c)
|
Not Applicable
|
Section 312(a)
|
2.06
|
(b)
|
10.03
|
(c)
|
10.03
|
Section 313(a)
|
7.06
|
(b)(1)
|
7.06
|
(b)(2)
|
7.06
|
(c)(1)
|
7.06
|
(d)
|
7.06
|
Section 314(a)
|
4.02, 10.05
|
(b)
|
Not Applicable
|
(c)(1)
|
10.04
|
(c)(2)
|
10.04
|
(c)(3)
|
Not Applicable
|
(d)
|
Not Applicable
|
(e)
|
10.05
|
(f)
|
Not Applicable
|
Section 315(a)
|
7.01
|
(b)
|
7.05
|
(c)
|
7.01
|
(d)
|
7.01
|
(e)
|
6.14
|
Section 316(a)(1)(A)
|
6.12
|
(a)(1)(B)
|
6.13
|
(a)(2)
|
Not Applicable
|
(b)
|
6.13
|
(c)
|
10.06
|
Section 317(a)(1)
|
6.03
|
(a)(2)
|
6.04
|
(b)
|
2.05
|
Section 318(a)
|
10.01
|
TERM
|
DEFINED IN SECTION
|
|
"Applicable Law"
|
10.18
|
|
"Event of Default"
|
6.01
|
|
"Instrument"
|
6.01
|
|
"Journal"
|
10.16
|
|
"Judgment Currency"
|
10.17
|
|
"Legal Holiday"
|
10.08
|
|
"mandatory sinking fund payment"
|
11.01
|
|
"Market Exchange Rate"
|
10.16
|
|
"New York Banking Day"
|
10.17
|
|
"optional sinking fund payment"
|
11.01
|
|
"Paying Agent"
|
2.04
|
|
"Registrar"
|
2.04
|
|
"Required Currency"
|
10.17
|
|
"successor person"
|
5.01
|
|
"Temporary Securities"
|
2.11
|
if to the Company: | ||
[
|
]
|
|
Attn: [
|
]
|
|
Fax: [
|
]
|
|
if to the Trustee:
|
||
[
|
]
|
|
Attn: [
|
]
|
|
Fax: [
|
]
|
|
if to the Registrar or Paying Agent:
|
||
[
|
]
|
|
Attn: [
|
]
|
|
Fax: [
|
]
|
|
with copy to:
|
||
[
|
]
|
|
Attn: [
|
]
|
|
Fax: [
|
]
|
SECTION 10.18. | Compliance with Applicable Anti-Terrorism and Money Laundering Regulations . |
ARTICLE I
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
1
|
SECTION 1.01.
|
Definitions.
|
1
|
SECTION 1.02.
|
Other Definitions.
|
4
|
SECTION 1.03.
|
Incorporation by Reference of Trust Indenture Act.
|
5
|
SECTION 1.04.
|
Rules of Construction.
|
5
|
ARTICLE II
|
THE SECURITIES
|
6
|
SECTION 2.01.
|
Issuable in Series.
|
6
|
SECTION 2.02.
|
Establishment of Terms of Series of Securities.
|
6
|
SECTION 2.03.
|
Execution and Authentication.
|
7
|
SECTION 2.04.
|
Registrar and Paying Agent.
|
9
|
SECTION 2.05.
|
Paying Agent to Hold Money in Trust.
|
9
|
SECTION 2.06.
|
Securityholder Lists.
|
9
|
SECTION 2.07.
|
Transfer and Exchange.
|
10
|
SECTION 2.08.
|
Mutilated, Destroyed, Lost and Stolen Securities.
|
10
|
SECTION 2.09.
|
Outstanding Securities.
|
11
|
SECTION 2.10.
|
Treasury Securities.
|
11
|
SECTION 2.11.
|
Temporary Securities.
|
12
|
SECTION 2.12.
|
Cancellation.
|
12
|
SECTION 2.13.
|
Defaulted Interest.
|
12
|
SECTION 2.14.
|
Global Securities.
|
12
|
SECTION 2.15.
|
CUSIP Numbers.
|
14
|
ARTICLE III
|
REDEMPTION
|
14
|
SECTION 3.01.
|
Notice to Trustee.
|
14
|
SECTION 3.02.
|
Selection of Securities to be Redeemed.
|
15
|
SECTION 3.03.
|
Notice of Redemption.
|
15
|
SECTION 3.04.
|
Effect of Notice of Redemption.
|
15
|
SECTION 3.05.
|
Deposit of Redemption Price.
|
16
|
SECTION 3.06.
|
Securities Redeemed in Part.
|
16
|
ARTICLE IV
|
COVENANTS
|
16
|
SECTION 4.01.
|
Payment of Principal and Interest.
|
16
|
SECTION 4.02.
|
SEC Reports.
|
16
|
SECTION 4.03.
|
Compliance Certificate.
|
17
|
SECTION 4.04.
|
Stay, Extension and Usury Laws.
|
17
|
SECTION 4.05.
|
Corporate Existence.
|
18
|
SECTION 4.06.
|
Taxes.
|
18
|
SECTION 4.07.
|
Additional Interest Notice.
|
18
|
SECTION 4.08.
|
Further Instruments and Acts.
|
18
|
ARTICLE V
|
SUCCESSORS
|
18
|
SECTION 5.01.
|
When Company May Merge, Etc.
|
18
|
SECTION 5.02.
|
Successor Corporation Substituted.
|
19
|
ARTICLE VI
|
DEFAULTS AND REMEDIES
|
19
|
SECTION 6.01.
|
Events of Default.
|
19
|
SECTION 6.02.
|
Acceleration of Maturity; Rescission and Annulment.
|
21
|
SECTION 6.03.
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
22
|
SECTION 6.04.
|
Trustee May File Proofs of Claim.
|
22
|
SECTION 6.05.
|
Trustee May Enforce Claims Without Possession of Securities.
|
23
|
SECTION 6.06.
|
Application of Money Collected.
|
23
|
SECTION 6.07.
|
Limitation on Suits.
|
23
|
SECTION 6.08.
|
Unconditional Right of Holders to Receive Principal and Interest.
|
24
|
SECTION 6.09.
|
Restoration of Rights and Remedies.
|
24
|
SECTION 6.10.
|
Rights and Remedies Cumulative.
|
24
|
SECTION 6.11.
|
Delay or Omission Not Waiver.
|
24
|
SECTION 6.12.
|
Control by Holders.
|
24
|
SECTION 6.13.
|
Waiver of Past Defaults.
|
25
|
SECTION 6.14.
|
Undertaking for Costs.
|
25
|
ARTICLE VII
|
TRUSTEE
|
25
|
SECTION 7.01.
|
Duties of Trustee.
|
25
|
SECTION 7.02.
|
Rights of Trustee.
|
27
|
SECTION 7.03.
|
Individual Rights of Trustee.
|
27
|
SECTION 7.04.
|
Trustee's Disclaimer.
|
27
|
SECTION 7.05.
|
Notice of Defaults.
|
27
|
SECTION 7.06.
|
Reports by Trustee to Holders.
|
28
|
SECTION 7.07.
|
Compensation and Indemnity.
|
28
|
SECTION 7.08.
|
Replacement of Trustee.
|
28
|
SECTION 7.09.
|
Successor Trustee by Merger, etc.
|
29
|
SECTION 7.10.
|
Eligibility; Disqualification.
|
29
|
SECTION 7.11.
|
Preferential Collection of Claims Against Company.
|
29
|
ARTICLE VIII
|
SATISFACTION AND DISCHARGE; DEFEASANCE
|
30
|
SECTION 8.01.
|
Satisfaction and Discharge of Indenture.
|
30
|
SECTION 8.02.
|
Application of Trust Funds; Indemnification.
|
31
|
SECTION 8.03.
|
Legal Defeasance of Securities of any Series.
|
31
|
SECTION 8.04.
|
Covenant Defeasance.
|
32
|
SECTION 8.05.
|
Repayment to Company.
|
33
|
ARTICLE IX
|
AMENDMENTS AND WAIVERS
|
34
|
SECTION 9.01.
|
Without Consent of Holders.
|
34
|
SECTION 9.02.
|
With Consent of Holders.
|
34
|
SECTION 9.03.
|
Limitations.
|
35
|
SECTION 9.04.
|
Compliance with Trust Indenture Act.
|
36
|
SECTION 9.05.
|
Revocation and Effect of Consents.
|
36
|
SECTION 9.06.
|
Notation on or Exchange of Securities.
|
36
|
SECTION 9.07.
|
Trustee Protected.
|
36
|
SECTION 9.08.
|
Effect of Supplemental Indenture.
|
36
|
ARTICLE X
|
MISCELLANEOUS
|
37
|
SECTION 10.01.
|
Trust Indenture Act Controls.
|
37
|
SECTION 10.02.
|
Notices.
|
37
|
SECTION 10.03.
|
Communication by Holders with Other Holders.
|
37
|
SECTION 10.04.
|
Certificate and Opinion as to Conditions Precedent.
|
37
|
SECTION 10.05.
|
Statements Required in Certificate or Opinion.
|
37
|
SECTION 10.06.
|
Record Date for Vote or Consent of Holders.
|
38
|
SECTION 10.07.
|
Rules by Trustee and Agents.
|
38
|
SECTION 10.08.
|
Legal Holidays.
|
38
|
SECTION 10.09.
|
No Recourse Against Others.
|
38
|
SECTION 10.10.
|
Counterparts.
|
38
|
SECTION 10.11.
|
Governing Laws and Submission to Jurisdiction.
|
38
|
SECTION 10.12.
|
No Adverse Interpretation of Other Agreements.
|
39
|
SECTION 10.13.
|
Successors.
|
39
|
SECTION 10.14.
|
Severability.
|
39
|
SECTION 10.15.
|
Table of Contents, Headings, Etc.
|
39
|
SECTION 10.16.
|
Securities in a Foreign Currency or in ECU.
|
39
|
SECTION 10.17.
|
Judgment Currency.
|
40
|
SECTION 10.18.
|
Compliance with Applicable Anti-Terrorism and Money Laundering Regulations.
|
40
|
ARTICLE XI
|
SINKING FUNDS
|
40
|
SECTION 11.01.
|
Applicability of Article.
|
40
|
SECTION 11.02.
|
Satisfaction of Sinking Fund Payments with Securities.
|
41
|
SECTION 11.03.
|
Redemption of Securities for Sinking Fund.
|
41
|
Section 310(a)(1)
|
7.10
|
(a)(2)
|
7.10
|
(a)(3)
|
Not Applicable
|
(a)(4)
|
Not Applicable
|
(a)(5)
|
7.10
|
(b)
|
7.10
|
(c)
|
Not Applicable
|
Section 311(a)
|
7.11
|
(b)
|
7.11
|
(c)
|
Not Applicable
|
Section 312(a)
|
2.06
|
(b)
|
10.03
|
(c)
|
10.03
|
Section 313(a)
|
7.06
|
(b)(1)
|
7.06
|
(b)(2)
|
7.06
|
(c)(1)
|
7.06
|
(d)
|
7.06
|
Section 314(a)
|
4.02, 10.05
|
(b)
|
Not Applicable
|
(c)(1)
|
10.04
|
(c)(2)
|
10.04
|
(c)(3)
|
Not Applicable
|
(d)
|
Not Applicable
|
(e)
|
10.05
|
(f)
|
Not Applicable
|
Section 315(a)
|
7.01
|
(b)
|
7.05
|
(c)
|
7.01
|
(d)
|
7.01
|
(e)
|
6.14
|
Section 316(a)(1)(A)
|
6.12
|
(a)(1)(B)
|
6.13
|
(a)(2)
|
Not Applicable
|
(b)
|
6.13
|
(c)
|
10.06
|
Section 317(a)(1)
|
6.03
|
(a)(2)
|
6.04
|
(b)
|
2.05
|
Section 318(a)
|
10.01
|
TERM
|
DEFINED IN SECTION
|
"Applicable Law"
|
10.18
|
"Event of Default"
|
6.01
|
"Instrument"
|
6.01
|
"Journal"
|
10.16
|
"Judgment Currency"
|
10.17
|
"Legal Holiday"
|
10.08
|
"mandatory sinking fund payment"
|
11.01
|
"Market Exchange Rate"
|
10.16
|
"New York Banking Day"
|
10.17
|
"optional sinking fund payment"
|
11.01
|
"Paying Agent"
|
2.04
|
"Registrar"
|
2.04
|
"Required Currency"
|
10.17
|
"successor person"
|
5.01
|
"Temporary Securities"
|
2.11
|