As filed with the Securities and Exchange Commission on November 6, 2006
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DANAOS CORPORATION
(Exact name of Registrant as Specified in its Charter)
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Republic of the Marshall Islands |
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N/A |
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(State or Other
Jurisdiction of
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(IRS Employer Identification No.) |
14 Akti Kondyli
185 45 Piraeus
Greece
(011) (30) (210) 419 6480
(Address of Principal Executive Offices)
DANAOS CORPORATION
2006 EQUITY COMPENSATION PLAN
(Full Title of the Plan)
Stephen P. Farrell, Esq.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
(212) 309-6000
Fax: (212) 309-6001
(Name, Address and Telephone Number of Agent for Service)
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CALCULATION OF REGISTRATION FEE |
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Title of Each Class of Securities
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Number of Shares
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Proposed
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Proposed
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Amount of
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Common Stock, $0.01 par value (including preferred stock purchase rights) |
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3,273,450 |
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$20.26 |
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$66,320,097 |
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$7,100 |
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, to the extent additional shares of common stock may be issued or issuable as a result of a stock split, stock dividend or other distribution declared at any time by the Board of Directors while this registration statement is in effect, this registration statement is hereby deemed to cover all of such additional common stock.
(2) Calculated pursuant to paragraphs (c) and (h) of Rule 457 (based upon the average of the reported high and low sales prices for the Registrant’s Common Shares as reported on the New York Stock Exchange on October 30, 2006). The foregoing calculation is solely for the purpose of determining the registration fee.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933 as follows: Proposed maximum aggregate offering price multiplied by 0.000107.
EXPLANATORY NOTE
This registration statement includes a form of prospectus to be used by certain individuals, who may be deemed to be affiliates, and other current or former employees of Danaos Corporation in connection with the resale of shares of common stock which shares are registered pursuant to this registration statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information .*
Item 2. Registrant Information and Employee Plan Annual Information. *
* Information required by Part I of Form S-8 will be sent or given to participants in the Plan as required by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). The information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428(b) under the Securities Act and the Introductory Note to Part I of Form S-8.
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Prospectus
DANAOS CORPORATION
Common Stock
We are an international owner of containerships, chartering our vessels to many of the world’s largest liner companies. This prospectus relates to the resale of our common stock by our officers and directors and others who may be in a control relationship with us and by certain of our employees. The common stock which may be sold will be acquired by these individuals under written compensation contracts or pursuant to awards made, or upon exercise of options granted, under our 2006 Equity Compensation Plan.
We will not receive any of the proceeds from these sales. We will pay all expenses in connection with this offering, other than commissions and discounts of underwriters, brokers, dealers or agents.
Our common stock is listed on the New York Stock Exchange (Symbol: DAC). On October 30, 2006, the closing price of our common stock was $20.26 per share.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is November 6, 2006.
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We have not, nor has any individual named in this prospectus, authorized any person to give any information or to make any representation other than those contained in, or incorporated by reference into, this prospectus. This prospectus does not constitute an offer to sell or solicitation of an offer to buy.
We have filed a registration statement on Form S-8 in respect of the common stock offered by this prospectus with the U.S. Securities and Exchange Commission, which we refer to as the SEC, under the Securities Act of 1933, which we refer to as the Securities Act. This prospectus does not contain all of the information contained in the registration statement. You should read this entire prospectus carefully as well as the registration statement for additional information.
WHERE YOU CAN FIND MORE INFORMATION
We must file annual, quarterly and special reports and other information with the SEC. You may read and copy any documents we file at the SEC’s public reference rooms in Washington, D.C. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public from the SEC’s web site at http://www.sec.gov.
The SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus may update documents previously filed with the SEC, and later information that we file with the SEC will automatically update this prospectus. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, which we refer to as the Exchange Act, prior to the termination of the offering:
· Our Prospectus dated October 5, 2006 filed pursuant to Rule 424(b) of the Securities Act (Registration No. 333-137459) on October 6, 2006 (the “Prospectus”); and
· Our Form 8-A filed with the SEC on October 2, 2006, including any amendments or reports filed for the purpose of updating the description of our common stock that is incorporated by reference therein.
You may request a copy of these filings at no cost, by writing or telephoning us at the following address:
Danaos Corporation
14 Akti Kondyli
185 45 Piraeus
Greece
Attention: Secretary
(011) (30) (210) 419 6480
Information on our website is not part of this prospectus.
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OUR BUSINESS
We are an international owner of containerships, chartering our vessels to many of the world’s largest liner companies. Our strategy is to charter our containerships under multi-year, fixed-rate time charters to a geographically diverse group of liner companies, including many of the largest such companies globally, as measured by TEU capacity.
PROCEEDS
We will not receive any of the proceeds from the sale of the shares of our common stock by any individuals named in any prospectus supplement hereto.
SELLING STOCKHOLDERS
Our executive officers and directors as well as certain of our current and former employees may use this prospectus to sell our common stock. These selling stockholders will be named in a supplement to this prospectus, together with the number of shares of our common stock owned by such individuals and the number of shares that may be sold under this prospectus, as supplemented, by such individuals.
PLAN OF DISTRIBUTION
The shares of our common stock covered by this prospectus will be sold, if at all, by the individuals named in a prospectus supplement hereto or by donees, pledgees or others on their behalf, and not by us. The shares may be sold from time to time as follows:
· on the New York Stock Exchange, in the over-the-counter market, or on another national securities exchange (any of which may involve crosses and block transactions);
· to purchasers directly;
· in ordinary brokerage transactions in which the broker solicits purchasers;
· through underwriters, dealers and agents who may receive compensation in the form of underwriting discounts, concessions or commissions from a seller and/or the purchasers of the shares for whom they may act as agent;
· through the writing of options on the shares;
· through the pledge of shares as security for any loan or obligation, including pledges to brokers or dealers who may from time to time effect distributions of the shares or other interests in the shares;
· through purchases by a broker or dealer as principal and resale by such broker or dealer for its own account pursuant to this prospectus;
· through block trades in which the broker or dealer so engaged will attempt to sell the shares as agent or as riskless principal but may position and resell a portion of the block as principal to facilitate the transaction;
· through exchange distributions in accordance with the rules of the applicable exchange;
· in any combination of one or more of these methods; or
· in any other lawful manner.
These sales may be made at prices related to the then current market price or otherwise at prices and on terms then prevailing, or in privately negotiated transactions. In effecting sales, a broker or dealer engaged by an individual using this prospectus to sell common stock may arrange for other brokers or dealers to participate in the
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sale. In addition, any shares covered by this prospectus which qualify for sale pursuant to Section 4(1) of the Securities Act or Rule 144 under the Securities Act may be sold thereunder rather than by this prospectus.
In connection with distributions of the shares or otherwise, persons using this prospectus to sell common stock may enter into hedging transactions with broker-dealers. In connection with hedging a transaction, a broker-dealer may engage in short sales of shares registered hereunder in the course of hedging the positions it assumes with the seller. The seller may also sell shares short and deliver the shares to close out the short positions. The seller may also enter into an option or other transaction with a broker-dealer which requires the delivery to the broker-dealer of shares we have registered, which the broker-dealer may resell by this prospectus.
A seller may pay a broker-dealer or an agent compensation in the form of commissions, discounts or concessions. The broker-dealer and any other participating broker-dealer may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales and any such commission, discount or concession may be deemed to be underwriting discounts or commissions under the Securities Act.
We may be required to file a supplemented prospectus in connection with any activities involving a seller which may be deemed to be an “underwriting.” In that case, a supplement to this prospectus would contain (1) information as to whether an underwriter selected by a seller, or any other broker-dealer, is acting as principal or agent for the seller, (2) the compensation to be received by an underwriter selected by a seller or any broker-dealer, for acting as principal or agent for a seller and (3) the compensation to be received by any other broker-dealer, in the event the compensation of such other broker-dealers is in excess of usual and customary commissions. Any broker or dealer participating in any distribution of the shares may be required to deliver a copy of this prospectus, including any prospectus supplement, to any individual who purchases any shares from or through such a broker-dealer.
We have advised the people identified in this prospectus as potential sellers of common stock that during any period when they may be engaged in a distribution of the shares offered by this prospectus, they are required to comply with Regulation M promulgated under the Exchange Act. With certain exceptions, Regulation M precludes any seller, any affiliated purchaser and any broker-dealer or other individual who participates in such a distribution from bidding for or purchasing, or attempting to induce any individual to bid for or purchase any security, that is the subject of the distribution until the entire distribution is complete. Regulation M also prohibits any bids or purchases made in order to stabilize the price of a security in connection with the distribution of that security. All of these factors may affect the marketability of our common stock.
The people identified in any prospectus supplement to this prospectus as potential sellers of common stock may offer to sell all, some or none of the shares covered by any prospectus supplement to this prospectus. Because it is possible that a significant number of shares could be sold simultaneously by means of this prospectus (as supplemented), such sales, or the possibility thereof, may have an adverse effect on the market price of our common stock.
INDEMNIFICATION
The Registrant is a Marshall Islands corporation. Section 60 of the Business Corporations Act of the Republic of the Marshall Islands (the “BCA”) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, 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 proceeding, had reasonable cause to believe his conduct was unlawful.
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A Marshall Islands corporation also has 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 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 claim, 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.
To the extent that a director or officer of a Marshall Islands corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in the preceding paragraph, 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. 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 under Section 60 of the BCA.
Section 60 of the BCA also permits a Marshall Islands corporation 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 Section 60 of the BCA. In this regard, the Registrant has entered into employment agreements with its chief executive officer, chief operating officer and chief financial officer which provide that the Registrant will maintain directors’ and officers’ and on terms and conditions, no less favorable than the coverage the Registrant provides other similarly-situated executives so long as such coverage is available from the carrier and does not increase the cost of such policy by more than 10% per annum.
The indemnification and advancement of expenses provided by, or granted pursuant to, Section 60 of the BCA are not exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. In this regard, the Registrant’s Bylaws provide that such expenses (including attorneys’ fees) incurred by former directors and officers may be so paid upon such terms and conditions, if any, as the Registrant deems appropriate, and the board of directors may authorize the Registrant’s legal counsel to represent a present or former director or officer in any action, suit or proceeding, whether or not the Registrant is a party to such action, suit or proceeding. The Registrant’s Bylaws further provide for indemnification of directors and officers on the basis described above as being permitted by Section 60 of the BCA and provide, to the extent authorized from time to time by the board of directors of the Registrant, rights to indemnification and to the advancement of expenses to employees and agents of the corporation similar to those conferred to directors and officers of Registrant.
The Articles of Incorporation of the Registrant provide that no director shall have personal liability to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, but the liability of a director is not limited or eliminated (i) for any breach of the director’s duty of loyalty to the Registrant or its stockholders; (ii) for acts or omissions not undertaken in good faith or which involve intentional misconduct or a knowing violation of law; or (iii) for any transaction from which the director derived an improper personal benefit.
VALIDITY OF COMMON STOCK
The validity of our common stock has been passed upon by Watson, Farley & Williams (New York) LLP. Certain United States legal matters have been passed upon for us by Morgan, Lewis & Bockius LLP, New York, New York.
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EXPERTS
The consolidated financial statements of Danaos Corporation as of December 31, 2004 and 2005, and for each of the years in the three-year period ended December 31, 2005, incorporated in this prospectus by reference to Danaos Corporation’s Registration Statement on Form F-1 (Reg. No. 333-137459), have been so incorporated in reliance on the report of PricewaterhouseCoopers S.A., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”), are incorporated by reference into this Registration Statement:
(a) The Registrant’s Prospectus dated October 5, 2006 filed pursuant to Rule 424(b) of the Securities Act (Registration No. 333-137459) on October 6, 2006 (the “Prospectus”); and
(b) The description of the Registrant’s capital stock contained in the Registration Statement on Form 8-A (File No. 001-33060) filed on October 2, 2006, including any amendments or reports filed for the purpose of updating that description.
All reports and other documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel .
Not Applicable.
Item 6. Indemnification of Directors and Officers .
The Registrant is a Marshall Islands corporation. Section 60 of the Business Corporations Act of the Republic of the Marshall Islands (the “BCA”) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, 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 proceeding, had reasonable cause to believe his conduct was unlawful.
A Marshall Islands corporation also has 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 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 claim, 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.
To the extent that a director or officer of a Marshall Islands corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in the preceding paragraph, 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. 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 under Section 60 of the BCA.
Section 60 of the BCA also permits a Marshall Islands corporation 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 Section 60 of the BCA. In this regard, the Registrant has entered into employment agreements with its chief executive officer, chief operating officer and chief financial officer which provide that the Registrant will maintain directors’ and officers’ and on terms and conditions, no less favorable than the coverage the Registrant provides other similarly-situated executives so long as such coverage is available from the carrier and does not increase the cost of such policy by more than 10% per annum.
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The indemnification and advancement of expenses provided by, or granted pursuant to, Section 60 of the BCA are not exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. In this regard, the Registrant’s Bylaws provide that such expenses (including attorneys’ fees) incurred by former directors and officers may be so paid upon such terms and conditions, if any, as the Registrant deems appropriate, and the board of directors may authorize the Registrant’s legal counsel to represent a present or former director or officer in any action, suit or proceeding, whether or not the Registrant is a party to such action, suit or proceeding. The Registrant’s Bylaws further provide for indemnification of directors and officers on the basis described above as being permitted by Section 60 of the BCA and provide, to the extent authorized from time to time by the board of directors of the Registrant, rights to indemnification and to the advancement of expenses to employees and agents of the corporation similar to those conferred to directors and officers of Registrant.
The Articles of Incorporation of the Registrant provide that no director shall have personal liability to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, but the liability of a director is not limited or eliminated (i) for any breach of the director’s duty of loyalty to the Registrant or its stockholders; (ii) for acts or omissions not undertaken in good faith or which involve intentional misconduct or a knowing violation of law; or (iii) for any transaction from which the director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed .
Not Applicable.
Item 8. Exhibits .
The following exhibits are filed as part of this registration statement:
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Exhibit |
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Description |
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4.1 |
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Amended and Restated Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form F-1 (Reg. No. 333-137459) initially filed with the Securities and Exchange Commission on September 19, 2006 (the “Form F-1”)). |
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4.2 |
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Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Form F-1). |
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4.3 |
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2006 Equity Compensation Plan (incorporated by reference to Exhibit 10.5 to the Form F-1). |
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4.4 |
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Stock Certificate ( incorporated by reference to Exhibit 4.1 to the Form F-1). |
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4.5 |
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Stockholders Rights Agreement, made and entered into as of September 18, 2006, between Danaos Corporation and American Stock Transfer & Trust Company, as rights agent (incorporated by reference to Exhibit 10.4 to the Form F-1). |
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5.1 |
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Opinion of Watson, Farley & Williams (New York) LLP* |
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5.2 |
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Opinion of Morgan Lewis & Bockius LLP* |
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23.1 |
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Consent of PricewaterhouseCoopers S.A.* |
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23.2 |
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Consent of Watson, Farley & Williams (included in Exhibit 5.1).* |
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23.3 |
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Consent of Morgan Lewis & Bockius LLP (included in Exhibit 5.2).* |
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24.1 |
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Powers of Attorney (included on page II-5 of this Registration Statement). |
* Filed herewith.
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Item 9. 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;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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% 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 this Registration Statement or any material change to such information in this Registration Statement;
provided , however , that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser: Each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided , however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act 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
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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, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities 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 S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Piraeus, Greece, on November 6, 2006.
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DANAOS CORPORATION |
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By: |
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/s/ John Koustas |
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John Koustas |
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President and Chief Executive Officer |
Each person whose signature appears below constitutes and appoints each of John Koustas, Iraklis Prokopakis and Dimitri J. Andritsoyiannis, acting alone, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any and all other documents and instruments incidental thereto, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission and any other regulatory authority, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following individuals on November 6, 2006, in the capacities indicated.
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Signature |
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Title |
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/s/ John Koustas |
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Chairman of the Board of Directors, President and Chief Executive Officer |
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John Koustas |
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(Principal Executive Officer) |
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/s/ Iraklis Prokopakis |
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Vice President, Treasurer, Chief Operating Officer and |
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Iraklis Prokopakis |
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Director |
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/s/ Dimitri J. Andritsoyiannis |
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Vice President, Chief Financial Officer and Director |
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Dimitri J. Andritsoyiannis |
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(Principal Financial and Accounting Officer) |
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/s/ Andrew B. Fogarty |
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Director |
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Andrew B. Fogarty |
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/s/ Myles R. Itkin |
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Director |
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Myles R. Itkin |
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/s/ Miklos Konkoly-Thege |
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Director |
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Miklos Konkoly-Thege |
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/s/ Robert A. Mundell |
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Director |
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Robert A. Mundell |
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II- 6
AUTHORIZED UNITED STATES REPRESENTATIVE
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Danaos Corporation, has signed this registration statement on November 6, 2006.
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PUGLISI & ASSOCIATES |
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By: |
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/s/ Donald J. Puglisi |
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Donald J. Puglisi |
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Managing Director |
II- 7
INDEX TO EXHIBITS
The following exhibits are filed as part of this registration statement:
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Exhibit |
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Description |
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4.1 |
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Amended and Restated Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form F-1 (Reg. No. 333-137459) initially filed with the Securities and Exchange Commission on September 19, 2006 (the “Form F-1”)). |
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4.2 |
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Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Form F-1). |
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4.3 |
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2006 Equity Compensation Plan (incorporated by reference to Exhibit 10.5 to the Form F-1). |
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4.4 |
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Stock Certificate ( incorporated by reference to Exhibit 4.1 to the Form F-1). |
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4.5 |
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Stockholders Rights Agreement, made and entered into as of September 18, 2006, between Danaos Corporation and American Stock Transfer & Trust Company, as rights agent (incorporated by reference to Exhibit 10.4 to the Form F-1). |
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5.1 |
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Opinion of Watson, Farley & Williams (New York) LLP* |
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5.2 |
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Opinion of Morgan Lewis & Bockius LLP* |
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23.1 |
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Consent of PricewaterhouseCoopers S.A.* |
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23.2 |
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Consent of Watson, Farley & Williams (included in Exhibit 5.1).* |
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23.3 |
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Consent of Morgan Lewis & Bockius LLP (included in Exhibit 5.2).* |
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24.1 |
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Powers of Attorney (included on page II-5 of this Registration Statement). |
Watson, Farley & Williams (New York) LLP
100 Park Avenue
New York, NY 10017
November 6, 2006
14 Akti Kondyli
185 45 Piraeus
Greece
Form S-8 Registration Statement
Dear Sirs:
We have acted as special counsel to Danaos Corporation (the “Company”) on matters of Marshall Islands law in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”) of a Registration Statement on Form S-8 (the “Registration Statement”) relating to the registration of 3,273,450 shares of Common Stock, par value $0.01 per share, of the Company (the “Shares”), which may be issued to eligible participants pursuant to awards granted under the Company’s 2006 Equity Compensation Plan (the “Plan”), and related preferred stock purchase rights (the “Rights”) under a Stockholder Rights Agreement dated as of September 18, 2006 (the “Stockholder Rights Agreement”) between the Company and American Stock Transfer & Trust Company, as Rights Agent.
In rendering this opinion, we have examined originals or photocopies of the Registration Statement, the Plan, the Stockholder Rights Agreement, and all such other documents, including certificates of public officials and representatives of the Company, as we have deemed necessary. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity with the original documents of all documents submitted to us as photocopies and the accuracy of the factual representations made to us by officers and other representatives of the Company. We have also assumed the power, authority and legal right of all parties (other than the Company) to the aforesaid documents to enter into and perform their respective obligations thereunder, and the due authorization, execution and delivery of such documents by such parties. We have further assumed the validity and enforceability of the aforesaid documents under all applicable laws other than Marshall Islands law. As to any questions of fact material to our opinion, we have, when relevant facts were not independently established, relied upon the aforesaid certificates.
This opinion is limited to Marshall Islands law as of the date hereof. In rendering our opinion in Paragraph E below we have, with your permission, relied on the opinion addressed to you dated the date hereof of Morgan, Lewis & Bockius LLP, U.S. counsel to the Company, with respect to the Stockholder Rights Agreement. In rendering our opinion as to the valid existence in good standing of the Company, we have relied solely on a Certificate of Goodstanding issued by the Registrar of Corporations of the Republic of The Marshall Islands on November 3, 2006.
Based on the foregoing and having regard to legal considerations which we deem relevant, we are of the opinion that:
A. The Company has been domesticated and is validly existing in goodstanding as a corporation under the laws of the Republic of the Marshall Islands.
B. The Shares, when issued and the consideration therefor has been paid for as contemplated by the
London • Athens • Paris • New York • Singapore • Bangkok • Rome • Hamburg
Watson, Farley & Williams (New York) LLP is a limited liability partnership registered in England and Wales with registered number OC312253. It is regulated by the Law Society of England and Wales and its members are solicitors or registered foreign lawyers. A list of members of Watson, Farley & Williams (New York) LLP and their professional qualifications is open to inspection at the above address. Any reference to a ‘partner’means a member of Watson, Farley & Williams (New York) LLP, or a member or partner in an affiliated undertaking, or an employee or consultant with equivalent standing and qualification.
Watson, Farley & Williams (New York) LLP or an affiliated undertaking has an office in each of the cities listed above.
Plan and the terms of the awards made thereunder, will be validly issued, fully paid and non-assessable.
C. The Company has the corporate power and authority to enter into, execute, deliver and perform the Stockholder Rights Agreement.
D. The Company has duly authorized the execution and delivery of the Stockholder Rights Agreement and the issuance of the Rights, and has duly executed and delivered the Stockholder Rights Agreement.
E. When issued in accordance with the terms of the Stockholder Rights Agreement, the Rights will have been validly issued and will constitute valid and binding obligations of the Company.
Our opinion in Paragraph E above is subject to the qualification that the rights and remedies of any party to the Stockholder Rights Agreement (a) may be limited by bankruptcy, reorganization, insolvency, moratorium or other similar laws affecting generally the enforcement of creditors’ rights from time to time in effect, and (b) are subject to general principles of equity (regardless of whether such rights and remedies are considered in a proceeding in equity or at law), including application by a court of competent jurisdiction of principles of good faith, fair dealing, commercial reasonableness, materiality, unconscionability and conflict with public policy or other similar principles.
We hereby consent to the use of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations thereunder.
Very truly yours,
Watson, Farley & Williams (New York) LLP
/s/ Watson, Farley & Williams (New York) LLP
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
November 6, 2006
Danaos Corporation
14 Akti Kondyli
185 45 Piraeus
Greece
Ladies and Gentlemen:
We have acted as special legal counsel in the United States to Danaos Corporation, a Marshall Islands corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”) of a Registration Statement on Form S-8 (the “Registration Statement”) relating to the registration of 3,273,450 shares of Common Stock, par value $0.01 per share, of the Company (the “Shares”), which may be issued to eligible participants pursuant to awards granted pursuant to the Company’s 2006 Equity Compensation Plan, and related preferred stock purchase rights (the “Rights”).
In connection with this opinion letter, we have examined the Registration Statement, and originals, or copies certified or otherwise identified to our satisfaction, of the Stockholders Rights Agreement (the “Stockholder Rights Agreement”) made and entered into as of September 18, 2006 by and between the Company and American Stock Transfer & Trust Company, as Rights Agent (the “Rights Agent”), and such other documents, records and other instruments of the Company as we have deemed appropriate for purposes of the opinion set forth herein.
We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile or photostatic copies and the authenticity of the originals of all documents submitted to us as copies.
We have also assumed for purposes of our opinion that (i) the Rights Agent has the requisite organizational and legal power and authority to enter into and perform its obligations under the Stockholders Rights Agreement, (ii) the Stockholders Rights Agreement has been duly authorized, executed and delivered by the Rights Agent and (iii) the Stockholders Rights Agreement constitutes a valid and binding obligation of the Rights Agent. For purposes of our opinion, we have, with your permission, relied upon the opinion addressed to you dated the date hereof from Watson, Farley & Williams (New York) LLP, to the effect that (i) the Company is a corporation domesticated and validly existing under the laws of the Republic of The Marshall Islands, (ii) the Company has the requisite organizational and legal power and authority to enter into and perform its obligations under the Stockholders Rights Agreement, (iii) the Shares have been duly authorized and, when issued and delivered against payment therefore as contemplated by the Company’s 2006 Equity Compensation Plan and the terms of the awards made thereunder, will be validly issued, fully paid and non-assessable, (iv) the Stockholders Rights Agreement and the issuance of the Rights in respect of the Shares have been duly authorized by the Company, and (v) the Stockholders Rights Agreement has been duly executed and delivered by the Company.
Based upon the foregoing, we are of the opinion that when issued in accordance with the terms of the Stockholder Rights Agreement, the Rights will constitute valid and binding obligations of the Company.
The opinions expressed herein are subject to bankruptcy, insolvency, fraudulent transfer and other similar laws affecting the rights and remedies of creditors generally and general principles of equity.
The opinions expressed herein are limited to the laws of the State of New York, and we express no opinion with respect to the laws of any other state or jurisdiction.
We hereby consent to the use of this opinion as Exhibit 5.2 to the Registration Statement and to the reference to us under the heading “Validity of Common Stock” in the prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC thereunder.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated April 28, 2006, except for Note 19b which is as of September 18, 2006, relating to the consolidated financial statements of Danaos Corporation, which appears in Amendment No. 1 to the Registration Statement on Form F-1 (No. 333-137459) of Danaos Corporation. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers
PricewaterhouseCoopers S.A.
November 6, 2006
Athens, Greece