Republic of the Marshall Islands | | | N.A. |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification No.) |
Performance Shipping Inc. 373 Syngrou Avenue 175 64 Palaio Faliro Athens, Greece Tel: +30-216-600-2400 (Address and telephone number of Registrant’s principal executive offices) | | | Will Vogel, Esq. Watson Farley & Williams LLP 250 West 55th Street New York, New York 10019 (212) 922-2200 (telephone number) (212) 922-1512 (facsimile number) (Name, Address and telephone number of agent for service) |
† | The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
Vessel | | | Year of Build | | | Capacity | | | Builder | | | Charter Type |
| | | | | | Aframax Tanker Vessels | | | ||||
BLUE MOON | | | 2011 | | | 104,623 DWT | | | Sumitomo Heavy Industries Marine & Engineering Co., LTD. | | | Time charter |
BRIOLETTE | | | 2011 | | | 104,588 DWT | | | Sumitomo Heavy Industries Marine & Engineering Co., LTD. | | | Time charter |
P. KIKUMA | | | 2007 | | | 115,915 DWT | | | Samsung Heavy Industries Co. Ltd. | | | Pool |
P. YANBU | | | 2011 | | | 105,391 DWT | | | Sumitomo Heavy Industries Marine & Engineering Co., LTD. | | | Time charter |
P. SOPHIA | | | 2009 | | | 105,071 DWT | | | Hyundai Heavy Industries Co. LTD. | | | Pool |
P. ALIKI | | | 2010 | | | 105,304 DWT | | | Hyundai Heavy Industries Co. LTD. | | | Time charter |
P. MONTEREY | | | 2011 | | | 105,525 DWT | | | Hyundai Heavy Industries Co. LTD. | | | Time charter |
P. LONG BEACH | | | 2013 | | | 105,408 DWT | | | Hyundai Heavy Industries Co. LTD. | | | Pool |
• | changes in our operating cash flow, capital expenditure requirements, working capital requirements and other cash needs; |
• | the amount of any cash reserves established by our Board of Directors; |
• | restrictions under Marshall Islands law, which generally prohibits the payment of dividends other than from surplus (retained earnings and the excess of consideration received for the sale of shares above the par value of the shares) or while a company is insolvent or would be rendered insolvent by the payment of such a dividend; |
• | restrictions under our credit facilities and other instruments and agreements governing our existing and future indebtedness; and |
• | our overall financial and operating performance, which, in turn, is subject to prevailing economic and competitive conditions and to the risks associated with the shipping industry and the other factors, many of which are beyond our control. |
• | low charter rates, particularly for tanker vessels employed on short-term time charters or in the spot market; |
• | decreases in the market value of tanker vessels and a limited second-hand market for the sale of tanker vessels; |
• | limited financing for tanker vessels; |
• | loan covenant defaults; and |
• | declaration of bankruptcy by certain tanker vessel operators, tanker vessel owners, shipyards, and charterers. |
• | the failure of securities analysts to publish research about us, or analysts to make appropriate 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; |
• | unforeseen events, such as natural disasters or pandemics (including the ongoing COVID-19 pandemic); |
• | international sanctions, embargoes, import and export restrictions, nationalizations, piracy and wars or other conflicts, including the war in Ukraine. |
• | actual or anticipated fluctuations in our operating results from period to period; |
• | fluctuations in interest rates; |
• | fluctuations in the availability or the price of oil and chemicals; |
• | fluctuations in foreign currency exchange rates; |
• | the loss of any of our key management personnel; |
• | our failure to successfully implement our business plan; |
• | future sales of our common shares or other securities; |
• | stock splits or reverse stock splits; and |
• | investors' perception of us and the international tanker sector. |
• | any common shares issuable pursuant to the exercise of conversion rights under our Series C Preferred Shares, of which 1,314,792 shares are currently outstanding; |
• | 8,000 common shares issuable upon the exercise of outstanding options exercisable at a price range between $150.00 and $450.00 per share, for a term expiring January 1, 2026; |
• | up to 567,366 common shares issuable upon the exercise of our Class A Warrants (at an exercise price of $15.75 per share) which expire in January 2028; |
• | up to 1,133,333 common shares that may be issued upon the exercise of the July 2022 Warrants (at an exercise price of $2.60 per share as of January 26, 2023) which expire in January 2028; and |
• | up to 2,222,222 common shares that may be issued upon the exercise of the August 2022 Warrants (at an exercise price of $2.60 per share as of January 26, 2023) which expire in August 2027. |
• | our existing shareholders’ proportionate ownership interest in us will decrease; |
• | the amount of cash available for dividends payable on the shares of our common shares may decrease; |
• | the relative voting strength of each previously outstanding common share may be diminished; and |
• | the market price of the shares of our common shares may decline. |
• | actual basis, adjusted for the one-for-15 reverse stock split that we effected on November 15, 2022; |
• | as adjusted basis, giving effect to: a) aggregate drawdowns of $76.7 million under our new credit facilities with Alpha Bank SA. and Piraeus Bank to finance the acquisitions of the newly acquired vessels P. Aliki, P. Monterey and P. Long Beach and to re-finance the existing indebtedness of the vessel P. Kikuma; b) aggregate loan prepayments of $15.6 million for the vessels P. Kikuma and P. Fos, the latter of which has been sold; c) aggregate repayments of $2.5 million for scheduled loan installments; d) the issuance to Mango in a private placement of 1,314,792 shares of our newly-designated Series C Preferred Shares in exchange for (i) all 657,396 Series B Preferred Shares held by Mango and (ii) the agreement by Mango to apply $4.93 million as a prepayment by us of the unsecured credit facility agreement dated March 2, 2022 between us as borrower and Mango as lender1, e) the prepayment of the remaining outstanding balance of the unsecured credit facility with Mango ($0.07 million) as discussed above in “Summary—Recent Developments.”; f) aggregate proceeds, net of agent’s expenses, of $0.9 million from the issuance of 272,207 common shares that were issued pursuant to our ATM Sales Agreement through January 25, 2023. |
• | as further adjusted basis, to give effect to the issuance of 272,522 Series C Preferred Shares, assuming all outstanding Series B Preferred Shares are converted, resulting in net proceeds of approximately $1.0 million 1. |
| | As of September 30, 2022 | |||||||
| | Actual | | | As Adjusted | | | As Further Adjusted | |
| | (in thousands of U.S. dollars) | |||||||
Bank debt (principal balance, secured and guaranteed) | | | $69,101 | | | $127,696 | | | $127,696 |
Other debt (principal balance, unsecured) | | | $5,000 | | | $— | | | — |
Stockholders’ equity | | | | | | | |||
Preferred stock, $0.01 par value; 25,000,000 shares authorized, 793,657 Series B issued and outstanding actual, 136,261 Series B and 1,314,792 Series C issued and outstanding as adjusted, and 0 Series B and 1,587,314 Series C issued and outstanding as further adjusted | | | $8 | | | $15 | | | $16 |
Common stock, $0.01 par value; 500,000,000 shares authorized; 4,047,209 issued and outstanding actual, 4,319,416 issued and outstanding as adjusted and as further adjusted | | | 40 | | | 43 | | | 43 |
Additional paid-in capital | | | 494,271 | | | 500,117 | | | 501,098 |
Other comprehensive loss | | | (2) | | | (2) | | | (2) |
Accumulated deficit | | | (367,463) | | | (367,463) | | | (367,463) |
Total stockholders’ equity | | | $126,854 | | | $132,710 | | | $133,692 |
| | | | | | ||||
Total capitalization | | | $200,955 | | | $260,406 | | | $261,388 |
1 | The accounting treatment of the issuance to Mango of 1,314,792 shares of our newly-designated Series C Preferred Shares in exchange for (i) all 657,396 Series B Preferred Shares held by Mango and (ii) the agreement by Mango to apply $4.93 million as a prepayment by us of the unsecured credit facility agreement dated March 2, 2022 between us as borrower and Mango as lender has not been concluded as of the date of this prospectus. Also, the accounting treatment of the issuance of our newly-designated Series C Preferred Shares, assuming all outstanding Series B Preferred Shares are converted, has not been concluded as of the date of this prospectus. Any potential implications on outstanding Series B Preferred Shares, that are convertible to Series C Preferred Shares, as a result of the issuance of Series C Preferred Shares has not been analyzed as of the date of this prospectus. |
• | the designation of the series; |
• | the number of shares of the series; |
• | the preferences and relative, participating, option or other special rights, if any, and any qualifications, limitations or restrictions of such series; and |
• | the voting rights, if any, of the holders of the series. |
• | senior to our common stock and to each other class or series of capital stock that has been or will be established after the Original Issue Date of the Series B Preferred Shares that is not expressly made senior to or on parity with the Series B Preferred Shares as to the payment of dividends and amounts payable upon liquidation, dissolution or winding up, whether voluntary or involuntary (“Junior Securities”); |
• | pari passu with any class or series of capital stock that has been or will be established after the Original Issue Date of the Series B Preferred Shares with terms expressly providing that such class or series ranks on a parity with the Series B Preferred Shares as to the payment of dividends and amounts payable upon liquidation, dissolution or winding up, whether voluntary or involuntary (“Parity Securities”); and |
• | junior to all of our indebtedness and other liabilities with respect to assets available to satisfy claims against us, and each other class or series of capital stock expressly made senior to the Series B Preferred Shares as to the payment of dividends and amounts payable upon liquidation, dissolution or winding up, whether voluntary or involuntary (“Senior Securities”). |
• | merger or consolidation of the Company; |
• | sale, lease or conveyance of all or substantially all of the Company’s consolidated assets (other than in the usual or regular course of its business); and |
• | change in control. |
- | the Rights will be evidenced by and trade with the certificates for the Common Shares (or, with respect to any uncertificated Common Shares registered in book entry form, by notation in book entry), and no separate rights certificates will be distributed; |
- | new Common Shares certificates issued after the Record Date will contain a legend incorporating the Rights Agreement by reference (for uncertificated Common Shares registered in book entry form, this legend will be contained in a notation in book entry); and |
- | the surrender for transfer of any certificates for Common Shares (or the surrender for transfer of any uncertificated Common Shares registered in book entry form) will also constitute the transfer of the Rights associated with such Common Shares. |
- | not be redeemable |
- | entitle holders to quarterly dividend payments in an amount per share equal to 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in Common Shares or a subdivision of the outstanding Common Shares (by reclassification or otherwise), declared on the Common Shares since the immediately preceding quarterly dividend payment date; and |
- | entitle holders of Series A Participating Preferred Stock to 1,000 votes on all matters submitted to a vote of the stockholders of the Company. |
Marshall Islands | | | Delaware |
Shareholder Meetings | |||
Held at a time and place as designated in the bylaws. | | | May be held at such time or place as designated in the certificate of incorporation or the bylaws, or if not so designated, as determined by the board of directors. |
Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the articles of incorporation or by the bylaws. | | | Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws. |
May be held in or outside of the Marshall Islands. | | | May be held in or outside of Delaware. |
Notice: | | | Notice: |
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, unless it is an annual meeting, indicate that it is being issued by or at the direction of the person calling the meeting. | | | Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any. |
A copy of the notice of any meeting shall be given personally or sent by mail not less than 15 nor more than 60 days before the meeting. | | | Written notice shall be given not less than 10 nor more than 60 days before the meeting. |
| | ||
Shareholders’ Voting Rights | |||
| | ||
Any action required to be taken by a meeting of shareholders may be taken without a meeting if consent is in writing and is signed by all the shareholders entitled to vote with respect to the subject matter thereof. | | | Any action required to be taken by a meeting of shareholders may be taken without a meeting if a consent for such action is in writing and is signed by shareholders having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. |
Any person authorized to vote may authorize another person or persons to act for him by proxy. | | | Any person authorized to vote may authorize another person or persons to act for him by proxy. |
Unless otherwise provided in the articles of incorporation or the bylaws, a majority of shares entitled to vote constitutes a quorum. In no event shall a quorum consist of fewer than one-third of the common shares entitled to vote at a meeting. | | | For stock corporations, the certificate of incorporation or bylaws may specify the number of shares required to constitute a quorum but in no event shall a quorum consist of less than one-third of shares entitled to vote at a meeting. In the absence of such specifications, a majority of shares entitled to vote shall constitute a quorum. |
Marshall Islands | | | Delaware |
When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders. | | | When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders. |
The articles of incorporation may provide for cumulative voting in the election of directors. | | | The certificate of incorporation may provide for cumulative voting in the election of directors. |
Removal: | | | Removal: |
If the articles of incorporation or the bylaws so provide, any or all of the directors may be removed without cause by vote of the shareholders. Any or all of the directors may be removed for cause by vote of the shareholders. | | | Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares entitled to vote except: (1) unless the certificate of incorporation otherwise provides, in the case of a corporation whose board is classified, shareholders may effect such removal only for cause, or (2) if the corporation has cumulative voting, if less than the entire board is to be removed, no director may be removed without cause if the votes cast against such director’s removal would be sufficient to elect such director if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which such director is a part. |
| | ||
Directors | |||
| | ||
Number of board members can be changed by an amendment to the bylaws, by the shareholders, or by action of the board under the specific provisions of a bylaw. | | | Number of board members shall be fixed by, or in a manner provided by, the bylaws, unless the certificate of incorporation fixes the number of directors, in which case a change in the number shall be made only by amendment to the certificate of incorporation. |
The board of directors must consist of at least one member. | | | The board of directors must consist of at least one member. |
If the board of directors is authorized to change the number of directors, it can only do so by a majority of the entire board of directors and so long as no decrease in the number shortens the term of any incumbent director. | | | |
| | ||
Dissenter’s Rights of Appraisal | |||
Shareholders have a right to dissent from any plan of merger, consolidation or sale of all or substantially all assets not made in the usual course of business, and receive payment of the fair value of their shares. However, the right of a dissenting shareholder under the BCA to receive payment of the appraised fair value of his shares is not available for the shares of any class or series of stock, which shares at the record date fixed to determine the shareholders entitled to receive notice of and to vote at the meeting of the shareholders to act upon the agreement of merger or consolidation, were either (i) listed on a securities exchange or admitted for trading on an interdealer quotation system or (ii) held of record by more than 2,000 holders. | | | Appraisal rights shall be available for the shares of any class or series of stock of a corporation in a merger or consolidation, subject to limited exceptions, such as a merger or consolidation of corporations listed on a national securities exchange in which listed shares are the offered consideration or if such shares are held of record by more than 2,000 holders. |
A holder of any adversely affected shares who does not vote on or consent in writing to an amendment to the articles of incorporation has the right to dissent and to | | |
- | at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business), which we refer to as the income test; or |
- | at least 50% of the average value of our assets during such taxable year produce, or are held for the production of, passive income, which we refer to as the asset test. |
- | the excess distribution or gain would be allocated ratably to each day over the Non-Electing Holder’s aggregate holding period for the Series C Preferred Shares; |
- | the amount allocated to the current taxable year and any taxable year before we became a PFIC would be taxed as ordinary income; and |
- | the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed tax deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year. |
- | the gain is effectively connected with the Non-U.S. Holder's conduct of a trade or business in the United States. In general, if the Non-U.S. Holder is entitled to the benefits of certain income tax treaties with respect to that gain, that gain is taxable only if it is attributable to a permanent establishment maintained by the Non-U.S. Holder in the United States; or |
- | the Non-U.S. Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are met. |
- | fail to provide an accurate taxpayer identification number; |
- | are notified by the IRS that you have failed to report all interest or dividends required to be shown on your U.S. federal income tax returns; or |
- | in certain circumstances, fail to comply with applicable certification requirements. |
Commission registration fee | | | $751 |
Legal fees and expenses | | | $20,000 |
Accounting fees and expenses | | | $12,000 |
Miscellaneous fees and expenses | | | $7,249 |
Total | | | $40,000 |
• | our Annual Report on Form 20-F for the year ended December 31, 2021, filed with the SEC on March 11, 2022; |
• | our Report on Form 6-K furnished to the SEC on June 2, 2022; |
• | our Report on Form 6-K furnished to the SEC on June 2, 2022; |
• | our Report on Form 6-K furnished to the SEC on June 30, 2022; |
• | our Report on Form 6-K furnished to the SEC on July 1, 2022; |
• | our Report on Form 6-K furnished to the SEC on July 5, 2022; |
• | our Report on Form 6-K furnished to the SEC on July 18, 2022; |
• | our Report on Form 6-K furnished to the SEC on July 19, 2022; |
• | our Report on Form 6-K furnished to the SEC on July 20, 2022; |
• | our Report on Form 6-K furnished to the SEC on July 29, 2022; |
• | our Report on Form 6-K furnished to the SEC on August 5, 2022 |
• | our Report on Form 6-K furnished to the SEC on August 17, 2022; |
• | our Report on Form 6-K furnished to the SEC on September 20, 2022; |
• | our Report on Form 6-K furnished to the SEC on September 22, 2022; |
• | our Report on Form 6-K furnished to the SEC on October 3, 2022; |
• | our Report on Form 6-K furnished to the SEC on October 21, 2022; |
• | our Report on Form 6-K furnished to the SEC on November 4, 2022; |
• | our Report on Form 6-K furnished to the SEC on November 14, 2022 (excluding Exhibit 99.2, other than the section titled “Results of Special Meeting of Shareholders and Reverse Stock Split”); |
• | our Report on Form 6-K furnished to the SEC on November 16, 2022; |
• | our Report on Form 6-K furnished to the SEC on November 18, 2022; |
• | our Report on Form 6-K furnished to the SEC on November 28, 2022; |
• | our Report on Form 6-K furnished to the SEC on November 29, 2022; |
• | our Report on Form 6-K furnished to the SEC on November 30, 2022; |
• | our Report on Form 6-K furnished to the SEC on December 5, 2022; |
• | our Report on Form 6-K furnished to the SEC on December 7, 2022; |
• | our Report on Form 6-K furnished to the SEC on December 8, 2022; |
• | our Report on Form 6-K furnished to the SEC on December 15, 2022; and |
• | our Report on Form 6-K furnished to the SEC on December 16, 2022. |
Item 8. | Indemnification of Directors and Officers |
(1) | Actions not 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, 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 that 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 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 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. |
(3) | When director or officer is 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 shareholders 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. |
Item 9. | Exhibits and Financial Statement Schedules |
(a) | Exhibits |
(b) | Financial Statements |
Item 10. | Undertakings |
(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 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 Item 8.A of Form 20-F 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) | That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser; |
(i) | 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 |
(ii) | 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 under the Securities Act of 1933, as amended, 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. |
(f) | Reserved. |
(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) – (k) | Not applicable. |
Exhibit Number | | | Description |
| | Certificate of Designation of Series C Preferred Shares dated October 17, 2022 (incorporated herein by reference to Exhibit 99.2 to the Company’s report on Form 6-K, filed with the Commission on October 21, 2022.) | |
| | ||
| | Opinion of Watson Farley & Williams LLP as to the validity of the securities* | |
| | ||
| | Opinion of Watson Farley & Williams LLP with respect to certain tax matters* | |
| | ||
| | Consent of Ernst & Young (Hellas) Certified Auditors Accountants S.A.* | |
| | ||
| | Consent of Watson Farley & Williams LLP (included in its opinion filed as Exhibit 5.1) | |
| | ||
| | Consent of Watson Farley & Williams LLP (included in its opinion filed as Exhibit 8.1) | |
| | ||
| | Powers of Attorney (included in the signature pages hereto) | |
| | ||
| | Calculation of Filing Fee Table* |
* | Filed herewith |
| | PERFORMANCE SHIPPING INC. | ||||
| | | | |||
| | By: | | | /s/ Andreas Michalopoulos | |
| | Name: | | | Andreas Michalopoulos | |
| | Title: | | | Chief Executive Officer |
Signature | | | Title |
/s/ Andreas Michalopoulos | | | Class I Director, Chief Executive Officer and Secretary |
Andreas Michalopoulos | | ||
| | ||
/s/ Loïsa Ranunkel | | | Class I Director |
Loïsa Ranunkel | | ||
| | ||
/s/ Aliki Paliou | | | Class II Director and Chairperson of the Board |
Aliki Paliou | | ||
| | ||
/s/ Alex Papageorgiou | | | Class III Director |
Alex Papageorgiou | | ||
| | ||
/s/ Mihalis Boutaris | | | Class III Director |
Mihalis Boutaris | | ||
| | ||
/s/ Anthony Argyropoulos | | | Chief Financial Officer |
Anthony Argyropoulos | |
| | PERFORMANCE SHIPPING USA LLC | ||||
| | | | |||
| | By: | | | Performance Shipping Inc., its Sole Member | |
| | | | |||
| | By: | | | /s/ Andreas Michalopoulos | |
| | Name: | | | Andreas Michalopoulos | |
| | Title: | | | Chief Executive Officer |
Performance Shipping Inc.
373 Syngrou Avenue
175 64 Palaio Faliro
Athens, Greece
|
|
Our Reference US/38016.50000/80848231v2
|
(i)
|
the Registration Statement and the prospectus included therein (the “Prospectus”);
|
(ii)
|
the amended and restated Certificate of Designation of the Series B Preferred Shares, dated January 12, 2022;
|
(iii)
|
the Certificate of Designation of the Series C Preferred Shares, dated October 17, 2022;
|
(iv)
|
the Company’s amended and restated articles of incorporation, as amended, and amended and restated bylaws; and
|
(v)
|
such other papers, documents, agreements, certificates of public officials and certificates of representatives of the Company, as we have deemed relevant and necessary as the basis for the
opinions hereafter expressed.
|
1.
|
The Series C Preferred Shares have been duly authorized by the Company.
|
2.
|
The Series C Preferred Shares, when issued, sold and paid for upon conversion of the Series B Preferred Shares in accordance with the terms of the Series B Preferred Shares, will be validly
issued, fully paid, and nonassessable.
|
Performance Shipping Inc.
373 Syngrou Avenue
175 64 Palaio Faliro
Athens, Greece
|
|
Our Reference US/38016.50000/80848236v2
|
(i)
|
the Registration Statement and the prospectus included therein (the “Prospectus”);
|
(ii)
|
the Company’s amended and restated articles of incorporation, as amended, and amended and restated bylaws;
|
(iii)
|
the Company’s annual report (the “Annual Report”) on Form 20-F for the fiscal year ended December 31, 2021 and filed March 11, 2022, which is
incorporated by reference into the Prospectus; and
|
(iv)
|
such other papers, documents, agreements, certificates of public officials and certificates of representatives of the Company, as we have deemed relevant and necessary as the basis for the
opinions hereafter expressed.
|
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
|
Newly Registered Securities
|
||||||||
Fees to Be Paid
|
Equity
|
Series C Convertible Cumulative Redeemable Perpetual Preferred Stock, par value $0.01 per share(1)
|
457(a)
|
272,522
|
$25.00(1)
|
$6,813,050
|
0.00011020
|
$751
|
Total Offering Amounts
|
$6,813,050
|
|||||||
Total Fees Previously Paid
|
-
|
|||||||
Total Fee Offsets
|
-
|
|||||||
Net Fee Due
|
$751
|
1.
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(a) on the basis of the liquidation
preference in the amount of $25.00 per share of Series C Convertible Cumulative Redeemable Perpetual Preferred Stock, par value $0.01 per share, of Performance Shipping Inc.
|