As filed
with the Securities and Exchange Commission on November 26, 2008
Registration No.
333-
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_________________________
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
_________________________
GENCO
SHIPPING & TRADING LIMITED
(Exact
name of registrant as specified in its charter)
(See
table of additional registrants on following page)
Republic of the
Marshall
Islands 98-043-9758
(State or other
jurisdiction
of (I.R.S.
Employer
incorporation or
organization) Identification
No.)
299
Park Avenue, 20th
Floor
New
York, New York 10171
(646)
443-8550
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
_________________________
John
C. Wobensmith
Chief
Financial Officer
299
Park Avenue, 20th
Floor
New
York, New York 10171
(646)
443-8550
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
_________________________
Copies
To:
Kramer
Levin Naftalis & Frankel LLP
1177
Avenue of the Americas
New
York, New York 10036
Attention:
Thomas E. Molner, Esq.
(212)
715-9100
Approximate
date of commencement of proposed sale to the public:
From time
to time after the effective date of this Registration Statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. £
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. S
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. £
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. £
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. S
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. £
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act. (Check
one):
Large
accelerated filer x Accelerated
filer ¨
Non-accelerated
filer ¨
Smaller reporting
company ¨
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of
securities
to be registered
|
|
Amount to be
registered/
Proposed
maximum offering price per unit/
Proposed
maximum offering price(1)
|
|
Amount
of
registration fee(2)
|
|
Debt
Securities
|
|
|||
|
Common
Stock, par value $.01 per share
|
|
|||
|
Preferred
Stock
|
||||
|
Rights
|
|
|||
|
Warrants
|
|
|||
|
Units
|
|
|||
|
|
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(1) An
indeterminate aggregate initial offering price and number or amount of the
securities of each identified class is being registered as may from time
to time be sold at indeterminate prices. Separate consideration
may or may not be received for securities that are issuable upon
conversion of, or in exchange for, or upon exercise of, convertible or
exchangeable securities.
|
|
|
(2) In
reliance on and in accordance with Rules 456(b) and 457(r), the registrant
is deferring payment of all of the registration
fee.
|
The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
PROSPECTUS
GENCO
SHIPPING & TRADING LIMITED
Debt
Securities
Preferred
Stock
Common
Stock
Rights
Warrants
Units
We may
offer and sell from time to time our securities in one or more classes or series
and in amounts, at prices and on terms that we will determine at the times of
the offerings. In addition, selling securityholders to be named in a
prospectus supplement may offer and sell from time to time such securities in
such amounts as set forth in a prospectus supplement. Unless
otherwise set forth in a prospectus supplement, we will not receive any proceeds
from the sale of such securities by any selling securityholders.
We will
provide specific terms of any offering and the offered securities in supplements
to this prospectus. Any prospectus supplement may also add, update or
change information contained in this prospectus. You should read this
prospectus and any prospectus supplement, as well as the documents incorporated
or deemed to be incorporated by reference in this prospectus, carefully before
you invest. This prospectus may not be used to consummate sales of
securities unless accompanied by the applicable prospectus
supplement.
Our
principal executive offices are located at 299 Park Avenue, 20th Floor, New
York, New York 10171, and our telephone number is (646) 443-8550.
Our
common stock is traded on the New York Stock Exchange, or NYSE, under the symbol
“GNK.” On November 25, 2008, the closing sale price of our common
stock as reported by the NYSE was $8.30 per share. Each prospectus
supplement will indicate if the securities offered thereby will be listed on any
securities exchange.
We or any
selling securityholder may offer and sell these securities to or through one or
more underwriters, dealers and agents, or directly to purchasers, on a
continuous or delayed basis. These securities also may be resold by
securityholders. We will provide specific terms of any securities to
be offered in supplements to this prospectus. You should read this prospectus
and the applicable prospectus supplement carefully before you
invest.
Investing
in our securities involves risks that are referenced in the “Risk Factors”
section beginning on page 2 of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date
of this Prospectus is November 26, 2008.
TABLE
OF CONTENTS
Page
| ABOUT THIS PROSPECTUS |
2
|
| RISK FACTORS |
2
|
| FORWARD-LOOKING STATEMENTS |
2
|
| ABOUT GENCO |
3
|
|
RATIOS
OF EARNINGS TO FIXED CHARGES
|
3
|
|
USE
OF PROCEEDS
|
3
|
|
DESCRIPTION
OF SECURITIES
|
4
|
|
SELLING
SECURITYHOLDERS
|
4
|
|
PLAN
OF DISTRIBUTION
|
4
|
|
LEGAL
MATTERS
|
4
|
|
EXPERTS
|
5
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
5
|
|
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
|
5
|
ABOUT
THIS PROSPECTUS
This
prospectus is part of an automatic shelf registration statement that we filed
with the Securities and Exchange Commission, or SEC, as a “well-known seasoned
issuer” as defined in Rule 405 under the Securities Act of 1933, as amended, or
the Securities Act. Under the automatic shelf process, we may, from
time to time, offer our debt securities, shares of preferred stock, shares of
common stock, rights, warrants or units, or combinations thereof, in one or more
offerings. In addition, selling securityholders to be named in
a prospectus supplement may offer, from time to time, such
securities. In this prospectus, we will refer to our debt securities,
preferred stock and common stock collectively as the
“securities.” This prospectus provides you with a general description
of the securities that we may offer and the shares of our common stock that
selling securityholders may offer. Each time that we sell securities,
we will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement also may
add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with
additional information described under the heading “Where You Can Find More
Information” and “Incorporation of Certain Documents by
Reference.” We may only use this prospectus to sell securities if it
is accompanied by a prospectus supplement. We are only offering these
securities in states where the offer is permitted.
The
registration statement that contains this prospectus, including the exhibits to
the registration statement, contains additional information about us and the
securities offered under this prospectus. That registration statement
can be read at the SEC’s web site or at the SEC’s offices referenced under the
heading “Where You Can Find More Information.”
RISK
FACTORS
You
should carefully consider the specific risks set forth under the caption “Risk
Factors” in the applicable prospectus supplement and under the caption “Risk
Factors” in any of our filings with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange
Act, incorporated by reference herein, before making an investment decision. For
more information see “Where You Can Find More Information” and “Incorporation of
Certain Documents by Reference.”
FORWARD-LOOKING
STATEMENTS
We make
statements in this prospectus and the documents incorporated by reference that
are considered forward-looking statements under the federal securities
laws. Such forward-looking statements are based on the beliefs of our
management as well as assumptions made by and information currently available to
them. The words “anticipate,” “believe,” “may,” “estimate,” “expect,”
and similar expressions, and variations of such terms or the negative of such
terms, are intended to identify such forward-looking statements.
All
forward-looking statements are subject to certain risks, uncertainties and
assumptions. If one or more of these risks or uncertainties
materialize, or if underlying assumptions prove incorrect, our actual results,
performance or achievements could differ materially from those expressed in, or
implied by, any such forward-looking statements. Important factors
that could cause or contribute to such difference include those discussed under
“Risk Factors” in this prospectus and in our Annual Report on Form 10-K for the
year ended December 31, 2007 and our Form 10-Q for the quarterly period ended
September 30, 2008, incorporated by reference into this
prospectus. You should not place undue reliance on such
forward-looking statements, which speak only as of their dates. We do
not undertake any obligation to update or revise any forward-looking statements,
whether as a result of new information, future events or
otherwise. You should carefully consider the information set forth
under the heading “Risk Factors.”
2
ABOUT
GENCO
We are a
drybulk shipping company with a strong record of disciplined growth. We
transport iron ore, coal, grain, steel products and other drybulk cargoes along
worldwide shipping routes. Since our founding in 2004, we have grown our
business by utilizing our operational advantages and seeking prudent
opportunities to consolidate the drybulk shipping industry. With our fleet of
high quality vessels, our balanced approach to vessel employment and our
experienced management team, we believe we have a firm foundation for continued
strong performance.
As of November 26, 2008, we own a fleet
of 31 drybulk vessels consisting of five Capesize, eight Panamax, four Supramax,
six Handymax and eight Handysize vessels, with an aggregate carrying capacity of
approximately 2,226,500 dwt. In July 2007, we agreed to purchase nine
Capesize vessels from companies within the Metrostar Management Corporation
group for a total of approximately $1.1 billion. We have since
taken delivery of five of these vessels, with the remaining vessels to be
delivered through 2009. After the expected delivery of four vessels
we have agreed to acquire, we will own a fleet of 35 drybulk vessels, consisting
of nine Capesize, eight Panamax, four Supramax, six Handymax and eight Handysize
vessels, with an aggregate carrying capacity of approximately 2,909,000
dwt.
RATIOS
OF EARNINGS TO FIXED CHARGES
The
following table sets forth our unaudited historical ratios of earnings to fixed
charges for the periods indicated below:
|
Nine Months Ended September 30,
|
Year
Ended
December 31,
|
Year
Ended
December 31,
|
Year
Ended
December 31,
|
For
the Period
September
27
through
December
31,
|
|||
| 2008 |
2007
|
2006
|
2005
|
2004
|
|||
| Ratio of earnings to fixed charges(1)……………… 5.87x |
4.32x
|
7.33x
|
4.55x
|
4.75x
|
|||
___________
(1) For
the purpose of determining the ratio of earnings to fixed charges, earnings
consist of net income plus fixed charges. Fixed charges consist of
interest expense on our credit facility, including unused commitment fees and
amortization of expenses related to our credit facility.
As we
have no preferred stock issued, a ratio of earnings to combined fixed charges
and preferred dividends is not presented.
USE
OF PROCEEDS
Unless we
state otherwise in the applicable prospectus supplement, we expect to use the
net proceeds from the sale of the securities for general corporate purposes,
including repayment or reduction of long-term and short-term debt, capital
expenditures, working capital, and the financing of vessel purchase and other
acquisitions and business combinations. We may temporarily invest
funds that we do not immediately require in marketable securities. We
will not receive any of the proceeds from the sale of shares of common stock by
any selling securityholders.
3
DESCRIPTION
OF SECURITIES
• debt
securities;
• shares
of preferred stock;
• shares
of common stock;
• rights;
• warrants;
or
•
units.
We will
set forth in the applicable prospectus supplement a description of the debt
securities, shares of preferred stock, shares of common stock, rights, warrants
or units that may be offered under this prospectus. The debt securities,
preferred stock, warrants and rights may be convertible or exercisable or
exchangeable for common or preferred stock or other securities of ours or debt
or equity securities of one or more other entities. The terms of the
offering of securities, the initial offering price and the net proceeds to us
will be contained in the prospectus supplement, and other offering material,
relating to such offering.
SELLING
SECURITYHOLDERS
PLAN
OF DISTRIBUTION
We will
identify the specific plan of distribution for offered securities, including any
underwriters, dealers, agents or direct purchasers and their compensation, in a
prospectus supplement.
LEGAL
MATTERS
Kramer
Levin Naftalis & Frankel LLP, New York, New York, will provide us with
opinions relating to certain matters in connection with offerings under this
prospectus from time to time. Reeder & Simpson P.C. will provide us
with opinions relating to matters concerning the law of the Republic of the
Marshall Islands in connection with offerings under this
prospectus.
4
EXPERTS
The
financial statements incorporated in this prospectus by reference from the
Company’s Annual Report on Form 10-K and the effectiveness of Genco Shipping
& Trading Limited’s internal control over financial reporting have been
audited by Deloitte & Touche LLP, an independent registered public
accounting firm, as stated in their reports, which are incorporated herein by
reference. Such financial statements have been so incorporated in
reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We are a
reporting company and file annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission, or
the SEC. You may read and copy such material at the Public Reference
Room maintained by the SEC at 100 F Street, N.E., Washington, D.C.
20549-1004. Please call the SEC at 1-800-SEC-0330 for more
information on the operation of the Public Reference Room. You can
also find our SEC filings at the SEC’s web site at
http://www.sec.gov.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC
allows us to “incorporate by reference” information that we file with the SEC,
which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is an
important part of this prospectus, and some information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act (excluding such documents or portions thereof that are not deemed
“filed” under the Exchange Act in accordance with the Exchange Act and
applicable SEC rules and regulations):
|
·
|
Our
Annual Report on Form 10-K for the year ended December 31,
2007;
|
|
·
|
Our
Quarterly Reports on Form 10-Q for the quarterly periods ended March 31,
2008, June 30, 2008 and September 30,
2008;
|
|
·
|
Our
Current Reports on Form 8-K filed on May 21, 2008, May 22, 2008, June
16, 2008, June 23, 2008, July 17, 2008, September 8, 2008, September 25,
2008, November 4, 2008 and November 14, 2008 (excluding any information
exhibits furnished under either Item 2.02 or Item 7.01
thereof).
|
|
·
|
The
description of our common stock and the rights associated with our common
stock contained in our Registration Statement on Form S-1,
Registration No. 333-124718, and our Registration Statement on
Form 8-A, File No. 001-33393, filed on April 3,
2007.
|
We filed
a registration statement on Form S-3 to register with the SEC the securities
described in this prospectus. This prospectus is part of that
registration statement. As permitted by SEC rules, this prospectus
does not contain all of the information included in the registration statement
and the accompanying exhibits and schedules we file with the SEC. You
may refer to the registration statement and the exhibits and schedules for more
information about us and our securities. The registration statement
and exhibits and schedules are also available at the SEC’s Public Reference Room
or through its web site.
5
You may
request a copy of these filings at no cost, by writing or telephoning us at the
following address:
Genco
Shipping & Trading Limited
299 Park
Avenue, 20th Floor
New York,
New York 10171
(646)
443-8550
Attn:
Investor Relations
You
should rely only on the information contained or incorporated in this prospectus
or any supplement. We have not authorized anyone else to provide you
with different information. You should not rely on any other
representations. Our affairs may change after this prospectus or any
supplement is distributed. You should not assume that the information
in this prospectus or any supplement is accurate as of any date other than the
date on the front of those documents. You should read all information
supplementing this prospectus.
6
Part
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated expenses (other than underwriting
compensation), all of which will be paid by us, to be incurred in connection
with the registration and sale of the securities:
|
Item
|
Amount
|
|
Securities
and Exchange Commission Registration Fee
|
$
(1)
|
|
FINRA
Fee
|
(2)
|
|
Legal
Fees and
Expenses
|
(2)
|
|
Printing
Expenses
|
(2)
|
|
Accounting
Fees and
Expenses
|
(2)
|
|
Total
|
$
|
(1) Deferred
in accordance with Rules 456(b) and 457(r) under the Securities Act of
1933.
(2) The
amount of securities and number of offerings are indeterminable, and the
expenses cannot be estimated at this time.
Item
15. Indemnification of Directors and Officers
Our
amended and restated bylaws generally provide that every director and officer of
our company shall be indemnified out of our funds to the extent provided by
Section 60 of the BCA. The articles of incorporation of
each of our ship-owning subsidiaries, which are incorporated in the Marshall
Islands and therefore subject to the BCA, provide that the subsidiaries will
indemnify each of their present and former directors and officers against
expenses actually and necessarily incurred by them in connection with the
defense of any action, suit or proceeding to be liable for negligence or
misconduct in performance of duty. Section 60 of the BCA
provides that Marshall Islands corporations may indemnify any of their directors
or officers who are or are threatened to be a party to any legal action
resulting from fulfilling their duties to the corporation, including serving at
the request of the corporation as a director of another corporation,
partnership, joint venture, trust, or other enterprise (such as a subsidiary)
against reasonable expenses, judgments and fees (including attorneys' fees)
incurred in connection with the legal action if the director or officer 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, will not 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. However, no
indemnification will be permitted in cases where it is determined that the
director or officer was liable for negligence or misconduct in the performance
of his duty to the corporation, unless the court in which the legal action was
brought determines that the person is fairly and reasonably entitled to
indemnity, and then only for the expenses that the court deems proper. A
corporation is permitted to advance payment for expenses occurred in defense of
an action if its board of directors decides to do so.
Genco
Ship Management LLC (“GSM”), our management subsidiary, is a limited liability
company organized under the laws of the State of Delaware. Section
18-108 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)
provides that a limited liability company may, and shall have the power to,
indemnify and hold harmless any manager or member or other person from and
against any and all claims and demands whatsoever. Section 18-303 of
the Delaware LLC Act provides generally that the debts, obligations and
liabilities of a limited liability company shall be solely the debts,
obligations and liabilities of the company, and no member or manager of the
company shall be obligated personally for any such debt, obligation or liability
solely by reason of being a member or acting as a manager of the company, unless
such member or manager agrees under a limited liability company agreement or
other agreement to be personally liable for any or all of the debts, obligations
and liabilities of the company. GSM’s operating agreement provides
that GSM shall indemnify and hold harmless each manager and each officer of GSM
from and against all costs, losses, liabilities, and damages paid or incurred by
such manager or officer in connection with the business affairs of GSM
II-1
except
where such costs, losses, liabilities, and damages are attributable to the
willful misconduct or gross negligence of such manager or officer.
Genco
Investments LLC (“Genco Investments”), our investment subsidiary, is a limited
liability company organized under the laws of the Republic of the Marshall
Islands. Section 8 of the Limited Liability Company Act of the
Republic of the Marshall Islands (the “RMI LLC Act”) provides that a limited
liability company may, and shall have the power to, indemnify and hold harmless
any manager or member or other person from and against any and all claims and
demands whatsoever. Section 20 of the RMI LLC Act provides generally
that the debts, obligations and liabilities of a limited liability company shall
be solely the debts, obligations and liabilities of the company, and no member
or manager of the company shall be obligated personally for any such debt,
obligation or liability solely by reason of being a member or acting as a
manager of the company, unless such member or manager agrees under a limited
liability company agreement or other agreement to be personally liable for any
or all of the debts, obligations and liabilities of the
company. Genco Investments’ operating agreement provides that Genco
Investments shall indemnify and hold harmless each officer of Genco Investments
from and against all claims, costs, losses, liabilities, and damages paid or
incurred by such officer in connection with the business affairs of Genco
Investments except where such claims, costs, losses, liabilities, and damages
are attributable to the willful misconduct or gross negligence of such
officer.
In
addition, Marshall Islands corporations may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation
against any liability asserted against him and incurred by him in his capacity
as a director or officer whether or not the corporation would have the power to
indemnify him against such liability under the provisions of the BCA. Similarly,
Delaware and Marshall Islands limited liability companies may purchase and
maintain insurance on behalf of managers, officers and other persons against any
liability which may be asserted against, or expense which may be incurred by,
any such persons in connection with activities of such limited liability
companies. We currently have liability insurance to provide our
directors, officers and managers with insurance coverage for losses arising from
claims based on breaches of duty, negligence, errors and other wrongful
acts.
It is
currently unclear as a matter of law what impact these provisions will have
regarding securities law violations. The Commission takes the
position that indemnification of directors, officers and controlling persons
against liabilities arising under the Securities Act is against public policy as
expressed in the Securities Act and therefore is unenforceable.
Item
16. Exhibits
|
1.1
|
Form(s)
of Underwriting Agreement with respect to Debt
Securities.*
|
|
1.2
|
Form
of Underwriting Agreement with respect to Preferred
Stock.*
|
|
1.3
|
Form
of Underwriting Agreement with respect to Common
Stock.*
|
|
4.1
|
Form
of Indenture.*
|
|
4.2
|
Form(s)
of Debt Securities.*
|
|
4.3
|
Form
of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to
the registrant’s Registration Statement on Form S−1 (Amendment No. 3) (No.
333−124718) filed on July 18,
2005).
|
|
4.4
|
Form
of Shareholders’ Rights Agreement (incorporated by reference to Exhibit
4.2 to the registrant’s Registration Statement on Form S−1 (Amendment No.
3) (No. 333−124718) filed on July 18,
2005).
|
|
4.5
|
Certificate
of Designation of Preferred Stock.*
|
|
4.6
|
Form
of Preferred Stock Certificate.*
|
II-2
|
4.7
|
Form
of Warrant Agreement (including form of
warrant).*
|
|
4.8
|
Form
of Unit Agreement (including form of unit
certificate).*
|
|
5.1
|
Opinion
of Reeder & Simpson P.C., Marshall Islands counsel to Genco, as to the
legality of securities being
registered.
|
|
5.2
|
Opinion
of Kramer Levin Naftalis & Frankel LLP, U.S. counsel to Genco, as to
the legality of securities being
registered.
|
|
12.1
|
Computation
of Ratio of Earnings to Fixed
Charges.
|
|
23.1
|
Consent
of Reeder & Simpson P.C. (included as part of Exhibit
5.1).
|
|
23.2
|
Consent
of Kramer Levin Naftalis & Frankel LLP (included as part of Exhibit
5.2)
|
|
23.3
|
Consent of Deloitte & Touche
LLP.
|
|
24.1
|
Power
of attorney (included on signature
page).
|
|
25.1
|
Statement
of Eligibility of Trustee on Form
T-1.*
|
_______________________
|
*
|
To
be filed, if necessary, by an amendment to this registration statement or
incorporated by reference pursuant to a Current Report on Form 8-K in
connection with the offering of securities registered
hereunder.
|
Item
17. Undertakings
(a) Each
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in 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 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(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 (i), (ii) and (iii) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
this registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
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.
II-3
(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 under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by a 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 this
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 the 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 this
registration statement or made in a document incorporated or deemed incorporated
by reference into this registration statement or prospectus that is part of this
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
this registration statement or prospectus that was part of this registration
statement or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) Each
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 Section 15(d) of the
Securities Exchange Act of 1934 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) If
any securities registered under this registration statement are to be offered to
existing security holders pursuant to warrants or rights and any securities not
taken by security holders are to be reoffered to the public, each undersigned
registrant hereby undertakes to supplement the prospectus, after the expiration
of the subscription period, to set forth the results of the subscription offer,
the transactions by the underwriters during the subscription period, the amount
of unsubscribed securities to be purchased by the underwriters, and the terms of
any subsequent reoffering thereof. If any public offering by the
underwriters is to be made on terms differing from those set forth on the cover
page of the prospectus, a post-effective amendment will be filed to set forth
the terms of such offering.
(d) Each
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2)
of the Trust Indenture Act.
II-4
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of each 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.
II-5
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-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on November 26, 2008.
GENCO
SHIPPING & TRADING LIMITED
By:
/s/ John C.
Wobensmith
John
C. Wobensmith, Chief Financial Officer
POWER OF
ATTORNEY
Each
person whose signature appears below constitutes and appoints, jointly and
severally, Robert Gerald Buchanan and John C. Wobensmith, his true and lawful
attorneys-in-fact and agents, each of whom may act alone, 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 on Form S-3, and to sign any related
registration statement that is to be effective upon filing pursuant to Rule
462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, 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 by the following persons in the capacities and on the dates
indicated.
Name
Title Date
/s/ Peter C.
Georgiopoulos Chairman
of the Board and Director
November 26,
2008
Peter C.
Georgiopoulos
/s/ Robert Gerald
Buchanan
President November
26, 2008
Robert
Gerald
Buchanan (Principal
Executive Officer)
/s/ John C.
Wobensmith Chief
Financial Officer,
Secretary November
26, 2008
John C.
Wobensmith
and Treasurer (Principal Financial
and Accounting Officer)
/s/ Stephen A.
Kaplan
Director
November 26, 2008
Stephen A.
Kaplan
/s/ Nathaniel C.A.
Kramer Director
November 26, 2008
Nathaniel
C.A. Kramer
II-6
/s/ Harry A.
Perrin Director
November 26, 2008
Harry A.
Perrin
/s/ Mark F.
Polzin
Director
November 26, 2008
Mark F.
Polzin
/s/ Robert C.
North
Director
November 26, 2008
Rear
Admiral Robert C. North,
USCG
(ret.)
/s/ Basil G.
Mavroleon
Director
November 26, 2008
Basil G.
Mavroleon
II-7
EXHIBIT
INDEX
|
1.1
|
Form(s)
of Underwriting Agreement with respect to Debt
Securities.*
|
|
1.2
|
Form
of Underwriting Agreement with respect to Preferred
Stock.*
|
|
1.3
|
Form
of Underwriting Agreement with respect to Common
Stock.*
|
|
4.1
|
Form
of Indenture.*
|
|
4.2
|
Form(s)
of Debt Securities.*
|
|
4.3
|
Form
of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to
the registrant’s Registration Statement on Form S−1 (Amendment No. 3) (No.
333−124718) filed on July 18,
2005).
|
|
4.4
|
Form
of Shareholders’ Rights Agreement (incorporated by reference to Exhibit
4.2 to the registrant’s Registration Statement on Form S−1 (Amendment No.
3) (No. 333−124718) filed on July 18,
2005).
|
|
4.5
|
Certificate
of Designation of Preferred Stock.*
|
|
4.6
|
Form
of Preferred Stock Certificate.*
|
|
4.7
|
Form
of Warrant Agreement (including form of
warrant).*
|
|
4.8
|
Form
of Unit Agreement (including form of unit
certificate).*
|
|
5.1
|
Opinion
of Reeder & Simpson P.C., Marshall Islands counsel to Genco, as to the
legality of securities being
registered.
|
|
5.2
|
Opinion
of Kramer Levin Naftalis & Frankel LLP, U.S. counsel to Genco, as to
the legality of securities being
registered.
|
|
12.1
|
Computation
of Ratio of Earnings to Fixed
Charges.
|
|
23.1
|
Consent
of Reeder & Simpson P.C. (included as part of Exhibit
5.1).
|
|
23.2
|
Consent
of Kramer Levin Naftalis & Frankel LLP (included as part of Exhibit
5.2)
|
|
23.3
|
Consent of Deloitte & Touche
LLP.
|
|
24.1
|
Power
of attorney (included on signature
page).
|
|
25.1
|
Statement
of Eligibility of Trustee on Form
T-1.*
|
________________________
|
*
|
To
be filed, if necessary, by an amendment to this registration statement or
incorporated by reference pursuant to a Current Report on Form 8-K in
connection with the offering of securities registered
hereunder.
|