As
filed
with the Securities and Exchange Commission on January 23, 2007.
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)
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. £
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. £
CALCULATION
OF REGISTRATION FEE
|
|
||||||||
|
Title
of Each Class of
Securities
to be Registered
|
|
Amount to be
Registered(1)
|
|
Proposed
Maximum
Offering Price
per Unit
(2)
|
|
Proposed
Maximum
Aggregate
Offering Price(3)
|
|
Amount
of
Registration Fee
|
|
Debt
Securities
|
|
(4)
|
|
(4)
|
|
(4)
|
|
(4)
|
|
Preferred
Stock
|
|
(4)
|
|
(4)
|
|
(4)
|
|
(4)
|
|
Common
Stock, par value $.01 per share
|
|
(4)
|
|
(4)
|
|
(4)
|
|
(4)
|
|
Total
|
|
$500,000,000
|
|
100%
|
|
$500,000,000
|
|
$53,500
|
|
|
||||||||
|
(1)
|
In
United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currency(ies) at
the
dates of issuance.
|
|
(2)
|
The
proposed maximum offering price per security will be determined from
time
to time by Genco Shipping & Trading Limited in connection with the
issuance by the registrant of the securities registered hereunder.
|
|
(3)
|
Estimated
solely for the purpose of calculating the amount of the registration
fee
pursuant to Rule 457(o) of the Securities Act of 1933, as amended
(the
“Securities Act”).
|
|
(4)
|
Not
required to be included in accordance with General Instruction II.D.
of
Form S-3 under the Securities Act.
|
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.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities
in
any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED JANUARY 23, 2007
PROSPECTUS
$500,000,000
GENCO
SHIPPING & TRADING LIMITED
Debt
Securities
Preferred
Stock
Common
Stock
We
may
offer, from time to time, debt securities, shares
of
our preferred stock, and
shares
of our common stock
having
an aggregate initial offering price of up to $500,000,000. The securities may
be
offered separately or together in any combination and as separate series. In
addition, selling shareholders to be named in a prospectus supplement may offer,
from time to time, shares of Genco common stock. We will not receive any of
the
proceeds from the sale of the shares of common stock by the selling
shareholders.
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 Nasdaq Global Select Market under the symbol
“GSTL.” On January 22, 2007, the closing sale price of our common stock as
reported by Nasdaq was $30.37 per share. Each prospectus supplement will
indicate if the securities offered thereby will be listed on any securities
exchange.
We
may
offer these securities directly, to or through agents, dealers or underwriters
as designated from time to time, or through a combination of these methods.
We
reserve the sole right to accept, and together with our agents, dealers and
underwriters reserve the right to reject, in whole or in part, any proposed
purchase of securities to be made directly or through agents, underwriters
or
dealers. If any agents, dealers or underwriters are involved in the sale of
any
securities, the relevant prospectus supplement will set forth any applicable
commissions or discounts. Our net proceeds from the sale of securities also
will
be set forth in the relevant prospectus supplement.
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 _________, 2007.
TABLE
OF CONTENTS
Page
ABOUT
THIS
PROSPECTUS..................................................................................................................................................................................2
RISK
FACTORS........................................................................................................................................................................................................2
FORWARD-LOOKING
STATEMENTS...............................................................................................................................................................2
ABOUT
GENCO.......................................................................................................................................................................................................2
RATIOS
OF
EARNINGS TO FIXED
CHARGES.................................................................................................................................................3
USE
OF
PROCEEDS................................................................................................................................................................................................3
DESCRIPTION
OF DEBT
SECURITIES...............................................................................................................................................................3
DESCRIPTION
OF CAPITAL
STOCK.................................................................................................................................................................6
PLAN
OF
DISTRIBUTION..................................................................................................................................................................................12
LEGAL
MATTERS...............................................................................................................................................................................................14
EXPERTS...............................................................................................................................................................................................................14
WHERE
YOU
CAN FIND MORE
INFORMATION........................................................................................................................................14
INCORPORATION
OF CERTAIN DOCUMENTS BY
REFERENCE............................................................................................................14
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or SEC, using a “shelf” registration process. Under the
shelf process, we may, from time to time, offer up to $500,000,000 aggregate
public offering price of our debt securities, preferred stock and common stock.
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. 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 Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (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, 2005, 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.”
ABOUT
GENCO
We
are a
New York City-based company incorporated in the Marshall Islands. We transport
iron ore, coal, grain, steel products and other drybulk cargoes along worldwide
shipping routes. As of January 23, 2007 our fleet consists of 20 drybulk
carriers, 16 of which we acquired from a subsidiary of The China National
Cereals Oil and Foodstuffs Corp., or COFCO, a Chinese conglomerate, in
December 2004 and during the first six months of 2005. The
2
17th
vessel was acquired in October 2005 from Western Bulk Carriers. We acquired
an
additional three vessels from affiliates of Franco Compania Naviera S.A. in
November 2006. We have entered into an agreement to sell our oldest vessel,
the
Genco Glory, to Cloud Maritime S.A. We expect to deliver the vessel between
February 1, 2007 and March 15, 2007, subject to customary closing
conditions.
We
intend
to grow our fleet through timely and selective acquisitions of vessels in a
manner that is accretive to our cash flow. In connection with this growth
strategy, we have negotiated a credit facility in the amount of $550 million
that we expect to continue to use to acquire additional vessels that will be
employed either in the spot or time charter market.
As
of
January 23, 2007, assuming the sale of the Genco Glory, our fleet consists
of
seven Panamax, seven Handymax and five Handysize drybulk carriers, with an
aggregate carrying capacity of approximately 988,000 dwt. All of the vessels
in
our fleet were built in Japanese shipyards with a reputation for constructing
high-quality vessels. Our fleet contains four groups of sister ships, which
are
vessels of virtually identical sizes and specifications.
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,
|
For
the Period September 27
through
December
31,
|
||||||||
|
2006
|
2005
|
2004
|
||||||||
|
Ratio
of earnings to fixed charges(1)……………………...
|
7.85x
|
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 capital expenditures, working capital, repayment or reduction of
long-term and short-term debt and the financing of acquisitions and other
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
shareholders.
DESCRIPTION
OF DEBT SECURITIES
3
offered
hereby will be effectively subordinated to any outstanding secured debt of
us or
any of our subsidiaries that guarantee the debt securities,
respectively.
We
have
summarized certain general features of the debt securities from the indenture.
A
form of indenture is attached as an exhibit to the registration statement of
which this prospectus forms a part. The following description of the terms
of
the debt securities and the guarantees sets forth certain general terms and
provisions. The particular terms of the debt securities and guarantees offered
by any prospectus supplement and the extent, if any, to which such general
provisions may apply to the debt securities and guarantees will be described
in
the related prospectus supplement. Accordingly, for a description of the terms
of a particular issue of debt securities, reference must be made to both the
related prospectus supplement and to the following description.
General
The
aggregate principal amount of debt securities that may be issued under the
indenture is unlimited. The debt securities may be issued in one or more series
as may be authorized from time to time.
Reference
is made to the applicable prospectus supplement for the following terms of
the
debt securities (if applicable):
|
·
|
title
and aggregate principal amount;
|
|
·
|
whether
the securities will be senior or subordinated;
|
|
·
|
applicable
subordination provisions, if any;
|
|
·
|
whether
securities issued by us will be entitled to the benefit of any guarantee;
|
|
·
|
conversion
or exchange into other securities;
|
|
·
|
whether
securities issued by us will be secured or unsecured, and if secured,
what
the collateral will consist of;
|
|
·
|
percentage
or percentages of principal amount at which such securities will
be
issued;
|
|
·
|
maturity
date(s);
|
|
·
|
interest
rate(s) or the method for determining the interest rate(s);
|
|
·
|
dates
on which interest will accrue or the method for determining dates
on which
interest will accrue and dates on which interest will be payable;
|
|
·
|
redemption
(including upon a “change of control”) or early repayment provisions;
|
|
·
|
authorized
denominations;
|
|
·
|
form;
|
|
·
|
amount
of discount or premium, if any, with which such securities will be
issued;
|
|
·
|
whether
such securities will be issued in whole or in part in the form of
one or
more global securities;
|
|
·
|
identity
of the depositary for global securities;
|
4
| · |
whether
a temporary security is to be issued with respect to such series
and
whether any interest payable prior to the issuance of definitive
securities of the series will be credited to the account of the
persons
entitled thereto;
|
|
·
|
the
terms upon which beneficial interests in a temporary global security
may
be exchanged in whole or in part for beneficial interests in a definitive
global security or for individual definitive securities;
|
|
·
|
any
covenants applicable to the particular debt securities being issued;
|
|
·
|
any
defaults and events of default applicable to the particular debt
securities being issued;
|
|
·
|
currency,
currencies or currency units in which the purchase price for, the
principal of and any premium and any interest on, such securities
will be
payable;
|
|
·
|
time
period within which, the manner in which and the terms and conditions
upon
which the purchaser of the securities can select the payment currency;
|
|
·
|
securities
exchange(s) on which the securities will be listed, if any;
|
|
·
|
whether
any underwriter(s) will act as market maker(s) for the securities;
|
|
·
|
extent
to which a secondary market for the securities is expected to develop;
|
|
·
|
additions
to or changes in the events of default with respect to the securities
and
any change in the right of the trustee or the holders to declare
the
principal, premium and interest with respect to such securities to
be due
and payable;
|
|
·
|
provisions
relating to covenant defeasance and legal defeasance;
|
|
·
|
provisions
relating to satisfaction and discharge of the indenture;
|
|
·
|
provisions
relating to the modification of the indenture both with and without
the
consent of holders of debt securities issued under the indenture;
and
|
|
·
|
additional
terms not inconsistent with the provisions of the
indenture.
|
One
or
more series of debt securities may be sold at a substantial discount below
their
stated principal amount, bearing no interest or interest at a rate which at
the
time of issuance is below market rates. One or more series of debt securities
may be variable rate debt securities that may be exchanged for fixed rate debt
securities.
United
States federal income tax consequences and special considerations, if any,
applicable to any such series will be described in the applicable prospectus
supplement.
Debt
securities may be issued where the amount of principal and/or interest payable
is determined by reference to one or more currency exchange rates, commodity
prices, equity indices or other factors. Holders of such securities may receive
a principal amount or a payment of interest that is greater than or less than
the amount of principal or interest otherwise payable on such dates, depending
upon the value of the applicable currencies, commodities, equity indices or
other factors. Information as to the methods for determining the amount of
principal or interest, if any, payable on any date, the currencies, commodities,
equity indices or other factors to which the amount payable on such date is
linked and certain additional United States federal income tax considerations
will be set forth in the applicable prospectus supplement.
5
The
term
“debt securities” includes debt securities denominated in U.S. dollars or, if
specified in the applicable prospectus supplement, in any other freely
transferable currency or units based on or relating to foreign currencies.
We
expect
most debt securities to be issued in fully registered form without coupons
and
in denominations of $1,000 and any integral multiples thereof. Subject to the
limitations provided in the indenture and in the prospectus supplement, debt
securities that are issued in registered form may be transferred or exchanged
at
the office of the trustee or the principal corporate trust office of the
trustee, without the payment of any service charge, other than any tax or other
governmental charge payable in connection therewith.
Guarantees
Any
debt
securities may be guaranteed by one or more of our direct or indirect
subsidiaries. Each prospectus supplement will describe any guarantees for the
benefit of the series of debt securities to which it relates, including required
financial information of the subsidiary guarantors, as applicable.
Global
Securities
The
debt
securities of a series may be issued in whole or in part in the form of one
or
more global securities that will be deposited with, or on behalf of, a
depositary (the “depositary”) identified in the prospectus supplement. Global
securities will be issued in registered form and in either temporary or
definitive form. Unless and until it is exchanged in whole or in part for the
individual debt securities, a global security may not be transferred except
as a
whole by the depositary for such global security to a nominee of such depositary
or by a nominee of such depositary to such depositary or another nominee of
such
depositary or by such depositary or any such nominee to a successor of such
depositary or a nominee of such successor. The specific terms of the depositary
arrangement with respect to any debt securities of a series and the rights
of
and limitations upon owners of beneficial interests in a global security will
be
described in the applicable prospectus supplement.
Governing
Law
The
indenture and the debt securities shall be construed in accordance with and
governed by the laws of the State of New York, without giving effect to any
principles thereof relating to conflicts of law that would result in the
application of the laws of any other jurisdiction.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our common stock and preferred stock, together with
the
additional information we include in any applicable prospectus supplements,
summarizes the material terms and provisions of the common stock and preferred
stock that we may offer under this prospectus. For the complete terms of our
common stock and preferred stock, please refer to our amended and restated
certificate of incorporation and our amended and restated bylaws that are
incorporated by reference as exhibits to the registration statement which
includes this prospectus. The Business Corporations Act of the Republic of
the
Marshall Islands, or the BCA, may also affect the terms of these securities.
The
terms we have summarized below will apply generally to any future common stock
or preferred stock that we may offer. The terms of any common stock or preferred
stock we offer under a prospectus supplement may differ from the terms we
describe below, in which event we will describe the particular terms of any
series of these securities in more detail in such prospectus
supplement.
Authorized
Capitalization
Under
our amended and restated articles of incorporation, as of January 23, 2007,
our
authorized capital stock consists of 100,000,000 shares of common stock, par
value $0.01 per share, of which 25,505,462 shares are issued and
outstanding, and 25,000,000 shares of preferred stock, par value $0.01 per
share, of which no shares are issued and outstanding.
6
Common
Stock
Voting
Rights
Each
outstanding share of common stock entitles the holder to one vote on all matters
submitted to a vote of shareholders. Except as required by law and by the terms
of any series of preferred stock designated by the board of directors pursuant
to our amended and restated certificate of incorporation, our common stock
has
the exclusive right to vote for the election of directors and for all other
purposes. Our common stock votes together as a single class.
Dividends
Subject
to preferences that may be applicable to any outstanding shares of preferred
stock, holders of shares of common stock are entitled to receive, ratably,
all
dividends, if any, declared by our board of directors out of funds legally
available for dividends.
Liquidation
Rights
Upon
our
dissolution or liquidation or the sale of all or substantially all our assets,
after payment in full of all amounts required to be paid to creditors and to
the
holders of preferred stock having liquidation preferences, if any, the holders
of our common stock will be entitled to receive, pro rata, our remaining assets
available for distribution.
Other
Rights
Holders
of our common stock do not have conversion, redemption or preemptive rights
to
subscribe to any of our securities. The rights, preferences and privileges
of
holders of our common stock are subject to the rights of the holders of any
shares of our preferred stock which we may issue in the future.
Transfer
Agent
The
transfer agent for our common stock is Mellon Investor Services LLC.
Listing
Our
common stock is listed on the Nasdaq Global Select Market under the symbol
“GSTL.”
Preferred
Stock
Our
amended and restated articles of incorporation authorize our board of directors
to establish one or more series of preferred stock and to determine, with
respect to any series of preferred stock, the terms and rights of that series,
including:
|
·
|
the
designation of the series;
|
|
·
|
the
number of shares of the series;
|
|
·
|
the
voting rights, if any, of the holders of the series; and
|
|
·
|
the
preferences and relative, participating, optional or other special
rights,
if any, of the series, and any qualifications, limitations or restrictions
applicable to such rights.
|
|
·
|
A
prospectus supplement will describe the terms of any series of preferred
stock being offered, including:
|
7
| · |
the
designation of the shares and the number of shares that constitute
the
series;
|
|
·
|
the
dividend rate (or the method of calculation thereof), if any, on
the
shares of the series and the priority as to payment of dividends
with
respect to other classes or series of our capital stock and the payment
date of dividends;
|
|
·
|
the
dividend periods (or the method of calculation
thereof);
|
|
·
|
the
date from which dividends on the preferred stock shall accumulate,
if
applicable;
|
|
·
|
the
voting rights of the shares;
|
|
·
|
the
liquidation preference and the priority as to payment of the liquidation
preference with respect to other classes or series of our capital
stock
and any other rights of the shares of the series upon our liquidation
or
winding-up;
|
|
·
|
whether
the preferred stock will rank senior or junior to or on a parity
with any
other class or series of preferred
stock;
|
|
·
|
whether
or not and on what terms the shares of the series will be subject
to
redemption or repurchase at our
option;
|
|
·
|
whether
and on what terms the shares of the series will be convertible into
or
exchangeable for other securities;
|
|
·
|
the
provision of a sinking fund, if any, for the preferred
stock;
|
|
·
|
whether
the shares of the series of preferred stock will be listed on a securities
exchange;
|
|
·
|
the
transfer agent for the series of preferred
stock;
|
|
·
|
any
special United States federal income tax considerations applicable
to the
series; and
|
|
·
|
any
other preferences and rights and any qualifications, limitations
or
restrictions of the preferences and rights of the
series.
|
The
BCA
authorizes corporations to limit or eliminate the personal liability of
directors and officers to corporations and their shareholders for monetary
damages for breaches of directors' fiduciary duties. Our amended and restated
bylaws include a provision that eliminates the personal liability of directors
for monetary damages for actions taken as a director to the fullest extent
permitted by applicable law.
The
limitation of liability and indemnification provisions in our amended and
restated bylaws may discourage shareholders from bringing a lawsuit against
directors for breach of their fiduciary duties. These provisions may also have
the effect of reducing the likelihood of derivative litigation against directors
and officers, even though
8
such
an
action, if successful, might otherwise benefit us and our shareholders. In
addition, your investment may be adversely affected to the extent we pay the
costs of settlement and damage awards against directors and officers pursuant
to
these indemnification provisions.
There
is
currently no pending material litigation or proceeding involving any of our
directors, officers or employees for which indemnification is sought.
Anti-takeover
Effects of Certain Provisions of Our Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws
Several
provisions of our amended and restated articles of incorporation and amended
and
restated bylaws, which are summarized below, may have anti-takeover effects.
These provisions are intended to avoid costly takeover battles, lessen our
vulnerability to a hostile change of control and enhance the ability of our
board of directors to maximize shareholder value in connection with any
unsolicited offer to acquire us. However, these anti-takeover provisions, which
are summarized below, could also discourage, delay or prevent (1) the
merger or acquisition of our company by means of a tender offer, a proxy contest
or otherwise that a shareholder may consider in its best interest and
(2) the removal of incumbent officers and directors.
Blank
Check Preferred Stock
Under
the
terms of our amended and restated articles of incorporation, our board of
directors has the authority, without any further vote or action by our
shareholders, to authorize our issuance of up to 25,000,000 shares of blank
check preferred stock. Our board of directors may issue shares of preferred
stock on terms calculated to discourage, delay or prevent a change of control
of
our company or the removal of our management.
Classified
Board of Directors
Our
amended and restated articles of incorporation provide for the division of
our
board of directors into three classes of directors, with each class as nearly
equal in number as possible, serving staggered, three-year terms beginning
upon
the expiration of the initial term for each class. Approximately one-third
of
our board of directors will be elected each year. This classified board
provision could discourage a third party from making a tender offer for our
shares or attempting to obtain control of us. It could also delay shareholders
who do not agree with the policies of our board of directors from removing
a
majority of our board of directors for up to two years.
Election
and Removal of Directors
Our
amended and restated articles of incorporation prohibit cumulative voting in
the
election of directors. Our amended and restated bylaws require parties other
than the board of directors to give advance written notice of nominations for
the election of directors. Our articles of incorporation also provide that
our
directors may be removed only for cause and only upon the affirmative vote
of
662/3%
of the
outstanding shares of
our
capital stock entitled to vote for those directors or by a majority of the
members of the board of directors then in office. These provisions may
discourage, delay or prevent the removal of incumbent officers and
directors.
Limited
Actions by Shareholders
Our
amended and restated articles of incorporation and our amended and restated
bylaws provide that any action required or permitted to be taken by our
shareholders must be effected at an annual or special meeting of shareholders
or
by the unanimous written consent of our shareholders. Our amended and restated
articles of incorporation and our amended and restated bylaws provide that,
subject to certain exceptions, our Chairman, President, or Secretary at the
direction of the board of directors may call special meetings of our
shareholders and the business transacted at the special meeting is limited
to
the purposes stated in the notice.
9
Advance
Notice Requirements for Shareholder Proposals and Director
Nominations
Our
amended and restated bylaws provide that shareholders seeking to nominate
candidates for election as directors or to bring business before an annual
meeting of shareholders must provide timely notice of their proposal in writing
to the corporate secretary. Generally, to be timely, a shareholder's notice
must
be received at our principal executive offices not less than 150 days nor
more than 180 days before the date on which we first mailed our proxy
materials for the preceding year's annual meeting. Our amended and restated
bylaws also specify requirements as to the form and content of a shareholder's
notice. These provisions may impede shareholder's ability to bring matters
before an annual meeting of shareholders or make nominations for directors
at an
annual meeting of shareholders.
Shareholder
Rights Plan
General
Each
share of our common stock includes one right, or, collectively, the rights,
that
entitles the holder to purchase from us a unit consisting of one-thousandth
of a
share of our preferred stock at a purchase price of $25 per share, subject
to
specified adjustments. The rights are issued pursuant to a rights agreement
between us and Mellon Investor Services LLC, as rights agent. Until a right
is
exercised, the holder of a right will have no rights to vote, receive dividends
or any other shareholder rights by virtue of its ownership of such right.
The
rights may have anti-takeover effects. The rights may cause substantial dilution
to any person or group that attempts to acquire us without the approval of
our
board of directors. As a result, the overall effect of the rights may be to
render more difficult or discourage any attempt to acquire us. Because our
board
of directors can approve a redemption of the rights or a permitted offer, the
rights should not interfere with a merger or other business combination approved
by our board of directors. The adoption of the rights agreement was approved
by
our sole shareholder before our initial public offering.
We
have
summarized the material terms and conditions of the rights agreement and the
rights below. For a complete description of the rights, we encourage you to
read
the rights agreement, which is
incorporated by reference as an exhibit to the registration statement of which
this prospectus forms a part.
Detachment
of the Rights
The
rights are attached to all certificates representing our currently outstanding
common stock and will attach to all common stock certificates we issue before
the rights distribution date or the date on which the rights expire (or
thereafter, in certain circumstances). The rights are not exercisable until
after the rights distribution date and will expire at the close of business
on
February 21, 2015, unless we redeem or exchange them earlier as we describe
below. The rights will separate from the common stock and a rights distribution
date would occur, subject to specified exceptions, on the earlier of the
following two dates:
|
·
|
ten days
following a public announcement that a person or group of affiliated
or
associated persons, or an "acquiring person," has acquired or obtained
the
right to acquire beneficial ownership of 15% or more of our outstanding
common stock; or
|
|
·
|
ten
business days following the announcement of a tender or exchange
offer
that would result, if closed, in a person's becoming an acquiring
person.
|
Oaktree
Capital Management, LLC, Peter Georgiopoulos and Fleet Acquisition LLC (so
long
as it does not acquire beneficial ownership of additional shares of common
stock
under certain circumstances) are excluded from the definition of "acquiring
person" for purposes of the distribution of the rights, and therefore their
ownership cannot trigger the distribution of the rights. Specified "inadvertent"
owners that would otherwise become an acquiring person, including those who
would have this designation as a result of repurchases of common stock by us,
will not become acquiring persons as a result of those transactions.
10
Our
board
of directors may defer the rights distribution date in some circumstances,
and
some inadvertent acquisitions will not result in a person becoming an acquiring
person if the person promptly divests itself of a sufficient number of shares
of
common stock.
Until
the
rights distribution date:
|
·
|
our
common stock certificates will evidence the rights, and the rights
will be
transferable only with those certificates; and
|
|
·
|
any
new common stock will be issued with rights, and new certificates
will
contain a notation incorporating the rights agreement by reference.
|
As
soon
as practicable after the rights distribution date, the rights agent will mail
certificates representing the rights to holders of record of our common stock
at
the close of business on that date. After the rights distribution date, only
separate rights certificates will represent the rights.
We
will
not issue rights with any shares of common stock we issue after the rights
distribution date, except as our board of directors may otherwise determine.
Flip-In
Event
A
“flip-in event” will occur under the rights agreement when a person becomes an
acquiring person, as defined above.
If
a
flip-in event occurs and we do not redeem the rights as described under the
heading "Redemption of Rights" below, each right, other than any right that
has
become void, as we describe below, will become exercisable at the time it is
no
longer redeemable for the number of shares of common stock, or, in some cases,
cash, property or other of our securities, having a current market price equal
to two times the exercise price of such right.
When
a
flip-in event occurs, all rights that then are, or in some circumstances that
were, beneficially owned by or transferred to an acquiring person or specified
related parties will become void in the circumstances the rights agreement
specifies.
Flip-Over
Event
A
"flip-over event" will occur under the rights agreement when, at any time after
a person has become an acquiring person:
|
·
|
we
are acquired in a merger or other business combination transaction,
subject to limited exceptions; or
|
|
·
|
50%
or more of our assets or earning power is sold or transferred.
|
If
a
flip-over event occurs, each holder of a right, other than any right that has
become void as we describe under the heading "Flip-In Event" above, will have
the right to receive the number of shares of common stock of the acquiring
company which has a current market price equal to two times the exercise price
of such right.
Anti-Dilution
The
number of outstanding rights associated with our common stock is subject to
adjustment for any stock split, stock dividend or subdivision, combination
or
reclassification of our common stock occurring before the rights distribution
date. With some exceptions, the rights agreement will not require us to adjust
the exercise price of the rights until cumulative adjustments amount to at
least
1% of the exercise price. It also will not require us to issue fractional shares
of our preferred stock that are not integral multiples of one one-hundred
thousandth of a share of
11
preferred
stock and, instead, we may make a cash adjustment based on the market price
of
the common stock on the last trading date before the date of exercise. The
rights agreement reserves to us the right to require before the occurrence
of
any flip-in event or flip-over event that, on any exercise of rights, a number
of rights must be exercised so that we will issue only whole shares of stock.
Redemption
of Rights
At
any
time before the earlier of the date on which a person publicly announces that
it
has become an acquiring person or the date on which the rights expire, we may
redeem the rights in whole, but not in part, at a redemption price of $0.01
per
right. The redemption price is subject to adjustment for any stock split, stock
dividend or similar transaction occurring before the date of redemption. At
our
option, we may pay that redemption price in cash or shares of common stock.
The
rights are not exercisable after a flip-in event until they are no longer
redeemable. The rights will terminate immediately upon ordering the redemption
and making the appropriate filing with the rights agent.
Exchange
of Rights
We
may, at our option, subject to applicable laws, rules and regulations, exchange
the rights (other than rights owned by an acquiring person or an affiliate
or an
associate of an acquiring person, which have become void), in whole or in part.
The exchange will be at an exchange ratio of one share of common stock per
right, subject to specified adjustments at any time after the occurrence of
a
flip-in event and before any person becoming the beneficial owner of 50% or
more
of the shares of common stock then outstanding.
Amendment
of Terms of Rights
During
the time the rights are redeemable, we may amend any of the provisions of the
rights agreement in any way without the approval of the rights holders. Once
the
rights cease to be redeemable, we generally may amend the provisions of the
rights agreement without the approval of the rights holders, only as follows:
|
·
|
to
cure any ambiguity, defect or inconsistency;
|
|
·
|
to
shorten or lengthen any time period under the rights agreement, except
that we cannot lengthen the time period governing redemption or any
other
time period, unless such lengthening is for the purpose of protecting,
clarifying or enhancing the rights and benefits of the rights holders
(other than an acquiring person).
|
PLAN
OF DISTRIBUTION
We
may
sell the securities to one or more underwriters for public offering and sale
by
them and may also sell the securities to investors directly or through agents.
In addition, some of our shareholders may sell shares of our common stock under
this prospectus in any of these ways. We will name any underwriter or agent
involved in the offer and sale of securities in the applicable prospectus
supplement. We and any selling shareholders have reserved the right to sell
or
exchange securities directly to investors on our or their own behalf in those
jurisdictions where we are authorized to do so.
We
or any
selling shareholders may distribute the securities from time to time in one
or
more transactions:
|
·
|
at
a fixed price or prices, which may be changed;
|
|
·
|
at
market prices prevailing at the time of sale;
|
12
| · |
at
prices related to such prevailing market prices;
or
|
|
·
|
at
negotiated prices.
|
We
or any
selling shareholders may also, from time to time, authorize dealers, acting
as
our agents, to offer and sell securities upon the terms and conditions set
forth
in the applicable prospectus supplement. In connection with the sale of
securities, we or any selling shareholders, or the purchasers of securities
for
whom the underwriters may act as agents, may compensate underwriters in the
form
of underwriting discounts or commissions. If underwriters or dealers are used
in
the sale, the securities will be acquired by the underwriters or dealers for
their own account and may be resold from time to time in one or more
transactions, at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of the sale, or at prices related to such
prevailing market prices, or at negotiated prices. The securities may be offered
to the public either through underwriting syndicates represented by one or
more
managing underwriters or directly by one or more of such firms. Unless otherwise
set forth in the prospectus supplement, the obligations of underwriters or
dealers to purchase the securities offered will be subject to certain conditions
precedent and the underwriters or dealers will be obligated to purchase all
of
the offered securities if any are purchased. Any public offering price and
any
discounts or concessions allowed or reallowed or paid by underwriters or dealers
to other dealers may be changed from time to time.
We
will
describe in the applicable prospectus supplement any compensation we or any
selling shareholders pay to underwriters or agents in connection with the
offering of securities, and any discounts, concessions or commissions allowed
by
underwriters to participating dealers. Dealers and agents participating in
the
distribution of securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them on resale
of
the securities may be deemed to be underwriting discounts and commissions.
We or
any selling shareholders may enter into agreements to indemnify underwriters,
dealers and agents against certain civil liabilities, including liabilities
under the Securities Act, and to reimburse these persons for certain expenses.
To
the
extent that we or any selling shareholders make sales to or through one or
more
underwriters or agents in at-the-market offerings, we or any selling
shareholders may do so pursuant to the terms of a distribution agreement between
us (including any selling shareholders) and the underwriters or agents. If
we or
any selling shareholders engage in at-the-market sales pursuant to a
distribution agreement, we or any selling shareholders will issue and sell
shares of our common stock to or through one or more underwriters or agents,
which may act on an agency basis or on a principal basis. During the term of
any
such agreement, we or any selling shareholders may sell shares on a daily basis
in exchange transactions or otherwise as we or any selling shareholder may
agree
with the underwriters or agents. The distribution agreement will provide that
any shares of our common stock sold will be sold at prices related to the then
prevailing market prices for our common stock. Therefore, exact figures
regarding proceeds that will be raised or commissions to be paid cannot be
determined at this time and will be described in a prospectus supplement.
Pursuant to the terms of the distribution agreement, we or any selling
shareholders also may agree to sell, and the relevant underwriters or agents
may
agree to solicit offers to purchase, blocks of our common stock or other
securities. The terms of each such distribution agreement will be set forth
in
more detail in a prospectus supplement to this prospectus. In the event that
any
underwriter or agent acts as principal, or broker-dealer acts as underwriter,
it
may engage in certain transactions that stabilize, maintain or otherwise affect
the price of our securities. We will describe any such activities in the
prospectus supplement relating to the transaction.
We
or any
selling shareholders may enter into derivative or other hedging transactions
with financial institutions. These financial institutions may in turn engage
in
sales of our common stock to hedge their position, deliver this prospectus
in
connection with some or all of those sales and use the shares covered by this
prospectus to close out any short position created in connection with those
sales. We or any selling shareholders may pledge or grant a security interest
in
some or all of our common stock covered by this prospectus to support a
derivative or hedging position or other obligation and, if we or any selling
shareholder defaults in the performance of our or its obligations, the pledgees
or secured parties may offer and sell our common stock from time to time
pursuant to this prospectus.
To
facilitate the offering of securities, certain persons participating in the
offering may engage in transactions that stabilize, maintain, or otherwise
affect the price of the securities. This may include over-allotments or short
sales of the securities, which involve the sale by persons participating in
the
offering of more securities than we sold to them.
13
In
these
circumstances, these persons would cover such over-allotments or short positions
by making purchases in the open market or by exercising their over-allotment
option, if any. In addition, these persons may stabilize or maintain the price
of the securities by bidding for or purchasing securities in the open market
or
by imposing penalty bids, whereby selling concessions allowed to dealers
participating in the offering may be reclaimed if securities sold by them are
repurchased in connection with stabilization transactions. The effect of these
transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
Certain
of the underwriters, dealers or agents and their associates may engage in
transactions with and perform services for us in the ordinary course of our
business for which they receive compensation.
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.
EXPERTS
The
consolidated financial statements incorporated in this prospectus by reference
from our Annual Report on Form 10-K have been audited by Deloitte & Touche
LLP, an independent registered public accounting firm, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm, given upon their authority as
experts in auditing and accounting.
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,
2005;
|
|
·
|
Our
Quarterly Reports on Form 10-Q for the quarterly periods ended March
31,
2006, June 30, 2006, and September 30,
2006;
|
|
·
|
Our
Current Reports on Form 8-K filed on March 31, 2006, April 7, 2006,
May 22, 2006, June 1, 2006, July 12, 2006, November 20, 2006, and
December
22, 2006 (excluding any information exhibits furnished under either
Item
2.02 or Item 7.01 thereof); and January 22,
2007.
|
14
| · |
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. 000-51442, filed on July 18,
2005.
|
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.
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.
15
Part
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
All
the
amounts shown are estimates except the Securities and Exchange Commission
registration fee.
|
Item
|
Amount
|
|||
|
Securities
and Exchange Commission Registration Fee
|
$
|
53,500
|
||
|
Legal
Fees and Expenses
|
$
|
50,000
|
||
|
Printing
Expenses
|
$
|
30,000
|
||
|
Accounting
Fees and Expenses
|
$
|
15,000
|
||
|
Total
|
$
|
148,500
|
||
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. 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 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.
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.
We currently have directors' and officers' liability insurance to provide our
directors and officers 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.
II-1
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.*
|
| 3.1 |
Amended
and Restated Articles of Incorporation of the Company as adopted
July 5,
2005 (incorporated by reference to Exhibit 3.1 to the registrant’s
Registration Statement on Form S-1 (Amendment No. 2) (No. 333-124718)
filed on July 6, 2005).
|
| 3.2 |
Amended
and Restated Bylaws of the Company as adopted April 4, 2006 (incorporated
by reference to Exhibit 3.2 to the registrant’s report on Form 8-K dated
April 4, 2006 (File No. 000-5142)).
|
| 3.3 |
Articles
of Amendment of Articles of Incorporation of the Company as adopted
July
21, 2005 (incorporated by reference to Exhibit 3.3 to the registrant’s
Registration Statement on Form S-1 (Amendment No. 6) (No. 333-124718)
filed on July 21, 2005).
|
| 3.4 |
Articles
of Amendment of Articles of Incorporation of the Company as adopted
May
18, 2006 (incorporated by reference to Exhibit 3.1 to the registrant’s
report on Form 8-K dated May 18, 2006 (File No.
000-5142)).
|
| 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.*
|
| 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)
|
II-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)
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
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.
(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
II-3
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)
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 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)
The
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2)
of the Trust Indenture Act.
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.
II-4
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 January 23, 2007.
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 January
23, 2007
Peter
C.
Georgiopoulos
/s/
Robert Gerald Buchanan President
January
23, 2007
Robert
Gerald Buchanan (Principal
Executive Officer)
/s/
John
C. Wobensmith Chief
Financial Officer, Secretary
January
23, 2007
John
C.
Wobensmith
and
Treasurer (Principal
Financial
and
Accounting
Officer)
/s/
Stephen
A. Kaplan Director
January
23, 2007
Stephen
A. Kaplan
/s/
Nathaniel
C.A. Kramer Director January
23, 2007
Nathaniel
C.A. Kramer
II-5
/s/
Harry A. Perrin Director January
23, 2007
Harry
A.
Perrin
/s/
Mark F. Polzin Director January
23, 2007
Mark
F.
Polzin
/s/
Robert C. North
Director January
23, 2007
Rear
Admiral Robert C. North,
USCG
(ret.)
/s/
Basil
G. Mavroleon
Director January
23, 2007
Basil
G.
Mavroleon
II-6
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.*
|
| 3.1 |
Amended
and Restated Articles of Incorporation of the Company as adopted
July 5,
2005 (incorporated by reference to Exhibit 3.1 to the registrant’s
Registration Statement on Form S-1 (Amendment No. 2) (No. 333-124718)
filed on July 6, 2005).
|
| 3.2 |
Amended
and Restated Bylaws of the Company as adopted April 4, 2006 (incorporated
by reference to Exhibit 3.2 to the registrant’s report on Form 8-K dated
April 4, 2006 (File No. 000-5142)).
|
| 3.3 |
Articles
of Amendment of Articles of Incorporation of the Company as adopted
July
21, 2005 (incorporated by reference to Exhibit 3.3 to the registrant’s
Registration Statement on Form S-1 (Amendment No. 6) (No. 333-124718)
filed on July 21, 2005).
|
| 3.4 |
Articles
of Amendment of Articles of Incorporation of the Company as adopted
May
18, 2006 (incorporated by reference to Exhibit 3.1 to the registrant’s
report on Form 8-K dated May 18, 2006 (File No.
000-5142)).
|
| 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.*
|
| 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.
|