Filed Pursuant to Rule 424(b)(3)
Registration Number
333-266999
PROSPECTUS
18,487,395 shares of Common Stock offered by Selling Stockholders
DIANA SHIPPING INC.
This prospectus relates to the resale or other dispositions by certain selling shareholders identified in this prospectus or in a subsequent prospectus supplement of up to an
aggregate of 18,487,395 shares of our common shares issuable upon the exercise of the outstanding warrants described herein. Upon exercise of the warrants, the selling shareholders may, from time to time, sell, transfer or otherwise dispose of any or
all of their shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices
related to the prevailing market price, at varying prices determined at the time of sale or at negotiated prices. The selling shareholders may sell the common stock covered by this prospectus to or through underwriters, brokers or dealers or directly
to purchasers. Underwriters, brokers or dealers may receive discounts, commissions or concessions from the selling shareholders, purchasers in connection with sales of the common stock covered by this prospectus, or both. If underwriters or dealers
are involved in the sale of any of the common stock offered by this prospectus, their names, and any applicable purchase price, fee, commission or discount arrangement between or among them, will be set forth, or will be calculable from the
information set forth, in a supplement to this prospectus. Additional information relating to the distribution of the common stock covered by this prospectus by the selling shareholders can be found in this prospectus under the heading "Plan of
Distribution."
We will not receive any proceeds from the sale of the common stock by the selling shareholders. Except for underwriting discounts, selling commissions and/or similar charges incurred for the sale of
any shares, which will be paid by the selling shareholders, we have agreed to pay the expenses incurred in connection with the registration of the shares of common stock covered by this prospectus.
Our common stock is currently listed on the New York Stock Exchange, or the NYSE, under the symbol
"DSX." On
September 18, 2022, the last reported price of our common stock on the NYSE was $4.73 per
share.
An investment in the common stock covered by this prospectus involves a high degree of risk. See the section entitled
"Risk Factors" on page 4 of this
prospectus, and other risk factors contained in any prospectus supplement and in the
documents incorporated by reference herein and therein before investing in shares of our common stock covered by this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Page
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
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iii
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INDUSTRY AND MARKET DATA
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iv
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PROSPECTUS SUMMARY
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1
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THE OFFERING
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3
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RISK FACTORS
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4
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USE OF PROCEEDS
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5
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CAPITALIZATION
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6
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TAX CONSIDERATIONS
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7
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DESCRIPTION OF CAPITAL STOCK
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8
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SELLING SHAREHOLDERS
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15
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PLAN OF DISTRIBUTION
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16
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ENFORCEABILITY OF CIVIL LIABILITIES
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18
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EXPERTS
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19
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EXPENSES
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19
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LEGAL MATTERS
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19
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
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19
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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20
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ABOUT THIS PROSPECTUS
Unless otherwise indicated, all dollar references in this prospectus are to U.S. dollars and financial information presented in this prospectus that is derived from financial
statements
incorporated by reference is prepared in accordance with accounting principles generally accepted in the United States.
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the "Commission") using a shelf registration process. Under this
shelf registration process, the selling shareholders named in this prospectus (or in a prospectus supplement) may, from time to time in one or more offerings, sell, or otherwise dispose of up to 18,487,395 shares of our common stock covered by this
prospectus underlying warrants to purchase shares of our common stock, as described in this prospectus. We will not receive any of the proceeds from sales by the selling shareholders. We have agreed to pay the expenses incurred in registering these
shares, including legal and accounting fees.
This prospectus may be supplemented from time to time by one or more prospectus supplements. A prospectus supplement may also add, update or change information contained in this
prospectus. Any statement that we make in this prospectus will be modified or superseded by any inconsistent statement made by us in a prospectus supplement. You should read both this prospectus and any prospectus supplement, together with any
post-effective amendments to the registration statement, and the additional information described under the headings
"Where You Can Find Additional Information" and
"Incorporation of Certain Documents by Reference." You should rely only on the
information contained or
incorporated by reference in this prospectus and in any prospectus supplement or in any free writing prospectus that we may provide you. We have not, and the selling shareholders have not, authorized anyone to provide you
with information different from that contained in this prospectus and neither we nor any selling shareholder take any responsibility for any other information that others may give you. You should not assume that the information contained in this
prospectus, any prospectus supplement, any document
incorporated by reference or any free writing prospectus is accurate as of any date other than the date mentioned on the cover page of these documents.
This prospectus and any accompanying prospectus supplement or free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities
other than the registered securities to which they relate, nor do this prospectus and any accompanying prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the information we
incorporate by reference, include
"forward-looking statements," as defined by U.S. federal securities laws, with respect to our
financial condition, results of operations and business and our expectations or beliefs concerning future events. Words such as, but not limited to,
"believe," "expect," "anticipate," "estimate," "intend," "plan," "targets," "projects," "likely,"
"will," "would," "could" and similar expressions or phrases may identify forward-looking statements.
All forward-looking statements involve risks and uncertainties. The occurrence of the events described, and the achievement of the expected results, depend on many events, some
or all of which are not predictable or within our control. Actual results may differ materially from expected results.
The forward-looking statements in this document are based upon various assumptions, many of which are based, in turn, upon further assumptions, including without limitation,
management's examination of historical operating trends, data contained in its records and other data available from third parties. Although
the Company believes that these assumptions were reasonable when made, because these assumptions are
inherently subject to significant uncertainties and contingencies which are difficult or impossible to predict and are beyond its control,
the Company cannot assure you that it will achieve or accomplish these expectations, beliefs or projections.
Such statements reflect
the Company's current views with respect to future events and are subject to certain risks, uncertainties and assumptions. Should one or more of these
risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those described herein as anticipated, believed, estimated, expected or intended.
The Company is making investors aware that
such forward-looking statements because they relate to future events, are by their very nature subject to many important factors that could cause actual results to differ materially from those contemplated.
In addition to these important factors and matters discussed elsewhere herein, important factors that, in its view, could cause actual results to differ materially from those
discussed in the forward-looking statements include, but are not limited to (i) the strength of world economies, (ii) fluctuations in currencies and interest rates, (iii) general market conditions, including fluctuations in charter hire rates and
vessel values, (iv) changes in demand in the dry-bulk shipping industry, (v) changes in the supply of vessels, including when caused by new newbuilding vessel orders or changes to or terminations of existing orders, and vessel scrapping levels, (vi)
changes in
the Company's operating expenses, including bunker prices, crew costs, drydocking and insurance costs, (vii)
the Company's future operating or financial results, (viii) availability of financing and refinancing and changes to
the Company's
financial condition and liquidity, including
the Company's ability, (ix) to pay amounts that it owes and obtain additional financing to fund capital expenditures, acquisitions and other general corporate activities and
the Company's ability to obtain
financing and comply with the restrictions and other covenants in
the Company's financing arrangements, (x) changes in governmental rules and regulations or actions taken by regulatory authorities, (xi) potential liability from pending or future
litigation, (xii) compliance with governmental, tax, environmental and safety regulation, any non-compliance with the U.S. Foreign Corrupt Practices Act of 1977 (FCPA) or other applicable regulations relating to bribery, (xiii) the continuing impact
of the discontinuance of LIBOR at the end of 2021 on interest rates of any of
the Company's debt that reference LIBOR, (xiv) the failure of counter parties to fully perform their
contracts with
the Company, (xv)
the Company's dependence on key
personnel, (xvi) adequacy of insurance coverage, (xvii) the volatility of the price of
the Company's common stock, (xviii)
the Company's incorporation under the laws of the Marshall Islands and the different rights to relief that may be available
compared to other countries, including the United States, (xix) general domestic and international political conditions or labor disruptions, including the continuing impact of the war in Ukraine, (xx) acts by terrorists or acts of piracy on
ocean-going vessels, (xxi) the continuing impact of COVID-19 on global economies and the continuing responses of governments to COVID 19, (xxii) potential disruption of shipping routes due to accidents or political events, including the war in
Ukraine, and (xxiii) other important factors described from time to time in the reports filed by
the Company with the Securities and Exchange Commission, or the SEC, and the New York Stock Exchange, or the NYSE.
We have based these statements on assumptions and analyses formed by applying our experience and perception of historical trends, current conditions, expected future developments
and other factors we believe are appropriate in the circumstances. All future written and verbal forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements
contained or referred to in this section. We undertake no obligation, and specifically decline any obligation, except as required by law, to publicly update or revise any forward-looking statements, whether as a result of new information, future
events or otherwise. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this prospectus might not occur.
See the section entitled
"Risk Factors," on page 4 of this prospectus and in our Annual Report on Form 20-F for the fiscal year ended
December 31, 2021 filed with the SEC on
April 27, 2022 (the
"Annual Report"), and
incorporated by reference herein, for a more complete discussion of these risks and uncertainties and for other risks and uncertainties. These factors and the other risk factors described in this prospectus
and the
documents incorporated by reference are not necessarily all of the important factors that could cause actual results or developments to differ materially from those expressed in any of our forward-looking statements. Other unknown or
unpredictable factors also could harm our results. Consequently, there can be no assurance that actual results or developments anticipated by us will be realized or, even if substantially realized, that they will have the expected consequences to, or
effects on, us. Given these uncertainties, prospective investors are cautioned not to place undue reliance on such forward-looking statements.
INDUSTRY AND MARKET DATA
The industry and market data contained in this prospectus and the
documents incorporated by reference herein are based on and derived from various public and, in some cases,
non-public sources that we believe to be reliable. However, certain industry and market data are subject to change and cannot always be verified with complete certainty due to limits on the availability and reliability of raw data, the voluntary
nature of the data gathering process and other limitations and uncertainties inherent in any statistical survey. Accordingly, you should be aware that the industry and market data contained in this prospectus and the documents incorporated by
reference herein, and estimates and beliefs based on such data, may not be reliable. Although we believe such data and information to be accurate, we have not attempted to independently verify such information. Industry and market data involve risks
and uncertainties and are subject to change based on various factors, including those discussed under the sections entitled
"Cautionary Statement Regarding Forward-Looking Statements" and
"Risk Factors" in this prospectus and the documents
incorporated by reference herein.
PROSPECTUS SUMMARY
This section summarizes some of the information that is contained later in this prospectus or in other
documents incorporated by reference into this
prospectus. You should carefully read all of the information contained or
incorporated by reference in this prospectus and any accompanying prospectus supplement, including the
"Risk Factors" and our financial statements and related notes contained
herein and therein, before making an investment decision. In this prospectus, all references to
"we," "our," "us" and the
"Company" shall refer to Diana Shipping Inc. and, unless the context requires otherwise, its consolidated
subsidiaries.
We are a global provider of shipping transportation services. We specialize in the ownership and chartering in of dry bulk vessels. Each of our vessels is owned or chartered in
through a separate wholly-owned subsidiary. We were re-domiciled from the Republic of Liberia to the Republic of the Marshall Islands in February 2005.
Recent Developments
On
August 17, 2022, we, through two separate wholly-owned
subsidiaries, entered into two sale and leaseback agreements with two unaffiliated Japanese third parties for m/v New
Orleans and the m/v Santa Barbara.The transactions were completed on
September 8, 2022 for New Orleans and on
September 12, 2022 for Santa Barbara. We received gross proceeds of approximately US$66.4 million, US$33.2 million per vessel, we bareboat
chartered in the vessels for a period of eight years and have purchase options beginning at the end of the third year of the bareboat charter period. On
August 22, 2022, we prepaid $30.8 million debt from ABN Amro Bank relating to the financing of
the two vessels and the related mortgages were released.
On
August 10, 2022, we entered into an agreement with Sea Trade Holdings Inc., or Sea Trade, to acquire nine dry bulk vessels for an aggregate purchase price of $330 million,
consisting of $220 million in cash and an aggregate of 18,487,395 of our common shares, which are issuable upon the exercise of warrants upon the delivery of the vessels. We expect to take the delivery of the nine vessels during the fourth quarter of
2022. We also entered into a registration
rights agreement with Sea Trade pursuant to which we have agreed to register the 18,487,395 shares of common stock issuable upon the exercise of the warrants. The registration statement of which this
prospectus is a part was filed pursuant to the registration
rights agreement. For additional information about Sea Trade, see the section of this prospectus entitled
"Selling Shareholders."
Our Operating Fleet
The following table sets forth certain information regarding our operating fleet as of the date of this prospectus:
|
8 Panamax Bulk Carriers
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Name of Vessel
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Size (dwt)
|
Year Built
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Builder
|
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1
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Melia
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76,225
|
2005
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Tsuneishi Corp., Tadotsu
|
|
2
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Artemis
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76,942
|
2006
|
Namura Shipbuilding Co., Ltd.
|
|
3
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Leto
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81,297
|
2010
|
Universal Shipbuilding Corp.
|
|
4
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Selina
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75,700
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2010
|
Jiangnan Shipyard (Group) Co., Ltd.
|
|
5
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Maera
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75,403
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2013
|
Jiangnan Shipyard (Group) Co., Ltd.
|
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6
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Ismene
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77,901
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2013
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Jiangnan Shipyard (Group) Co., Ltd.
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7
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Crystalia
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77,525
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2014
|
Jiangnan Shipyard (Group) Co., Ltd.
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|
8
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Atalandi
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77,529
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2014
|
Jiangnan Shipyard (Group) Co., Ltd.
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|
6 Kamsarmax Bulk Carriers
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9
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Maia
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82,193
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2009
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Tsuneishi Shipbuilding Co., Ltd.
|
|
10
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Myrsini
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82,117
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2010
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Tsuneishi Shipbuilding Co., Ltd.
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|
11
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Medusa
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82,194
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2010
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Tsuneishi Shipbuilding Co., Ltd.
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12
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Myrto
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82,131
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2013
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Tsuneishi Shipbuilding Co., Ltd.
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|
13
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Astarte
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81,513
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2013
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Daewoo Shipbuilding & Marine Engineering Co. Ltd.
|
|
14
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Leonidas P. C.
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82,165
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2011
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Tsuneishi Shipbuilding Co. Ltd.
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|
5 Post-Panamax Bulk Carriers
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|
15
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Alcmene
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93,193
|
2010
|
Jiangsu New Yangzi Shipbuilding Co. Ltd.
|
|
16
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Amphitrite
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98,697
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2012
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Tsuneishi Group (Zhoushan) Shipbuilding Inc.
|
|
17
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Polymnia
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98,704
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2012
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Tsuneishi Group (Zhoushan) Shipbuilding Inc.
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18
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Electra
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87,150
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2013
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Hudong-Zhongua Shipbuilding (Group) Co., Ltd.
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|
19
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Phaidra
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87,146
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2013
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Hudong-Zhongua Shipbuilding (Group) Co., Ltd.
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|
12 Capesize Bulk Carriers
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|
20
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Aliki
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180,235
|
2005
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Imabari Shipbuilding, Saijo Shipyard
|
|
21
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Baltimore*
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177,243
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2005
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Namura Shipbuilding Co., Ltd.
|
|
22
|
Semirio
|
174,261
|
2007
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.
|
|
23
|
Boston
|
177,828
|
2007
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.
|
|
24
|
Houston
|
177,729
|
2009
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.**
|
|
25
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New York
|
177,773
|
2010
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.
|
|
26
|
Seattle
|
179,362
|
2011
|
Hyundai Heavy Industries Co., Ltd.
|
|
27
|
P. S. Palios
|
179,134
|
2013
|
Hyundai Heavy Industries Co., Ltd.
|
|
28
|
G. P. Zafirakis
|
179,492
|
2014
|
Qingdao Beihai Shipbuilding Heavy Industry Co., Ltd.
|
|
29
|
Santa Barbara***
|
179,426
|
2015
|
Qingdao Beihai Shipbuilding Heavy Industry Co., Ltd.
|
|
30
|
Florida***
|
182,063
|
2022
|
Namura Shipbuilding Co., Ltd
|
|
31
|
New Orleans***
|
180,960
|
2015
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.
|
|
4 Newcastlemax Bulk Carriers
|
|
32
|
Los Angeles
|
206,104
|
2012
|
Shanghai Jiangnan-Changxing Shipbuilding Co., Ltd.
|
|
33
|
Philadelphia
|
206,040
|
2012
|
Shanghai Jiangnan-Changxing Shipbuilding Co., Ltd.
|
|
34
|
San Francisco
|
208,006
|
2017
|
Jiangnan Shipyard (Group) Co., Ltd.
|
|
35
|
Newport News
|
208,021
|
2017
|
Jiangnan Shipyard (Group) Co., Ltd.
|
|
*Vessel sold and expected to be delivered to her new owners in the third quarter of 2022.
|
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**Built jointly with Shanghai Jiangnan-Changxing Shipbuilding Co., Ltd.
|
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***Bareboat chartered-in.
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Management of Our Fleet
The commercial and technical management of our fleet, as well as the provision of administrative services relating to the fleet's operations, are carried out by our wholly-owned
subsidiary, Diana Shipping Services S.A., which we refer to as DSS, and Diana Wilhelmsen Management Limited, a 50/50 joint venture with Wilhelmsen Ship Management, which we refer to as DWM. In exchange for providing us with commercial and technical
services, personnel and office space, we pay DSS a commission, which is a percentage of the managed vessels' gross revenues, a fixed monthly fee per managed vessel and an additional monthly fee for the administrative services provided to Diana
Shipping Inc. Such services may include budgeting, reporting, monitoring of bank accounts, compliance with banks, payroll services and any other possible service that Diana Shipping Inc. would require to perform its operations. Similarly, in exchange
for providing us with commercial and technical services, we pay, through DSS, to DWM a commission which is a percentage of the managed vessels' gross revenues and a fixed management monthly fee for each managed vessel.
Since
June 1, 2010, Steamship Shipbroking Enterprises Inc., or Steamship, a related party controlled by our Chairman of the Board, provides brokerage services to us. The terms of
this relationship are currently governed by a Brokerage Services Agreement dated
July 1, 2022.
Corporate Information
Diana Shipping Inc. is a holding company incorporated under the laws of Liberia in March 1999 as Diana Shipping Investments Corp., and was re-domiciled from the Republic of
Liberia to the Republic of the Marshall Islands in February 2005. Our executive offices are located at Pendelis 16, 175 64 Palaio Faliro, Athens, Greece. Our telephone number at this address is +30-210-9470-100.
THE OFFERING
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Common Stock Offered by
Selling Shareholders
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Up to an aggregate of 18,487,395 shares of our common stock.
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Selling Shareholders
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All shares of our common stock covered by this prospectus are being offered by the shareholders identified in "Selling Shareholders."
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| |
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Use of Proceeds:
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We will not receive any of the proceeds from the sale or other disposition of the shares of common stock offered by the selling shareholders pursuant to this prospectus.
See "Use of Proceeds."
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| |
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Plan of Distribution
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The selling shareholders named in this prospectus may offer and sell or otherwise dispose of the shares of our common stock covered by this prospectus from time to time at such prices and on such terms as they
may determine. The selling shareholders may sell the common stock covered by this prospectus to or through underwriters, brokers or dealers or directly to purchasers. Underwriters, brokers or dealers may receive discounts, commissions or
concessions from the selling shareholders, purchasers in connection with sales of the common stock covered by this prospectus, or both. Additional information relating to the distribution of the common stock by the selling shareholders can be
found in this prospectus under the heading "Plan of Distribution."
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Listing
|
Our shares of common stock are listed on the New York Stock Exchange, or NYSE, under the symbol "DSX."
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| |
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Risk Factors
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You should consider carefully all of the information that is contained or incorporated by reference in this prospectus and, in particular, you should evaluate the risks described under "Risk Factors." |
RISK FACTORS
An investment in our common stock involves a high degree of risk. Before making an investment in our common stock, you should carefully consider the risks and
uncertainties and all other information contained or
incorporated by reference in this prospectus, including those in
"Item 3-Key Information-D. Risk Factors" in our Annual Report on Form 20-F for the year ended
December 31, 2021 filed with the
Commission on
April 27, 2022, as updated by other reports and documents we file with the Commission after the date of this prospectus and that are
incorporated by reference herein. Any of these risks and uncertainties could materially and adversely
affect our business, results of operations and financial condition. The trading price of our securities could decline due to the occurrence of any of these risks and uncertainties, and investors could lose all or part of their investment. In
assessing these risks and uncertainties, investors should also refer to the information contained or
incorporated by reference in our other filings with the Commission.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale or other disposition of the shares of common stock offered by the selling shareholders pursuant to this prospectus. All
proceeds from the resale or other disposition of the shares of common stock pursuant to this prospectus will be for the accounts of the selling shareholders.
CAPITALIZATION
The following table sets forth our capitalization as of
June 30, 2022:
| |
•
|
On an actual basis; and
|
| |
•
|
On an as adjusted basis to give effect to the following transactions through September 19, 2022: |
| |
i.
|
The repayment of $7.2 million of long-term debt and finance liability, the prepayment of $35.6 million of long term debt and the increase of finance liability by $66.4 million as a result of the sale and
leaseback transactions for the vessels New Orleans and Santa Barbara;
|
| |
ii.
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The issuance of 57,581 shares and repurchase of 628,945 shares of common stock for an aggregate amount of $2.5 million net proceeds;
|
| |
iii.
|
The declaration of dividends on common stock of $0.275 per share for an aggregate amount of $23.7 million and $1.4 million of dividends on preferred stock.
|
| |
|
|
|
| |
|
Actual
|
|
|
As Adjusted
|
|
| |
|
(in thousands of U.S. dollars)
|
|
|
Long-term debt and finance lease liability (including current portion)
|
|
$
|
451,718
|
|
|
$
|
475,339
|
|
| |
|
|
|
|
|
|
|
|
|
Shareholders' equity
|
|
|
|
|
|
|
|
|
|
Preferred Stock
|
|
$
|
26
|
|
|
$
|
26
|
|
Common Stock, $0.01 par value; 200,000,000 shares authorized and 86,771,203 and 86,199,839 issued and outstanding on June 30, 2022 and September 19, 2022, respectively |
|
|
868
|
|
|
|
862
|
|
|
Additional Paid in Capital
|
|
|
991,499
|
|
|
|
988,983
|
|
|
Accumulated Other Comprehensive Income
|
|
|
72
|
|
|
|
72
|
|
|
Accumulated Deficit
|
|
|
(570,360
|
)
|
|
|
(595,507
|
)
|
|
Total stockholders' equity
|
|
$
|
422,105
|
|
|
$
|
394,436
|
|
| |
|
|
|
|
|
|
|
|
|
Total capitalization
|
|
$
|
873,823
|
|
|
$
|
869,775
|
|
TAX CONSIDERATIONS
You should carefully read the discussion of the material Marshall Islands and U.S. federal income tax considerations associated with our operations and the acquisition, ownership
and disposition of our common stock set forth in the section entitled
"Taxation" of the Annual Report
incorporated by reference herein.
DESCRIPTION OF CAPITAL STOCK
The following is a summary of the description of our capital stock and the material terms of our amended and restated
articles of incorporation and
bylaws. Because the following
is a summary, it does not contain all of the information that you may find useful. We refer you to our amended and restated
articles of incorporation and
bylaws, copies of which have been filed as exhibits to our Annual Report, which is incorporated
by reference herein. Please see the section of this prospectus entitled
"Where You Can Find Additional Information-Information Incorporated by Reference."Purpose
Our purpose, as stated in our amended and restated
articles of incorporation, is to engage in any lawful act or activity for which corporations may now or hereafter be organized
under the Marshall Islands Business Corporations Act, or the BCA. Our amended and restated
articles of incorporation and
bylaws do not impose any limitations on the ownership rights of our stockholders.
Authorized Capitalization
Under our amended and restated
articles of incorporation, as of the date of this prospectus, our authorized capital stock consists of 200,000,000 shares of common stock, par
value $0.01 per share, of which 86,199,839 shares are issued and outstanding, and 25,000,000 shares of preferred stock, par value $0.01 per share, of which (i) 1,000,000 shares are designated Series A Participating Preferred Stock, none of which is
issued and outstanding, (ii) 5,000,000 shares are designated Series B Preferred Stock, of which 2,600,000 are issued and outstanding, (iii) 10,675 are designated as Series C Preferred Shares, of which 10,675 are issued and outstanding, and (iv) 400
are designated as Series D Preferred Shares, of which 400 are issued and outstanding. All of our shares of stock are in registered form.
Common Stock
Each outstanding share of common stock entitles the holder to one vote on all matters submitted to a vote of stockholders. 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. Upon our dissolution or liquidation or
the sale of all or substantially all of 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. Holders of 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 common
stock are subject to the rights of the holders of our preferred stock.
Preferred Stock
Our board of directors is authorized to provide for the issuance of preferred stock in one or more series with designations as may be stated in the resolution or resolutions
providing for the issue of such preferred stock. At the time that any series of our preferred stock is authorized, our board of directors will fix the dividend rights, any conversion rights, any voting rights, redemption provisions, liquidation
preferences and any other rights, preferences, privileges and restrictions of that series, as well as the number of shares constituting that series and their designation. Our board of directors could, without shareholder approval, cause us to issue
preferred stock which has voting, conversion and other rights and preferences that could adversely affect the voting power and other rights of holders of our common stock, Series A Participating Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock, or make it more difficult to effect a change in control. In addition, preferred stock could be used to dilute the share ownership of persons seeking to obtain control of us and thereby hinder a possible
takeover attempt which, if our shareholders were offered a premium over the market value of their shares, might be viewed as being beneficial to our shareholders. The material terms of any series of preferred stock that we offer through a prospectus
supplement will be described in that prospectus supplement.
Series B Cumulative Redeemable Perpetual Preferred Stock
Our Series B Preferred Stock is senior in rank to our Series A Participating Preferred Stock. Holders of our Series B Preferred Stock have no voting rights other than the
ability, subject to certain exceptions, to elect one director if dividends for six quarterly dividend periods (whether or not consecutive) are in arrears and certain other limited protective voting rights. Holders of our Series B Preferred Stock rank
prior to the holders of our common stock with respect to dividends, distributions and payments upon liquidation. Dividends on our Series B Preferred Stock are cumulative from the date of original issue and are payable on the 15th day of January,
April, July and October of each year at the dividend rate of 8.875% per annum, or $2.21875 per annum per share. At any time on or after
February 14, 2019, we may redeem, in whole or in part, the Series B Preferred Stock at a redemption price of
$25.00 per share plus an amount equal to all accumulated and unpaid dividends thereon to the date of redemption, whether or not declared.
For further information on our Series B Preferred Stock, please see the section entitled
"Description of Series B Preferred Shares" of our prospectus supplement filed with the
Commission on
February 13, 2014.
Series C Preferred Stock.
The Series C Preferred Stock votes with the common stock of
the Company, and each share entitles the holder thereof to 1,000 votes on all matters submitted to a vote of the
stockholders of
the Company. The Series C Preferred Stock has no dividend or liquidation rights and cannot be transferred without the consent of
the Company except to the holder's affiliates and immediate family members.
Series D Preferred Stock.
In June 2021 we issued 400 of Series D Preferred Stock, par value $0.01 per share to a related party. The Series D Preferred Stock votes with the common shares and each share of
the Series D Preferred Stock entitles the holder thereof to up to 100,000 votes on all matters submitted to a vote of the common stockholders of
the Company, subject to a maximum number of votes eligible to be cast by such holder derived from the
Series D Preferred Shares and any other voting security of
the Company held by the holder to be equal to the lesser of (i) 36% of the total number of votes entitled to vote on any matter put to shareholders of
the Company and (ii) the sum of the
holder's aggregate voting power derived from securities other than the Series D Preferred Stock and 15% of the total number of votes entitled to be cast on matters put to shareholders of
the Company.
Preferred Stock Purchase Rights
Under the
Rights Agreement, we declared a dividend payable of one preferred stock purchase right, or Right, for each share of common stock outstanding at the close of business on
January 26, 2016. Each Right entitles the registered holder to purchase from us one one-thousandth of a share of Series A Participating Preferred Stock, par value $0.01 per share, at an exercise price of $40.00 per share. The Rights will separate
from the common stock and become exercisable only if a person or group acquires beneficial ownership of 18.5% or more of our common stock (including through entry into certain derivative positions) in a transaction not approved by our board of
directors. In that situation, each holder of a Right (other than the acquiring person, whose Rights will become void and will not be exercisable) will have the right to purchase, upon payment of the exercise price, a number of shares of our common
stock having a then-current market value equal to twice the exercise price. In addition, if
the Company is acquired in a merger or other business combination after an acquiring person acquires 18.5% or more of our common stock, each holder of the
Right will thereafter have the right to purchase, upon payment of the exercise price, a number of shares of common stock of the acquiring person having a then-current market value equal to twice the exercise price. The acquiring person will not be
entitled to exercise these Rights. Until a Right is exercised, the holder of a Right will have no rights to vote or receive dividends or any other stockholder rights.
The Rights may have anti-takeover effects. The Rights will 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.
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 we have filed as an exhibit to the registration statement of which this prospectus is a part.
Detachment of the Rights
The Rights are attached to all certificates representing our currently outstanding common stock, or, in the case of uncertificated common stock registered in book entry form,
which we refer to as
"book entry shares," by notation in book entry accounts reflecting ownership, and will attach to all common stock certificates and book entry shares we issue prior to the Rights distribution date that we describe below. The
Rights are not exercisable until after the Rights distribution date and will expire at the close of business on
January 14, 2026, 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:
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the 10th day after public announcement that a person or group has acquired ownership of 15% or more of the Company's common stock; or |
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the 10th business day (or such later date as determined by the Company's board of directors) after a person or group announces a tender or exchange offer which would result in that person or group holding 15%
or more of the Company's common stock.
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"Acquiring person" is generally defined in the
Rights Agreement as any person, together with all affiliates or associates, who beneficially owns 18.5% or more of
the Company's
common stock. However,
the Company, any subsidiary of
the Company or any employee benefit plan of
the Company or of any subsidiary of
the Company, or any person holding shares of common stock for or pursuant to the terms of any such plan, are
excluded from the definition of
"acquiring person." In addition, persons who beneficially own 18.5% or more of
the Company's common stock on the effective date of the
Rights Agreement are excluded from the definition of
"acquiring person" until such
time as they acquire additional shares in excess of 2% of
the Company's then outstanding common stock as specified in the
Rights Agreement for purposes of the Rights, and therefore, until such time, their ownership cannot trigger 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.
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:
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our common stock certificates and book entry shares will evidence the Rights, and the Rights will be transferable only with those certificates; and
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any new common stock will be issued with Rights and new certificates or book entry shares, as applicable, will contain a notation incorporating the Rights Agreement by reference.
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As soon as practicable after the Rights distribution date, the Rights agent will mail certificates representing the Rights to holders of record of 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 other than pursuant to certain kinds of permitted offers. An offer is permitted
under the
Rights Agreement if a person will become an acquiring person pursuant to a merger or other acquisition agreement that has been approved by our board of directors prior to that person becoming an acquiring person.
If a flip-in event occurs and we have not previously redeemed the Rights as described under the heading "Redemption of Rights" below or, if the acquiring person acquires less
than 50% of our outstanding common stock and we do not exchange the Rights as described under the heading "Exchange 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:
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we are acquired in a merger or other business combination transaction, other than specified mergers that follow a permitted offer of the type we describe above; or
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50% or more of our assets or earning power is sold or transferred.
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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 prior to 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 Series A Participating Preferred Stock that are not integral multiples of one-thousandth of a share, and, instead we may make a cash adjustment based on the market price of the common stock
on the last trading date prior to the date of exercise.
Redemption of Rights
At any time until the date on which the occurrence of a flip-in event is first publicly announced, we may order redemption of 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 if they are timely redeemed by us or until ten days following the first public announcement of a flip-in event. If our board of directors' timely orders the redemption of the
Rights, the Rights will terminate on the effectiveness of that action.
Exchange of Rights
We may, at our option, 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 prior to any person other than us or our existing
stockholders becoming the beneficial owner of 50% or more of our outstanding common stock for the purposes of the
Rights Agreement.
Amendment of Terms of Rights
During the time the Rights are redeemable, we may amend any of the provisions of the
Rights Agreement, other than by decreasing the redemption price. Once the Rights cease to be
redeemable, we generally may amend the provisions of the
Rights Agreement, other than to decrease the redemption price, only as follows:
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to cure any ambiguity, defect or inconsistency;
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to make changes that do not materially adversely affect the interests of holders of Rights, excluding the interests of any acquiring person; or
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to shorten or lengthen any time period under the Rights Agreement, except that we cannot lengthen the time period governing redemption or lengthen any time period that protects, enhances or clarifies the
benefits of holders of Rights other than an acquiring person.
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Other Matters
Directors
Our directors are elected by a majority of the votes cast by stockholders entitled to vote. There is no provision for cumulative voting.
Our board of directors must consist of at least one member. Stockholders may change the number of directors only by the affirmative vote of holders of a majority of the
outstanding common stock. The board of directors may change the number of directors only by a majority vote of the entire board. Our board of directors is divided into three classes, with each class serving staggered, three-year terms. Each director
shall be elected to serve until the next annual meeting of stockholders at which the term expires for the relevant class, and until his successor shall have been duly elected and qualified, except in the event of his death, resignation, removal, or
the earlier termination of his term of office. Our board of directors has the authority to fix the amounts which shall be payable to the members of the board of directors for attendance at any meeting or for services rendered to us.
Stockholder Meetings
Under our amended and restated
bylaws, annual stockholder meetings will be held at a time and place selected by our board of directors. The meetings may be held in or outside the
Marshall Islands. Special meetings may be called by our Chairman, Chief Executive Officer, or Secretary at the direction of the board of directors or by holders of not less than one-fifth of all outstanding common stock. Our board of directors may
set a record date between 15 and 60 days before the date of any meeting to determine the stockholders that will be eligible to receive notice and vote at the meeting. Shareholders of record holding at least one third of the shares issued and
outstanding and entitled to vote at such meetings, present in person or by proxy, will constitute a quorum at all stockholder meetings.
Dissenters' Rights of Appraisal and Payment
Under the BCA, our shareholders have the right to dissent from various corporate actions, including any merger or consolidation or sale of all or substantially all of our assets
not made in the usual course of our business, and receive payment of the fair value of their shares. However, the right of a dissenting shareholder to receive payment of the appraised fair value of his shares is not available under the BCA for the
shares of any class or series of stock, which shares or depository receipts in respect thereof, at the record date fixed to determine the shareholders entitled to receive notice of and to vote at the meeting of the shareholders to act upon the
agreement of merger or consolidation, were either (i) listed on a securities exchange or admitted for trading on an interdealer quotation system or (ii) held of record by more than 2,000 holders. In the event of any further amendment of our amended
and restated
articles of incorporation, a shareholder also has the right to dissent and receive payment for the shareholder's shares if the amendment alters certain rights in respect of those shares. The dissenting shareholder must follow the
procedures set forth in the BCA to receive payment. In the event that we and any dissenting shareholder fail to agree on a price for the shares, the BCA procedures involve, among other things, the institution of proceedings in the high court of the
Republic of The Marshall Islands or in any appropriate court in any jurisdiction in which our shares are primarily traded on a local or national securities exchange.
Stockholders' Derivative Actions
Under the BCA, any of our stockholders may bring an action in our name to procure a judgment in our favor, also known as a derivative action, provided that the stockholder
bringing the action is a holder of common stock both at the time the derivative action is commenced and at the time of the transaction to which the action relates.
Limitations on Liability and Indemnification of Officers and Directors
The BCA authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders 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 law.
Our amended and restated
bylaws provide that certain individuals, including our directors and officers, are entitled to be indemnified by us to the same extent as authorized by
the BCA, if such individuals acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. We shall have the power to pay in advance expenses a director or officer incurs while defending a civil or criminal proceeding, subject to certain conditions. We believe that these indemnification provisions and insurance are
useful to attract and retain qualified directors and executive officers.
The limitation of liability and indemnification provisions in our amended and restated
bylaws may discourage stockholders from bringing a lawsuit against our directors for breach
of their fiduciary duties. These provisions may also have the effect of reducing the likelihood of derivative litigation against our directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders.
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.
Several provisions of our amended and restated
articles of incorporation and
bylaws may have anti-takeover effects. These provisions, which are summarized below, 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 stockholder value in connection with any unsolicited offer to acquire us. However, these
anti-takeover provisions could also discourage, delay or prevent (i) the merger or acquisition of
our company by means of a tender offer, a proxy contest or otherwise that a stockholder may consider in its best interest and (ii) the removal of
incumbent officers and directors.
Business Combinations
Our amended and restated
articles of incorporation generally prohibit us from entering into a business combination with an
"interested shareholder" for a period of three years
following the date on which the person became an interested shareholder. Interested shareholder is defined, with certain exceptions, as a person who (i) owns more than 15% of our outstanding voting stock, or (ii) is an affiliate or associate of the
Company that owned more than 15% of our outstanding stock at any time in the prior three years from the date the determination is being made as to whether he or she is an interested shareholder.
This prohibition does not apply in certain circumstances such as if (i) prior to the person becoming an interested shareholder, our board of directors approved the business
combination or the transaction which resulted in the person becoming an interested shareholder, or (ii) the person became an interested shareholder prior to
the Company's initial public offering. Our board of directors approved the acquisition of the
vessels from Sea Trade and the issuance of the 18,487,395 common shares as partial consideration for such purchases.
Blank Check Preferred Stock
Under the terms of our amended and restated
articles of incorporation, our board of directors has authority, without any further vote or action by our stockholders, to issue 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. Approximately one-third of our board of directors is 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 stockholders who do not agree with the policies of our board of directors from removing a majority of our board of directors for 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 amended and restated
articles of incorporation also provide that our directors may be removed only for cause and only upon the affirmative vote of a
majority of the outstanding shares of our capital stock entitled to vote for those directors. These provisions may discourage, delay or prevent the removal of incumbent officers and directors.
Limited Actions by Stockholders
Our amended and restated
articles of incorporation and
bylaws provide that any action required or permitted to be taken by our stockholders must be effected at an annual or
special meeting of stockholders or by the unanimous written consent of our stockholders. Our amended and restated
articles of incorporation and
bylaws provide that, subject to certain exceptions, our Chairman, Chief Executive Officer, or Secretary at
the direction of the board of directors or holders of not less than one-fifth of all outstanding shares may call special meetings of our stockholders and the business transacted at the special meeting is limited to the purposes stated in the notice.
Accordingly, a stockholder may be prevented from calling a special meeting for stockholder consideration of a proposal over the opposition of our board of directors and stockholder consideration of a proposal may be delayed until the next annual
meeting.
Advance Notice Requirements for Stockholder Proposals and Director Nominations
Our amended and restated
bylaws provide that stockholders seeking to nominate candidates for election as directors or to bring business before an annual meeting of stockholders
must provide timely notice of their proposal in writing to the corporate secretary. Generally, to be timely, a stockholder's notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to the date on
which we first mailed our proxy materials for the preceding year's annual meeting. Our
bylaws also specify requirements as to the form and content of a stockholder's notice. These provisions may impede stockholders' ability to bring matters before an
annual meeting of stockholders or make nominations for directors at an annual meeting of stockholders.
Registrar and Transfer Agent
The registrar and transfer agent for our common stock and Series B Preferred Stock is Computershare Trust Company, N.A.
Listing
Shares of our common stock are listed on the NYSE under the symbol "DSX." Shares of our Series B Preferred Stock are listed on the NYSE under the symbol "DSXPRB."
SELLING SHAREHOLDERS
On
August 10, 2022 we entered into a single master agreement and on
August 17, 2022, we entered into separate memorandums of agreement with Sea Trade to acquire nine dry bulk
vessels for an aggregate purchase price of $330 million, consisting of $220 million in cash and an aggregate of 18,487,395 of our common shares, which are issuable upon the exercise of warrants upon the delivery of the vessels. The shares being
registered pursuant to this prospectus and the registration statement of which this prospectus is a part are the 18,487,395 shares of our common stock to be issued upon exercise of the warrants. This prospectus and the registration statement of which
this prospectus is a part are being filed pursuant to a registration
rights agreement that we and Sea Trade entered into on
August 10, 2022. The warrants were issued to Sea Trade on
August 17, 2022 following the signing of the master agreement. Each
warrant may be exercised for a portion of the aggregate 18,487,395 shares upon the delivery of the respective vessel and subject to the effectiveness of the registration statement of which this prospectus is a part. If the memorandum of agreement
with respect to any of the nine vessel terminates prior to the delivery of such vessel, then the applicable warrant shall also terminate.
The table below lists the selling shareholder and other information regarding the beneficial ownership of our common stock by the selling shareholder, based on 86,199,839 shares
of common stock outstanding as of
September 19, 2022. We have prepared the table and the related notes based on information supplied to us by the selling shareholder. We have not sought to verify such information. The table assumes the sale of all of
the shares of our common stock offered by the selling shareholder in this offering. Other information about the selling shareholder may change over time, as it is possible that the selling shareholder may acquire or dispose of shares of our common
stock from time to time after the date of this prospectus. Changes in such information will be set forth in prospectus supplements to the extent required.
The term "selling shareholder" includes the shareholder listed below and its transferees, assignees, pledgees, donees and other successors. However, we cannot be certain of the
identities of every such holder at this time. The identity of any selling shareholder, including any material relationship between us, our affiliates or predecessors, and a selling shareholder within the last three years, the number of shares of our
common stock held by a selling shareholder before and after the offering, the number of shares of common stock to be offered by a selling shareholder, the percentage of our shares of common stock held by a selling shareholder before and after the
offering, and the price and terms upon which our shares of common stock are to be sold by a selling shareholder may to the extent not included herein be set forth in a prospectus supplement to this prospectus.
Selling shareholders not included in the table below may not sell any shares of our common stock pursuant to this prospectus until we have identified the selling shareholder and
the shares being offered for resale by the selling shareholder herein (including in any amendment hereto) or in a subsequent prospectus supplement. The selling shareholder may also sell or transfer all or a portion of its shares of our common stock
pursuant to any available exemption from the registration requirements of the Securities Act.
Any prospectus supplement may add, substitute or change information contained in this prospectus, including the identity of such selling shareholders. See "Use of Proceeds" and
"Plan of Distribution.
We will bear all costs, expenses and fees in connection with the registration of shares of our common stock. The selling shareholders will bear all commissions and discounts, if
any, attributable to their respective sales of shares.
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Selling Shareholder
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Number of shares beneficially owned prior to this offering (1)
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Number of shares offered
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Shares beneficially owned after giving effect to this offering
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Number
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Percentage (3)
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Number
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Percentage
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Sea Trade Holdings Inc. (2)
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18,487,395
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17.66%
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18,487,395
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-0-
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(1)
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Represents shares of our common stock issuable upon the exercise of warrants to purchase such shares at nine separate closings, each for the sale of a vessel by Sea Trade to the Company (through a wholly-owned subsidiary) under the Master
Agreement and a separate Memorandum of Agreement. |
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(2)
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Transatlantic Shipholdings Inc., a Marshall Islands corporation ("Transatlantic") and Atlanta International Inc., a Marshall Islands corporation ("Atlanta"), together own all of the outstanding voting capital stock of Sea Trade.
Transatlantic is controlled by Anastassis G. David, the chairman of Sea Trade's board of directors. Atlanta is controlled by George Mouskas, the president of Sea Trade. Accordingly, Messrs. David and Mouskas may be deemed to share voting and
dispositive power over the shares of our common stock that are beneficially owned by Sea Trade.
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(3)
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This percentage is calculated based upon 86,199,839 shares of our common stock outstanding as of September 19, 2022, and includes an additional 18,487,395 shares of our common stock subject to such warrants, exercisable only by Sea Trade
on the relevant vessel delivery dates under the Memorandums of Agreement. |
PLAN OF DISTRIBUTION
The securities covered by this prospectus may be offered and sold by the selling shareholder, or by transferees, assignees, donees, pledgees or other successors-in-interest of
such securities received from the selling shareholder, directly or indirectly through brokers-dealers, agents or underwriters on the New York Stock Exchange or any other stock exchange, market or trading facility on which such our common shares are
traded, or through private transactions. Our common shares covered by this prospectus may be transferred, sold or otherwise disposed of by any method permitted by law, including, without limitation, one or more of following transactions:
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ordinary brokerage transactions or transactions in which the broker solicits purchasers;
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purchases by a broker or dealer as principal and the subsequent resale by such broker or dealer for its account;
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block trades, in which a broker or dealer attempts to sell the securities as agent but may position and resell a portion of the securities as principal to facilitate the transaction;
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through the writing of options on the securities, whether such options are listed on an options exchange or otherwise;
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an exchange distribution in accordance with the rules of the applicable stock exchange;
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in transactions other than on such exchanges or in the over-the-counter market;
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through privately negotiated transactions;
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through the settlement of short sales entered into after the date of this prospectus;
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by agreement with underwriters or broker-dealers to sell a specified number of securities at a stipulated price per share;
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a combination of any such methods of sale;
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any other method permitted pursuant to applicable law.
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The selling shareholder may also sell shares under Section 4(a)(1) of the Securities Act, including transactions in accordance with Rule 144 promulgated thereunder, if available,
rather than under this prospectus.
The selling shareholder may also transfer its shares including by means of gifts, donations and contributions. Subject to certain limitations under rules promulgated under the
Securities Act, this prospectus may be used by the recipients of such gifts, donations and contributions to offer and sell the shares received by them, directly or through brokers, dealers or agents and in private or public transactions.
Broker-dealers engaged by the selling shareholder may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the
selling shareholder (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser), as the case may be, in amounts to be negotiated.
The selling shareholder may, from time to time, pledge or grant a security interest in some or all of the shares owned by it and, if they default in the performance of its
secured obligations, the pledgees or secured parties may offer and sell the securities, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act
amending the list of selling shareholders to include the pledgee, transferee or other successors in interest as selling shareholders under this prospectus. The selling shareholder also may transfer the shares in other circumstances, in which case the
transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our shares or interests therein, the selling shareholder may enter into hedging transactions with broker-dealers or other financial institutions,
which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The selling shareholder may also sell securities short and deliver these securities to close out their short positions, or loan or pledge
the securities to broker-dealers that in turn may sell these securities. The selling shareholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative
securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
The selling shareholders may sell the shares at market prices prevailing at the time of sale, at negotiated prices, at fixed prices or without consideration by any legally
available means. The aggregate net proceeds from the sale of the securities will be the purchase price of such securities less any discounts, concessions or commissions received by broker-dealers or agents. We will not receive any proceeds from the
sale of any securities by the selling shareholders.
The selling shareholder and any broker-dealers or agents who participate in the distribution of our securities may be deemed to be
"underwriters" within the meaning of the
Securities Act. Any commission received by such broker-dealers or agent on the sales and any profit on the resale of securities purchased by broker-dealers or agents may be deemed to be underwriting commissions or discounts under the Securities Act.
As a result, we have informed the selling shareholder that Regulation M, promulgated under the Exchange Act, may apply to sales by the selling shareholder in the market. The selling shareholder or
the Company may agree to indemnify any broker, dealer
or agent that participates in transactions involving the sale of our securities against certain liabilities, including liabilities arising under the Securities Act.
To the extent required with respect to a particular offer or sale of our securities, we will file a prospectus supplement pursuant to Section 424(b) of the Securities Act, which
will accompany this prospectus, to disclose:
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the number and type of securities to be sold;
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the purchase price;
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the name of each selling shareholder and the name of any broker-dealer or agent effecting the sale or transfer and the amount of any applicable discounts, commissions or similar selling expenses; and
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any other relevant information.
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The selling shareholder is acting independently of us in making decisions with respect to the timing, price, manner and size of each sale of shares held by them. We have not
engaged any broker-dealer or agent in connection with the sale of securities held by the selling shareholder, and there is no assurance that the selling shareholder will sell any or all of their securities. We have agreed to make available to the
selling shareholder copies of this prospectus and any applicable prospectus supplement and have informed the selling shareholder of the need to deliver copies of this prospectus and any applicable prospectus supplement to purchasers prior to any sale
to them.
Under the securities laws of some states, the securities may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the
securities may not be sold unless such securities have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
We will pay all expenses of the registration of the securities to be sold by the selling shareholder, including, without limitation, Commission filing fees and expenses of
compliance with state securities or "blue sky" laws; provided, however, a selling shareholder will pay all underwriting discounts and selling commissions, if any. We may indemnify the selling shareholder named herein for liabilities including certain
liabilities under the Securities Act or such selling shareholder will be entitled to contribution. We may be indemnified by such selling shareholders against civil liabilities, including liabilities under the Securities Act that may arise from any
written information furnished to us by such selling shareholders specifically for use in this prospectus or we may be entitled to contribution.
Once sold under the registration statement, of which this prospectus forms a part, the shares will be freely tradable in the hands of persons other than our affiliates.
We will bear the registration costs relating to the shares offered and sold by the selling shareholder under this registration statement.
ENFORCEABILITY OF CIVIL LIABILITIES
Diana Shipping Inc. is a Marshall Islands corporation. The Marshall Islands has a less developed body of securities laws than the United States and provides protections for
investors to a significantly lesser extent.
Our principal executive offices are located outside the United States in Athens, Greece, and a majority of our directors, officers and the experts named in this prospectus reside
outside the United States. In addition, a substantial portion of our assets and the assets of our directors, officers and experts are located outside the United States. As a result, you may have difficulty serving legal process within the United
States upon us or any of these persons. You may also have difficulty enforcing, both in and outside the United States, judgments you may obtain in United States courts against us or these persons in any action, including actions based upon the civil
liability provisions of United States federal or state securities laws. Furthermore, there is substantial doubt that courts in the countries in which we or our
subsidiaries are incorporated or where our assets or the assets of our
subsidiaries,
directors or officers and such experts are located (i) would enforce judgments of U.S. courts obtained in actions against us or our
subsidiaries, directors or officers and such experts based upon the civil liability provisions of applicable U.S.
federal and state securities laws or (ii) would enforce, in original actions, liabilities against us or our
subsidiaries, directors or officers and such experts based on those law.
EXPERTS
The consolidated financial statements of Diana Shipping Inc. appearing in Diana Shipping Inc.'s Annual Report (Form 20-F) for the year ended
December 31, 2021, and the
effectiveness of Diana Shipping Inc.'s internal control over financial reporting as of
December 31, 2021 have been audited by Ernst & Young (Hellas) Certified Auditors Accountants S.A., independent registered public accounting firm, as set forth
in their reports thereon, included therein, and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting
and auditing. Ernst & Young (Hellas) Certified Auditors Accountants S.A. is located at 8B Chimarras Street, 15125, Maroussi, Greece and is registered as a corporate body with the public register for company auditors-accountants kept with the
Institute of Certified Public Accountants (
"SOEL"), Greece with registration number 107.
EXPENSES
The following are the estimated expenses of the issuance and distribution of the securities being registered under the registration statement of which this prospectus forms a part, all of which will
be paid by us.
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SEC registration fee
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$
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9,203
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Legal fees and expenses
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$
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50,000
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Accounting fees and expenses
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$
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25,000
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Miscellaneous
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$
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40,797
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Total
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$
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125,000
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LEGAL MATTERS
Certain matters of Marshall Islands law will be passed upon for us by Seward & Kissel LLP, Marshall Islands counsel. Certain matters of the United States tax law will be
passed upon for us by Seward & Kissel LLP, United States tax counsel.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual and special reports with the Commission. You may read and copy any document that we file and obtain copies at prescribed rates from the Commission's Public
Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling 1 (800) SEC-0330. The Commission maintains a
website (http://www.sec.gov) that contains reports, proxy
and information statements and other information regarding issuers that file electronically with the Commission. Our filings are also available on our
website at
http://www.dianashippinginc.com. The information on our
website does not constitute a
part of this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to
"incorporate by reference" information that we file with it. This means that we can disclose important information to you by referring you to those
filed documents. The
information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the Commission prior to the termination of this offering will also be considered to be part of this
prospectus and will automatically update and supersede
previously filed information, including information contained in this document.
We hereby
incorporate by reference the documents listed below and certain future filings made with the Commission under Section 13(a), 13(c) or 15(d) of the Exchange Act:
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Our Annual Report on Form 20-F for the year ended December 31, 2021, filed with the Commission on
April 27, 2022, which contains our audited consolidated financial statements for the most recent fiscal year for which those statements have been filed;
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Our Report on Form 6-K, furnished to the Commission on Februry 6, 2019;
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Our Report on Form 6-K, furnished to the Commission on August 11,2022;
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Our Form 8-A12B, filed with the Commission on March 15, 2005, registering our common stock under Section 12(b) of the Exchange Act, and
any amendment filed thereto;
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Our Form 8-A12B, filed with the Commission on February 13, 2014, registering our 8.875% Series B Cumulative Redeemable Perpetual
Preferred Stock under Section 12(b) of the Exchange Act, and any amendment filed thereto; and
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Our Form 8-A12B, filed with the Commission on January 15, 2016, registering our preferred stock purchase rights under Section 12(b) of
the Exchange Act, and any amendment filed thereto. |
We are also incorporating by reference all subsequent annual reports on Form 20-F that we file with the Commission and certain reports on Form 6-K or other filings that we
furnish to the Commission after the date of this prospectus (if they state that they are
incorporated by reference into this prospectus), including all such reports filed after the date of the initial filing of the registration statement of which
this prospectus forms a part and prior to effectiveness of such registration statement, until we file a post-effective amendment indicating that the offering of the securities made by this prospectus has been terminated. In all cases, you should rely
on the later information over different information included in this prospectus or the applicable prospectus supplement.
You should rely only on the information contained or
incorporated by reference in this prospectus and any accompanying prospectus supplement. We have not, and any underwriters
have not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and the underwriters are not, making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and any accompanying prospectus supplement as well as the information we
previously filed with the Commission
and
incorporated by reference, is accurate as of the dates on the front cover of those documents only. Our business, financial condition and results of operations and prospects may have changed since those dates.
You may request a free copy of the above mentioned filings or any subsequent filing we
incorporated by reference to this prospectus by writing or telephoning us at the following
address:
Diana Shipping Inc.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece
We will furnish holders of our common stock with annual reports containing audited financial statements and a report by our independent registered public accounting firm. The
audited financial statements will be prepared in accordance with U.S. GAAP. As a "foreign private issuer," we are exempt from the rules under the Securities Exchange Act prescribing the furnishing and content of proxy statements to shareholders.
While we intend to furnish proxy statements to any shareholder in accordance with the rules of the NYSE, those proxy statements are not expected to conform to Schedule 14A of the proxy rules promulgated under the Exchange Act. In addition, as a
"foreign private issuer," our officers and directors are exempt from the rules under the Exchange Act relating to short swing profit reporting and liability.
