As filed with the Securities Exchange Commission on July 11, 2006
Registration Statement No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EAGLE BULK SHIPPING INC.
(Exact name of registrant as specified in its charter)
Republic of the Marshall Islands 4412 98-0453513
(State or other jurisdiction of (Primary (I.R.S. Employer
incorporation or organization) Standard Identification No.)
Industrial
Classification
Code Number)
Eagle Bulk Shipping Inc. Seward & Kissel LLP
477 Madison Avenue Attention: Gary J. Wolfe, Esq.
New York, New York 10022 One Battery Park Plaza
(212) 785-2500 New York, New York 10004
(Address and telephone number (212) 574-1200
of Registrant's principal executive (Name, address and telephone
offices) number of agent for service)
Copies to:
Gary J. Wolfe, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
(212) 574-1200 (telephone number)
(212) 480-8421 (facsimile number)
Approximate date of commencement of proposed sale to the public: As soon as
practicable 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 being 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. |X|
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 |_|
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed Maximum
Title of Each Class of Amount to Offering Price Aggregate Amount of
Securities to be Registered be Registered Per Security(2) Offering Price(2) Registration Fee
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common stock, par value $.01................ 2,750,000 (1) $14.65 $40,287,500.00 $4,310.76
==========================================================================================================================
(1) In the event of a stock split, stock dividend or similar transaction
involving the common stock of the Registrant the number of shares registered
shall be increased automatically to cover the additional shares in accordance
with Rule 416(a) of the Securities Act.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based upon the average of the high and low prices
for the common stock on the Nasdaq Global Select Market on July 7, 2006 (i.e.,
as of a date within five business days prior to filing).
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 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. This
prospectus is not an offer to sell thse securities and it is not soliciting an
offer to buy or sell these securities in any jurisdiction where the offer or
sale is not permitted. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is effective.
SUJECT TO COMPETION, DATED JULY 11, 2006
PRELIMINARY PROSPECTUS
EAGLE BULK SHIPPING INC.
2,750,000 SHARES OF COMMON STOCK
This prospectus relates to the offer and sale by the selling stockholders
identified in this prospectus, and any of their pledgees, donees, transferees or
other successors in interest, of up to an aggregate of 2,750,000 shares of
common stock of Eagle Bulk Shipping Inc., or the Company. We are filing the
registration statement of which this prospectus is a part at this time to
fulfill contractual obligations to do so, which we undertook at the time of the
original issuance of the shares. We will not receive any of the proceeds from
the sale of the common stock by the selling stockholders, but we are bearing the
expenses of registration.
The holders of the 2,750,000 shares of common stock covered by this
prospectus acquired the shares directly from us in a private placement on June
28, 2006. The shares of common stock covered by this prospectus may be sold at
fixed prices or prices that may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices.
Our common stock is listed on the Nasdaq Global Select Market under the
symbol of "EGLE". On July 7, 2006, the closing sale price of our common stock on
the Nasdaq Global Select Market was $14.80 per share.
Investing in our common stock involves a high degree of risk. Before buying
any shares you should carefully read the section entitled "Risk Factors"
beginning on page 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is July 11, 2006.
TABLE OF CONTENTS
Page
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS...................1
PROSPECTUS SUMMARY...........................................................2
THE COMPANY..................................................................2
THE OFFERING.................................................................2
RISK FACTORS.................................................................3
USE OF PROCEEDS..............................................................4
SELLING STOCK HOLDERS........................................................4
PLAN OF DISTRIBUTION.........................................................4
EXPERTS......................................................................6
LEGAL MATTERS................................................................6
WHERE YOU CAN FIND MORE INFORMATION..........................................6
INCORPORATION OF CERTAIN DOCUMENTS BY REFRENCE...............................6
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES...............................................7
INFORMATION NOT REQUIRED IN THE PROSPECTUS...................................9
Item 14. Other Expenses of Issuance and Distribution...............9
Item 15. Indemnification of Directors and Officers.................9
Item 16. Exhibits and Financial Statement Schedules...............10
Item 17. Undertakings.............................................10
SIGNATURES..................................................................13
EXHIBIT INDEX...............................................................15
This prospectus is part of a registration statement we filed with the
Securities Exchange Commission, or Commission, using a shelf registration
process. Under the shelf registration process, the selling stockholders may,
from time to time, sell the securities described in this prospectus in one or
more offerings. This prospectus provides you with a general description of the
securities that may be offered by the selling stockholders. Each time a selling
shareholder sells securities, the selling shareholder is required to provide you
with this prospectus and, in certain cases, a prospectus supplement containing
specific information about the selling shareholder and the terms of the
securities being offered. That prospectus supplement may include additional risk
factors or other special considerations applicable to those securities. Any
prospectus supplement may also add, update, or change information in this
prospectus. If there is any inconsistency between the information in this
prospectus and any prospectus supplement, you should rely on the information in
that prospectus supplement. You should read both this prospectus and any
prospectus supplement together with additional information described under
"Where You Can Find More Information".
This prospectus does not contain all the information provided in the
registration statement we filed with the Commission. For further information
about us or the securities offered hereby, you should refer to that registration
statement, which you can obtain from the Commission as described below under
"Where You Can Find More Information."
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
Matters discussed in this release may constitute forward-looking
statements. Forward-looking statements reflect our current views with respect to
future events and financial performance and may include statements concerning
plans, objectives, goals, strategies, future events or performance, and
underlying assumptions and other statements, which are other than statements of
historical facts. The forward-looking statements in this release 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 our records and other data available from third
parties. Although Eagle Bulk Shipping Inc. 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 our control, Eagle Bulk Shipping Inc. cannot assure you
that it will achieve or accomplish these expectations, beliefs or projections.
Important factors that, in our view, could cause actual results to differ
materially from those discussed in the forward-looking statements include the
strength of world economies and currencies, general market conditions, including
changes in charterhire rates and vessel values, changes in demand that may
affect attitudes of time charterers to scheduled and unscheduled drydocking,
changes in our vessel operating expenses, including dry-docking and insurance
costs, or actions taken by regulatory authorities, ability of our counterparties
to perform their obligations under sales agreements and charter contracts on a
timely basis, potential liability from future litigation, domestic and
international political conditions, potential disruption of shipping routes due
to accidents and political events or acts by terrorists.
Risks and uncertainties are further described in reports filed by Eagle
Bulk Shipping Inc. with the US Securities and Exchange Commission.
PROSPECTUS SUMMARY
This summary highlights the more detailed information appearing elsewhere
in this prospectus or incorporated by reference. As this is a summary, it may
not contain all information that is important to you. You should read this
entire prospectus carefully before deciding whether to invest in our common
stock.
This prospectus contains forward-looking statements. You should read the
explanation of the qualifications and limitations on those forward-looking
statements on page 1 of this prospectus. You should also carefully consider the
various risk factors, which may cause our actual results to differ materially
from those indicated by such forward-looking statements. See "Risk Factors"
below. You should not place undue reliance on our forward-looking statements.
Unless specifically noted otherwise in this Prospectus, all references to
"we," "us," "our," or the "Company" refer to Eagle Bulk Shipping Inc. and its
subsidiaries.
THE COMPANY
Eagle Bulk Shipping Inc., or the Company, incorporated under the laws of
the Republic of the Marshall Islands and headquartered in New York City, is
engaged primarily in the ocean transportation of a broad range of major and
minor bulk cargoes, including iron ore, coal, grain, cement and fertilizer,
along worldwide shipping routes. As of July 10, 2006, we owned and operated a
modern fleet of 16 oceangoing vessels with a combined carrying capacity of
796,663 deadweight tons, or dwt, and an average age of 5.5 years.
We are the largest U.S. based owner of Handymax dry bulk vessels. Handymax
dry bulk vessels range in size from 35,000 to 60,000 dwt. Twelve of the 16
vessels in our operating fleet are classed as Supramax dry bulk vessels, a class
of Handymax dry bulk vessels which range in size from 50,000 dwt to 60,000 dwt.
These vessels have the cargo loading and unloading flexibility of on-board
cranes while offering cargo carrying capacities approaching that of Panamax dry
bulk vessels, which range in size from 60,000 to 100,000 dwt and must rely on
port facilities to load and offload their cargoes. We believe that the cargo
handling flexibility and cargo carrying capacity of the Supramax class vessels
make them attractive to charterers.
On June 28, 2006 we issued an aggregate of 2,750,000 shares of our common
stock to certain institutional investors pursuant to a securities purchase
agreement dated June 22, 2006. The shares were issued at a price of $12.00 per
share for an aggregate of $33 million. The shares were sold pursuant to an
exemption from registration afforded by Section 4(2) of the Securities Act of
1933, as amended, or the Securities Act, and Rule 506 of Regulation D
promulgated thereunder.
On June 22, 2006 we entered into an agreement to acquire three Supramax
drybulk carriers for $105 million. The vessel acquisitions were funded in part
with the proceeds from the common stock sold on June 28, 2006 together with
borrowings from our $330 million revolving credit facility. Our first vessel was
delivered to us on June 30, 2006, the second was delivered to us on July 5, 2006
and the third vessel was delivered to us on July 7, 2006. Each of these vessels
is employed on charters ranging between 11-18 months. We are including the three
purchased vessels within our fleet for purposes of this prospectus.
The following table presents certain information concerning our fleet as of
July 10, 2006.
Vessel Year Built Dwt Time Charter Employment Expiration (1)
Supramax
Condor (2) 2001 50,296 November 2006 to March 2007
Falcon (2) 2001 50,296 February 2008 to June 2008
Harrier (2) 2001 50,296 March 2007 to June 2007
Hawk I (2) 2001 50,296 March 2007 to June 2007
Merlin (2) 2001 50,296 October 2007 to December 2007
Osprey I (2) (4) 2002 50,206 July 2008 to November 2008
Cardinal (3) 2004 55,408 March 2007 to June 2007
Peregrine (3) 2001 50,913 October 2006 to January 2007
Heron 2001 52,827 December 2007 to February 2008
Jaeger 2004 52,265 April 2007 to June 2007
Kestrel I (2) (5) 2004 50,209 December 2007 to April 2008
Tern (2) (6) 2003 50,209 December 2007 to April 2008
Handymax
Sparrow (3) 2000 48,220 November 2006 to February 2007
Kite 1997 47,195 March 2007 to May 2007
Griffon 1995 46,635 January 2007 to February 2007
Shikra 1994 41,096 July 2006 to November 2006
(1) The date range provided represents the earliest and latest date on which the
charterers may redeliver the vessel to us upon the termination of the charter.
(2) These vessels are sister ships.
(3) These vessels are similar ships built at the same shipyard.
(4) The charterer of the OSPREY I has an option to extend the charter period by
up to 26 months at $25,000 per day.
(5) The charterer of the KESTREL I has an option to extend the charter period by
11 to 13 months at $20,000 per day.
(6) The charterer of the TERN has an option to extend the charter period by 11
to 13 months at $20,500 per day.
Our principal offices are located at 477 Madison Avenue, New York, NY 10022
and our telephone number is (212) 785-2500. Our website is www.eagleships.com.
The information found on our website is not part of this prospectus.
THE OFFERING
This prospectus relates to the offer and sale of 2,750,000 shares of our
common stock, par value $0.01 that were issued in a private placement to certain
institutional investors. We are filing the registration statement of which this
prospectus is a part at this time to fulfill contractual obligations to do so,
which we undertook at the time of the original issuance of the shares. We will
not receive any of the proceeds from the sale of the common stock by the selling
stockholders, but we are bearing the expenses of registration.
RISK FACTORS
We have identified a number of risk factors which you should consider
before buying shares of our common stock. These risk factors are incorporated by
reference into this registration statement from the Company's Form 10-K filed on
March 16, 2006. Please see "Incorporation of Certain Documents by Reference". In
addition, you should also consider carefully the risks set forth under the
heading "Risk Factors" in any prospectus supplement before investing in the
shares of common stock offered by this prospectus. The occurrence of one or more
of those risk factors could adversely impact our results of operations or
financial condition.
USE OF PROCEEDS
We will not receive any proceeds from the sale by the selling stockholders
of the securities covered by this prospectus.
SELLING STOCK HOLDERS
We are filing this registration statement pursuant to a Securities Purchase
Agreement dated June 22, 2006, or the Purchase Agreement, between the Company
and certain accredited institutional investors. The selling stockholders are
offering an aggregate of 2,750,000 shares of our common stock which were issued
to them pursuant to the Purchase Agreement at a price of $12.00 per share.
Under the terms of the Purchase Agreement, we agreed to file the
registration statement of which this prospectus is a part to register the sale
by the selling stockholders of the common stock issued to them. We have also
agreed to use our reasonable best efforts to keep the registration statement
continuously effective under the Securities Act until the earlier of the date
that all shares of common stock covered by this registration statement have been
sold or may be sold publicly pursuant to Rule 144(k) of the Securities Act.
The information regarding the names of the selling stockholders and number
of shares of common stock owned and offered by each selling stockholder will be
provided in a prospectus supplement filed pursuant to Rule 430B of the
Securities Act.
Selling Stockholders
Name of Common Total Common Percentage
Selling Stock Common Stock of Class
Stockholder Owned Stock To Be Owned
Before Hereby Owned After
Offering Offered After Offering
Offering
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, donees, transferees,
assignees and successors-in-interest may, from time to time, sell 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 sales may be at
fixed or negotiated prices. The selling stockholders may use any one or more of
the following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits Investors;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o to cover short sales made after the date that this registration
statement is declared effective by the Commission;
o broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
In connection with sales of the common stock or otherwise, the selling
stockholders may enter into hedging transactions with broker-dealers, which may
in turn engage in short sales of the common stock in the course of hedging in
positions they assume. The selling stockholders may also sell their shares of
Company's common stock short and deliver the shares of common stock covered by a
prospectus filed as part of a registration statement to close out short
positions and to return borrowed shares in connection with such short sales. The
selling stockholders may also loan or pledge their shares of the Company's
common stock to broker-dealers that in turn may sell such Shares.
Broker-dealers engaged by the selling stockholders may arrange for other
broker-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling stockholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling stockholders may from time to time pledge or grant a security
interest in some or all of the common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell shares of common stock 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 of 1933 amending the list of
selling stockholders to include the pledgee, transferee or other successors in
interest as selling stockholders under this prospectus.
Upon the Company being notified in writing by a selling stockholder that
any material arrangement has been entered into with a broker-dealer for the sale
of common stock through a block trade, special offering, exchange distribution
or secondary distribution or a purchase by a broker or dealer, a supplement to
this prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such selling stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of common stock were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this prospectus, and (vi) other facts material to the transaction. In addition,
upon the Company being notified in writing by a selling stockholder that a donee
or pledgee intends to sell more than 500 shares of common stock, a supplement to
this prospectus will be filed if then required in accordance with applicable
securities law.
The selling stockholders also may transfer the shares of common stock 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.
The selling stockholders and any broker-dealers or agents that are involved
in selling the shares may be deemed to be "underwriters" within the meaning of
the Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
Securities will be paid by the selling stockholder and/or the purchasers. Each
selling stockholder has represented and warranted to the Company that it
acquired the securities subject to this registration statement in the ordinary
course of such selling stockholder's business and, at the time of its purchase
of such securities such selling stockholder had no agreements or understandings,
directly or indirectly, with any person to distribute any such securities.
The Company has advised each selling stockholder that it may not use shares
registered on this registration statement to cover short sales of common stock
made prior to the date on which this registration statement shall have been
declared effective by the Commission. If a selling stockholder uses this
prospectus for any sale of the common stock, it will be subject to the
prospectus delivery requirements of the Securities Act. The selling stockholders
will be responsible to comply with the applicable provisions of the Securities
Act and Exchange Act, and the rules and regulations thereunder promulgated,
including, without limitation, Regulation M, as applicable to such selling
stockholders in connection with resales of their respective shares under this
registration statement.
The Company is required to pay all fees and expenses incident to the
registration of the shares, but the Company will not receive any proceeds from
the sale of the common stock. The Company has agreed to indemnify the selling
stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
EXPERTS
The Company's consolidated financial statements appearing in the Company's
Annual Report on Form 10-K for the period ended December 31, 2005, have been
audited by Ernst & Young LLP, independent registered public accounting firm, as
set forth in their report thereon, included therein, and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed
upon for us by Seward & Kissel LLP, New York, New York with respect to matters
of U.S. and Marshall Islands law.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual and special reports within the Securities and Exchange
Commission (the "Commission"). You may read and copy any document that we file
at the Public Reference Room maintained by the Commission at 100 F Street, N.E.,
Room 1580, Washington, D.C. 20549. You may obtain information on the operation
of the Public Reference Room by calling 1 (800) SEC-0330, and you may obtain
copies at prescribed rates from the Public Reference Section of the Commission
at its principal office in Washington, D.C. 20549. The Commission maintains a
website (http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission.
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. In all cases, you should rely on the later information over
different information included in this prospectus or the prospectus supplement.
We incorporate by reference the documents listed below and any future filings
made with the Commission under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
o Annual Report on Form 10-K for the period ended December 31,
2005, filed with the Commission on March 16, 2006;
o Our "Description of Capital Stock" contained in our registration
statement on Form S-1, (File No. 333-128930) as amended, filed
with the SEC on October 11, 2005;
o Our Current Reports on Form 8-K filed with the Commission on
January 30, 2006, January 31, 2006, March 8, 2006, April 18,
2006, April 18, 2006, June 23, 2006, July 6, 2006, July 6, 2006,
July 6, 2006 and July 7, 2006; and
o All documents we file pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of this Prospectus (if they state
that they are incorporated by reference into this prospectus)
until we file a post-effective amendment indicating that the
offering of the securities made by this prospectus has been
terminated.
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:
Eagle Bulk Shipping Inc.
477 Madison Avenue
New York, NY 10022
(212) 785-2500
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The Business Corporation Act (the "BCA") of the Marshall Islands authorizes
corporations to limit or eliminate the personal liability of directors and
officers to corporations and their stockholders for monetary damages for
breaches of directors' fiduciary duties. Our 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 bylaws provide that we must indemnify our directors and officers to the
fullest extent authorized by law. We are also expressly authorized to advance
certain expenses (including attorneys' fees and disbursements and court costs)
to our directors and offices and carry directors' and officers' insurance
providing indemnification for our directors, officers and certain employees for
some liabilities. We believe that these indemnification provisions and insurance
are useful to attract and retain qualified directors and executive offices.
The limitation of liability and indemnification provisions in our amended
and restated articles of incorporation and bylaws may discourage stockholders
from bringing a lawsuit against directors for breach of their fiduciary duty.
These provisions may also have the effect of reducing the likelihood of
derivative litigation against 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
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
We estimate the expenses in connection with the issuance and distribution
of our common stock in this offering to be as follows:
SEC Registration Fee.................................................... $4,310
Printing and Engraving Expenses......................................... $5,000
Legal Fees and Expenses................................................. $60,000
Accountants' Fees and Expenses.......................................... $25,000
Nasdaq Fee.............................................................. $27,500
Transfer Agent's Fees and Expenses...................................... $2,500
Miscellaneous Costs..................................................... $10,000
Total...................................................................$134,310
Item 15. Indemnification of Directors and Officers.
The bylaws of the Company provide that every director and officer of the
Company shall be indemnified out of the funds of the Registrant against:
(1) all civil liabilities, loss, damage or expense (including but not
limited to liabilities under contract, tort and statute or any
applicable foreign law or regulation and all reasonable legal and
other costs and expenses properly payable) incurred or suffered
by him as such director or officer acting in the reasonable
belief that he has been so appointed or elected notwithstanding
any defect in such appointment or election, provided always that
such indemnity shall not extend to any matter which would render
it void pursuant to any Marshall Islands statute from time to
time in force concerning companies insofar as the same applies to
the Registrant (the "Companies Acts"); and
(2) all liabilities incurred by him as such director or officer in
defending any proceedings, whether civil or criminal, in which
judgment is given in his favor, or in which he is acquitted, or
in connection with any application under the Companies Acts in
which relief from liability is granted to him by the court.
Section 60 of the Associations Law of the Republic of the Marshall Islands
provides as follows:
Indemnification of directors and officers.
(1) Actions not by or in right of the corporation. A corporation
shall have power to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or
was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director or
officer of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of no
contest, or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonable believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceedings, had reasonable cause to believe
that his conduct was unlawful.
(2) Actions by or in right of the corporation. A corporation shall
have the power to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the corporation, or is or was
serving at the request of the corporation, or is or was serving
at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him or in connection with the defense
or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not, opposed
to the best interests of the corporation and except that no
indemnification shall be made in respect of any claims, issue or
matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his
duty to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
(3) When director or officer successful. To the extent that a
director or officer of a corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding
referred to in subsections (1) or (2) of this section, or in the
defense of a claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
(4) Payment of expenses in advance. Expenses incurred in defending a
civil or criminal action, suit or proceeding may be paid in
advance of the final disposition of such action, suit or
proceeding as authorized by the board of directors in the
specific case upon receipt of an undertaking by or on behalf of
the director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section.
(5) Continuation of indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(6) Insurance. A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
director or officer of the corporation or is or was serving at
the request of the corporation as a director or officer against
any liability asserted against him and incurred by him in such
capacity whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this
section.
Item 16. Exhibits and Financial Statement Schedules.
A list of exhibits included as part of this registration statement is set
forth in the Exhibit Index which immediately precedes such exhibits and is
incorporated herein by reference.
Item 17. Undertakings.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement, unless the information required to be included is
to contained in reports filed with or furnished to the
Commission that are incorporated by reference in this
registration statement or is contained in a form of
prospectus filed pursuant to Rule 424(b) under the
Securities Act that is part of 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 the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of this registration
statement as of the date the filed prospectus was deemed
part of and included in this registration statement.
(5) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of this registration
statement for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in this
registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the
date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus
that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part
of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document
immediately prior to such effective date.
(6) 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.
(8) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(9) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual
report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under
the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3
of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(10) 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 an
regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
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 July 11, 2006.
EAGLE BULK SHIPPING INC.
By: /S/ Sophocles N. Zoullas
------------------------------------------------------
Sophocles N. Zoullas
President, Chief Executive Officer and
Chairman of the Board
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S.
Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and
agent, with full powers of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any or
all amendments (including post-effective amendments) to this registration
statement and any related registration statement filed pursuant to Rule 462(b),
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully for all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute,
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on July 11, 2006
in the capacities indicated.
Signature Title
/s/ Sophocles N. Zoullas
-----------------------------------------
Sophocles N. Zoullas Director, President, Chief Executive
Officer, Chairman of the Board
(Principal Executive Officer)
/s/ Michael B. Goldberg
-----------------------------------------
Michael B. Goldberg Director
/s/ Frank J. Loverro
-----------------------------------------
Frank J. Loverro Director
/s/ David B. Hiley
-----------------------------------------
David B. Hiley Director
/s/ Douglas P. Haensel
-----------------------------------------
Douglas P. Haensel Director
/s/ Michael Mitchell
-----------------------------------------
Michael Mitchell Director
/s/ Joseph Cianciolo
-----------------------------------------
Joseph Cianciolo Director
/s/ Alan S. Ginsberg
-----------------------------------------
Alan S. Ginsberg Chief Financial Officer (Principal
Financial Officer and Principal
Accounting Officer)
Authorized Representative in the United States
Pursuant to the requirement of the Securities Act of 1933, the undersigned,
the duly undersigned representative in the United States of Eagle Bulk Shipping
Inc., has signed this registration statement in the City of Newark, State of
Delaware, on July 11, 2006.
PUGLISI & ASSOCIATES
By: /s/ Gregory F. Lavelle
-----------------------------------------
Name: Gregory F. Lavelle
Title: Managing Director
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
3.1 Amended and Restated Articles of Incorporation of the Company*
3.2 Amended and Restated By Laws of the Company*
4.1 Specimen Common Share Certificate*
5.1 Opinion of Seward & Kissel LLP, counsel to the Company, on
the validity of the common stock
21 Subsidiaries of the Company
23.1 Consent of Seward & Kissel LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (contained in signature page)
* Incorporated by reference from the Company's Form S-1/A filed with the
Commission on June 22, 2005.
SK 25083 0001 682312 v4