Diana Shipping Inc SC TO-I, filed Nov 22, 2021
Diana Shipping Inc. (DSX)
SC TO-I
2021-11-22
View Original
Added on
October 15, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
DIANA SHIPPING INC.
(Name of Subject Company (Issuer) and Name of Filing Person (Offeror))
Common Stock, par value of $0.01 per share
(Title of Class of Securities)
Y2066G104
(CUSIP Number of Class of Securities)
Mr. Ioannis Zafirakis
Diana Shipping Inc.
Pendelis 16, 175 64 Palaio Faliro, Athens, Greece
Tel: + 30-210-9470-100
(Name, address and telephone number of person authorized to receive notices
and communication on behalf of Filing Persons)
Copy to:
|
Edward S. Horton, Esq.
|
|
Seward & Kissel LLP
|
|
One Battery Park Plaza
|
|
New York, New York 10004
|
CALCULATION OF FILING FEE
|
Transaction Valuation*
|
Amount of
Filing Fee**
|
|||||
|
$
|
15,000,000
|
$
|
1,390.50
|
|||
|
*
|
Estimated for purposes of calculating the amount of the filing fee only, this amount is based on the purchase of 3,529,111shares of common stock at the
tender offer price of $4.25 per share.
|
|
|
**
|
The Amount of Filing Fee, calculated in accordance with Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, equals $92.70 for each
$1,000,000.00 of the value of the transaction.
|
|
☐
|
Check the box if any part of the filing fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
|
||
|
Amount Previously Paid: N/A
|
Filing Party: N/A
|
||
|
Form or Registration No.: N/A
|
Date Filed: N/A
|
||
|
☐
|
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
|
||
Check the appropriate boxes below to designate any transaction to which the statement relates:
|
☐
|
third party tender offer subject to Rule 14d-1.
|
|
|
☒
|
issuer tender offer subject to Rule 13e-4.
|
|
|
☐
|
going private transaction subject to Rule 13e-3.
|
|
|
☐
|
amendment to Schedule 13D under Rule 13d-2.
|
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
|
☐
|
Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
|
|
|
☐
|
Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
|
SCHEDULE TO
This Tender Offer Statement on Schedule TO relates to the offer by Diana Shipping Inc., a Marshall Islands corporation
("Diana Shipping" or the "Company"), to purchase up to 3,529,411 shares of its common stock, par value of $0.01 per share (the "common stock"), at a price of $4.25 per share, net to the seller in cash, less any applicable withholding taxes and
without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase dated November 22, 2021 (the "Offer to Purchase"), a copy of which is attached hereto as Exhibit (a)(1)(A), and in the related Letter of Transmittal
(the "Letter of Transmittal"), a copy of which is attached hereto as Exhibit (a)(1)(B). This Tender Offer Statement on Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4(c)(2) of the Securities Exchange Act of 1934, as
amended. The information contained in the Offer to Purchase and the related Letter of Transmittal is incorporated herein by reference in response to all of the items of this Schedule TO, and as more particularly described below.
Item 1. Summary Term Sheet.
The information set forth under "Summary Term Sheet" in the Offer to Purchase is incorporated herein by reference.
Item 2. Subject Company Information.
(a) The name of the issuer is Diana Shipping Inc., a Marshall Islands corporation, and the address of its principal
executive office is Pendelis 16, 175 64 Palaio Faliro, Athens, Greece. The telephone number of its principal executive office is +30-210-947-0100.
(b) The information set forth under "Introduction" in the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in the Offer to Purchase under Section 7 ("Price Range of the Shares") is incorporated
herein by reference.
Item 3. Identity and Background of Filing Person.
(a) The Company is the filing person. The Company's address and telephone number are set forth in Item 2 above. The
information set forth in the Offer to Purchase under Section 9 ("Information About Diana Shipping Inc.") is incorporated herein by reference.
Item 4. Terms of the Transaction.
(a) The following sections of the Offer to Purchase contain a description of the material terms of the transaction and are
incorporated herein by reference:
"Summary Term Sheet";
"Introduction";
Section 1 ("Terms of the Offer");
Section 2 ("Purpose of the Offer; Certain Effects of the Offer; Other Plans");
Section 3 ("Procedures for Tendering Shares");
Section 4 ("Withdrawal Rights");
Section 5 ("Purchase of Shares and Payment of Purchase Price");
Section 6 ("Conditions of the Offer");
Section 10 ("Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares");
Section 13 ("Certain Material U.S. Federal Income Tax Consequences of the Offer to U.S. Holders"); and
Section 14 ("Extension of the Offer; Termination; Amendment").
(b) The information in the "Introduction" to the Offer to Purchase and in Section 10 of the Offer to Purchase ("Interest
of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares") is incorporated herein by reference.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(e) The information set forth in the Offer to Purchase under Section 10 ("Interest of Directors and Executive Officers;
Transactions and Arrangements Concerning the Shares") is incorporated herein by reference.
Item 6. Purposes of the Transaction and Plans or Proposals.
(a), (b) and (c) The information set forth in the Offer to Purchase under Section 2 ("Purpose of the Offer; Certain
Effects of the Offer; Other Plans") is incorporated herein by reference.
Item 7. Source and Amount of Funds or Other Consideration.
(a) The information set forth in the Offer to Purchase under Section 8 ("Source and Amount of Funds") is incorporated
herein by reference.
(b) The information set forth in the Offer to Purchase under Section 6 ("Conditions of the Offer") is incorporated herein
by reference.
(d) The information set forth in the Offer to Purchase under Section 8 ("Source and Amount of Funds") is incorporated
herein by reference.
Item 8. Interest in Securities of the Subject Company.
(a) and (b) The information set forth in the Offer to Purchase under Section 10 ("Interest of Directors and Executive
Officers; Transactions and Arrangements Concerning the Shares") is incorporated herein by reference.
Item 9. Persons/Assets, Retained, Employed, Compensated or Used.
(a) The information set forth in the Offer to Purchase under Section 15 ("Fees and Expenses") is incorporated herein by
reference.
Item 10. Financial Statements.
Not applicable.
Item 11. Additional Information.
(a) The information set forth in the Offer to Purchase under Section 10 ("Interest of Directors and Executive Officers;
Transactions and Arrangements Concerning the Shares"), Section 9 ("Information about Diana Shipping Inc."), Section 11 ("Effects of the Offer on the Market for Shares; Registration under the Exchange Act") and Section 12 ("Legal Matters; Regulatory
Approvals") is incorporated herein by reference. To the knowledge of the Company, no material legal proceedings relating to the tender offer are pending.
(c) The information set forth in the Offer to Purchase and the related Letter of Transmittal, copies of which are filed as
Exhibits (a)(1)(A) and (a)(1)(B) hereto, respectively, as each may be amended or supplemented from time to time, is incorporated herein by reference.
Item 12. Exhibits.
|
(a)(1)(A)*
|
Offer to Purchase dated November 22, 2021.
|
|
|
(a)(1)(B)*
|
Letter of Transmittal.
|
|
|
(a)(1)(C)*
|
Notice of Guaranteed Delivery.
|
|
|
(a)(1)(D)*
|
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees dated November 22, 2021.
|
|
|
(a)(1)(E)*
|
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees dated November 22, 2021.
|
|
|
(a)(1)(F)*
|
Press Release dated November 22, 2021.
|
|
|
(a)(2)
|
Not Applicable.
|
|
|
(a)(3)
|
Not Applicable.
|
|
|
(a)(4)
|
Not Applicable.
|
|
|
(a)(5)
|
Not Applicable.
|
|
|
(b)
|
Not Applicable.
|
|
|
(d)(1)
|
Stockholders Rights Agreement dated January 15, 2016, incorporated by reference to Exhibit 4.1 to the Company's Form 8-A12B/A filed on January 15, 2016.
|
|
|
(d)(2)
|
Not Applicable.
|
|
|
(g)
|
Not Applicable.
|
|
|
(h)
|
Not Applicable.
|
Item 13. Information Required by Schedule 13E-3.
Not Applicable.
_____________________
* Filed herewith.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement
is true, complete and correct.
|
Date: November 22, 2021
|
DIANA SHIPPING INC.
|
||
|
By:
|
/s/ Semiramis Paliou
|
||
|
Name:
|
Semiramis Paliou
|
||
|
Title:
|
Director and Chief Executive Officer
|
||
EXHIBIT INDEX
|
(a)(1)(A)*
|
|
|
(a)(1)(B)*
|
|
|
(a)(1)(C)*
|
|
|
(a)(1)(D)*
|
|
|
(a)(1)(E)*
|
|
|
(a)(1)(F)*
|
|
|
(a)(2)
|
Not Applicable.
|
|
(a)(3)
|
Not Applicable.
|
|
(a)(4)
|
Not Applicable.
|
|
(a)(5)
|
Not Applicable.
|
|
(b)
|
Not Applicable.
|
|
(d)(1)
|
|
|
(d)(2)
|
Not Applicable.
|
|
(g)
|
Not Applicable.
|
|
(h)
|
Not Applicable.
|
________________________
* Filed herewith.
Exhibit (a)(1)(A)
Offer to Purchase for Cash
by
DIANA SHIPPING INC.
of
Up to 3,529,411 Shares of its Common Stock
at a Purchase Price of $4.25
by
DIANA SHIPPING INC.
of
Up to 3,529,411 Shares of its Common Stock
at a Purchase Price of $4.25
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., EASTERN TIME, ON DECEMBER 21, 2021
UNLESS THE OFFER IS EXTENDED.
AT 5:00 P.M., EASTERN TIME, ON DECEMBER 21, 2021
UNLESS THE OFFER IS EXTENDED.
Diana Shipping Inc., a Marshall Islands corporation (the “Company,” “we,” or “us”), is offering to purchase up to 3,529,411
shares of its common stock, par value of $0.01 per share (the “common stock”), at a price of $4.25 per share, net to the seller in cash, less any applicable withholding taxes and without interest, upon the terms and subject to the conditions
described in this Offer to Purchase and the related Letter of Transmittal (which together, as they may be amended and supplemented from time to time, constitute the “Offer”). Unless the context otherwise requires, all references to shares shall refer
to the common stock of the Company.
The Offer is not conditioned upon the receipt of financing or any minimum number of shares being
tendered. The Offer is, however, subject to certain other conditions. See Section 6.
The shares are listed and traded on the New York Stock Exchange (“NYSE”) under the symbol “DSX.” On November 19, 2021, the
reported closing price of the shares on the NYSE was $3.97 per share. Shareholders are urged to obtain current market quotations for the shares. See Section 7.
The Company has previously set November 3, 2021 as the record date (the “Spin-off Record Date”) for holders of the Company’s common stock that will participate in the Company’s
distribution of one share of common stock of OceanPal Inc., a wholly-owned subsidiary of the Company that will own three vessels, for each ten shares of our common stock held on the spin-off distribution date (the "Spin-off Distribution"). The
right to receive shares of OceanPal Inc. in the Spin-off Distribution will transfer with our common shares to any purchaser of such shares following the Spin-off Record Date and prior to the consummation of the Spin-off Distribution. The
consummation of this Offer will be subject to the completion of the Spin-off Distribution prior to the Expiration Time.
Shareholders who tender shares into this Offer will receive the shares of OceanPal Inc. common stock to
which they are entitled as a shareholder of the Company’s common shares and who have not disposed of their common shares prior to the date of the Spin-off Distribution.
Our Board of Directors has unanimously approved the Offer. However, neither the Company, nor its Board
of Directors, the Depositary or the Information Agent is making any recommendation to you as to whether to tender or refrain from tendering your shares. You must make your own decision as to whether to tender your shares and, if so, how many shares
to tender. In doing so, you should read carefully the information in this Offer to Purchase and in the related Letter of Transmittal, including our reasons for making the Offer. See Section 2.
Our directors and executive officers are entitled to participate in the Offer on the same basis as all
other shareholders and one or more of such persons may, but are under no obligation to, do so. See Section 10.
If the Offer is oversubscribed, we will purchase shares on a pro rata basis from all shareholders who
properly tender shares. See Section 1. Therefore, if you wish to maximize the chance that your shares will be purchased and wish to maximize the number of your shares accepted for payment, you should tender
as many shares as you own and are willing to sell in the Offer.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of this transaction or passed upon the merits or fairness of such transaction or passed upon the adequacy or accuracy of the information contained in this Offer to Purchase. Any representation to the contrary is a criminal offense.
IMPORTANT
If you desire to tender all or any portion of your shares, you should either:
(1) (a) if you hold certificates in your own name, complete and sign the Letter of Transmittal in accordance with the
instructions to the Letter of Transmittal, have your signature on the Letter of Transmittal guaranteed if Instruction 1 to the Letter of Transmittal so requires, and mail or deliver the Letter of Transmittal, together with any other required
documents, including the share certificates, to the Depositary (as defined herein), at one of its addresses shown on the Letter of Transmittal, or
(b) if you are an institution participating in The Depository Trust Company, tender the shares in accordance with the
procedure for book-entry transfer set forth in Section 3; or
(2) if you have shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you
must contact the nominee if you desire to tender those shares and request that your broker, dealer, commercial bank, trust company or other nominee effect the transaction for you.
If you desire to tender shares and your certificates for those shares are not immediately available or the procedure for
book-entry transfer cannot be completed on a timely basis, or time will not permit all required documents to reach the Depositary prior to the Expiration Time (as defined herein), your tender may be effected by following the procedure for guaranteed
delivery set forth in Section 3.
To properly tender shares, you must validly complete the Letter of Transmittal, including the section relating to the price
at which you are tendering shares.
Questions and requests for assistance may be directed to Georgeson LLC, the Information Agent for the Offer, at its address
and telephone number set forth on the back cover of this Offer to Purchase. Requests for additional copies of this Offer to Purchase, the related Letter of Transmittal or the Notice of Guaranteed Delivery may be directed to the Information Agent.
The Offer does not constitute an offer to buy or the solicitation of an offer to sell shares in any circumstance or
jurisdiction in which such offer or solicitation is unlawful.
We have not authorized any person to make any recommendation on our behalf as to whether you should
tender or refrain from tendering your shares. You should rely only on the information contained in this Offer to Purchase or to which we have referred you. We have not authorized anyone to provide you with information or to make any representation in
connection with the Offer other than those contained in this Offer to Purchase or in the related Letter of Transmittal. If anyone makes any recommendation or gives any information or representation, you must not rely upon that recommendation,
information or representation as having been authorized by us, the Depositary or the Information Agent.
TABLE OF CONTENTS
|
SUMMARY TERM SHEET
|
ii
|
|
|
CAUTIONARY NOTE ON FORWARD-LOOKING STATEMENTS
|
vii
|
|
|
INTRODUCTION
|
1
|
|
|
THE OFFER
|
3
|
|
|
1.
|
Terms of the Offer
|
3
|
|
2.
|
Purpose of the Offer; Certain Effects of the Offer; Other Plans
|
4 |
|
3.
|
Procedures for Tendering Shares
|
7
|
|
4.
|
Withdrawal Rights
|
10
|
|
5.
|
Purchase of Shares and Payment of Purchase Price
|
11
|
|
6.
|
Conditions of the Offer
|
11
|
|
7.
|
Price Range of the Shares
|
14
|
|
8.
|
Source and Amount of Funds
|
14
|
|
9.
|
Information About Diana Shipping Inc.
|
14
|
|
10.
|
Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares
|
19
|
|
11.
|
Effects of the Offer on the Market for Shares; Registration under the Exchange Act
|
20
|
|
12.
|
Legal Matters; Regulatory Approvals
|
20
|
|
13.
|
Certain Material U.S. Federal Income Tax Consequences of the Offer.
|
21
|
|
14.
|
Extension of the Offer; Termination; Amendment
|
25
|
|
15.
|
Fees and Expenses
|
26
|
|
16.
|
Miscellaneous
|
26
|
i
SUMMARY TERM SHEET
We are providing this summary term sheet for your convenience. The Company is at times referred to as “we,” “our” or “us.”
We refer to the shares of our common stock as the “shares.” This summary term sheet highlights certain material information in this Offer to Purchase, but you should realize that it does not describe all of the details of the Offer to the same extent
described in this Offer to Purchase. We urge you to read the entire Offer to Purchase and the related Letter of Transmittal because they contain the full details of the Offer. We have included references to the sections of this Offer to Purchase
where you will find a more complete discussion where helpful.
Who is offering to purchase my shares?
Diana Shipping Inc.
What is the Company offering to purchase?
We are offering to purchase up to 3,529,411 shares of our common stock, par value of $0.01 per share (the “common stock”).
See Section 1.
What will the purchase price for the shares be and what will be the form of payment?
We are offering to purchase up to 3,529,411 shares of the common stock, at a price of $4.25 per share, net to the seller in
cash, less any applicable withholding taxes and without interest.
If your shares are purchased in the Offer, we will pay you the purchase price in cash, less any applicable withholding
taxes and without interest, promptly after the Offer expires. See Sections 1 and 5. Under no circumstances will we pay interest on the purchase price, even if there is a delay in making payment.
If I tender some or all of the shares of the Company’s common stock that I own in this Offer will I still be entitled to
receive common shares of OceanPal Inc. pursuant to the OceanPal Inc. spin-off announced by the Company?
Yes. Unless we amend the terms of this Offer on prior notice, the consummation of the OceanPal Inc. Spin-off is a condition
to the closing of this Offer and holders of our common shares who tender into this Offer will receive the number of shares of OceanPal Inc. common stock they would be entitled to if they did not tender their shares of the Company in this Offer and
continued to hold such common shares through the Spin-off Distribution date.
What happens if fewer than 3,529,411 shares are tendered?
The Offer is not conditioned on any minimum number of shares being tendered. If fewer than 3,529,411 shares are properly
tendered, subject to the conditions of the Offer, we will purchase all shares that are properly tendered and not properly withdrawn.
What happens if more than 3,529,411 shares are tendered?
If more than 3,529,411 shares are properly tendered and not properly withdrawn prior to the Expiration Time (as defined
herein), we will purchase shares, subject to the terms of the Offer, from all shareholders who properly tender shares, on a pro rata basis from among all shares tendered. Because of the proration provision described above, we may not purchase all of
the shares that you tender if more than 3,529,411 shares are properly tendered and not properly withdrawn. See Section 1.
You may tender all or any portion of the shares you own, even if the number of shares you own exceeds the number of shares
we may accept for purchase in the Offer. If more than 3,529,411 shares are properly tendered and not properly withdrawn prior to the Expiration Time, we will purchase shares, subject to the terms of the Offer, from all shareholders who properly
tender shares, on a pro rata basis. Therefore, if you wish to maximize the number of your shares accepted for payment, you should tender as many shares as you own and are willing to sell.
ii
How will the Company pay for the shares?
Assuming that the maximum of 3,529,411 shares are tendered in the Offer at the purchase price of $4.25 per share, the aggregate purchase price
will be approximately $15 million. We anticipate that we will pay for the shares tendered in the Offer from funds available from cash and cash equivalents.
How long do I have to tender my shares? Can the Offer be extended, amended or terminated?
You may tender your shares until the Offer expires. The Offer will expire at the end of the day, 5:00 P.M., Eastern Time,
on December 21, 2021 (the “Expiration Time”), unless we extend it. See Section 1. If a broker, dealer, commercial bank, trust company or other nominee holds your shares, it is likely the nominee has
established an earlier deadline for you to act to instruct the nominee to accept the Offer on your behalf. We urge you to contact the broker, dealer, commercial bank, trust company or other nominee to find out the nominee’s deadline.
We may choose to extend the Offer at any time and for any reason, subject to applicable laws. See Section 14. We cannot assure you that we will extend the Offer or indicate the length of any extension that we may provide. If we extend the Offer, we will delay the acceptance of any shares that have been tendered. We can amend
the Offer in our sole discretion at any time prior to the Expiration Time (as defined herein). We can also terminate the Offer prior to the Expiration Time if the conditions set forth in Section 6 are not met. See
Sections 6 and 14.
How will I be notified if the Company extends the Offer or amends the terms of the Offer?
If we extend the Offer, we will issue a press release announcing the extension and the new Expiration Time by 9:00 a.m.,
Eastern Time, on the next business day after the previously scheduled Expiration Time. We will announce any amendment to the Offer by making a public announcement of the amendment. See Section 14.
What is the purpose of the Offer?
On November 19, 2021, our Board of Directors unanimously approved a tender offer for 3,529,411 shares of our common stock,
which we may accept for payment in the Offer, subject to certain limitations and legal requirements. Our Board of Directors has determined that the Offer is a prudent use of our available cash from operations and other financial resources and
delivers value to our shareholders. Our Board of Directors has also determined that a cash tender offer is an appropriate mechanism to return capital to shareholders that seek liquidity under current market conditions while, at the same time,
allowing shareholders who do not participate in the offer to share in a higher portion of our future potential.
The Offer provides shareholders (particularly those who, because of the size of their shareholdings, might not be able to
sell their shares without potential disruption to the share price) with an opportunity to obtain liquidity with respect to all or a portion of their shares, without potential disruption to the share price and without incurring broker’s fees or
commissions associated with open market sales. In addition, if we complete the Offer, shareholders who do not participate in the Offer will automatically increase their relative percentage ownership interest in us and our future operations at no
additional cost to them.
We do not have any current plans to conduct additional tender offers or otherwise purchase additional common shares.
However, there can be no assurances that we will not do so in the future based on our evaluation of future market conditions and what we believe is the best interests of our shareholders.
What are the significant conditions to the Offer?
Our obligation to accept and pay for your tendered shares depends upon a number of conditions that must be satisfied or
waived, including, but not limited to:
| • |
The Spin-off Distribution of our OceanPal Inc. common shares must have been completed.
|
iii
| • |
The closing price of our common stock on the New York Stock Exchange shall not on any business day prior to (and including the date of) the Expiration Time be more than 10%
below the closing price of our common stock on November 19, 2021.
|
| • |
The Dow Jones Industrial Average, the New York Stock Exchange Composite Index, the NASDAQ Composite Index or the S&P 500 Composite Index shall not close on any business day
prior to (and including the date of) the Expiration Time more than 10% below its respective close on November 19, 2021.
|
| • |
No legal action shall have been instituted, threatened, or been pending that challenges the Offer or seeks to impose limitations on our ability (or that of any affiliate of
ours) to acquire or hold or to exercise full rights of ownership of the shares.
|
| • |
No commencement or escalation of war, armed hostilities or other similar national or international calamity, shall have occurred during the Offer.
|
| • |
No one shall have proposed, announced or made a tender or exchange offer (other than this Offer), merger, business combination or other similar transaction involving us or any
of our subsidiaries.
|
| • |
No one (including certain groups) shall have acquired or proposed to acquire beneficial ownership of more than 5% of our shares, other than any person who was a holder of more
than 5% of our shares as of the date of this Offer to Purchase.
|
| • |
No material adverse change in our business, condition (financial or otherwise), assets, income, operations, prospects or stock ownership shall have occurred.
|
| • |
We shall have determined that there is not a reasonable likelihood that the consummation of the Offer and the purchase of shares pursuant to the Offer will cause our common
stock to be subject to delisting from the NYSE (this determination shall be made by us).
|
The Offer is subject to a number of other conditions described in greater detail in Section 6.
Following the Offer, will the Company continue as a public company?
Yes. The completion of the Offer in accordance with its terms and conditions will not cause the Company to be delisted from
the NYSE or to stop being subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). It is a condition of our obligation to purchase shares pursuant to the Offer that we determine that there is not
a reasonable likelihood that such purchase will cause the shares to be subject to delisting from the NYSE. See Section 6. Our common stock is registered under Section 12(b) of the Exchange Act, and therefore
we are subject to the reporting requirements of the Exchange Act. Our common stock will continue to be registered under Section 12(b) of the Exchange Act following the completion of the Offer in accordance with its terms and conditions. See Section 11.
iv
How do I tender my shares?
If you want to tender all or part of your shares, you must do one of the following before the end of the day, 5:00 P.M.,
Eastern Time, on December 21, 2021, or any later time and date to which the Offer may be extended:
| • |
If your shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you must contact the nominee and request that the nominee tender
your shares for you.
|
| • |
If you hold certificates in your own name, you must complete and sign a Letter of Transmittal according to its instructions, and deliver it, together with any required
signature guarantees, the certificates for your shares and any other documents required by the Letter of Transmittal, to Computershare Trust Company, N.A., the Depositary for the Offer.
|
| • |
If you are an institution participating in the book-entry transfer facility (as defined herein), you must tender your shares according to the procedure for book-entry transfer
described in Section 3.
|
| • |
If you are unable to deliver the certificates for the shares or the other required documents to the Depositary or you cannot comply with the procedure for book-entry transfer
within the required time, you must comply with the guaranteed delivery procedure outlined in Section 3.
|
You may contact the Information Agent for assistance. The contact information for the Information Agent appears on the back
cover of this Offer to Purchase. See Section 3 and the Instructions to the Letter of Transmittal.
Once I have tendered shares in the Offer, can I withdraw my tender?
Yes. You may withdraw any shares you have tendered at any time before the end of the day, 5:00 P.M., Eastern Time, on
December 21, 2021, unless we extend the Offer, in which case you can withdraw your shares until the expiration of the Offer as extended. If we have not accepted for payment the shares you have tendered to us, you may also withdraw your shares at any
time after the end of the day, 5:00 P.M., Eastern Time, on December 21, 2021. See Section 4.
How do I withdraw shares I previously tendered?
To withdraw shares, your written notice of withdrawal with the required information must be received by the Depositary
while you still have the right to withdraw the shares. Your notice of withdrawal must specify your name, the number of shares to be withdrawn and the name of the registered holder of these shares. Some additional requirements apply if the share
certificates to be withdrawn have been delivered to the Depositary or if your shares have been tendered under the procedure for book-entry transfer set forth in Section 3. See Section 4. If you have tendered
your shares by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct the nominee to arrange for the withdrawal of your shares.
Has the Company or its Board of Directors adopted a position on the Offer?
Our Board of Directors has unanimously approved the Offer. Neither the Company nor its Board of Directors, the Depositary
or the Information Agent is making any recommendation to you as to whether you should tender or refrain from tendering your shares. You must make your own decision as to whether to tender your shares and, if so, how many shares to tender. In so
doing, you should read carefully the information in this Offer to Purchase and in the related Letter of Transmittal, including our reasons for making the Offer. See Section 2.
Do the directors or executive officers of the Company intend to tender their shares in the Offer?
Our directors and executive officers are entitled to participate in the Offer on the same basis as all other shareholders
and one or more of such persons may, but are under no obligation, to do so. The proportional holdings of any director or executive officer that does not participate in the Offer will increase following the consummation of the Offer. After termination
of the Offer, our directors and executive officers may, in compliance with applicable law, sell their shares in open market transactions after the Offer at prices that may or may not be more favorable than the purchase price to be paid to our
shareholders in the Offer. See Section 10.
v
If I decide not to tender, how will the Offer affect my shares?
Shareholders who choose not to tender their shares will own a greater percentage interest in our outstanding common stock
following the consummation of the Offer. See Section 2.
What is the recent market price of my shares?
On November 19, 2021, the reported closing price of the shares listed on the NYSE was $3.97 per share. You are urged to
obtain current market quotations for the shares before deciding whether to tender your shares. See Section 7.
When will the Company pay for the shares I tender?
We will announce the results of proration and will pay the purchase price, net to the seller in cash, less any applicable
withholding tax and without interest, for the shares we purchase promptly after the expiration of the Offer. See Section 5.
Will I have to pay brokerage commissions if I tender my shares?
If you are the record owner of your shares and you tender your shares directly to the Depositary, you will not have to pay
brokerage fees or similar expenses. If you own your shares through a broker, dealer, commercial bank, trust company or other nominee and the nominee tenders your shares on your behalf, the nominee may charge you a fee for doing so. You should consult
with your broker, dealer, commercial bank, trust company or other nominee to determine whether any charges will apply. See Section 3.
What are the U.S. federal income tax consequences if I tender my shares?
Generally, if you are a U.S. Holder (as defined in Section 13), you will be subject to U.S. federal income taxation when
you receive cash from us in exchange for the shares you tender in the Offer. The receipt of cash for your tendered shares will generally be treated for U.S. federal income tax purposes either as (1) a sale or exchange eligible for capital gain or
loss treatment or (2) a distribution in respect of stock from the Company. See Section 13. If you are not a U.S. Holder, you will not be subject to U.S. income or withholding taxes on payments received
pursuant to the Offer, unless such gross proceeds are effectively connected with the conduct by you of a trade or business within the United States. Along with your Letter of Transmittal, you are asked to submit the IRS Form W-9 or applicable version
of IRS Form W-8 included with the Letter of Transmittal. Any tendering shareholder or other payee who fails to complete, sign and return to the Depositary the IRS Form W-9 included with the Letter of Transmittal (or such other IRS form as may be
applicable) may be subject to United States backup withholding at a rate equal to 24% of the gross proceeds paid to the shareholder or other payee pursuant to the Offer, unless such shareholder establishes that such shareholder is within the class of
persons that is exempt from backup withholding (including certain corporations and certain foreign individuals and entities). All shareholders should review the discussion in Sections 13 regarding tax issues and consult their tax advisor with respect
to the tax effects of a tender of shares.
Does the Company intend to repurchase any shares other than pursuant to the Offer during or after the Offer?
On November 19, 2021, our Board of Directors unanimously approved the Offer. Rule 13e-4(f) under the Exchange Act prohibits
us from purchasing any shares, other than in the Offer, until at least 10 business days after the Expiration Time. Accordingly, any repurchases outside of the Offer may not be consummated until at least 10 business days after the Offer expires. See Section 9. For the avoidance of doubt, as of the date of this Offer to Purchase, we have no present intention or authority (from our board of directors) to conduct any further tender offers for our common
shares or to repurchase any of our common shares outside of the Offer, whether through a Rule 10b-18 purchase plan or otherwise. Based on future market conditions both for our common stock and the dry bulk industry as well as our future cash
position, we may evaluate and determine to seek to purchase additional shares in the future.
To whom can I talk if I have questions?
If you have any questions regarding the Offer, please contact Georgeson LLC, the Information Agent for the Offer, at (800)
248-7690 or +1-781-575-2137. Additional contact information for the Information Agent is set forth on the back cover of this Offer to Purchase.
vi
CAUTIONARY NOTE ON FORWARD-LOOKING STATEMENTS
This Offer to Purchase, including any documents incorporated by reference or deemed to be incorporated by reference,
contains “forward-looking statements,” which are statements relating to future events, future financial performance, strategies, expectations, and competitive environment. Words such as “may,” “will,” “should,” “could,” “would,” “predicts,”
“potential,” “continue,” “expects,” “anticipates,” “future,” “intends,” “plans,” “believes,” “estimates” and similar expressions, as well as statements in future tense, identify forward-looking statements.
You should not read forward-looking statements as a guarantee of future performance or results. They will not necessarily be
accurate indications of whether or at what time such performance or results will be achieved. Forward-looking statements are based on information available at the time those statements are made and/or management’s good faith belief at that time with
respect to future events. Such statements are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements. These risks and uncertainties
include, but are not limited to, the factors set forth under the caption “Risk Factors” in our Annual Report on Form 20-F for the fiscal year ended December 31, 2020, as well as the factors relating to the transactions discussed in this Offer to
Purchase and the following: the continuing impact of the COVID-19 pandemic, governments’ responses to the pandemic, fluctuations in charter hire rates and vessel values, changes in demand in the dry-bulk shipping industry, changes in the supply of
vessels, changes in the Company’s operating expenses, including bunker prices, crew costs, drydocking and insurance costs, changes in governmental rules and regulations or actions taken by regulatory authorities, potential liability from pending or
future litigation, general domestic and international political conditions or labor disruptions, potential disruption of shipping routes due to accidents or political events, and 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 caution readers of this Offer to Purchase not to place undue reliance on these forward-looking statements, which speak only
as of their dates. We undertake no obligation to update or revise any forward-looking statements.
You should not place undue reliance on the forward-looking statements, which speak only as to the date of this Offer to
Purchase or the date of documents incorporated by reference. Except as may be required by law, we undertake no obligation to make any revision to the forward-looking statements contained in this Offer to Purchase, the accompanying Letter of
Transmittal or in any document incorporated by reference into this Offer to Purchase or to update them to reflect events or circumstances occurring after the date of this Offer to Purchase.
In addition, please refer to the documents incorporated by reference into this Offer to Purchase (see Section 9) for additional information on risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements or that may otherwise impact our Company and business.
Any statement contained in a document incorporated herein by reference into this Offer to Purchase shall be deemed to be modified or superseded to the extent such statement is modified or superseded in this Offer to Purchase. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Offer to Purchase.
Notwithstanding anything in this Offer to Purchase, the Letter of Transmittal or any document incorporated by reference into
this Offer to Purchase, the safe harbor protections of the Private Securities Litigation Reform Act of 1995 do not apply to statements made in connection with a tender offer.
vii
INTRODUCTION
To the Holders of our Common Stock:
We invite our shareholders to tender shares of our common stock, par value of $0.01 per share (the “common stock”). Upon
the terms and subject to the conditions of this Offer to Purchase and the related Letter of Transmittal, we are offering to purchase up to 3,529,411 shares at a price of $4.25 per share, net to the seller in cash, less applicable withholding taxes
and without interest.
The Offer will expire at the end of the day, 5:00 P.M. Eastern Time, on December 21, 2021, unless extended.
Because of the proration provision described in this Offer to Purchase, we may not purchase all of the shares tendered if
more than the number of shares we seek are properly tendered. We will return shares that we do not purchase because of proration to the tendering shareholders at our expense promptly following the Expiration Time. See
Section 1.
Tendering shareholders whose shares are registered in their own names and who tender directly to Computershare Trust
Company, N.A., the Depositary for the Offer, will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 to the Letter of Transmittal, stock transfer taxes on the purchase of shares by us under the Offer. If
you own your shares through a broker, dealer, commercial bank, trust company or other nominee and the nominee tenders your shares on your behalf, the nominee may charge you a fee for doing so. You should consult your broker, dealer, commercial bank,
trust company or other nominee to determine whether any charges will apply.
The Offer is not conditioned upon any minimum number of shares being tendered. Our obligation to accept,
and pay for, shares validly tendered pursuant to the Offer is conditioned upon satisfaction or waiver of the conditions set forth in Section 6 of this Offer to Purchase.
Our Board of Directors has approved the Offer. However, neither the Company, nor its Board of Directors,
the Depositary, or the Information Agent is making any recommendation whether you should tender or refrain from tendering your shares. You must decide whether to tender your shares and, if so, how many shares to tender. You should discuss whether to
tender your shares with your broker or other financial or tax advisor. In so doing, you should read carefully the information in this Offer to Purchase and in the related Letter of Transmittal, including our reasons for making the Offer. See Section 2.
The Company has previously set November 3, 2021 as the record date (the “Spin-off Record Date”) for holders of the Company’s common stock that will participate in the Company’s distribution of one share
of common stock of OceanPal Inc., a wholly-owned subsidiary of the Company that will own three vessels, for each 10 shares of our common stock held on the spin-off distribution date (the "Spin-off Distribution"). The right to receive shares of
OceanPal Inc. in the Spin-off Distribution will transfer with our common shares to any purchaser of such shares following the Spin-off Record Date and prior to the consummation of the Spin-off Distribution. The consummation of this Offer will be
subject to the completion of the Spin-off Distribution prior to the Expiration Time.
Shareholders who tender shares into this Offer will receive the shares of OceanPal Inc. common stock to which they are entitled as a shareholder of the Company’s common shares and who have not disposed
of their common shares prior to the date of the Spin-off Distribution.
Our directors and executive officers are entitled to participate in the Offer on the same
basis as all other shareholders and one or more of such persons may, but are under no obligation to, do so. The proportional holdings of any director or executive officer that does not participate in the Offer will increase following the
consummation of the Offer. After termination of the Offer, our directors and executive officers may, in compliance with applicable law, sell their shares in open market transactions after the Offer at prices that may or may not be more favorable
than the purchase price to be paid to our shareholders in the Offer. See Section 10.
1
As of November 19, 2021, there were 88,201,669 shares of our common stock issued and outstanding. The 3,529,411 shares that
we are offering to purchase hereunder represent approximately 4.0% of the total number of issued shares of our common stock as of November 19, 2021. The shares are listed and traded on the NYSE under the symbol “DSX”. On November 19, 2021, the
closing price of the shares as quoted on the NYSE was $3.97 per share.
Shareholders are urged to obtain current market quotations for the shares before deciding whether to tender their shares. See Section 7.
2
THE OFFER
| 1. |
Terms of the Offer
|
General. Upon the terms and subject to the conditions of the Offer, we will purchase up to 3,529,411 shares of our common
stock, or if fewer than 3,529,411 shares are properly tendered, all shares that are properly tendered and not properly withdrawn in accordance with Section 4, at a purchase price of $4.25 per share (the “Purchase Price”), net to the sellers in cash
for a total maximum Purchase Price of up to $15,000,000 as further described below under the heading “Purchase Price.”
The term “Expiration Time” means the end of the day, 5:00 P.M., Eastern Time, on December 21, 2021, unless we, in our sole
discretion, shall have extended the period of time during which the Offer will remain open, in which event the term “Expiration Time” shall refer to the latest time and date at which the Offer, as so extended by us, shall expire. See Section 14 for a
description of our right to extend, delay, terminate or amend the Offer.
In the event of an over-subscription of the Offer as described below, shares tendered will be subject to proration based on
the number of shares tendered prior to the Expiration Time.
Except as described herein, withdrawal rights expire at the Expiration Time.
If we:
| • |
increase the price to be paid for shares above $4.25 per share or decrease the price to be paid for shares below $4.25 per share;
|
| • |
increase the number of shares being sought in the Offer to exceed a total of 3,529,411 shares; or
|
| • |
decrease the number of shares being sought in the Offer; and
|
| • |
the Offer is scheduled to expire at any time earlier than the expiration of a period ending at the end of the day, 12:00 Midnight, Eastern Time, on the tenth business day (as
defined below) from, and including, the date that notice of any such increase or decrease is first published, sent or given in the manner specified in Section 14:
|
then the Offer will be extended until the expiration of such period of ten business days. For the purposes of the Offer, a “business day”
means any day other than a Saturday, Sunday or United States federal holiday and consists of the time period from 12:01 A.M. to approximately 12:00 Midnight, Eastern Time.
Purchase Price
The Purchase Price is $4.25 per common share. The Purchase Price has been calculated based on a premium of approximately
9.34% to the closing price of the common stock on the NYSE as of November 19, 2021.
The Offer is not conditioned on any minimum number of shares being tendered. The Offer is, however,
subject to certain other conditions. See Section 6.
All shares we acquire in the Offer will be acquired at the same purchase price. However, because of the proration provision
described in this Offer to Purchase, we may not purchase all of the shares tendered if more than the number of shares we seek are properly tendered. We will return shares that we do not purchase because of proration to the tendering shareholders at
our expense promptly after the Offer expires.
If the number of shares properly tendered and not properly withdrawn prior to the Expiration Time is less than or equal to 3,529,411 shares, we
will, upon the terms and subject to the conditions of the Offer, purchase all shares so tendered.
3
Upon the terms and subject to the conditions of the Offer, if more than 3,529,411 shares have been properly tendered and
not properly withdrawn prior to the Expiration Time, we will purchase all properly tendered shares on a pro rata basis with appropriate adjustments to avoid purchases of fractional shares, as described below. Due to this proration provision, it is
possible that all of the shares that a shareholder tenders in the Offer may not be purchased.
Proration. If proration of tendered shares is required, we will determine the
proration factor promptly following the Expiration Time. Subject to adjustment to avoid the purchase of fractional shares, proration for each shareholder tendering shares will be based on the ratio of the number of shares properly tendered and not
properly withdrawn by the shareholder to the total number of shares properly tendered and not properly withdrawn by all shareholders. We will announce the final proration factor and commence payment for any shares purchased pursuant to the Offer
promptly after the Expiration Time. After the Expiration Time, shareholders may obtain preliminary proration information from the Information Agent and also may be able to obtain the information from their brokers.
As described in Section 13, the number of shares that we will purchase from a shareholder under the Offer may affect the
U.S. federal income tax consequences to that shareholder and, therefore, may be relevant to a shareholder’s decision whether or not to tender shares and whether to condition any tender upon our purchase of a stated number of Shares held by such
shareholder.
This Offer to Purchase and the related Letter of Transmittal will be mailed to record holders of shares and will be
furnished to brokers, dealers, commercial banks and trust companies whose names, or the names of whose nominees, appear on our shareholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing for
subsequent transmittal to beneficial owners of shares.
| 2. |
Purpose of the Offer; Certain Effects of the Offer; Other Plans
|
Purpose of the Offer. On November 19, 2021, our Board of Directors unanimously approved a tender offer for up to 3,529,411
shares of our common stock, representing an aggregate purchase price of approximately $15 million at the offer price of $4.25 per share, which we may accept for payment in the Offer in accordance with the rules of the Securities and Exchange
Commission (the “Commission” or the “SEC”). Our Board of Directors has determined that the Offer is a prudent use of our available cash from operations and other financial resources and delivers value to our shareholders. Our Board of Directors has
also determined that a cash tender offer is an appropriate mechanism to return capital to shareholders that seek liquidity under current market conditions while, at the same time, allowing shareholders to share in a higher portion of our future
potential.
The Offer provides shareholders (particularly those who, because of the size of their shareholdings, might not be able to
sell their shares without potential disruption to the share price) with an opportunity to obtain liquidity with respect to all or a portion of their shares, without potential disruption to the share price and shares without incurring broker’s fees or
commissions associated with open market sales. In addition, if we complete the Offer, shareholders who do not participate in the Offer will automatically increase their relative percentage ownership interest in us and our future operations at no
additional cost to them.
We have conducted prior tender offers over the past three years. On November 21, 2018, we announced the commencement of a
tender offer to purchase up to 4,166,666 shares, or about 3.86%, of our then outstanding common stock using funds available from cash and cash equivalents at a price of $3.60 per share (“Tender Offer No. 1”). On December 31, 2018, we announced
that we purchased a total of 4,166,666 shares in connection with Tender Offer No. 1 for an aggregate purchase price of US$14,999,997.60.
On February 27, 2019, we announced the commencement of a tender offer to purchase up to 5,178,571 shares, or about 4.9%, of
our then outstanding common stock using funds available from cash and cash equivalents at a price of $2.80 per share (“Tender Offer No. 2”). On April 2, 2019, we announced that we purchased a total of 3,889,386.6175 shares in connection with
Tender Offer No. 2 for an aggregate purchase price of US$10,890,282.53.
4
On April 15, 2019, we announced the commencement of a tender offer to purchase up to 3,125,000 shares, or about 3.1%, of
our then outstanding common stock using funds available from cash and cash equivalents at a price of $3.20 per share (“Tender Offer No. 3”). On May 14, 2019, we announced that we increased the purchase price to be paid in Tender Offer No. 3 to
$3.40 per share and extended Tender Offer No. 3 to allow additional time for stockholders to tender their shares. On June 5, 2019, we announced that we purchased a total of 3,125,000 shares in connection with Tender Offer No. 3 for an aggregate
purchase price of US$10,625,000.
On June 14, 2019, we announced the commencement of a tender offer to purchase up to 2,000,000 shares, or about 2.0%, of our
then outstanding common stock using funds available from cash and cash equivalents at a price of $3.25 per share (“Tender Offer No. 4”). On July 11, 2019, we announced that we increased the purchase price to be paid in Tender Offer No. 4 to
$3.75 per share and extended Tender Offer No. 4 to allow additional time for stockholders to tender their shares. On July 31, 2019, we announced that we purchased a total of 2,000,000 shares in connection with Tender Offer No. 4 for an aggregate
purchase price of US$7,500,000.
On September 6, 2019, we announced the commencement of a tender offer to purchase up to 1,408,450 shares, or about 1.5%, of
our then outstanding common stock using funds available from cash and cash equivalents at a price of $3.55 per share (“Tender Offer No. 5”). On September 30, 2019, we announced that we increased the number of shares we offered to purchase
from 1,408,450 shares to 2,816,900 shares at the same price of $3.55 per share and extended Tender Offer No. 5 to allow additional time for stockholders to tender their shares. On October 18, 2019, we announced that we purchased a total of 2,816,900
shares in connection with Tender Offer No. 5 for an aggregate purchase price of US$10,000,000.
On November 12, 2019, we announced the commencement of a tender offer to purchase up to 2,739,726 shares, or about 2.9%, of
our then outstanding common stock using funds available form cash and cash equivalents at a price of $3.65 per share (“Tender Offer No. 6”). On December 18, 2019, we announced that we purchased a total of 2,739,726 shares in connection with
Tender Offer No. 6 for an aggregate purchase price of US$10,000,000.
On January 3, 2020, we announced the commencement of a tender offer to purchase up to 3,030,303 shares, or about 3.3%, of
our then outstanding common stock using funds available form cash and cash equivalents at a price of $3.30 per share (“Tender Offer No. 7”). On February 10, 2020, we announced that we purchased a total of 3,030,303 shares in connection with
Tender Offer No. 7 for an aggregate purchase price of US$10,000,000.
On December 15, 2020, we announced the commencement of a tender offer to purchase up to 6,000,000 shares or about 6.7% of
our then outstanding common stock using funds available from cash and cash equivalents at a price of $2.00 per share (“Tender Offer No. 8”). On January 13, 2021, we announced that we increased the price at which we would purchase shares of
common stock from $2.00 to $2.50 per share. On February 2, 2021, we announced that we purchased a total of 6,000,000 shares in connection with Tender Offer No. 8 for an aggregate purchase of US$15,000,000.
On July 16, 2021, we announced the commencement of a tender offer to purchase up to 3,333,333 shares or about 3.6% of our
then outstanding common stock using funds available from cash and cash equivalents at a price of $4.50 per share (“Tender Offer No. 9,” and together with Tender Offer No. 1, Tender Offer No. 2, Tender Offer No. 3, Tender Offer No. 4, Tender
Offer No. 5, Tender Offer No. 6, Tender Offer No. 7, and Tender Offer No. 8, the “Prior Tender Offers”). On August 19, 2021, we announced that we purchased a total of 3,333,333 shares in connection with Tender Offer No. 9 for an aggregate
purchase of US$15,000,000.
We do not have any current plans to conduct additional tender offers or otherwise purchase additional common shares.
However, there can be no assurances that we will not do so in the future based on our evaluation of future market conditions and what we believe is the best interests of our shareholders.
Neither the Company nor its Board of Directors, the Depositary or the Information Agent is making any
recommendation to any shareholder as to whether to tender or refrain from tendering any shares. We have not authorized any person to make any such recommendation. Shareholders should carefully evaluate all information in the Offer. Shareholders are
also urged to consult with their tax advisors to determine the consequences to them of participating or not participating in the Offer, and should make their own decisions about whether to tender shares and, if so, how many shares to tender. In doing
so, you should read carefully the information in this Offer to Purchase and in the related Letter of Transmittal.
5
Our directors and executive officers are entitled to participate in the Offer on the same basis as all
other shareholders and one or more of such persons may, but are under no obligation, to do so.
If the Offer is oversubscribed, we will purchase shares on a pro rata basis from all shareholders who properly tender
shares. See Section 1. Therefore, if you wish to maximize the chance that your shares will be purchased and wish to maximize the number of your shares accepted for payment, you should tender as many shares as you own and are willing to sell in the
Offer.
Certain Effects of the Offer. Shareholders who do not tender their shares
pursuant to the Offer and shareholders who otherwise retain an equity interest in the Company as a result of a partial tender of shares or proration will continue to be owners of the Company. As a result, those shareholders will realize a
proportionate increase in their relative equity interest in the Company and, thus, in our future earnings and assets, if any, and will bear the attendant risks associated with owning our equity securities, including risks resulting from our purchase
of shares. However, we may not be able to issue additional shares or equity interests in the future. Shareholders may be able to sell non-tendered shares in the future on the NYSE or otherwise, at a net price significantly higher or lower than the
purchase price in the Offer. We can give no assurance, however, as to the price at which a shareholder may be able to sell his or her shares in the future.
Shares we acquire pursuant to the Offer will be cancelled and will be available for us to issue without further shareholder
action (except as required by applicable law or the rules of the NYSE) for purposes including, without limitation, acquisitions, raising additional capital and the satisfaction of obligations under existing or future employee benefit or compensation
programs or stock plans or compensation programs for directors.
The Offer will reduce our “public float” (the number of shares owned by non-affiliate shareholders and available for
trading in the securities markets), and is likely to reduce the number of our shareholders. These reductions may result in lower or higher stock prices and/or reduced liquidity in the trading market for our common stock following completion of the
Offer.
Our directors and executive officers are entitled to participate in the Offer on the same basis as all other shareholders
and one or more of such persons may, but are under no obligation to, do so. The proportional holdings of any director or executive officer that does not participate in the Offer will increase following the consummation of the Offer. After termination
of the Offer, our directors and executive officers may, in compliance with applicable law, sell their shares in open market transactions after the Offer at prices that may or may not be more favorable than the purchase price to be paid to our
shareholders in the Offer. See Section 10.
Except for the foregoing and as otherwise disclosed in this Offer to Purchase or the documents incorporated by reference
herein, we currently have no plans, proposals or negotiations underway that relate to or would result in:
| • |
any extraordinary transaction, such as a merger, reorganization or liquidation, involving us or any of our subsidiaries;
|
| • |
any purchase, sale or transfer of an amount of our assets or any of our subsidiaries’ assets which is material to us and our subsidiaries, taken as a whole;
|
| • |
any change in our present board of directors or management or any plans or proposals to change the number or the term of directors (except that we may fill any existing
vacancies on the board and vacancies arising on the board in the future);
|
| • |
any material change in our indebtedness or capitalization, our corporate structure or our business;
|
| • |
any class of our equity securities ceasing to be authorized to be listed on the NYSE;
|
| • |
the termination of registration under Section 12(g) of the Exchange Act of any class of our equity securities;
|
6
| • |
the suspension of our obligation to file reports under the Exchange Act; or
|
| • |
the acquisition or disposition by any person of our securities.
|
Notwithstanding the foregoing, as part of our long-term corporate goal of increasing shareholder value, we have regularly
considered alternatives to enhance shareholder value, including open market repurchases of our shares, modifications of our dividend policy, strategic acquisitions and business combinations, and we intend to continue to consider alternatives to
enhance shareholder value. Except as otherwise disclosed in this Offer to Purchase and the OceanPal Inc. distribution described herein, as of the date hereof, no agreements, understandings or decisions have been reached and there can be no assurance
that we will decide to undertake any such alternatives.
| 3. |
Procedures for Tendering Shares
|
Valid Tender. For a shareholder to make a valid tender of shares under the Offer:
(i) the Depositary must
receive, at one of its addresses set forth on the back cover of this Offer to Purchase and prior to the Expiration Time:
| • |
a Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or, in the case of a book-entry transfer, an “agent’s message”
(see “-Book-Entry Transfer” below), and any other required documents; and
|
| • |
either certificates representing the tendered shares or, in the case of tendered shares delivered in accordance with the procedures for book-entry transfer we describe below, a
book-entry confirmation of that delivery (see “Book-Entry Transfer” below); or
|
(ii) the tendering
shareholder must, before the Expiration Time, comply with the guaranteed delivery procedures we describe below.
If a broker, dealer, commercial bank, trust company or other nominee holds your shares, it is likely the nominee has
established an earlier deadline for you to act to instruct the nominee to accept the Offer on your behalf. We urge you to contact your broker, dealer, commercial bank, trust company or other nominee to find out the nominee’s applicable deadline.
The valid tender of shares by you by one of the procedures described in this Section 3 will constitute a binding agreement
between you and us on the terms of, and subject to the conditions to, the Offer.
We urge shareholders who hold shares through brokers or banks to consult the brokers or banks to
determine whether transaction costs are applicable if they tender shares through the brokers or banks and not directly to the Depositary.
Book-Entry Transfer. For purposes of the Offer, the Depositary will establish an
account for the shares at The Depository Trust Company (the “book-entry transfer facility”) within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in the book-entry transfer facility’s
system may make book-entry delivery of shares by causing the book-entry transfer facility to transfer those shares into the Depositary’s account in accordance with the book-entry transfer facility’s procedures for that transfer. Although delivery of
shares may be effected through book-entry transfer into the Depositary’s account at the book-entry transfer facility, the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, or an agent’s message, and
any other required documents must, in any case, be transmitted to, and received by, the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Time, or the tendering shareholder must comply
with the guaranteed delivery procedures we describe below.
The confirmation of a book-entry transfer of shares into the Depositary’s account at the book-entry transfer facility as we
describe above is referred to herein as a “book-entry confirmation.” Delivery of documents to the book-entry transfer facility in accordance with the book-entry transfer facility’s procedures will not constitute delivery to the Depositary.
7
The term “agent’s message” means a message transmitted by the book-entry transfer facility to, and received by, the
Depositary and forming a part of a book-entry confirmation, stating that the book-entry transfer facility has received an express acknowledgment from the participant tendering shares through the book-entry transfer facility that the participant has
received and agrees to be bound by the terms of the Letter of Transmittal and that we may enforce that agreement against that participant.
Method of Delivery. The method of delivery of shares, the Letter of Transmittal
and all other required documents, including delivery through the book-entry transfer facility, is at the election and risk of the tendering shareholder. Shares will be deemed delivered only when actually received by the Depositary (including, in the
case of a book-entry transfer, by book-entry confirmation). If you plan to make delivery by mail, we recommend that you deliver by registered mail with return receipt requested and obtain proper insurance. In all cases, sufficient time should be
allowed to ensure timely delivery.
Signature Guarantees. No signature guarantee will be required on a Letter of
Transmittal for shares tendered thereby if:
| • |
the “registered holder(s)” of those shares signs the Letter of Transmittal and has not completed either the box entitled “Special Delivery Instructions” or the box entitled
“Special Payment Instructions” in the Letter of Transmittal; or
|
| • |
those shares are tendered for the account of an “eligible institution.”
|
For purposes hereof, a “registered holder” of tendered shares will include any participant in the book-entry transfer
facility’s system whose name appears on a security position listing as the owner of those shares, and an “eligible institution” is a “financial institution,” which term includes most commercial banks, savings and loan associations and brokerage
houses, that is a participant in any of the following: (i) the Securities Transfer Agents Medallion Program; (ii) the New York Stock Exchange, Inc. Medallion Signature Program; or (iii) the Stock Exchange Medallion Program.
Except as we describe above, all signatures on any Letter of Transmittal for shares tendered thereby must be guaranteed by
an eligible institution. See Instructions 1 and 6 to the Letter of Transmittal. If the certificates for shares are registered in the name of a person other than the signer of the Letter of Transmittal, or if
payment is to be made or certificates for shares not tendered or not accepted for payment are to be returned to a person other than the registered holder of the certificates surrendered, then the tendered certificates must be endorsed or accompanied
by appropriate stock powers, in either case signed exactly as the name or names of the registered holders or owners appear on the certificates, with the signatures on the certificates or stock powers guaranteed as aforesaid. See Instructions 1 and 6 to the Letter of Transmittal.
Guaranteed Delivery. If you wish to tender shares under the Offer and your
certificates for shares are not immediately available or the procedures for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Depositary prior to the Expiration Time, your tender may
be effected if all the following conditions are met:
| • |
your tender is made by or through an eligible institution;
|
| • |
a properly completed and duly executed Notice of Guaranteed Delivery, in the form we have provided, is received by the Depositary, as provided below, prior to the Expiration
Time; and
|
| • |
the Depositary receives, at one of its addresses set forth on the back cover of this Offer to Purchase and within the period of two business days after the date of execution of
that Notice of Guaranteed Delivery, either: (i) the certificates representing the shares being tendered, in the proper form for transfer, together with (1) a Letter of Transmittal, which has been properly completed and duly executed and
includes all signature guarantees required thereon and (2) all other required documents; or (ii) confirmation of book-entry transfer of the shares into the Depositary’s account at the book-entry transfer facility, together with (1) either a
Letter of Transmittal, which has been properly completed and duly executed and includes all signature guarantees required thereon or an agent’s message, and (2) all other required documents.
|
8
A Notice of Guaranteed Delivery must be delivered to the Depositary by overnight courier, facsimile transmission or mail
before the Expiration Time and must include a guarantee by an eligible institution in the form set forth in the Notice of Guaranteed Delivery.
Return of Unpurchased Shares. The Depositary will return certificates for
unpurchased shares promptly after the expiration or termination of the Offer or the proper withdrawal of the shares, as applicable, or, in the case of shares tendered by book-entry transfer at the book-entry transfer facility, the Depositary will
credit the shares to the appropriate account maintained by the tendering shareholder at the book-entry transfer facility, in each case without expense to the shareholder.
Tendering Shareholders’ Representation and Warranty; Our Acceptance Constitutes an
Agreement. It is a violation of Rule 14e-4 promulgated under the Exchange Act for a person acting alone or in concert with others, directly or indirectly, to tender shares for such person’s own account unless at the time of tender and at
the Expiration Time such person has a “net long position” in (a) the shares that is equal to or greater than the amount tendered and will deliver or cause to be delivered such shares for the purpose of tendering to us within the period specified in
the Offer or (b) other securities immediately convertible into, exercisable for or exchangeable into shares (“Equivalent Securities”) that is equal to or greater than the amount tendered and, upon the acceptance of such tender, will acquire such
shares by conversion, exchange or exercise of such Equivalent Securities to the extent required by the terms of the Offer and will deliver or cause to be delivered such shares so acquired for the purpose of tender to us within the period specified in
the Offer. Rule 14e-4 also provides a similar restriction applicable to the tender or guarantee of a tender on behalf of another person. A tender of shares made pursuant to any method of delivery set forth herein will constitute the tendering
shareholder’s acceptance of the terms and conditions of the Offer, as well as the tendering shareholder’s representation and warranty to us that (a) such shareholder has a “net long position” in shares or Equivalent Securities at least equal to the
shares being tendered within the meaning of Rule 14e-4, and (b) such tender of shares complies with Rule 14e-4. Our acceptance for payment of shares tendered pursuant to the Offer will constitute a binding agreement between the tendering shareholder
and us upon the terms and subject to the conditions of the Offer.
Determination of Validity; Rejection of Shares; Waiver of Defects; No Obligation to Give
Notice of Defects. All questions as to the number of shares to be accepted, the price to be paid for shares to be accepted and the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of shares
will be determined by us, in our sole discretion, and our determination will be final and binding on all persons participating in the Offer, subject to such Offer participant’s disputing such determination in a court of competent jurisdiction. We
reserve the absolute right prior to the expiration of the Offer to reject any or all tenders we determine not to be in proper form or the acceptance for payment of or payment for which may, in the opinion of our counsel, be unlawful. We also reserve
the absolute right to waive any conditions of the Offer with respect to all shareholders or any defect or irregularity in any tender with respect to any particular shares or any particular shareholder whether or not we waive similar defects or
irregularities in the case of other shareholders. No tender of shares will be deemed to have been validly made until all defects or irregularities relating thereto have been cured or waived. None of us, the Depositary, the Information Agent or any
other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Our reasonable interpretation of the terms of and conditions to the Offer,
including the Letter of Transmittal and the instructions thereto, will be final and binding on all persons participating in the Offer, subject to such Offer participant’s disputing such determination in a court of competent jurisdiction. By tendering
shares to us, you agree to accept all decisions we make concerning these matters and waive any right you might otherwise have to challenge those decisions; provided, however, tendering shareholders may challenge our determinations in a court of
competent jurisdiction and tendering shareholders shall not be deemed to have waived any right if such waiver would be impermissible under Section 29(a) of the Exchange Act.
Lost Certificates. If the share certificates which a registered holder wants to
surrender have been lost, destroyed or stolen, the shareholder should promptly notify the Depositary at (800) 546-5141. The Depositary will instruct the shareholder as to the steps that must be taken in order to replace the certificates.
9
| 4. |
Withdrawal Rights
|
Except as this Section 4 otherwise provides, tenders of shares are irrevocable. You may withdraw shares that you have
previously tendered under the Offer according to the procedures we describe below at any time prior to the Expiration Time, unless we extend the Offer, for all shares. You may also withdraw your previously tendered shares at any time after the end of
the day, 5:00 P.M., Eastern Time, on December 21, 2021, unless such shares have been accepted for payment as provided in the Offer.
For a withdrawal to be effective, a written notice of withdrawal must:
| • |
be received in a timely manner by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase; and
|
| • |
specify the name of the person having tendered the shares to be withdrawn, the number of shares to be withdrawn and the name of the registered holder of the shares to be
withdrawn, if different from the name of the person who tendered the shares.
|
If certificates for shares have been delivered or otherwise identified to the Depositary, then, prior to the physical
release of those certificates, the serial numbers shown on those certificates must be submitted to the Depositary and, unless an eligible institution has tendered those shares, an eligible institution must guarantee the signatures on the notice of
withdrawal.
If a shareholder has used more than one Letter of Transmittal or has otherwise tendered shares in more than one group of
shares, the shareholder may withdraw shares using either separate notices of withdrawal or a combined notice of withdrawal, so long as the information specified above is included.
If shares have been delivered in accordance with the procedures for book-entry transfer described in Section 3, any notice
of withdrawal must also specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn shares and otherwise comply with the book-entry transfer facility’s procedures.
Withdrawals of tenders of shares may not be rescinded, and any shares properly withdrawn will thereafter be deemed not
validly tendered for purposes of the Offer. Withdrawn shares may be retendered at any time prior to the Expiration Time by again following one of the procedures described in Section 3.
We will decide, in our sole discretion, all questions as to the form and validity, including time of receipt, of notices of
withdrawal, and each such decision will be final and binding on all persons participating in the Offer, subject to such other participants disputing such determination in a court of competent jurisdiction. We also reserve the absolute right to waive
any defect or irregularity in the withdrawal of shares by any shareholder, whether or not we waive similar defects or irregularities in the case of any other shareholder. None of us, the Depositary, the Information Agent or any other person will be
under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.
If we extend the Offer, are delayed in our purchase of shares, or are unable to purchase shares under the Offer as a result
of a failure of a condition disclosed in Section 6, then, without prejudice to our rights under the Offer, the Depositary may, subject to applicable law, retain tendered shares on our behalf, and such shares may not be withdrawn except to the extent
tendering shareholders are entitled to withdrawal rights as described in this Section 4. Our reservation of the right to delay payment for shares which we have accepted for payment is limited by Rule 13e-4(f)(5) promulgated under the Exchange Act,
which requires that we must pay the consideration offered or return the shares tendered promptly after termination or withdrawal of a tender offer.
10
| 5. |
Purchase of Shares and Payment of Purchase Price
|
For purposes of the Offer, we will be deemed to have accepted for payment (and therefore purchased), subject to the
proration provisions of this Offer, shares that are properly tendered and not properly withdrawn only when, as and if we give oral or written notice to the Depositary of our acceptance of the shares for payment pursuant to the Offer.
Upon the terms and subject to the conditions of the Offer, we will accept for payment and pay the per-share purchase price
for all of the shares accepted for payment pursuant to the Offer promptly after the Expiration Time. In all cases, payment for shares tendered and accepted for payment pursuant to the Offer will be made as promptly as practicable, subject to possible
delay in the event of proration, but only after timely receipt by the Depositary of:
| • |
certificates for shares, or a timely book-entry confirmation of the deposit of shares into the Depositary's account at the book-entry transfer facility,
|
| • |
a properly completed and duly executed Letter of Transmittal, or, in the case of a book-entry transfer, an agent's message, and
|
| • |
any other required documents.
|
We will pay for shares purchased pursuant to the Offer by depositing the aggregate purchase price for the shares with the
Depositary, which will act as agent for tendering shareholders for the purpose of receiving payment from us and transmitting payment to the tendering shareholders.
In the event of proration, we will determine the proration factor and pay for those tendered shares accepted for payment
promptly after the Expiration Time. Certificates for all shares tendered and not purchased, including shares not purchased due to proration will be returned or, in the case of shares tendered by book-entry transfer, will be credited to the account
maintained with the book-entry transfer facility by the participant who delivered the shares to the tendering shareholder at our expense promptly after the Expiration Time or termination of the Offer.
Under no circumstances will we pay interest on the purchase price, including but not limited to, by
reason of any delay in making payment. In addition, if certain events occur, we may not be obligated to purchase shares pursuant to the Offer. See Section 6.
We will pay all stock transfer taxes, if any, payable on the transfer to us of shares purchased pursuant to the Offer. If,
however, payment of the purchase price is to be made to, or (in the circumstances permitted by the Offer) if unpurchased shares are to be registered in the name of, any person other than the registered holder, or if tendered certificates are
registered in the name of any person other than the person signing the Letter of Transmittal, the amount of all stock transfer taxes, if any (whether imposed on the registered holder or the other person), payable on account of the transfer to the
person will be deducted from the purchase price unless satisfactory evidence of the payment of the stock transfer taxes, or exemption from payment of the stock transfer taxes, is submitted. See Instruction 6
of the Letter of Transmittal.
| 6. |
Conditions of the Offer
|
Notwithstanding any other provision of the Offer, we will not be required to accept for payment, purchase or pay for any
shares tendered, and may terminate or amend the Offer or may postpone the acceptance for payment of, or the purchase of and the payment for shares tendered, subject to Rule 13e-4(f)(5) under the Exchange Act (which requires that the issuer making the
tender offer shall either pay the consideration offered or return tendered securities promptly after the termination or withdrawal of the tender offer), if prior to the Expiration Time any of the following events has occurred (or shall have been
reasonably determined by us to have occurred) that, in our reasonable judgment and regardless of the circumstances giving rise to the event or events (other than any such event or events that are proximately caused by our action or failure to act),
make it inadvisable to proceed with the Offer or with acceptance for payment:
| • |
the consummation of the Company’s spin-off of OceanPal Inc. common shares shall have been completed;
|
11
| • |
any general suspension of trading in, or the imposition of any general trading curb or general minimum or maximum price limits on prices for, trading in securities on any U.S.
national securities exchange or in the over-the-counter market;
|
| • |
the commencement of any war, armed hostilities or other international calamity, including any act of terrorism, on or after the date of this Offer to Purchase, in or involving
the United States, or the material escalation of any such armed hostilities which had commenced before the date of this Offer to Purchase, in each case which is reasonably likely to have a material adverse effect on the Company or on the
Company’s ability to complete the Offer;
|
| • |
the closing price of our common stock on the New York Stock Exchange is, on any business day prior to (and including the date of) the Expiration Time, more than 10% below the
closing price of our common stock on November 19, 2021;
|
| • |
the Dow Jones Industrial Average, the New York Stock Exchange Composite Index, the NASDAQ Composite Index or the S&P 500 Composite Index closes, on any business day prior
to (including the date of) the Expiration Time more than 10% below its respective close on November 19, 2021;
|
| • |
in the case of any of the foregoing existing at the time of the commencement of the Offer, in our reasonable judgment, a material acceleration or worsening thereof;
|
| • |
any change (or condition, event or development involving a prospective change) has occurred in the business, properties, assets, liabilities, capitalization, shareholders’
equity, financial condition, operations, licenses, results of operations or prospects of us or any of our subsidiaries or affiliates, taken as a whole, that, in our reasonable judgment, does or is reasonably likely to have a materially
adverse effect on us or any of our subsidiaries or affiliates, taken as a whole, or we have become aware of any fact that, in our reasonable judgment, does or is reasonably likely to have a material adverse effect on the value of the shares;
|
| • |
legislation amending the Internal Revenue Code of 1986, as amended (the “Code”), has been passed by either the U.S. House of Representatives or the Senate or becomes pending
before the U.S. House of Representatives or the Senate or any committee thereof, the effect of which, in our reasonable judgment, would be to change the tax consequences of the transaction contemplated by the Offer in any manner that would
adversely affect us or any of our affiliates;
|
| • |
there has been threatened in writing, instituted, or pending any action, proceeding, application or counterclaim by or before any court or governmental, administrative or
regulatory agency or authority, domestic or foreign, or any other person or tribunal, domestic or foreign, which:
|
| o |
challenges or seeks to challenge, restrain, prohibit or delay the making of the Offer, the acquisition by us of the shares in the Offer, or any other matter relating to the
Offer, or seeks to obtain any material damages or otherwise relating to the transactions contemplated by the Offer;
|
| o |
seeks to make the purchase of, or payment for, some or all of the shares pursuant to the Offer illegal or results in a delay in our ability to accept for payment or pay for
some or all of the shares;
|
| o |
otherwise could reasonably be expected to materially adversely affect the business, properties, assets, liabilities, capitalization, shareholders’ equity, financial condition,
operations, licenses, results of operations or prospects of us or any of our subsidiaries or affiliates, taken as a whole, or the value of the shares;
|
12
| • |
any action has been taken or any statute, rule, regulation, judgment, decree, injunction or order (preliminary, permanent or otherwise) has been proposed, sought, enacted,
entered, promulgated, enforced or deemed to be applicable to the Offer or us or any of our subsidiaries or affiliates by any court, government or governmental agency or other regulatory or administrative authority, domestic or foreign, which,
in our reasonable judgment;
|
| o |
indicates that any approval or other action of any such court, agency or authority may be required in connection with the Offer or the purchase of shares thereunder;
|
| o |
could reasonably be expected to prohibit, restrict or delay consummation of the Offer; or
|
| o |
otherwise could reasonably be expected to materially adversely affect the business, properties, assets, liabilities, capitalization, shareholders’ equity, financial condition,
operations, licenses or results of operations of us or any of our subsidiaries or affiliates, taken as a whole;
|
we learn that:
| o |
any entity, “group” (as that term is used in Section 13(d) (3) of the Exchange Act) or person has acquired or proposes to acquire beneficial ownership of more than 5% of our
outstanding shares, whether through the acquisition of stock, the formation of a group, the grant of any option or right, or otherwise (other than as and to the extent disclosed in a Schedule 13D or Schedule 13G filed with the SEC on or
before July 16, 2021);
|
| o |
any entity, group or person who has filed a Schedule 13D or Schedule 13G with the SEC on or before November 22, 2021, has acquired or proposes to acquire, whether through the
acquisition of stock, the formation of a group, the grant of any option or right, or otherwise, beneficial ownership of an additional 1% or more of our outstanding shares;
|
| o |
any approval, permit, authorization, favorable review or consent of any governmental entity required to be obtained in connection with the Offer has not been obtained on terms
satisfactory to us in our reasonable discretion; or
|
| • |
we determine that the consummation of the Offer and the purchase of the shares is reasonably likely to cause the shares to be subject to delisting from the NYSE.
|
The conditions referred to above are for our sole benefit and may be asserted by us regardless of the circumstances giving
rise to any of these conditions (other than conditions that are proximately caused by our action or failure to act), and may be waived by us, in whole or in part, at any time and from time to time in our reasonable discretion prior to the Expiration
Time. As of the date of the Offer to Purchase, we are not aware that any approval, permit, authorization, favorable review or consent of any governmental entity required to be obtained in connection with the Offer has not been obtained on terms
satisfactory to us in our reasonable discretion, as well as that any of the conditions in this Section 6 exist or are reasonably likely to exist on or before the Expiration Time of the Offering. To the extent that we become aware that any of the
conditions set forth above exist or are incapable of being satisfied, the Company will advise the shareholders of such condition in the form of an amendment to the tender offer and advise whether the Company elects to waive such condition and if
necessary, extend the Expiration Time of the Offer.
Our failure at any time to exercise any of the foregoing rights will not be deemed a waiver of any right, and each such
right will be deemed an ongoing right that may be asserted at any time and from time to time prior to the Expiration Time. Any determination by us concerning the events described above will be final and binding on all persons participating in the
Offer, subject to such Offer participant's disputing such determination in a court of competent jurisdiction.
13
| 7. |
Price Range of the Shares
|
The shares are traded on the NYSE under the symbol “DSX”. The following table sets forth, for each of the periods
indicated, the high and low sales prices per share as reported by the NYSE, based on published financial sources.
Fiscal Year Ending December 31, 2021
|
High
|
Low
|
|||||||
|
First Quarter
|
$
|
3.60
|
$
|
1.89
|
||||
|
Second Quarter
|
5.42
|
2.96
|
||||||
|
Third Quarter
|
6.25
|
3.91
|
||||||
Fiscal Year Ending December 31, 2020
|
High
|
Low
|
|||||||
|
First Quarter
|
$
|
3.08
|
$
|
1.27
|
||||
|
Second Quarter
|
1.99
|
1.36
|
||||||
|
Third Quarter
|
1.58
|
1.37
|
||||||
|
Fourth Quarter
|
2.03
|
1.34
|
||||||
Fiscal Year Ending December 31, 2019
|
High
|
Low
|
|||||||
|
First Quarter
|
$
|
3.57
|
$
|
2.45
|
||||
|
Second Quarter
|
3.31
|
2.90
|
||||||
|
Third Quarter
|
3.73
|
3.02
|
||||||
|
Fourth Quarter
|
3.95
|
3.01
|
||||||
Fiscal Year Ending December 31, 2018
|
High
|
Low
|
|||||||
|
First Quarter
|
$
|
4.50
|
$
|
3.35
|
||||
|
Second Quarter
|
5.10
|
3.34
|
||||||
|
Third Quarter
|
5.00
|
3.80
|
||||||
|
Fourth Quarter
|
4.18
|
3.06
|
||||||
On November 19, 2021, the reported closing price of the shares listed on the NYSE was $3.97 per share. We
urge shareholders to obtain a current market price for the shares before deciding whether to tender their shares.
| 8. |
Source and Amount of Funds
|
Assuming that 3,529,411 shares are purchased in the Offer at the purchase price of $4.25 per share, the aggregate purchase
price will be approximately $15 million. We anticipate that we will pay for the shares tendered in the Offer, as well as paying related fees and expenses, from our cash and cash equivalents.
| 9. |
Information About Diana Shipping Inc.
|
Diana Shipping Inc. is a holding company incorporated under the laws of Liberia in March 1999 as Diana Shipping Investments
Corp. In February 2005, the Company’s articles of incorporation were amended. Under the amended and restated articles of incorporation, the Company was renamed Diana Shipping Inc. and was re-domiciled from the Republic of Liberia to the Republic of
the Marshall Islands. Our executive offices are located at Pendelis 16, 175 64 Palaio Faliro, Athens, Greece. Our telephone number at this address is +30-210-947-0100. Our agent and authorized representative in the United States is our wholly-owned
subsidiary, Bulk Carriers (USA) LLC, established in September 2006, in the State of Delaware, which is located at 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.
14
Operations
We are a global provider of shipping transportation services. We specialize in the ownership of dry bulk vessels. As of the
date of this offer, our operating fleet consists of 36 dry bulk carriers, of which 10 are Panamax, five are Kamsarmax, five are Post-Panamax, 12 are Capesize and four are Newcastlemax vessels, having a combined carrying capacity of approximately 4.6
million dwt with a weighted average age of 10.68 years. The Company also expects to take delivery of one Kamsarmax dry bulk vessel by the end of February 2022.
We charter our vessels to customers pursuant to short-term, medium-term and long-term time charters. Currently, the
majority of our vessels are employed on short-term and medium-term time charters. Under our time charters, the charterer typically pays us a fixed daily charter hire rate and bears all voyage expenses, including the cost of bunkers (fuel oil) and
port and canal charges. However, our voyage results may be affected by differences in bunker prices. We remain responsible for paying the chartered vessel’s operating expenses, including the cost of crewing, insuring, repairing and maintaining the
vessel, the costs of spares and consumable stores, tonnage taxes and other miscellaneous expenses, and we also pay commissions to one or more unaffiliated ship brokers and to in-house brokers associated with the charterer for the arrangement of the
relevant charter.
Directors and Senior Management
Set forth below are the names, ages and positions of our directors and executive officers. Our Board of Directors consists
of nine members and is elected annually on a staggered basis, and each director elected holds office for a three-year term and until his or her successor is elected and has qualified, except in the event of such director’s death, resignation, removal
or the earlier termination of his or her term of office. Officers are appointed from time to time by our board of directors and hold office until a successor is appointed or their employment is terminated. Our current board composition is as follows:
|
Name
|
Age
|
Position
|
||
|
Semiramis Paliou
|
47
|
Class III Director and Chief Executive Officer
|
||
|
Simeon Palios
|
80
|
Class I Director and Chairman
|
||
|
Anastasios Margaronis
|
66
|
Class I Director and President
|
||
|
Ioannis Zafirakis
|
50
|
Class I Director, Chief Financial Officer, Chief Strategy Officer, Treasurer and Secretary
|
||
|
William (Bill) Lawes
|
78
|
Class II Director
|
||
|
Konstantinos Psaltis
|
83
|
Class II Director
|
||
|
Kyriacos Riris
|
72
|
Class II Director
|
||
|
Apostolos Kontoyannis
|
72
|
Class III Director
|
||
|
Konstantinos Fotiadis
|
70
|
Class III Director
|
||
|
Eleftherios Papatrifon
|
51
|
Chief Operating Officer
|
||
|
Maria Dede
|
49
|
Chief Accounting Officer
|
The term of our Class I directors expires in 2024, the term of our Class II directors expires in 2022,
and the term of our Class III directors expires in 2023.
The business address of each officer and director is the address of our principal executive offices, which are located at
Pendelis 16, 175 64 Palaio Faliro, Athens, Greece.
Biographical information with respect to each of our directors and executive officers is set forth below.
Semiramis Paliou has served as a Director since March 2015. She has served as
Chief Executive Officer, Chairperson of the Executive Committee and a member of the Sustainability Committee since March 1, 2021. She previously served as Deputy Chief Executive Officer of the Company from October 2019 until February 2021. Ms. Paliou
also served as member of the Executive Committee and the Chief Operating Officer of the Company from August 2018 until February, 2021. Mrs. Paliou also serves as Chief Executive Officer of Diana Shipping Services S.A. From November 2018 to February
2020 Ms. Paliou also served as Chief Operating Officer of Performance Shipping Inc. Mrs. Paliou has over 20 years of experience in shipping operations, technical management and crewing. Ms. Paliou began her career at Lloyd's Register of Shipping from
1996 to 1998 as a trainee ship surveyor. She was then employed by Diana Shipping Agencies S.A. From 2007 to 2010 she was employed as a Director and President of Alpha Sigma Shipping Corp. From February 2010 to November 2015 she was the Head of the
Operations, Technical and Crew department of Diana Shipping Services S.A. From November 2015 to October 2016 she served as Vice-President of the same company. From November 2016 to the end of July 2018, she served as Managing Director and Head of the
Technical, Operations, Crew and Supply department of Unitized Ocean Transport Limited. Ms. Paliou obtained her BSc in Mechanical Engineering from Imperial College, London and her MSc in Naval Architecture from University College, London. Ms. Paliou
completed courses in “Finance for Senior Executives” in “Authentic Leader Development” and a certificate program on “Sustainable Business Strategy” all at Harvard Business School. She is the daughter of Simeon Palios, the Company’s Chairman, and is
Vice-Chairperson of the Greek committee of Det Norske Veritas, a member of the Greek committee of Nippon Kaiji Kyokai and a member of the Greek committee of Bureau Veritas. Since March 2018, Ms. Paliou has served on the board of directors of the
Hellenic Marine Environment Protection Association (HELMEPA) and serves as the Chairperson since June 2020. As of June 2021, she serves as Vice-Chairperson of INTERMEPA. Also, she is a member of the board of directors of the United Kingdom Mutual
Steam Ship Assurance Association (Europe) Limited since November 2020.
15
Simeon P. Palios has served as the Chairman of the
Board of Directors of Diana Shipping Inc. since February 21, 2005 and as a Director since March 9, 1999, and served as the Company’s Chief Executive Officer until February 2021. Mr. Palios also has served as the Chairman of the Board of Directors
of Performance Shipping Inc. since January 13, 2010 and served as Chief Executive Officer until October 2020. Mr. Palios also serves currently as the President of Diana Shipping Services S.A., our management company, which was formed in 1986. Mr.
Palios was the founder of Diana Shipping Agencies S.A., where he served as Managing Director until November 2004, having the overall responsibility for its activities. Mr. Palios has experience in the shipping industry since 1969 and expertise in
technical and operational issues. He has served as an ensign in the Greek Navy for the inspection of passenger boats on behalf of Ministry of Merchant Marine and is qualified as a naval architect and marine engineer. Mr. Palios is a member of
various leading classification societies worldwide and he is a member of the board of directors of the United Kingdom Freight Demurrage and Defense Association Limited. Since October 7, 2015, Mr. Palios has served as President of the Association
“Friends of Biomedical Research Foundation, Academy of Athens”. He holds a bachelor's degree in Marine Engineering from Durham University.
Anastasios C. Margaronis has served as our President and as a Director since
February 21, 2005. Mr. Margaronis is a Deputy President of Diana Shipping Services S.A., where he also serves as a Director and Secretary. Mr. Margaronis is also member of the Executive Committee of the Company. Prior to February 21, 2005, Mr.
Margaronis was employed by Diana Shipping Agencies S.A. and performed on our behalf the services he now performs as President. He joined Diana Shipping Agencies S.A. in 1979 and has been responsible for overseeing our vessels’ insurance matters,
including hull and machinery, protection and indemnity and war risks insurances. From January 2010 to February 2020 he served as Director and President of Performance Shipping Inc. Mr. Margaronis has experience in the shipping industry, including in
ship finance and insurance, since 1980. He is a member of the Greek National Committee of the American Bureau of Shipping and was a member of the board of directors of the United Kingdom Mutual Steam Ship Assurance Association (Europe) Limited from
October 2005 to October 2019. He holds a bachelor's degree in Economics from the University of Warwick and a master's of science degree in Maritime Law from the Wales Institute of Science and Technology.
Ioannis G. Zafirakis has served as a Director and Secretary of the Company since
February 2005 and Chief Financial Officer (Interim Chief Financial Officer until February, 2021) and Treasurer since February 2020 and he is also the Chief Strategy Officer of the Company. Mr. Zafirakis is also member of the Executive Committee of
the Company. Mr. Zafirakis has held various executive positions such as Chief Operating Officer, Executive Vice-President and Vice-President. In addition, Mr. Zafirakis is the Chief Financial Officer of Diana Shipping Services S.A., where he also
serves as Director and Treasurer. From June 1997 to February 2005, Mr. Zafirakis was employed by Diana Shipping Agencies S.A., where he held a number of positions in finance and accounting. From January 2010 to February 2020 he also served as
Director and Secretary of Performance Shipping Inc., where he held various executive positions such as Chief Operating Officer and Chief Strategy Officer. Mr. Zafirakis is a member of the Business Advisory Committee of the Shipping Programs of ALBA
Graduate Business School at The American College of Greece. He holds a bachelor's degree in Business Studies from City University Business School in London and a master's degree in International Transport from the University of Wales in Cardiff.
William (Bill) Lawes has served as a Director and the Chairman of our Audit
Committee since March 2005. Mr. Lawes served as a Managing Director and a member of the Regional Senior Management Board of JPMorgan Chase and its predecessor banks from 1987 until 2002. Prior to joining JPMorgan Chase, he was Global Head of Shipping
Finance at Grindlays Bank. From December 2007 to March 2019, he served as an independent member of the Board of Directors and Chairman of the Audit Committee of Teekay Tankers Ltd. Mr. Lawes joined Seafarers UK, a maritime charity, as Trustee and
Finance Committee member in 2016. Mr. Lawes is qualified as a member of the Institute of Chartered Accountants of Scotland.
Konstantinos Psaltis has served as a Director since March 2005 and as the Chairman
of our Nominating Committee since May 2015 and a member of our Compensation Committee since May 2017. From 1981 to 2006, Mr. Psaltis served as Managing Director of Ormos Compania Naviera S.A., a company that specializes in operating and managing
multipurpose container vessels and from 2006 until today as a President of the same company. Prior to joining Ormos Compania Naviera S.A., Mr. Psaltis simultaneously served as a technical manager in the textile manufacturing industry and as a
shareholder of shipping companies managed by M.J. Lemos. From 1961 to 1964, he served as ensign in the Royal Hellenic Navy. He holds a degree in Mechanical Engineering from Technische Hochschule Reutlingen & Wuppertal and a bachelor’s degree in
Business Administration from Tubingen University in Germany.
16
Kyriacos Riris has served as a Director since March 2015 and as a member of our
Nominating Committee since May 2015. Commencing in 1998, Mr. Riris served in a series of positions in PricewaterhouseCoopers (PwC), Greece, including Senior Partner, Managing Partner of the Audit and the Advisory/Consulting Lines of Service. From
2009 to 2014, Mr. Riris served as Chairman of the Board of Directors of PricewaterhouseCoopers (PwC), Greece. Prior to its merger with PwC, Mr. Riris was employed at Grant Thornton, Greece, where in 1984 he became a Partner. From 1976 to 1982, Mr.
Riris was employed at Arthur Young, Greece. Since November 2018, Mr. Riris has served as Chairman of Titan Cement International S.A., a Belgian corporation. Mr. Riris holds a degree from Birmingham Polytechnic (presently Birmingham City University)
and completed his professional qualifications with the Association of Certified Chartered Accountants (ACCA) in the UK in 1975, becoming a Fellow of the Association of Certified Accountants in 1985.
Apostolos Kontoyannis has served as a Director and as the Chairperson of our
Compensation Committee and a member of our Audit Committee since March 2005. Since March 2021, Mr. Kontoyannis also serves as the Chairperson of the Sustainability Committee of the Company. Mr. Kontoyannis has over 40 years of experience in shipping
finance and currently serves as financial consultant to various shipping companies. He was employed by Chase Manhattan Bank N.A. in Frankfurt (Corporate Bank), London (Head of Shipping Finance South Western European Region) and Piraeus (Manager, Ship
Finance Group) from 1975 to 1987. Mr. Kontoyannis holds a bachelor's degree in Finance and Marketing and a master's degree in business administration in Finance from Boston University.
Konstantinos Fotiadis has served as a Director since 2017.Mr. Fotiadis served as an
independent Director and as the Chairman of the Audit Committee of Performance Shipping Inc. from the completion of Performance Shipping Inc.’s private offering until February 8, 2011. From 1990 until 1994 Mr. Fotiadis served as the President and
Managing Director of Reckitt & Colman (Greece), part of the British multinational Reckitt & Colman plc, manufacturers of household, cosmetics and health care products. From 1981 until its acquisition in 1989 by Reckitt & Colman plc, Mr.
Fotiadis was a General Manager at Dr. Michalis S.A., a Greek company manufacturing and marketing cosmetics and health care products. From 1978 until 1981 Mr. Fotiadis held positions with Esso Chemicals Ltd. and Avrassoglou S.A. Mr. Fotiadis has also
been active as a business consultant and real estate developer. Mr. Fotiadis holds a degree in Economics from Technische Universitaet Berlin and in Business Administration from Freie Universitaet Berlin.
Eleftherios Papatrifon has served as the Chief Operating Officer of the Company
and Diana Shipping Services S.A. since March 2021. Mr. Papatrifon participates on a non-voting basis in the Executive Committee of the Company. He was Chief Executive Officer, Co-Founder and Director of Quintana Shipping Ltd, a provider of dry bulk
shipping services, from 2010 until the company’s successful sale of assets and consequent liquidation in 2017. Previously, for a period of approximately six years, he served as the Chief Financial Officer and a Director of Excel Maritime Carriers
Ltd. Prior to that, Mr. Papatrifon served for approximately 15 years in a number of corporate finance and asset management positions, both in the USA and Greece. Mr. Papatrifon holds undergraduate (BBA) and graduate (MBA) degrees from Baruch College
(CUNY). He is also a member of the CFA Institute and a CFA charterholder.
Maria Dede has served as our Chief Accounting Officer since September 1, 2005
during which time she has been responsible for all financial reporting requirements. Mrs. Dede has also served as an employee of Diana Shipping Services S.A. since March 2005. In 2000 Mrs. Dede joined the Athens branch of Arthur Andersen, which
merged with Ernst and Young (Hellas) in 2002, where she served as an external auditor of shipping companies until 2005. From 1996 to 2000 Mrs. Dede was employed by Venus Enterprises S.A., a ship-management company, where she held a number of
positions primarily in accounting and supplies. Mrs. Dede holds a Bachelor’s degree in Maritime Studies from the University of Piraeus, and a Master’s degree in Business Administration from the ALBA Graduate Business School and a Master’s degree in
Auditing and Accounting from the Greek Institute of Chartered Accountants.
Employees
We crew our vessels primarily with Greek officers and Filipino officers and seamen and may also employ seamen from Poland,
Romania and Ukraine. Diana Shipping Services S.A. (“DSS”) and Diana Wilhelmsen Management Limited (“DWM”) are responsible for identifying the appropriate officers and seamen mainly through crewing agencies. The crewing agencies handle each seaman’s
training, travel and payroll. The management companies ensure that all our seamen have the qualifications and licenses required to comply with international regulations and shipping conventions. Additionally, our seafaring employees perform most
commissioning work and supervise work at shipyards and drydock facilities. We typically man our vessels with more crew members than are required by the country of the vessel’s flag in order to allow for the performance of routine maintenance duties.
17
Where You Can Find More Information
We are subject to certain of the informational filing requirements of the Exchange Act. Since we are a “foreign private
issuer,” we are exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and its officers, directors and principal shareholders are exempt from the reporting and “short-swing” profit
recovery provisions contained in Section 16 of the Exchange Act, with respect to their purchase and sale of our shares. In addition, we are not required to file reports and financial statements with the SEC as frequently or as promptly as U.S.
companies whose securities are registered under the Exchange Act. However, we are required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. We also have filed, pursuant to
Rule 13e-4(c)(2), an Issuer Tender Offer Statement on Schedule TO as may be amended from time to time (the “Schedule TO”) with the SEC that includes additional information relating to the Offer. The SEC also maintains a website at http://www.sec.gov
that contains reports and other information that we file with or furnish electronically with the SEC, including the Schedule TO. You may also request a copy of the Schedule TO and related exhibits, at no cost, by writing or calling the Information
Agent for the Offer at the telephone numbers set forth on the back cover of this Offer to Purchase.
We have not authorized anyone to provide you with information that differs from that contained in this Offer to Purchase.
You should not assume that the information contained in this Offer to Purchase is accurate as of any date other than the date of this Offer to Purchase, and neither the mailing of this Offer to Purchase to our shareholders nor the decision to tender,
or not to tender, common shares, shall create any implication to the contrary.
This Offer to Purchase does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the
solicitation of a proxy, in any jurisdiction to or from any person to whom it is not lawful to make any such offer or solicitation in such jurisdiction.
Incorporation by Reference
The rules of the SEC allow us to “incorporate by reference” information into this Offer to Purchase, which means that we
can disclose important information to you by referring you to another document filed separately with the SEC. The Offer incorporates by reference the documents (or portions thereof) listed below, including the financial statements and the notes
related thereto contained in those documents that have been previously filed with the SEC. These documents contain important information about us.
(a) Our Annual Report on
Form 20-F for the year December 31, 2020, filed with the SEC on March 12, 2020;
(b) Our report on Form 6-K filed on September 24, 2021 reporting our three and six month financial information, ending on June 30, 2021; and
(c) Our reports on Form
6-K dated October 19, 2021, November 9, 2021 and November 17, 2021, each relating to the announcement of the OceanPal Inc. spin-off transaction and information related thereto.
Any statement contained in a document incorporated by reference into this Offer to Purchase shall be deemed to be modified
or superseded to the extent such statement is modified or superseded in this Offer to Purchase. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Offer to Purchase.
You can obtain any of the documents incorporated by reference in this Offer to Purchase from us or from the SEC’s web site
at the address described above. Documents incorporated by reference are available from us without charge, excluding any exhibits to those documents. You may request a copy of these filings at no cost, by writing or calling us at:
Diana Shipping Inc.
Pendelis 16, 175 64 Palaio Faliro, Athens, Greece
Attention: Mr. Ioannis Zafirakis
Tel: + 30-210-9470-100, Fax: + 30-210-9470-101
E-mail: izafirakis@dianashippinginc.com
Pendelis 16, 175 64 Palaio Faliro, Athens, Greece
Attention: Mr. Ioannis Zafirakis
Tel: + 30-210-9470-100, Fax: + 30-210-9470-101
E-mail: izafirakis@dianashippinginc.com
18
Please be sure to include your complete name and address in your request. If you request any incorporated documents, we
will mail them to you by first class mail, or another equally prompt means, within one business day after we receive your request. You can find additional information by visiting our website at: http://www.dianashippinginc.com. Information contained
on our website is not part of, and is not incorporated into, this Offer.
| 10. |
Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares
|
As of November 22, 2021, there are 88,201,669 shares of common stock issued and outstanding. The 3,529,411 shares we are
offering to purchase under the Offer represent approximately 4.0% of the total number of issued and outstanding shares as of November 22, 2021.
The following table sets forth information regarding ownership of our common stock, par value $0.01 of which we are aware
as of November 22, 2021, for (i) beneficial owners of five percent or more of our common stock and (ii) our officers and directors, individually and as a group. All of our shareholders, including the shareholders listed in this table, are entitled to
one vote for each share of common stock held, with the exception of the holders of our Series C Preferred Shares, which are entitled to 1,000 votes per share and the holders of our Series D Preferred Shares, which are entitled to up to 100,000 votes
per share.
Our directors and executive officers are entitled to participate in the Offer on the same basis as all other shareholders
and one or more of such persons may, but are under no obligation to, do so. To the extent that one or more of the persons listed in the table above tender some or all of its shares in the Offer, their beneficial ownership reported above may change
following the completion of the Offer.
|
Identity of Person or Group
|
Number of Shares Owned
|
Percent of Class* (%)
|
||||||
|
Semiramis Paliou (1)
|
16,062,285
|
18.2
|
||||||
|
Anastasios Margaronis (2)
|
7,888,131
|
8.9
|
||||||
|
Kopernik Global Investors, LLC (3)
|
7,384,879
|
8.4
|
||||||
|
Hosking Partners LLP (4)
|
5,724,407
|
6.5
|
||||||
|
All other officers and directors as a group
|
6,654,705
|
7.5
|
||||||
* Based on 88,201,669 common shares outstanding as of November 22, 2021.
| (1) |
Mrs. Semiramis Paliou indirectly may be deemed to beneficially own 18.2% beneficially owned through Tuscany Shipping Corp., or Tuscany, and through 4 Sweet Dreams
S.A., as the result of her ability to control the vote and disposition of such entities. As of December 31, 2018, 2019 and 2020, Mrs. Semiramis Paliou owned indirectly 0.5%, 1.2% and 17.8%, respectively, of our outstanding common stock.
Additionally, on January 31, 2019, we issued 10,675 shares of newly designated Series C Preferred Stock, par value $0.01 per share, to Taracan Investments S.A., or Taracan, which in September 2020 were contributed to Tuscany. The Series C
Preferred Stock vote with our common shares and each share of the Series C Preferred Stock entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the common stockholders of the Issuer. In addition, Mrs. Paliou
acquired 400 shares of the Series D Preferred Stock on June 22, 2021. The Series D Preferred Stock will vote with the common shares of the Company, and each share of the Series D Preferred Stock shall entitle the holder thereof to up to
100,000 votes, on all matters submitted to a vote of the 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. Through her beneficial ownership of common shares and
shares of Series C Preferred Stock and Series D Preferred Stock, Mrs. Paliou currently controls 36% of the vote of any matter submitted to the vote of the common shareholders.
|
19
| (2) |
Mr. Anastasios Margaronis, our President and a member of our board of directors may be deemed to beneficially own Anamar Investments Inc. and ESX Investments Inc. as the result
of his ability to control the vote and disposition of such entities, for an aggregate of 7,888,131 shares.
|
| (3) |
This information is derived from a Schedule 13G/A filed with the SEC on February 12, 2021, adjusting the percentage figure based on the common shares issued and outstanding as
of the date of this report.
|
| (4) |
This information is derived from a Schedule 13G/A filed with the SEC on February 1, 2021, adjusting the percentage figure based on the common shares issued and outstanding as
of the date of this report.
|
Assuming that we purchase an aggregate of 3,529,411 shares in this offering and that none of our directors or officers sell
any shares in the Offer, the beneficial ownership of our directors and executive officers named in the table above will change to 36.1% of our total issued and outstanding shares from 27.5% of our total issued and outstanding shares as of November
20, 2018, the date prior to our commencement of Tender Offer No. 1, reflecting an aggregate increase in beneficial share ownership by all directors and officers of 8.6%. Such changes in the beneficial ownership of our directors and executive officers
are principally but not exclusively attributable to the Prior Tender Offers.
It is the current intention of our executive officers and directors that the aggregate beneficial ownership of such
individuals' shares will at no time exceed 50% of our issued and outstanding shares.
Recent Securities Transactions
See the description of our recent tender offers under the heading “2. Purpose of the Offer; Certain Effects of the Offer;
Other Plans.” There have been no other recent securities transactions since the date of the Annual Report on Form 20-F for the year December 31, 2020, filed with the SEC on March 12, 2021, other than as referenced herein.
| 11. |
Effects of the Offer on the Market for Shares; Registration under the Exchange Act
|
The purchase by us of shares under the Offer will reduce the number of shares that might otherwise be traded publicly and
is likely to reduce the number of shareholders. As a result, trading of a relatively small volume of the shares after consummation of the Offer may have a greater impact on trading prices than would be the case prior to consummation of the Offer.
We believe that there will be a sufficient number of shares outstanding and publicly traded following completion of the
Offer to ensure a continued trading market for the shares. Based upon published guidelines of the NYSE, we do not believe that our purchase of shares under the Offer will cause the remaining outstanding shares to be delisted from the NYSE. The Offer
is conditioned upon there not being any reasonable likelihood, in our reasonable judgment, that the consummation of the Offer and the purchase of shares will cause the shares to be subject to delisting from the NYSE. See Section 6.
The shares are registered under the Exchange Act, which requires, among other things, that we furnish certain information
to our shareholders and the Commission and comply with the Commission’s proxy rules in connection with meetings of our shareholders.
| 12. |
Legal Matters; Regulatory Approvals
|
We are not aware of any license or regulatory permit that is material to our business that might be adversely affected by
our acquisition of shares as contemplated by the Offer or of any approval or other action by any domestic, foreign or supranational government or governmental, administrative or regulatory authority or agency that would be required for the
acquisition or ownership of shares by us as contemplated by the Offer that is material to the success of the Offer. Should any such approval or other action be required, we presently contemplate that we will seek that approval or other action if
practicable within the time period contemplated by the Offer. We are unable to predict whether we will be required to delay the acceptance of or payment for shares tendered under the Offer pending the outcome of any such matter. There can be no
assurance that any such approval or other action, if needed, would be obtained or would be obtained without substantial cost or conditions or that the failure to obtain the approval or other action might not result in adverse consequences to our
business and financial condition. Our obligations under the Offer to accept for payment and pay for shares is subject to conditions. See Section 6.
20
| 13. |
Certain Material U.S. Federal Income Tax Consequences of the Offer.
|
The following summary describes certain material U.S. federal income tax consequences relevant to the Offer for U.S.
Holders and non-U.S. Holders (each as defined below). This discussion is based upon the Code, existing and proposed Treasury Regulations, administrative pronouncements and judicial decisions, changes to which could materially affect the tax
consequences described herein and could be made on a retroactive basis.
This discussion deals only with shares held as capital assets and does not deal with all tax consequences that may be
relevant to all categories of holders (such as financial institutions or “financial services entities”; broker-dealers; taxpayers who have elected mark-to-market accounting; tax-exempt entities; governments or agencies or instrumentalities thereof;
insurance companies; regulated investment companies; real estate investment trusts; certain expatriates or former long-term residents of the United States; persons that actually or constructively own 10% or more of our voting shares; persons that
hold our warrants; persons that hold our common stock as part of a straddle, constructive sale, hedging, conversion or other integrated transaction; persons required to recognize income no later than when such income is included on an “applicable
financial statement”; or persons whose functional currency is not the U.S. dollar.). This discussion does not address the application of the alternative minimum tax or the state, local or non-U.S. tax consequences of participating in the Offer.
Holders of shares should consult their tax advisors as to the particular consequences to them of participation in the Offer.
As used herein, a “U.S. Holder” means a beneficial holder of shares that is for U.S. federal income tax purposes: (a) an
individual citizen or resident of the United States, (b) a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District
of Columbia, (c) an estate the income of which is subject to U.S. federal income taxation regardless of its source, or (d) a trust if (i) a court within the United States can exercise primary supervision of the trust’s administration and one or more
U.S. persons have the authority to control all substantial decisions of the trust or (ii) it has a valid election in effect under applicable regulations to be treated as a U.S. person.
If a partnership (including for this purpose any entity or arrangement, domestic or foreign, treated as a partnership for
U.S. federal income tax purposes) beneficially owns shares, the tax treatment of a partner generally will depend upon the status of the partner and the activities of the partnership. Beneficial owners that are partnerships, and partners in such
partnership, should consult their own tax advisors.
Holders of shares that are not U.S. Holders are referred to as “non-U.S. Holders”.
Material Considerations of U.S. Holders
Exchange of Shares Pursuant to the Offer. An exchange of shares for cash pursuant
to the Offer will be a taxable transaction for U.S. federal income tax purposes. A U.S. Holder that participates in the Offer will be treated, depending on such U.S. Holder’s particular circumstances, either as recognizing gain or loss from the
disposition of the shares or as receiving a dividend distribution from us.
Under Section 302 of the Code, a U.S. Holder will recognize gain or loss on an exchange of shares for cash if the exchange
(a) results in a “complete termination” of all such U.S. Holder’s equity interest in us, (b) results in a “substantially disproportionate” redemption with respect to such U.S. Holder, or (c) is “not essentially equivalent to a dividend” with respect
to the U.S. Holder (the “Section 302 tests”). In applying the Section 302 tests, a U.S. Holder must take into account shares that such U.S. Holder constructively owns under certain attribution rules, pursuant to which the U.S. Holder will be treated
as owning shares owned by certain family members (except that in the case of a “complete termination” a U.S. Holder may waive, under certain circumstances, attribution from family members) and related entities and shares that the U.S. Holder has the
right to acquire by exercise of an option. An exchange of shares for cash will be a substantially disproportionate redemption with respect to a U.S. Holder if the percentage of the then-outstanding shares owned by such U.S. Holder in us immediately
after the exchange is less than 80% of the percentage of the shares owned by such U.S. Holder in us immediately before the exchange. If an exchange of shares for cash fails to satisfy the “substantially disproportionate” test, the U.S. Holder
nonetheless may satisfy the “not essentially equivalent to a dividend” test. An exchange of shares for cash will satisfy the “not essentially equivalent to a dividend” test if it results in a “meaningful reduction” of the U.S. Holder’s equity
interest in us. An exchange of shares for cash that results in any reduction of the proportionate equity interest in us of a U.S. Holder with a relative equity interest in us that is minimal and that does not exercise any control over or participate
in the management of our corporate affairs should be treated as “not essentially equivalent to a dividend.” U.S. Holders should consult their tax advisors regarding the application of the rules of Section 302 in their particular circumstances.
21
If a U.S. Holder is treated as recognizing gain or loss from the disposition of the shares for cash, such gain or loss will
be equal to the difference between the amount of cash received and such U.S. Holder’s tax basis in the shares exchanged therefor. Assuming we do not constitute a passive foreign investment company, or PFIC, for any taxable year, any such gain or loss
will be capital gain or loss and will be long-term capital gain or loss if the holding period of the shares exceeds one year as of the date of the exchange. Long-term capital gains of non-corporate U.S. Holders are taxed at preferential rates.
Capital losses are subject to limitations on their use.
If a U.S. Holder is not treated under the Section 302 tests as recognizing gain or loss on an exchange of shares for cash,
the entire amount of cash received by such U.S. Holder pursuant to the exchange will be treated as a distribution. Subject to the PFIC rules discussed below, any distributions made by us with respect to common shares to a U.S. Holder will generally
constitute dividends, which may be taxable as ordinary income or “qualified dividend income” as described in more detail below, to the extent of our current or accumulated earnings and profits, as determined under U.S. federal income tax principles.
Distributions in excess of our earnings and profits will be treated first as a non-taxable return of capital to the extent of the U.S. Holder’s tax basis in his common shares on a dollar-for-dollar basis and thereafter as capital gain. Because we are
not a U.S. corporation, U.S. Holders that are corporations will generally not be entitled to claim a dividends-received deduction with respect to any distributions they receive from us.
Dividends paid on common shares to a U.S. Holder which is an individual, trust, or estate (a “U.S. Non-Corporate Holder”)
will generally be treated as “qualified dividend income” that is taxable to such shareholders at preferential U.S. federal income tax rates provided that (1) the common shares are readily tradable on an established securities market in the United
States (such as Nasdaq Capital Market on which the common shares are currently listed); (2) we are not a passive foreign investment company, or PFIC, for the taxable year during which the dividend is paid or the immediately preceding taxable year
(which we do not believe we are, have been or will be); (3) the U.S. Non-Corporate Holder has owned the common shares for more than 60 days in the 121-day period beginning 60 days before the date on which the common shares become ex-dividend; and (4)
certain other conditions are met.
Any dividends paid by us which are not eligible for these preferential rates will be taxed as ordinary income to a U.S.
Holder.
Special rules may apply to any “extraordinary dividend”-generally, a dividend in an amount which is equal to or in excess
of 10% of a shareholder’s adjusted basis in a common share-paid by us. If we pay an “extraordinary dividend” on our common stock that is treated as “qualified dividend income,” then any loss derived by a U.S. Non-Corporate Holder from the sale or
exchange of such common stock will be treated as long-term capital loss to the extent of such dividend.
Passive Foreign Investment Company Rules
Special U.S. federal income tax rules apply to a U.S. Holder that holds stock, or is treated as holding stock by
application of certain attribution rules (for instance, treating options as stock), in a foreign corporation classified as a PFIC for U.S. federal income tax purposes. In general, we will be treated as a PFIC with respect to a U.S. Holder if, for any
taxable year in which such holder held our common shares, either:
| • |
at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct
of a rental business); or
|
| • |
at least 50% of the average value of the assets held by the corporation during such taxable year produce, or are held for the production of, passive income.
|
| • |
See “Tax Considerations-United States Federal Income Tax Consequences-United States Federal Income Taxation of U.S. Holders” for a discussion of the application of the PFIC
rules to holders of our warrants.
|
22
For purposes of determining whether we are a PFIC, we will be treated as earning and owning its proportionate share of the
income and assets, respectively, of any of its subsidiary corporations in which it owns at least 25% of the value of the subsidiary’s stock. Income earned, or deemed earned, by us in connection with the performance of services would not constitute
passive income. By contrast, rental income, which includes bareboat hire, would generally constitute “passive income” unless we are treated under specific rules as deriving rental income in the active conduct of a trade or business.
Based on our current operations and future projections, we do not believe that we are, nor do we expect to become, a PFIC
with respect to any taxable year. Although there is no legal authority directly on point, our belief is based principally on the position that, for purposes of determining whether we are a PFIC, the gross income we derive or are deemed to derive from
the time chartering and voyage chartering activities of our wholly-owned subsidiaries should constitute services income, rather than rental income. Correspondingly, we believe that such income does not constitute passive income, and the assets that
we or our wholly-owned subsidiaries own and operate in connection with the production of such income, in particular, the vessels, do not constitute passive assets for purposes of determining whether we are a PFIC. We believe there is substantial
legal authority supporting its position consisting of case law and Internal Revenue Service pronouncements concerning the characterization of income derived from time charters and voyage charters as services income for other tax purposes. However,
there is also authority which characterizes time charter income as rental income rather than services income for other tax purposes. It should be noted that in the absence of any legal authority specifically relating to the statutory provisions
governing PFICs, the Internal Revenue Service or a court could disagree with this position. In addition, although we intend to conduct its affairs in a manner to avoid being classified as a PFIC with respect to any taxable year, there can be no
assurance that the nature of our operations will not change in the future.
As discussed more fully below, if we were to be treated as a PFIC for any taxable year, a U.S. Holder would be subject to
different taxation rules depending on whether the U.S. Holder makes an election to treat us as a “Qualified Electing Fund,” which election is referred to as a “QEF election.” As an alternative to making a QEF election, a U.S. Holder should be able to
make a “mark-to-market” election with respect to the common shares, as discussed below. In addition, if we were to be treated as a PFIC a U.S. Holder would be required to file an IRS Form 8621 for the year with respect to such holder’s common stock.
Taxation of U.S. Holders Making a Timely QEF Election
If a U.S. Holder makes a timely QEF election, which U.S. Holder is referred to as an “Electing Holder,” the Electing Holder
must report each year for U.S. federal income tax purposes his pro rata share of the our ordinary earnings and its net capital gain, if any, for our taxable year that ends with or within the taxable year of the Electing Holder, regardless of whether
or not distributions were received from us by the Electing Holder. The Electing Holder’s adjusted tax basis in the common shares will be increased to reflect taxed but undistributed earnings and profits. Distributions of earnings and profits that had
been previously taxed will result in a corresponding reduction in the adjusted tax basis in the common shares and will not be taxed again once distributed. An Electing Holder would generally recognize capital gain or loss on the sale, exchange or
other disposition of the common shares. A U.S. Holder would make a QEF election with respect to any year that we are a PFIC by filing IRS Form 8621 with his, her or its U.S. federal income tax return. After the end of each taxable year, we will
determine whether we were a PFIC for such taxable year. If we determine or otherwise become aware that we are a PFIC for any taxable year, we will provide each U.S. Holder with all necessary information, including a PFIC Annual Information Statement,
in order to enable such holder to make a QEF election for such taxable year. A U.S. Holder may not make a QEF election with respect to its ownership of a warrant.
Taxation of U.S. Holders Making a “Mark-to-Market” Election
Alternatively, if we were to be treated as a PFIC for any taxable year and, as anticipated, our common stock is treated as
“marketable stock,” a U.S. Holder would be allowed to make a “mark-to-market” election with respect to our common shares. If that election is made, the U.S. Holder generally would include as ordinary income in each taxable year the excess, if any, of
the fair market value of the common shares at the end of the taxable year over such U.S. Holder’s adjusted tax basis in the common shares. The U.S. Holder would also be permitted an ordinary loss in respect of the excess, if any, of the U.S. Holder’s
adjusted tax basis in the common shares over its fair market value at the end of the taxable year, but only to the extent of the net amount previously included in income as a result of the mark-to-market election. A U.S. Holder’s tax basis in his
common shares would be adjusted to reflect any such income or loss amount. Gain realized on the sale, exchange or other disposition of the common shares would be treated as ordinary income, and any loss realized on the sale, exchange or other
disposition of the common shares would be treated as ordinary loss to the extent that such loss does not exceed the net mark-to-market gains previously included by the U.S. Holder.
23
Taxation of U.S. Holders Not Making a Timely QEF or Mark-to-Market Election
Finally, if we were to be treated as a PFIC for any taxable year, a U.S. Holder who does not make either a QEF election or
a “mark-to-market” election for that year, whom we refer to as a “Non-Electing Holder,” would be subject to special rules with respect to (1) any excess distribution (i.e., the portion of any distributions received by the Non-Electing Holder on our
common stock in a taxable year in excess of 125 percent of the average annual distributions received by the Non-Electing Holder in the three preceding taxable years, or, if shorter, the Non-Electing Holder’s holding period for the common stock), and
(2) any gain realized on the sale, exchange or other disposition of our common stock. Under these special rules:
| • |
the excess distribution or gain would be allocated ratably over the Non-Electing Holders’ aggregate holding period for the common stock;
|
| • |
the amount allocated to the current taxable year and any taxable year before we became a passive foreign investment company would be taxed as ordinary income; and
|
| • |
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an
interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
These penalties would not apply to a pension or profit sharing trust or other tax-exempt organization that did not borrow
funds or otherwise utilize leverage in connection with its acquisition of our common stock. If a Non-Electing Holder who is an individual dies while owning our common stock, such Non-Electing Holder’s successor generally would not receive a step-up
in tax basis with respect to such stock.
Material Considerations of Non-U.S. Holders.
Tendering Non-U.S. Holders of shares generally should not be subject to U.S. federal income or withholding tax, unless the
proceeds from the Offer are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, are attributable to a permanent establishment or fixed base
that such holder maintains in the United States).
Backup Withholding and Information Reporting
In general, information reporting for U.S. federal income tax purposes should apply to distributions made on our common
stock within the United States to a non-corporate U.S. Holder and to the proceeds from sales and other dispositions of our common stock to or through a U.S. office of a broker by a non-corporate U.S. Holder. Payments made (and sales and other
dispositions effected at an office) outside the United States will be subject to information reporting in limited circumstances.
In addition, backup withholding of U.S. federal income tax, currently at a rate of 24%, generally should apply to
distributions paid on our common stock to a non-corporate U.S. Holder and the proceeds from sales and other dispositions of our common stock by a non-corporate U.S. Holder, who:
| • |
fails to provide an accurate taxpayer identification number;
|
| • |
is notified by the IRS that backup withholding is required; or
|
| • |
fails in certain circumstances to comply with applicable certification requirements.
|
A Non-U.S. Holder generally may eliminate the requirement for information reporting and backup withholding by providing
certification of its foreign status, under penalties of perjury, on a duly executed applicable IRS Form W-8 or by otherwise establishing an exemption.
24
Backup withholding is not an additional tax. Rather, the amount of any backup withholding generally should be allowed as a
credit against a U.S. Holder’s or a Non-U.S. Holder’s U.S. federal income tax liability and may entitle such holder to a refund, provided that certain required information is timely furnished to the IRS.
Individuals who are U.S. Holders (and to the extent specified in applicable Treasury regulations, certain individuals who
are Non-U.S. Holders and certain U.S. entities) who hold “specified foreign financial assets” (as defined in Section 6038D of the Code) are required to file IRS Form 8938 with information relating to the asset for each taxable year in which the
aggregate value of all such assets exceeds $75,000 at any time during the taxable year or $50,000 on the last day of the taxable year (or such higher dollar amount as prescribed by applicable Treasury regulations). Specified foreign financial assets
would include, among other assets, the common shares, unless the shares held through an account maintained with a U.S. financial institution. Substantial penalties apply to any failure to timely file IRS Form 8938, unless the failure is shown to be
due to reasonable cause and not due to willful neglect. Additionally, in the event an individual U.S. Holder (and to the extent specified in applicable Treasury regulations, an individual Non-U.S. Holder or a U.S. entity) that is required to file IRS
Form 8938 does not file such form, the statute of limitations on the assessment and collection of U.S. federal income taxes of such holder for the related tax year may not close until three years after the date that the required information is filed.
U.S. Holders (including U.S. entities) and Non-U.S. Holders are encouraged consult their own tax advisors regarding their reporting obligations under this legislation.
THE U.S. FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER’S PARTICULAR
SITUATION. HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS CONCERNING THE TAX IMPLICATIONS OF THE OFFER UNDER APPLICABLE FEDERAL, STATE OR LOCAL LAWS.
| 14. |
Extension of the Offer; Termination; Amendment
|
We expressly reserve the right, in our sole discretion, at any time prior to the Expiration Time and from time to time, and
regardless of whether or not any of the events set forth in Section 6 shall have occurred or shall be deemed by us to have occurred, to extend the period of time during which the Offer is open and thereby delay acceptance of, and payment for, any
shares by giving oral or written notice of such extension to the Depositary and making a public announcement of such extension. We also expressly reserve the right, in our sole discretion, if any of the conditions set forth in Section 6 has occurred
or is deemed by us to have occurred, to terminate the Offer and reject for payment and not pay for any shares not theretofore accepted for payment or paid for or, subject to applicable law, to postpone payment for shares by giving oral or written
notice of such termination or postponement to the Depositary and making a public announcement of such termination or postponement. Our reservation of the right to delay payment for shares which we have accepted for payment is limited by Rule
13e-4(f)(5) promulgated under the Exchange Act, which requires that we must pay the consideration offered or return the shares tendered promptly after termination or withdrawal of a tender offer. Subject to compliance with applicable law, we further
reserve the right, in our sole discretion, and regardless of whether any of the events set forth in Section 6 shall have occurred or shall be deemed by us to have occurred, to amend the Offer in any respect, including, without limitation, by
decreasing or increasing the consideration offered in the Offer to holders of shares or by decreasing or increasing the number of shares being sought in the Offer. Amendments to the Offer may be made at any time and from time to time effected by
public announcement, such announcement, in the case of an extension, to be issued no later than 9:00 a.m., Eastern Time, on the next business day after the last previously scheduled or announced Expiration Time. Any public announcement made under the
Offer will be disseminated promptly to shareholders in a manner reasonably designed to inform shareholders of such change. Without limiting the manner in which we may choose to make a public announcement, except as required by applicable law, we
shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by making a release through the Company’s investor relations firm. In addition, we would file such press release as an exhibit to the
Schedule TO.
25
If we materially change the terms of the Offer or the information concerning the Offer, we will extend the Offer to the
extent required by Rules 13e-4(d)(2), 13e-4(e)(3) and 13e-4(f)(1) promulgated under the Exchange Act. These rules and certain related releases and interpretations of the Commission provide that the minimum period during which a tender offer must
remain open following material changes in the terms of the Offer or information concerning the Offer (other than a change in price or a change in percentage of securities sought) will depend on the facts and circumstances, including the relative
materiality of such terms or information; however, in no event will the Offer remain open for fewer than five business days following such a material change in the terms of, or information concerning, the Offer. If (1)(a) we increase or decrease the
price to be paid for shares, (b) decrease the number of shares being sought in the Offer, or (c) increase the number of shares being sought in the Offer, and (2) the Offer is scheduled to expire at any time earlier than the expiration of a period
ending on the tenth business day from, and including, the date that such notice of an increase or decrease is first published, sent or given to shareholders in the manner specified in this Section 14, the Offer will be extended until the expiration
of such period of ten business days.
| 15. |
Fees and Expenses
|
We have retained Georgeson LLC to act as Information Agent and Computershare Trust Company, N.A. to act as Depositary in
connection with the Offer. The Information Agent may contact holders of shares by mail, facsimile and personal interviews and may request brokers, dealers and other nominee shareholders to forward materials relating to the Offer to beneficial owners.
The Information Agent and the Depositary will each receive reasonable and customary compensation for their respective services, will be reimbursed by us for reasonable out-of-pocket expenses and will be indemnified against certain liabilities in
connection with the Offer, including certain liabilities under the federal securities laws.
We will not pay any fees or commissions to brokers, dealers or other persons (other than fees to the Information Agent as
described above) for soliciting tenders of shares pursuant to the Offer. Shareholders holding shares through brokers or banks are urged to consult the brokers or banks to determine whether transaction costs may apply if shareholders tender shares
through the brokers or banks and not directly to the Depositary. We will, however, upon request, reimburse brokers, dealers and commercial banks for customary mailing and handling expenses incurred by them in forwarding the Offer and related
materials to the beneficial owners of shares held by them as a nominee or in a fiduciary capacity. No broker, dealer, commercial bank or trust company has been authorized to act as our agent or the agent of the Information Agent or the Depositary for
purposes of the Offer. We will pay or cause to be paid all stock transfer taxes, if any, on our purchase of shares, except as otherwise provided in Instruction 6 in the Letter of Transmittal.
| 16. |
Miscellaneous
|
Pursuant to Rule 13e-4(c)(2) under the Exchange Act, we have filed with the Commission an Issuer Tender Offer Statement on
Schedule TO, which contains additional information with respect to the Offer. The Schedule TO, including the exhibits and any amendments and supplements thereto, may be examined, and copies may be obtained, at the same places and in the same manner
as is set forth in Section 9 with respect to information concerning us.
The Offer does not constitute an offer to buy or the solicitation of an offer to sell shares in any circumstance or
jurisdiction in which such offer or solicitation is unlawful. If we become aware of any jurisdiction where the making of the Offer or the acceptance of shares pursuant thereto is not in compliance with applicable law, we will make a good faith effort
to comply with the applicable law where practicable.
You should only rely on the information contained in this Offer to Purchase or to which we have referred to you. We have
not authorized any person to make any recommendation on behalf of us as to whether you should tender or refrain from tendering your shares. We have not authorized any person to give any information or to make any representation in connection with the
Offer other than those contained in this Offer to the Purchase or in the related Letter of Transmittal. If given or made, any recommendation or any such information or representation must not be relied upon as having been authorized by us, the
Depositary or the Information Agent.
26
November 22, 2021
The Letter of Transmittal, certificates for shares and any other required documents should be sent or delivered by each
shareholder of the Company or his or her broker, dealer, commercial bank, trust company or other nominee to the Depositary as follows:
The Depositary for the Offer is:
Computershare Trust Company, N.A.
Computershare Trust Company, N.A.
|
By First Class Mail:
|
By Overnight Courier:
|
|
Computershare Trust Company, N.A.
|
Computershare Trust Company, N.A.
|
|
Attn: Corporate Actions
|
Attn: Corporate Actions
|
|
P.O. Box 43011
|
150 Royall St., Suite V
|
|
Providence, Rhode Island 02940-3011
|
Canton, Massachusetts 02021
|
Delivery of the letter of transmittal to an address other than as set forth above will not constitute a
valid delivery to the Depositary.
Questions and requests for assistance or for additional copies of this Offer to Purchase, the Letter of Transmittal and the
Notice of Guaranteed Delivery may be directed to the Information Agent at the telephone number and location listed below. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
1290 Avenue of the Americas, 9th Floor
New York, NY 10104
Banks, Brokers and Shareholders Call Toll-Free: (800) 248-7690
Parties outside the U.S. can reach the information agent at +1-781-575-2137
New York, NY 10104
Banks, Brokers and Shareholders Call Toll-Free: (800) 248-7690
Parties outside the U.S. can reach the information agent at +1-781-575-2137
27
Exhibit (a)(1)(B)
Letter of Transmittal
To Tender Shares of Common Stock
Pursuant to the Offer to Purchase for Cash
Dated November 22, 2021
by
DIANA SHIPPING INC.
of
Up to 3,529,411 Shares of its Common Stock
at a Purchase Price of $4.25 per share
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., EASTERN TIME, ON DECEMBER 21, 2021,
UNLESS THE OFFER IS EXTENDED.
|
By First Class Mail:
|
By Registered Mail or Overnight Courier:
|
|
Computershare Trust Company, N.A.
|
Computershare Trust Company, N.A.
|
|
Attn: Corporate Actions Voluntary Officer
|
Attn: Corporate Actions Voluntary Officer
|
|
P.O. Box 40311
|
150 Royall St, Suite V
|
|
Providence RI 02940-3011
|
Canton MA 02021
|
Delivery of this Letter of Transmittal to an address other than as set forth above does not constitute a
valid delivery.
The instructions set forth in this Letter of Transmittal should be read carefully before this Letter of Transmittal is
completed.
DESCRIPTION OF SHARES TENDERED
(See Instructions 3 and 4)
|
Name(s) and Address of Registered Holder(s)
If there is any error in the name or address shown below,
please make the necessary corrections
|
Shares of Common Stock
Tendered (Attach Additional
Signed List if Necessary)
|
||||||||||
|
Certificate Number(s)*
|
Total Number
of Shares
Represented by Certificate(s)* |
Number
of Shares
Tendered** |
|||||||||
|
*
|
Need not be completed if shares are tendered by book-entry transfer.
|
||||||||||
☐ Lost Certificates.
I have lost my certificate(s) for shares and require assistance in replacing the shares. (See Instruction 11).
THE UNDERSIGNED TENDERS ALL UNCERTIFICATED SHARES THAT MAY BE HELD IN THE NAME OF THE REGISTERED HOLDER(S) BY THE COMPANY’S
TRANSFER AGENT
|
☐
|
YES
|
☐
|
NO
|
This Letter of Transmittal is to be used either if certificates for shares (as defined below) are to be forwarded herewith
or, unless an agent’s message (as defined in Section 3 of the Offer to Purchase (as defined below)) is utilized, if delivery of shares is to be made by book-entry transfer to an account maintained by the Depositary (as defined below) at the
book-entry transfer facility (as defined in Section 3 of the Offer to Purchase) pursuant to the procedures set forth in Section 3 of the Offer to Purchase. Tendering shareholders whose certificates for shares are not immediately available or who
cannot deliver either the certificates for, or a book-entry confirmation (as defined in Section 3 of the Offer to Purchase) with respect to, their shares and all other documents required hereby to the Depositary prior to the Expiration Time (as
defined in Section 1 of the Offer to Purchase) must tender their shares in accordance with the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. See Instruction 2.
Your attention is directed in particular to the following:
1. If you want to retain your shares, you do not need to take any action.
2. If you want to participate in the Offer (as defined below), you should complete this Letter of Transmittal.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
|
☐
|
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
|
||||||||
|
Name of Tendering Institution:
|
|||||||||
|
Account Number:
|
|||||||||
|
Transaction Code Number:
|
|||||||||
|
☐
|
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY. ENCLOSE
A PHOTO-COPY OF THE NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
|
||||||||
|
Name(s) of Registered Owners(s):
|
|||||||||
|
Date of Execution of Notice of Guaranteed Delivery:
|
|||||||||
|
Name of Institution that Guaranteed Delivery:
|
|||||||||
If delivered by book-entry transfer, check box: ☐
Ladies and Gentlemen:
The undersigned hereby tenders to Diana Shipping Inc. (the “Company”) the above-described shares of common stock, par value
of $0.01 per share (the “shares”), of the Company, at the price per share indicated in this Letter of Transmittal, net to the seller in cash, less any applicable withholding taxes and without interest, on the terms and subject to the conditions set
forth in the Company’s Offer to Purchase dated November 22, 2021 (the “Offer to Purchase”), and this Letter of Transmittal (which, together with any amendments or supplements thereto or hereto, collectively constitute the “Offer”), receipt of which
is hereby acknowledged. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company.
Subject to and effective on acceptance for payment of, and payment for, the shares tendered with this Letter of Transmittal
in accordance with the terms and subject to the conditions of the Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company, all right, title and interest in and to all the shares that are being tendered hereby
and irrevocably constitutes and appoints Computershare Trust Company, N.A. (the “Depositary”), the true and lawful agent and attorney-in-fact of the undersigned, with full power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to the full extent of the undersigned’s rights with respect to such shares, to (a) deliver certificates for such shares or transfer ownership of such shares on the account books maintained by the
book-entry transfer facility, together, in any such case, with all accompanying evidences of transfer and authenticity to, or upon the order of the Company, (b) present such shares for cancellation and transfer on the Company’s books and (c) receive
all benefits and otherwise exercise all rights of beneficial ownership of such shares, all in accordance with the terms and subject to the conditions of the Offer.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign
and transfer the shares tendered hereby and that, when the same are accepted for purchase by the Company, the Company will acquire good title thereto, free and clear of all security interests, liens, restrictions, claims and encumbrances, and the
same will not be subject to any adverse claim or right. The undersigned will, on request by the Depositary or the Company, execute and deliver any additional documents deemed by the Depositary or the Company to be necessary or desirable to complete
the sale, assignment and transfer of the shares tendered hereby, all in accordance with the terms of the Offer.
All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal shall be binding on the
successors, assigns, heirs, personal representatives, executors, administrators and other legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. Except as stated in the
Offer to Purchase, this tender is irrevocable.
The undersigned understands that the valid tender of shares pursuant to any of the procedures described in Section 3 of the
Offer to Purchase and in the instructions to this Letter of Transmittal will constitute a binding agreement between the undersigned and the Company on the terms and subject to the conditions of the Offer.
It is a violation of Rule 14e-4 promulgated under the Exchange Act (as defined in the Offer to Purchase) for a person
acting alone or in concert with others, directly or indirectly, to tender shares for such person’s own account unless at the time of tender and at the Expiration Time such person has a “net long position” in (a) the shares that is equal to or greater
than the amount tendered and will deliver or cause to be delivered such shares for the purpose of tender to the Company within the period specified in the Offer, or (b) other securities immediately convertible into, exercisable for or exchangeable
into shares (“Equivalent Securities”) that is equal to or greater than the amount tendered and, upon the acceptance of such tender, will acquire such shares by conversion, exchange or exercise of such Equivalent Securities to the extent required by
the terms of the Offer and will deliver or cause to be delivered such shares so acquired for the purpose of tender to the Company within the period specified in the Offer. Rule 14e-4 also provides a similar restriction applicable to the tender or
guarantee of a tender on behalf of another person. A tender of shares made pursuant to any method of delivery set forth in this Letter of Transmittal will constitute the undersigned’s representation and warranty to the Company that (a) the
undersigned has a “net long position” in shares or Equivalent Securities at least equal to the shares being tendered within the meaning of Rule 14e-4, and (b) such tender of shares complies with Rule 14e-4.
The undersigned understands that all shares properly tendered and not properly withdrawn will be purchased at the purchase
price, net to the seller in cash, less any applicable withholding taxes and without interest, upon the terms and subject to the conditions of the Offer, including its proration provisions, and that the Company will return at its expense all other
shares, including shares not purchased because of proration, promptly following the Expiration Time.
In participating in the Offer to purchase for cash, the undersigned acknowledges that: (1) the Offer is established
voluntarily by the Company, it is discretionary in nature and it may be extended, modified, suspended or terminated by the Company as provided in the Offer; (2) the undersigned is voluntarily participating in the Offer; (3) the future value of the
Company’s common stock is unknown and cannot be predicted with certainty; (4) any foreign exchange obligations triggered by the undersigned’s tender of shares or the recipient of proceeds are solely his or her responsibility; and (5) regardless of
any action that the Company takes with respect to any or all income/capital gains tax, social security or insurance, transfer tax or other tax-related items (“Tax Items”) related to the Offer and the disposition of shares, the undersigned
acknowledges that the ultimate liability for all Tax Items is and remains his or her sole responsibility. In that regard, the undersigned authorizes the Company to withhold all applicable Tax Items legally payable by the undersigned.
The undersigned consents to the collection, use and transfer, in electronic or other form, of the undersigned’s personal
data as described in this document by and among, as applicable, the Company, its subsidiaries, and third party administrators for the exclusive purpose of implementing, administering and managing his or her participation in the Offer.
The undersigned understands that the Company holds certain personal information about him or her, including, as applicable,
but not limited to, the undersigned’s name, home address and telephone number, date of birth, social security or insurance number or other identification number, nationality, any shares of stock held in the Company, details of all options or any
other entitlement to shares outstanding in the undersigned’s favor, for the purpose of implementing, administering and managing his or her stock ownership (“Data”). The undersigned understands that Data may be transferred to any third parties
assisting in the implementation, administration and management of the Offer, that these recipients may be located in his or her country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than his or
her country. The undersigned understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting the Company. The undersigned authorizes the recipients to receive, possess, use, retain and
transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Offer, including any requisite transfer of such Data as may be required to a broker or other third party with
whom held any shares of stock. The undersigned understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Offer. The undersigned understands that he or she may, at any time,
view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Company. The undersigned
understands, however, that refusing or withdrawing his or her consent may affect his or her ability to participate in the Offer. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the undersigned
understands that he or she may contact the Company.
Unless otherwise indicated herein under “Special Payment Instructions,” please issue the check for payment of the purchase
price and/or return any certificates for shares not tendered or accepted for payment in the name(s) of the registered holder(s) appearing under “Description of Shares Tendered.” Similarly, unless otherwise indicated under “Special Delivery
Instructions,” please mail the check for payment of the purchase price and/or return any certificate for shares not tendered or accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing
under “Description of Shares Tendered.” In the event that both the “Special Delivery Instructions” and the “Special Payment Instructions” are completed, please issue the check for payment of the purchase price and/or return any certificates for
shares not tendered or accepted for payment (and any accompanying documents, as appropriate) in the name(s) of, and deliver such check and/or return such certificates (and any accompanying documents, as appropriate) to, the person or persons so
indicated. Please credit any shares tendered herewith by book-entry transfer that are not accepted for payment by crediting the account at the book-entry transfer facility designated above. The undersigned recognizes that the Company has no
obligation pursuant to the “Special Payment Instructions” to transfer any shares from the name of the registered holder(s) thereof if the Company does not accept for payment any of the shares so tendered.
NOTE: SIGNATURE MUST BE PROVIDED BELOW.
SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 6, 7 and 8)
To be completed ONLY if certificates for shares not tendered or not accepted for payment and/or the check for payment of
the purchase price of shares accepted for payment are to be issued in the name of someone other than the undersigned, or if shares tendered hereby and delivered by book-entry transfer which are not purchased are to be returned by crediting them to an
account at the book-entry transfer facility other than the account designated above.
|
Issue:
|
☐
|
Check
|
☐
|
Certificate(s) to:
|
|
Name
|
||
|
(Please Print)
|
||
|
Address
|
||
|
(Include Zip Code)
|
||
|
(Taxpayer Identification or Social Security Number)
(See IRS Form W-9 Included Herewith or attach applicable IRS Form W-8)
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 6, 7 and 8)
|
To be completed ONLY if certificates for shares not tendered or not accepted for payment and/or the check for payment of
the purchase price of shares accepted for payment are to be sent to someone other than the undersigned or to the undersigned at an address other than that above.
|
Issue:
|
☐
|
Check
|
☐
|
Certificate(s) to:
|
|
Name
|
||
|
(Please Print)
|
||
|
Address
|
||
|
(Include Zip Code)
|
||
|
SIGN HERE:
(Also Complete IRS Form W-9 Attached Hereto or Applicable IRS Form W-8)
(Signature(s) of Shareholder(s))
|
Dated: ______________
(Must be signed by registered holder(s) exactly as name(s) appear(s) on stock certificate(s) for the shares or on a security position listing
or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, please provide the following information and see Instruction 5.)
|
Name
|
||||
|
(Please Print)
|
||||
|
Capacity (full title)
|
||||
|
Address
|
||||
|
(Include Zip Code)
|
||||
|
Daytime Area Code and Telephone Number:
|
||||
|
Taxpayer Identification or Social Security Number:
|
||||
GUARANTEE OF SIGNATURE(S)
(If Required-See Instructions 1 and 6)
|
Authorized Signature:
|
||
|
Name(s):
|
||
|
(Please Print)
|
||
|
Name of Firm:
|
||
|
Title:
|
||
|
Address:
|
||
|
(Include Zip Code)
|
Dated: ______________
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Guarantee of Signatures. No signature guarantee is required on this Letter of
Transmittal if either (a) this Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Instruction 1, includes any participant in the book-entry transfer facility’s system whose name appears on a security
position listing as the owner of the shares) of shares tendered herewith, unless such registered holder(s) has completed either the box entitled “Special Payment Instructions” or the box entitled “Special Delivery Instructions” on this Letter of
Transmittal or (b) such shares are tendered for the account of a firm that is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association, Inc., including the Securities Transfer Agents Medallion
Program, the New York Stock Exchange, Inc. Medallion Signature Program or the Stock Exchange Medallion Program, or is otherwise an “eligible guarantor institution,” as that term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended (each, an “eligible institution”). In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an eligible institution. Shareholders may also need to have any certificates they deliver endorsed or accompanied by a
stock power, and the signatures on these documents also may need to be guaranteed. See Instruction 5.
2. Requirements of Tender. This Letter of Transmittal is to be completed by
shareholders either if certificates are to be forwarded herewith or, unless an agent’s message (as defined below) is utilized, if delivery of shares is to be made pursuant to the procedures for book-entry transfer set forth in Section 3 of the Offer
to Purchase. For a shareholder validly to tender shares pursuant to the Offer, either (a) a Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or, in the case of a book-entry transfer, an
agent’s message, and any other required documents, must be received by the Depositary at one of its addresses set forth on the back of this Letter of Transmittal prior to the Expiration Time and either certificates for tendered shares must be
received by the Depositary at one of such addresses or shares must be delivered pursuant to the procedures for book-entry transfer set forth herein (and a book-entry confirmation must be received by the Depositary), in each case prior to the
Expiration Time, or (b) the tendering shareholder must comply with the guaranteed delivery procedures set forth below and in Section 3 of the Offer to Purchase.
Shareholders whose certificates for shares are not immediately available or who cannot deliver their certificates and all
other required documents to the Depositary or complete the procedures for book-entry transfer prior to the Expiration Time may tender their shares by properly completing and duly executing the Notice of Guaranteed Delivery pursuant to the guaranteed
delivery procedures set forth in Section 3 of the Offer to Purchase. Pursuant to those procedures, (a) tender must be made by or through an eligible institution, (b) a properly completed and duly executed Notice of Guaranteed Delivery, in the form
provided by the Company, must be received by the Depositary prior to the Expiration Time and (c) the certificates for all tendered shares in proper form for transfer (or a book-entry confirmation with respect to all such shares), together with a
Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer, an agent’s message, and any other required documents, must be received by the Depositary, in each case
within two business days after the date of execution of the Notice of Guaranteed Delivery as provided in Section 3 of the Offer to Purchase. The term “agent’s message” means a message transmitted by the book-entry transfer facility to, and received
by, the Depositary and forming a part of a book-entry confirmation, which states that such book-entry transfer facility has received an express acknowledgment from the participant in the book-entry transfer facility tendering the shares that such
participant has received and agrees to be bound by the terms of the Letter of Transmittal and that the Company may enforce such agreement against such participant.
The method of delivery of shares, this Letter of Transmittal and all other required documents, including delivery through
the book-entry transfer facility, is at the sole election and risk of the tendering shareholder. Shares will be deemed delivered only when actually received by the Depositary (including, in the case of a book-entry transfer, by book-entry
confirmation). If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
Except as specifically provided by the Offer to Purchase, no alternative, conditional or contingent tenders will be
accepted. No fractional shares will be purchased. All tendering shareholders, by execution of this Letter of Transmittal, waive any right to receive any notice of the acceptance for payment of their shares.
3. Inadequate Space. If the space provided in the box entitled “Description of
Shares Tendered” in this Letter of Transmittal is inadequate, the certificate numbers and/or the number of shares of common stock should be listed on a separate signed schedule attached hereto.
4. Partial Tenders (Not Applicable to Shareholders Who Tender by Book-Entry Transfer).
If fewer than all the shares represented by any certificate submitted to the Depositary are to be tendered, fill in the number of shares that are to be tendered in the box entitled “Number of Shares Tendered.” In that case, if any tendered shares are
purchased, new certificate(s) for the remainder of the shares that were evidenced by the old certificate(s) will be sent to the registered holder(s), unless otherwise provided in the appropriate box on this Letter of Transmittal, promptly after the
acceptance for payment of, and payment for, the shares tendered herewith. All shares represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated.
5. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If this
Letter of Transmittal is signed by the registered holder(s) of the shares tendered hereby, the signature(s) must correspond exactly with the name(s) as written on the face of the certificate(s) without any change whatsoever.
If any of the shares tendered hereby are owned of record by two or more joint owners, all such persons must sign this
Letter of Transmittal.
If any shares tendered hereby are registered in different names on several certificates, it will be necessary to complete,
sign and submit as many separate Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, he or she should so indicate when signing, and proper evidence satisfactory to the Company of his or her authority to so act must be
submitted with this Letter of Transmittal. Signatures on any such certificates or stock powers must be guaranteed by an eligible institution.
If this Letter of Transmittal is signed by the registered owner(s) of the shares tendered hereby, no endorsements of
certificates or separate stock powers are required unless payment of the purchase price is to be made, or certificates for shares not tendered or accepted for payment are to be issued, to a person other than the registered owner(s). Signatures on any
such certificates or stock powers must be guaranteed by an eligible institution.
If this Letter of Transmittal is signed by a person other than the registered owner(s) of the shares tendered hereby, or if
payment is to be made or certificate(s) for shares not tendered or not purchased are to be issued to a person other than the registered owner(s), the certificate(s) representing such shares must be properly endorsed for transfer or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the registered owner(s) appear(s) on the certificates(s). The signature(s) on any such certificate(s) or stock power(s) must be guaranteed by an eligible institution. See Instruction 1.
6. Stock Transfer Taxes. The Company will pay any stock transfer taxes with
respect to the transfer and sale of shares to it pursuant to the Offer. If, however, payment of the purchase price is to be made to, or if shares not tendered or accepted for payment are to be registered in the name of, any person(s) other than the
registered owner(s), or if shares tendered hereby are registered in the name(s) of any person(s) other than the person(s) signing this Letter of Transmittal, the amount of any stock transfer taxes (whether imposed on the registered owner(s) or such
person(s)) payable on account of the transfer to such person(s) will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted with this Letter of Transmittal.
Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the
certificates listed in this Letter of Transmittal.
7. Special Payment and Delivery Instructions. If a check for the purchase price
of any shares accepted for payment is to be issued in the name of, and/or certificates for any shares not accepted for payment or not tendered are to be issued in the name of and/or returned to, a person other than the signer of this Letter of
Transmittal or if a check is to be sent, and/or such certificates are to be returned, to a person other than the signer of this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed and signatures must be guaranteed as described in Instructions 1 and 6.
8. Irregularities. The Company will determine in its sole discretion all
questions as to the number of shares to accept, and the validity, eligibility (including time of receipt), and acceptance for payment of any tender of shares. Any such determinations will be final and binding on all persons participating in the
Offer, subject to such participant’s disputing such determination in a court of competent jurisdiction. The Company reserves the absolute right to reject any or all tenders of shares it determines not to be in proper form or the acceptance of which
or payment for which may, in the Company’s counsel’s opinion, be unlawful. The Company also reserves the absolute right to waive any defect or irregularity in the tender of any particular shares, and the Company’s interpretation of the terms of the
Offer, including these instructions, will be final and binding on all persons participating in the Offer, subject to such participant’s disputing such determination in a court of competent jurisdiction. No tender of shares will be deemed to be
properly made until all defects and irregularities have been cured or waived. Unless waived, any defects or irregularities in connection with tenders must be cured within such time as the Company shall determine. None of the Company, the (as defined
in the Offer to Purchase), the Depositary, the Information Agent (as defined in the Offer to Purchase) or any other person is or will be obligated to give notice of any defects or irregularities in tenders and none of them will incur any liability
for failure to give any such notice.
9. U.S. Federal Income Tax Withholding. In general, information reporting for
U.S. federal income tax purposes should apply to distributions made on our common stock within the United States to a non-corporate U.S. Holder and to the proceeds from sales and other dispositions of our common stock to or through a U.S. office of a
broker by a non-corporate U.S. Holder. Payments made (and sales and other dispositions effected at an office) outside the United States will be subject to information reporting in limited circumstances.
In addition, backup withholding of U.S. federal income tax, currently at a rate of 24%, generally should apply to
distributions paid on our common stock to a non-corporate U.S. Holder and the proceeds from sales and other dispositions of our common stock by a non-corporate U.S. Holder, who:
| • |
fails to provide an accurate taxpayer identification number;
|
| • |
is notified by the IRS that backup withholding is required; or
|
| • |
fails in certain circumstances to comply with applicable certification requirements.
|
A Non-U.S. Holder generally may eliminate the requirement for information reporting and backup withholding by providing
certification of its foreign status, under penalties of perjury, on a duly executed applicable IRS Form W-8 or by otherwise establishing an exemption.
Backup withholding is not an additional tax. Rather, the amount of any backup withholding generally should be allowed as a
credit against a U.S. Holder’s or a Non-U.S. Holder’s U.S. federal income tax liability and may entitle such holder to a refund, provided that certain required information is timely furnished to the IRS.
Individuals who are U.S. Holders (and to the extent specified in applicable Treasury regulations, certain individuals who
are Non-U.S. Holders and certain U.S. entities) who hold “specified foreign financial assets” (as defined in Section 6038D of the Code) are required to file IRS Form 8938 with information relating to the asset for each taxable year in which the
aggregate value of all such assets exceeds $75,000 at any time during the taxable year or $50,000 on the last day of the taxable year (or such higher dollar amount as prescribed by applicable Treasury regulations). Specified foreign financial assets
would include, among other assets, the common shares, unless the shares held through an account maintained with a U.S. financial institution. Substantial penalties apply to any failure to timely file IRS Form 8938, unless the failure is shown to be
due to reasonable cause and not due to willful neglect. Additionally, in the event an individual U.S. Holder (and to the extent specified in applicable Treasury regulations, an individual Non-U.S. Holder or a U.S. entity) that is required to file IRS
Form 8938 does not file such form, the statute of limitations on the assessment and collection of U.S. federal income taxes of such holder for the related tax year may not close until three years after the date that the required information is filed.
U.S. Holders (including U.S. entities) and Non-U.S. Holders are encouraged consult their own tax advisors regarding their reporting obligations under this legislation.
10. Requests for Assistance or Additional Copies. Questions and requests for
assistance may be directed to the Information Agent at the address set forth below. Additional copies of the Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed Delivery may be obtained from the Information Agent.
11. Lost, Destroyed or Stolen Certificates. If your certificate(s) for part or
all of your shares has been lost, stolen, destroyed or mutilated, you should check the box for “Lost Certificates” in the box on page 1 and promptly send the completed Letter of Transmittal to the Depositary. Upon receipt of your Letter of
Transmittal, the Depositary will provide you with instructions on how to obtain a replacement certificate. You may be asked to post a bond to secure against the risk that the certificate may be subsequently recirculated. There may be a fee and
additional documents may be required to replace lost certificates. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, stolen, destroyed or mutilated certificates have been followed. You are
urged to send the properly completed Letter of Transmittal to the Depositary immediately to ensure timely processing of documentation. If you have questions, you may contact the Depositary at (800) 546-5141.
IMPORTANT. This Letter of Transmittal, together with any
required signature guarantees, or, in the case of a book-entry transfer, an agent’s message, and any other required documents, must be received by the Depositary prior to the Expiration Time and either certificates for tendered shares must be
received by the Depositary or shares must be delivered pursuant to the procedures for book-entry transfer, in each case prior to the Expiration Time, or the tendering shareholder must comply with the procedures for guaranteed delivery.
The Letter of Transmittal, certificates for shares and any other required documents should be sent or delivered by each
shareholder of the Company or such shareholder’s broker, dealer, commercial bank, trust company or other nominee to the Depositary at one of its addresses set forth below.
|
By First Class Mail:
|
By Registered Mail or Overnight Courier:
|
|
Computershare Trust Company, N.A.
|
Computershare Trust Company, N.A.
|
|
Attn: Corporate Actions Voluntary Officer
|
Attn: Corporate Actions Voluntary Officer
|
|
P.O. Box 43011
|
150 Royall St., Suite V
|
|
Providence, Rhode Island 02940-3011
|
Canton, Massachusetts 02021
|
Delivery of this Letter of Transmittal to an address other than as set forth above will not constitute a
valid delivery to the Depositary.
Questions and requests for assistance may be directed to the Information Agent at the address set forth below. Additional
copies of the Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed Delivery may be obtained from the Information Agent. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance
concerning the Offer.
The Information Agent for the Offer is:
1290 Avenue of the Americas, 9th Floor
New York, NY 10104
Banks, Brokers and Shareholders Call Toll-Free: (800) 248-7690
Parties outside the U.S. can reach the Information Agent at +1-781-575-2137
Exhibit (a)(1)(C)
Notice of Guaranteed Delivery
(Not to be used for Signature Guarantee)
for
Tender of Shares of Common Stock
of
DIANA SHIPPING INC.
THE OFFER PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., EASTERN TIME, ON DECEMBER 21, 2021
UNLESS THE OFFER IS EXTENDED.
As set forth in Section 3 of the Offer to Purchase (as defined below) this form must be used to accept the
Offer (as defined below) if (1) certificates for your shares of common stock, par value of $0.01 per share, of Diana Shipping Inc., a Marshall Islands corporation, are not immediately available, (2) the procedures for book-entry transfer cannot be
completed on a timely basis or (3) time will not permit all required documents to reach the Depositary prior to the Expiration Time. This form may be delivered by hand or transmitted by facsimile transmission or mail to the Depositary. See Section 3 of the Offer to Purchase. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company.
The Depositary for the Offer is:
Computershare Trust Company, N.A.
|
By First Class Mail:
|
By Email transmission:
For Eligible Institutions Only:
|
By Registered Mail or Overnight Courier:
|
|
Computershare Trust
Company, N.A.
|
CANOTICEOFGUARANTEE@computershare.com
|
Computershare Trust
Company, N.A.
|
|
Attn: Corporate Actions Voluntary Officer
|
Attn: Corporate Actions Voluntary Officer
|
|
|
P.O. Box 43011
|
150 Royall St, Suite V
|
|
|
Providence, RI 02940-3011
|
Canton, MA 02021
|
Delivery of this Notice of Guaranteed Delivery to an address other than as set forth above will not
constitute a valid delivery. Please be advised that submissions made outside of normal business hours may be subject to a fee by the Depositary.
This Notice of Guaranteed Delivery is not to be used to guarantee signatures. If a
signature on a Letter of Transmittal is required to be guaranteed by an eligible institution under the instructions in the Letter of Transmittal, the signature guarantee must appear in the applicable space provided in the signature box on the Letter
of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders to Diana Shipping Inc., a Marshall Islands corporation (the "Company"), at
the price per share indicated in this Notice of Guaranteed Delivery, on the terms and subject to the conditions set forth in the Offer to Purchase dated November 22, 2021 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the "Offer"), receipt of which is hereby acknowledged, the number of shares set forth below, all pursuant to the guaranteed delivery procedures set forth in Section 3 of the
Offer to Purchase. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company.
Number of Shares to be tendered: __________ shares.
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED.
GUARANTEE
(Not to be Used For Signature Guarantee)
The undersigned, a firm that is a member in good standing of a recognized Medallion Program approved by
the Securities Transfer Association, Inc., including the Securities Transfer Agents Medallion Program, the New York Stock Exchange, Inc. Medallion Signature Program or the Stock Exchange Medallion Program, or is otherwise an "eligible guarantor
institution," as that term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), hereby guarantees (1) that the above named person(s) "own(s)" the shares tendered hereby within the meaning of Rule
14e-4 under the Exchange Act, (2) that such tender of shares complies with Rule 14e-4 under the Exchange Act and (3) to deliver to the Depositary either the certificates representing the shares tendered hereby, in proper form for transfer, or a
book-entry confirmation (as defined in the Offer to Purchase) with respect to such shares, in any such case together with a properly completed and duly executed Letter of Transmittal (or a facsimile thereof), with any required signature guarantees,
or an agent's message (as defined in the Offer to Purchase) in the case of a book-entry delivery, and any other required documents, within two business days (as defined in the Offer to Purchase) after the date hereof.
The eligible institution that completes this form must communicate the guarantee to the Depositary and
must deliver the Letter of Transmittal and certificates for shares to the Depositary within the time period shown herein. Failure to do so could result in financial loss to such eligible institution.
|
Name of Firm:
|
||||
|
Authorized Signature:
|
||||
|
Name:
|
||||
|
(Please Type or Print)
|
||||
|
Title:
|
||||
|
Address:
|
||||
|
Zip Code:
|
||||
|
Area Code and Telephone Number:
|
||||
|
Dated:
|
||||
Note: Do not send certificates for shares with this Notice.
Certificates for Shares should be sent with your Letter of Transmittal.
Certificates for Shares should be sent with your Letter of Transmittal.
Exhibit (a)(1)(D)
Offer to Purchase for Cash
by
DIANA SHIPPING INC.
of
Up to 3,529,411 Shares of its Common Stock
at a Purchase Price of $4.25
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., EASTERN TIME, ON DECEMBER 21, 2021,
UNLESS THE OFFER IS EXTENDED
by
DIANA SHIPPING INC.
of
Up to 3,529,411 Shares of its Common Stock
at a Purchase Price of $4.25
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., EASTERN TIME, ON DECEMBER 21, 2021,
UNLESS THE OFFER IS EXTENDED
November 22, 2021
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Trust Companies and Other Nominees:
We have been appointed by Diana Shipping Inc., a Marshall Islands corporation (the “Company”), to act as
Information Agent in connection with its offer to purchase for cash up to 3,529,411 shares of its common stock, par value of $0.01 per share, at a price, net to the seller in cash of $4.25 per share, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated November 22, 2021 (the “Offer to Purchase”) and the related Letter of Transmittal (which, together with any supplements or amendments thereto, collectively constitute the “Offer”). Please furnish copies of the
enclosed materials to those of your clients for whom you hold shares registered in your name or in the name of your nominee. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company.
Enclosed with this letter are copies of the following documents:
| 1. |
Offer to Purchase dated November 22, 2021;
|
| 2. |
Letter of Transmittal, for your use in accepting the Offer and tendering shares of and for the information of your clients;
|
| 3. |
Form of letter that may be sent to your clients for whose account you hold shares registered in your name or in the name of a nominee, with an
Instruction Form provided for obtaining such client’s instructions with regard to the Offer; and
|
| 4. |
Notice of Guaranteed Delivery with respect to shares, to be used to accept the Offer in the event you are unable to deliver the share certificates, together
with all other required documents, to the Depositary before the Expiration Time, or if the procedure for book-entry transfer cannot be completed before the Expiration Time.
|
Certain conditions to the Offer are described in Section 6 of the Offer to Purchase.
We urge you to contact your clients promptly. Please note that the Offer, proration period and withdrawal
rights will expire at the end of the day, 5:00 P.M., Eastern Time, on December 21, 2021, unless the offer is extended.
Under no circumstances will interest be paid on the purchase price of the shares regardless of any
extension of, or amendment to, the Offer or any delay in paying for such shares.
The Company will not pay any fees or commissions to any broker or dealer or other person (other than the
Information Agent and the Depositary, as described in the Offer to Purchase) in connection with the solicitation of tenders of shares pursuant to the Offer. However, the Company will, on request, reimburse you for customary mailing and handling
expenses incurred by you in forwarding copies of the enclosed Offer materials to your clients. The Company will pay or cause to be paid any stock transfer taxes applicable to its purchase of shares pursuant to the Offer, except as otherwise provided
in the Offer to Purchase and Letter of Transmittal (see Instruction 6 of the Letter of Transmittal).
Questions and requests for additional copies of the enclosed material may be directed to us at our address
and telephone number set forth on the back cover of the Offer to Purchase.
|
Very truly yours,
|
|
|
Georgeson LLC
|
Nothing contained in this letter or in the enclosed documents shall render you or any other person the
agent of the Company, the Depositary, the Information Agent or any affiliate of any of them or authorize you or any other person to give any information or use any document or make any statement on behalf of any of them with respect to the Offer
other than the enclosed documents and the statements contained therein.
Exhibit (a)(1)(E)
Offer to Purchase for Cash
by
DIANA SHIPPING INC.
of
Up to 3,529,411 Shares of Its Common Stock
at a Purchase Price of $4.25
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., EASTERN TIME, ON DECEMBER 21, 2021
UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated November 22, 2021 (the “Offer to
Purchase”), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), in connection with the Offer by Diana Shipping Inc., a Marshall Islands corporation (the “Company”), to
purchase for cash up to 3,529,411 shares of its common stock, par value of $0.01 per share, at a price of $4.25 per share, net to the seller in cash, less any applicable withholding taxes and without interest, upon the terms and subject to the
conditions of the Offer. Unless the context otherwise requires, all references to shares shall refer to the common stock of the Company.
The Company will purchase all shares properly tendered before the Expiration Time (as defined in the Offer
to Purchase) and not properly withdrawn at the purchase price, net to the seller in cash, less any applicable withholding tax and without interest, on the terms and subject to the conditions of the Offer, including its proration provisions. All shares
acquired in the Offer will be acquired at the same purchase price. The Company reserves the right, in its sole discretion, to purchase more than 3,529,411 shares in the Offer, subject to applicable law. The Company will return shares not purchased
because of proration provisions to the tendering shareholders at the Company’s expense promptly after the Offer expires. See Sections 1 and 3 of the Offer
to Purchase.
If the number of shares properly tendered is less than or equal to 3,529,411 shares, the Company will, on
the terms and subject to the conditions of the Offer, purchase at the purchase price all shares so tendered.
On the terms and subject to the conditions of the Offer, if at the expiration of the Offer more than
3,529,411 shares are properly tendered, the Company will buy shares on a pro rata basis from all shareholders who properly tender shares. See Sections 1
and 3 of the Offer to Purchase.
We are the owner of record of shares held for your account. As such, we are the only ones who can tender
your shares, and then only pursuant to your instructions. We are sending you the Letter of Transmittal for your information only; you cannot use it to tender
shares we hold for your account.
Please instruct us as to whether you wish us to tender any or all of the shares we hold for your account on
the terms and subject to the conditions of the Offer.
Please note the following:
1. You may tender your shares at the purchase price of $4.25 per share, as indicated in the attached
Instruction Form, net to you in cash, less any applicable withholding taxes and without interest.
2. You should
consult with your broker or other financial or tax advisor on the possibility of designating the priority in which your shares will be purchased in the event of proration.
3. The Offer is not conditioned on any minimum number of shares being tendered. The Offer is, however,
subject to certain other conditions set forth in Section 6 of the Offer to Purchase.
4. The Offer, withdrawal rights and proration period will expire at the end of the day, 5:00 P.M., Eastern
Time, on December 21, 2021, unless the Company extends the Offer.
5. The Offer is for 3,529,411 shares, constituting approximately 4.0% of the total number of issued shares
of the Company’s common stock as of November 22, 2021.
6. Tendering shareholders who are registered shareholders or who tender their shares directly to
Computershare Trust Company, N.A. will not be obligated to pay any brokerage commissions or fees to the Company or, except as set forth in the Offer to Purchase and the Letter of Transmittal, stock transfer taxes on the Company’s purchase of shares
under the Offer.
7. If you wish to tender portions of your shares at different prices, you must complete a separate
Instruction Form for each price at which you wish to tender each such portion of your shares. We must submit separate Letters of Transmittal on your behalf for each price you will accept for each portion tendered.
If you wish to have us tender any or all of your shares, please so instruct us by completing, executing,
detaching and returning to us the attached Instruction Form. If you authorize us to tender your shares, we will tender all your shares unless you specify otherwise on the attached Instruction Form.
Your prompt action is requested. Your Instruction Form should be forwarded to us in ample
time to permit us to submit a tender on your behalf before the Expiration Time of the Offer. Please note that the Offer, proration period and withdrawal rights will expire at the end of the day, 5:00 P.M., Eastern Time, on December 21, 2021 unless the
Offer is extended.
The Offer is being made solely under the Offer to Purchase and the related Letter of Transmittal and is
being made to all record holders of shares of the Company’s common stock. The Offer does not constitute an offer to buy or the solicitation of an offer to sell shares in any circumstance or jurisdiction in which such offer or solicitation is unlawful.
If we become aware of any jurisdiction where the making of the Offer or the acceptance of shares pursuant thereto is not in compliance with applicable law, we will make a good faith effort to comply with the applicable law where practicable.
The Company’s Board of Directors has approved the Offer. However, neither the Company,
nor its Board of Directors, the Depositary or the Information Agent is making any recommendation to you as to whether to tender or refrain from tendering your shares. You must make your own decision as to whether to tender and, if so, how many shares
to tender. In doing so, you should read carefully the information in the Offer to Purchase and in the related Letter of Transmittal, including the Company’s reasons for making the Offer. See Section 2 of the Offer to Purchase. You should discuss whether to tender your shares with your broker or other financial or tax advisor.
The Company’s directors and executive officers are entitled to participate in the Offer
on the same basis as all other shareholders and one or more of such persons may, but are under no obligation, to do so.
If the Offer is oversubscribed, the Company will purchase shares on a pro rata basis from
all shareholders who properly tender shares at the purchase price. Therefore, if you wish to maximize the chance that your shares will be purchased and wish to maximize the number of your shares accepted for payment, you should tender as many shares as
you own and are willing to sell in the Offer.
INSTRUCTION FORM WITH RESPECT TO
Offer to Purchase for Cash
by
DIANA SHIPPING INC.
of
Up to 3,529,411 Shares of its Common Stock
at a Purchase Price of $4.25
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase, dated November 22,
2021 (the “Offer to Purchase”), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), in connection with the Offer by Diana Shipping Inc., a Marshall Islands corporation
(the “Company”), to purchase for cash up to 3,529,411 shares of its common stock, par value of $0.01 per share, at a price, net to the seller in cash, less any applicable withholding tax and without interest, of $4.25 per share, specified by the
undersigned, on the terms and subject to the conditions of the Offer. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company.
The undersigned hereby instruct(s) you to tender to the Company the number of shares indicated below or, if
no number is indicated, all shares you hold for the account of the undersigned, at the price per share indicated below, on the terms and subject to the conditions of the Offer.
In participating in the Offer to purchase for cash, the undersigned acknowledges that: (1) the Offer is
established voluntarily by the Company, it is discretionary in nature and it may be extended, modified, suspended or terminated by the Company as provided in the Offer; (2) the undersigned is voluntarily participating in the Offer; (3) the future value
of the Company’s common stock is unknown and cannot be predicted with certainty; (4) any foreign exchange obligations triggered by the undersigned’s tender of shares or the recipient of proceeds are solely his or her responsibility; and (5) regardless
of any action that the Company takes with respect to any or all income/capital gains tax, social security or insurance, transfer tax or other tax-related items (“Tax Items”) related to the Offer and the disposition of shares, the undersigned
acknowledges that the ultimate liability for all Tax Items is and remains his or her sole responsibility. In that regard, the undersigned authorizes the Company to withhold all applicable Tax Items legally payable by the undersigned.
The undersigned consents to the collection, use and transfer, in electronic or other form, of the
undersigned’s personal data as described in this document by and among, as applicable, the Company, its subsidiaries, and third party administrators for the exclusive purpose of implementing, administering and managing his or her participation in the
Offer.
The undersigned understands that the Company holds certain personal information about him or her, including,
as applicable, but not limited to, the undersigned’s name, home address and telephone number, date of birth, social security or insurance number or other identification number, nationality, any shares of stock held in the Company, details of all
options or any other entitlement to shares outstanding in the undersigned’s favor, for the purpose of implementing, administering and managing his or her stock ownership (“Data”). The undersigned understands that Data may be transferred to any third
parties assisting in the implementation, administration and management of the Offer, that these recipients may be located in his or her country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than his
or her country. The undersigned understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting the Company. The undersigned authorizes the recipients to receive, possess, use, retain and
transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Offer, including any requisite transfer of such Data as may be required to a broker or other third party with
whom held any shares of stock. The undersigned understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Offer. The undersigned understands that he or she may, at any time, view
Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Company. The undersigned
understands, however, that refusing or withdrawing his or her consent may affect his or her ability to participate in the Offer. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the undersigned
understands that he or she may contact the Company.
Number of shares to be tendered by you for the account of the undersigned: __________ shares*
* Unless otherwise indicated, it will be assumed that all shares held by us for your account are to be tendered.
Exhibit (a)(1)(F)
|
|
Corporate Contact:
Ioannis Zafirakis
Director, Chief Financial Officer,
Chief Strategy Officer, Treasurer and Secretary
Telephone: + 30-210-9470-100
Email: izafirakis@dianashippinginc.com
Website: www.dianashippinginc.com
|
|
|
|
|
|
Investor and Media Relations:
Edward Nebb
Comm-Counsellors, LLC
Telephone: + 1-203-972-8350
Email: enebb@optonline.net
|
DIANA SHIPPING INC. COMMENCES SELF TENDER OFFER
TO PURCHASE UP TO 3,529,411 SHARES
TO PURCHASE UP TO 3,529,411 SHARES
ATHENS, GREECE, November 22, 2021 - Diana Shipping Inc. (NYSE: DSX) (the “Company”), a global shipping company specializing in the ownership
of dry bulk vessels, today announced the commencement of a tender offer to purchase up to 3,529,411 shares, or about 4.0%, of its outstanding common stock, using funds available from cash and cash equivalents on hand at a price of $4.25 per share.
The tender offer will expire at the end of the day, 5:00 P.M., Eastern Time, on December 21, 2021, unless extended or withdrawn. The Board of Directors determined that it is in the Company’s best interest to repurchase shares at this time given Diana
Shipping’s cash position and stock price. The tender offer is not conditioned upon any minimum number of shares being tendered; however, the tender offer is subject to a number of other terms and conditions, including without limitation the
completion of the Company’s previously announced spin-off of OceanPal Inc. Shareholders that tender their shares in the tender offer and do not otherwise transfer their shares prior to the spin-off distribution date will receive OceanPal Inc. common
shares in accordance with the terms of the spin-off transaction. Specific instructions and an explanation of the terms and conditions of the tender offer are contained in the Offer to Purchase and related materials that are being mailed to
shareholders.
Diana Shipping Inc. has retained Computershare Trust Company, N.A. as the depositary for the tender offer and Georgeson LLC as the
information agent.
Copies of the Offer to Purchase, the related Letter of Transmittal and the Notice of Guaranteed Delivery are being mailed to the Company’s
shareholders. Additional copies of the Offer to Purchase, the related Letter of Transmittal or the Notice of Guaranteed Delivery may be obtained at the Company’s expense from the information agent at (800) 248-7690 (toll free). Questions regarding
the tender offer should be directed to the information agent at (800) 248-7690 (toll free). Parties outside the U.S. can reach the information agent at +1-781-575-2137.
About the Company
Diana Shipping Inc. is a global provider of shipping transportation services through its ownership of dry bulk vessels. The Company’s vessels
are employed primarily on medium to long-term time charters and transport a range of dry bulk cargoes, including such commodities as iron ore, coal, grain and other materials along worldwide shipping routes.
Certain Information Regarding the Tender Offer
The information in this press release describing Diana Shipping Inc.’s tender offer is for informational purposes only and does not
constitute an offer to buy or the solicitation of an offer to sell shares of Diana Shipping Inc.’s common stock in the tender offer. The tender offer is being made only pursuant to the Offer to Purchase and the related materials that Diana Shipping
Inc. is distributing to its shareholders, as they may be amended or supplemented. Shareholders should read such Offer to Purchase and related materials carefully and in their entirety because they contain important information, including the various
terms and conditions of the tender offer. Shareholders of Diana Shipping Inc. may obtain a free copy of the Tender Offer Statement on Schedule TO, the Offer to Purchase and other documents that Diana Shipping Inc. is filing with the Securities and
Exchange Commission from the Securities and Exchange Commission’s website at www.sec.gov. Shareholders may also obtain a copy of these documents, without charge, from Georgeson LLC, the information agent for the tender offer, toll free at (800)
248-7690. Shareholders are urged to carefully read all of these materials prior to making any decision with respect to the tender offer. Shareholders and investors who have questions or need assistance may call Georgeson LLC, the information agent
for the tender offer, toll free at (800) 248-7690. Parties outside the U.S. can reach the information agent at +1-781-575-2137.
Cautionary Statement Regarding Forward-Looking Statements
This press release, 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 Diana Shipping Inc. (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, cannot assure you that it will achieve or
accomplish these expectations, beliefs or projections.
2
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 outcome of the tender offer, (ii) the strength of world economies, (iii) fluctuations in currencies and interest rates, (iv)
general market conditions, including fluctuations in charter hire rates and vessel values, (v) changes in demand in the dry-bulk shipping industry, (vi) 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, (vii) changes in the Company's operating expenses, including bunker prices, crew costs, drydocking and insurance costs, (viii) the Company’s future operating or financial
results, (ix) availability of financing and refinancing and changes to the Company’s financial condition and liquidity, including the Company’s ability, (x) 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, (xi) changes in governmental rules and regulations or
actions taken by regulatory authorities, (xii) potential liability from pending or future litigation, (xiii) 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, (xiv) the impact of the discontinuance of LIBOR after 2021 on interest rates of any of the Company’s debt that reference LIBOR, (xv) the failure of counter parties to fully perform
their contracts with the Company, (xvi) the Company’s dependence on key personnel, (xvii) adequacy of insurance coverage, (xviii) the volatility of the price of the Company’s common shares, (ixx) 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, (xx) general domestic and international political conditions or labor disruptions, (xxi) acts by terrorists or acts of
piracy on ocean-going vessels, (xxii) the length and severity of the ongoing novel coronavirus (COVID-19) outbreak and its impact in the dry-bulk shipping industry, (xxiii) potential disruption of shipping routes due to accidents or political events,
and (xiv) 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 press release might not occur.
3