Filed pursuant to Rule 424(b)(2)
Registration No. 333-127086
Prospectus Supplement
(to Prospectus dated August 1, 2005)
This Prospectus is amended by deleting it in its entirety and replacing it with
the following. This amendment revises certain language in the "Plan of
Distribution" and updates the information in "Where You Can Find Additional
Information -- Information Incorporated by Reference."
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS PERMITTED.
Subject to completion - - dated August 1, 2005
[TOPT Logo]
$250,000,000
and
4,771,310 Shares of Common Stock
TOP Tankers Inc.
Through this prospectus, we may periodically offer:
(1) our common stock,
(2) our preferred shares,
(3) our debt securities,
(4) our warrants,
(5) our purchase contracts, and
(6) our units
up to a total dollar amount of $250,000,000. Our debt securities may be
guaranteed pursuant to guarantees by our subsidiaries. In addition, one or more
of our shareholders may periodically offer up to 4,771,310 shares of our common
stock.
The prices and other terms of the securities that we will offer will be
determined at the time of their offering and will be described in a supplement
to this prospectus.
We will not receive any of the proceeds from the sale of any of our
common stock offered by the selling shareholders. We will bear approximately
$746,925 and the selling shareholders will bear approximately $8,553 of the
costs relating to the registration of all of the securities registered under
this prospectus, which we estimate to be approximately $755,478.
Our common stock is currently listed on the Nasdaq National Market
under the symbol "TOPT."
The securities issued under this prospectus may be offered directly or
through underwriters, agents or dealers. The names of any underwriters, agents
or dealers will be included in a supplement to this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2005
TABLE OF CONTENTS
PROSPECTUS SUMMARY.................................................3
RISK FACTORS.......................................................4
USE OF PROCEEDS....................................................4
CAUTIONARY STATEMENT REGARDING FORWARD LOOKING STATEMENTS..........4
RATIO OF EARNINGS TO FIXED CHARGES.................................5
CAPITALIZATION.....................................................6
PLAN OF DISTRIBUTION...............................................6
ENFORCEMENT OF CIVIL LIABILITIES...................................9
DESCRIPTION OF CAPITAL STOCK.......................................9
DESCRIPTION OF PREFERRED SHARES...................................11
DESCRIPTION OF WARRANTS...........................................12
DESCRIPTION OF DEBT SECURITIES....................................13
DESCRIPTION OF PURCHASE CONTRACTS.................................25
DESCRIPTION OF UNITS..............................................25
EXPENSES..........................................................26
LEGAL MATTERS.....................................................26
EXPERTS...........................................................26
WHERE YOU CAN FIND ADDITIONAL INFORMATION.........................26
PROSPECTUS SUMMARY
o This section summarizes some of the information that is contained in
other documents incorporated by reference in this prospectus. As an investor or
prospective investor, you should review carefully the risk factors and the more
detailed information contained in such other documents.
o Unless the context otherwise requires, as used in this prospectus, the
terms "Company," "we," "us," and "our" refer to TOP Tankers Inc. and all of its
subsidiaries, and "TOP Tankers Inc." refers only to TOP Tankers Inc. and not to
its subsidiaries.
o We use the term deadweight, or dwt, in describing the size of vessels.
Dwt, expressed in metric tons each of which is equivalent to 1,000 kilograms,
refers to the maximum weight of cargo and supplies that a vessel can carry.
Our Company
As of July 15, 2005, we owned and operated a fleet of 22 vessels,
consisting of 13 double-hull Handymax tankers and 9 double-hull Suezmax tankers,
with a total cargo carrying capacity of approximately 2.0 million dwt. We refer
to these 22 tankers as our current fleet. Our Handymax tankers carry refined
petroleum products, such as gasoline, jet fuel, kerosene, naphtha and heating
oil, and our Suezmax tankers carry crude oil. 100% of our current fleet is
double-hull. In addition to these 22 vessels, we operate the M/T Yapi, a
Handysize tanker that we agreed to sell to a third party in March 2005 and will
be delivered to the purchaser in the fourth quarter of 2005.
Our financial strategy is focused on maintaining a targeted level of
leverage and distributing a portion of our annual net income as dividends to our
shareholders. As of March 31, 2005, we had a ratio of debt to total capital of
approximately 58.1% as adjusted for the debt incurred in connection with the
acquisition of the M/T Faultless, the M/T Soundless, the M/T Noiseless and M/T
Topless. Our business strategy is focused on building and maintaining enduring
relationships with participants in the international shipping industry,
including leading charterers, oil companies, oil traders, brokers, suppliers,
classification societies, insurers and others. We seek to continue to create
long-term value principally by acquiring and operating high quality double-hull,
refined petroleum products and crude oil tankers. Consistent with this strategy,
our tankers enable us to serve customers in the crude oil and refined petroleum
products sectors of the tanker industry. Depending on market opportunities, we
may also seek to expand into other sectors of the shipping industry.
We believe we have established a reputation in the international ocean
transport industry for operating and maintaining our fleet with high standards
of performance, reliability and safety. We have assembled a management team
comprised of executives who have extensive experience operating large and
diversified fleets and who have strong ties to a number of national, regional
and international oil companies, charterers and traders.
TOP Tanker Management, Inc., or TOP Tanker Management, our wholly-owned
subsidiary, is responsible for the chartering, operational and technical
management of our current fleet. TOP Tanker Management subcontracts the
technical management of our fleet to other reputable independent third party
technical management companies.
Corporate Structure
We own our vessels through separate wholly-owned subsidiaries
incorporated in various jurisdictions. Our wholly-owned subsidiary, TOP Tanker
Management, acts as a manager for our current fleet, providing services such as
managing day-to-day vessel operations including supervising the crewing,
supplying, maintaining, and drydocking of vessels, as well as providing
commercial management services regarding identifying suitable vessel charter
opportunities and monitoring the performance of our third-party technical
management subcontractors.
We are incorporated under the laws of the Marshall Islands. We maintain
our principal executive offices at 109-111 Messogion Avenue, Politia Centre,
Athens 115 26 Greece. Our telephone number at that address is (011) (30) (210)
69 78 000.
The Securities We May Offer
We may use this prospectus to offer up to $250,000,000 of our:
o common stock,
o preferred shares,
o debt securities,
o warrants,
o purchase contracts, and
o units.
Our debt securities may be guaranteed pursuant to guarantees by our
subsidiaries. In addition, the selling shareholders may offer up to 4,771,310
shares of our common stock.
A prospectus supplement will describe the specific types, amounts,
prices, and detailed terms of any of these offered securities and may describe
certain risks associated with an investment in the securities. Terms used in the
prospectus supplement will have the meanings described in this prospectus,
unless otherwise specified.
RISK FACTORS
A prospectus supplement will describe the risks that relate to the
industry in which we operate and our business in general and certain risks
associated with an investment in the securities offered.
USE OF PROCEEDS
Unless we specify otherwise in any prospectus supplement, we will use
the net proceeds from the sale of securities offered by this prospectus for
capital expenditures, repayment of indebtedness, working capital, to make vessel
acquisitions and for general corporate purposes.
CAUTIONARY STATEMENT REGARDING FORWARD LOOKING STATEMENTS
This document includes assumptions, expectations, projections,
intentions and beliefs about future events. These statements are intended as
"forward-looking statements." We caution that assumptions, expectations,
projections, intentions and beliefs about future events may and often do vary
from actual results and the differences can be material.
All statements in this document that are not statements of historical
fact are forward-looking statements. Forward-looking statements include, but are
not limited to, such matters as:
future operating or financial results;
statements about planned, pending or recent acquisitions, business
strategy and expected capital spending or operating expenses,
including drydocking and insurance costs;
statements about crude oil and refined petroleum products tanker
shipping market trends, including charter rates and factors affecting
supply and demand;
our ability to obtain additional financing;
expectations regarding the availability of vessel acquisitions; and
anticipated developments with respect to pending litigation.
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 our records and other data available from third
parties. Although TOP Tankers Inc. believes that these assumptions were
reasonable when made, because these assumptions are inherently subject to
significant uncertainties and contingencies which are difficult or impossible to
predict and are beyond our control, TOP Tankers Inc. cannot assure you that it
will achieve or accomplish these expectations, beliefs or projections described
in the forward looking statements contained in this report.
Important factors that, in our view, could cause actual results to
differ materially from those discussed in the forward-looking statements include
the strength of world economies and currencies, general market conditions,
including changes in charter rates and vessel values, failure of a seller to
deliver one or more vessels, failure of a buyer to accept delivery of a vessel,
inability to procure acquisition financing, default by one or more charterers of
our ships, changes in demand for crude oil, refined petroleum products, the
effect of changes in OPEC's petroleum production levels, worldwide crude oil
consumption and storage, changes in demand that may affect attitudes of time
charterers, scheduled and unscheduled drydocking, changes in TOP Tankers Inc.'s
voyage and operating expenses, including bunker prices, dry-docking and
insurance costs, changes in governmental rules and regulations including
requirements for double-hull tankers or actions taken by regulatory authorities,
potential liability from pending or future litigation, domestic and
international political conditions, potential disruption of shipping routes due
to accidents, international hostilities and political events or acts by
terrorists.
When used in this document, the words "anticipate," "estimate,"
"project," "forecast," "plan," "potential," "will," "may," "should," and
"expect" reflect forward-looking statements.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our unaudited ratio of earnings to fixed
charges for each of the preceding four fiscal years and the three months ending
March 31, 2005.(1)
Three
Months
Year Ended December 31, Ended
-------------------------------------- March
2001 2002 2003 2004 31, 2005
---- ---- ---- ---- --------
(in thousands of U.S. Dollars)
EARNINGS:
Net income 1,777 201 1,634 32,794 19,121
Add: Fixed charges 740 822 1,165 4,486 2,388
------ ------ ----- ------ ------
Total Earnings 2,517 1,023 2,799 37,280 21,509
====== ===== ===== ====== ======
FIXED CHARGES:
Interest expense 709 797 1,128 4,161 2,207
Amortization of
capitalized expenses
relating to indebteness 31 25 37 325 181
------ ------ ----- ------ ------
Total Fixed Charges 740 822 1,165 4,486 2,388
====== ===== ===== ====== ======
RATIO OF EARNINGS TO FIXED
CHARGES 3.4x 1.2x 2.4x 8.3x 9.0x
---------------
(1) We have not included our ratio of earnings to fixed charges for the fiscal
year ended December 31, 2000, due to the unreasonable effort and expense of
preparing such information.
For purposes of computing the consolidated ratio of earnings to fixed
charges, earnings consist of net income plus interest expense and amortization
of capitalized expenses relating to indebtedness. Fixed charges consist of
interest expense and amortization of capitalized expenses relating to
indebtedness.
CAPITALIZATION
A prospectus supplement will include information on the Company's
consolidated capitalization.
PLAN OF DISTRIBUTION
We may sell or distribute the securities included in this prospectus
through underwriters, through agents, to dealers, in private transactions, at
market prices prevailing at the time of sale, at prices related to the
prevailing market prices, or at negotiated prices.
In addition, we may sell some or all of the securities included in this
prospectus through:
o a block trade in which a broker-dealer may resell a portion of
the block, as principal, in order to facilitate the transaction;
o purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account; or
o ordinary brokerage transactions and transactions in which a
broker solicits purchasers.
In addition, we may enter into option or other types of transactions
that require us to deliver common stock to a broker-dealer, who will then resell
or transfer the common stock under this prospectus.
We may enter into hedging transactions with respect to our securities.
For example, we may:
o enter into transactions involving short sales of our common stock
by broker-dealers;
o sell shares of common stock short themselves and deliver the
shares to close out short positions;
o enter into option or other types of transactions that require us
to deliver shares of common stock to a broker-dealer, who will
then resell or transfer the shares under this prospectus; or
o loan or pledge shares of common stock to a broker-dealer, who may
sell the loaned shares or, in the event of default, sell the
pledged shares.
The Company may enter into derivative transactions with third parties,
or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement indicates, in
connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short
sale transactions. If so, the third party may use securities pledged by the
Company or borrowed from the Company or others to settle those sales or to close
out any related open borrowings of stock, and may use securities received from
the Company in settlement of those derivatives to close out any related open
borrowings of stock. The third party in such sale transactions will be an
underwriter and, if not identified in this prospectus, will be identified in the
applicable prospectus supplement (or a post-effective amendment). In addition,
we may otherwise loan or pledge securities to a financial institution or other
third party that in turn may sell the securities short using this prospectus.
Such financial institution or other third party may transfer its economic short
position to investors in our securities or in connection with a concurrent
offering of other securities.
Any broker-dealers or other persons acting on our behalf that
participate with us in the distribution of the shares may be deemed to be
underwriters and any commissions received or profit realized by them on the
resale of the shares may be deemed to be underwriting discounts and commissions
under the Securities Act of 1933, as amended, or the Securities Act. As of the
date of this prospectus, we are not a party to any agreement, arrangement or
understanding between any broker or dealer and us with respect to the offer or
sale of the securities pursuant to this prospectus.
At the time that any particular offering of securities is made, to the
extent required by the Securities Act, a prospectus supplement will be
distributed, setting forth the terms of the offering, including the aggregate
number of securities being offered, the purchase price of the securities, the
initial offering price of the securities, the names of any underwriters, dealers
or agents, any discounts, commissions and other items constituting compensation
from us and any discounts, commissions or concessions allowed or reallowed or
paid to dealers.
Underwriters or agents could make sales in negotiated transactions at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at varying prices determined at the time of sale
and/or any other method permitted by law, including sales deemed to be an
at-the-market offering as defined in Rule 415 promulgated under the Securities
Act, which includes sales made directly on or through the Nasdaq Global Market,
the existing trading market for our common shares, sales made to or through a
market maker other than on an exchange or otherwise.
Certain persons participating in any offering of securities may engage
in transactions that stabilize, maintain or otherwise affect the price of the
securities offered. In connection with any such offering, the underwriters or
agents, as the case may be, may purchase and sell securities in the open market.
These transactions may include overallotment and stabilizing transactions,
purchases to cover syndicate short positions created in connection with the
offering and passive market making. Stabilizing transactions consist of certain
bids or purchases for the purpose of preventing or retarding a decline in the
market price of the securities and syndicate short positions involve the sale by
the underwriters or agents, as the case may be, of a greater number of
securities than they are required to purchase from us in the offering. The
underwriters may also impose a penalty bid, whereby selling concessions allowed
to syndicate members or other broker-dealers for the securities sold for their
account may be reclaimed by the syndicate if such securities are repurchased by
the syndicate in stabilizing or covering transactions. In passive market making,
market makers in the shares of common shares who are underwriters or prospective
underwriters may, subject to certain limitations, make bids for or purchases of
the shares of common shares until the time, if any, at which a stabilizing bid
is made. These activities may stabilize, maintain or otherwise affect the market
price of the securities, which may be higher than the price that might otherwise
prevail in the open market, and if commenced, may be discontinued at any time.
The selling shareholders may enter into hedging transactions with
respect to our common stock. For example, the selling shareholders may:
o enter into transactions involving short sales of the common stock
by broker-dealers;
o sell common stock short themselves and deliver the shares to
close out short positions;
o enter into option or other types of transactions that require the
selling shareholders to deliver common stock to a broker-dealer,
who will then resell or transfer the common stock under this
prospectus; or
o loan or pledge the ordinary shares to a broker-dealer, who may
sell the loaned shares or, in the event of default, sell the
pledged shares.
The selling shareholders and any broker-dealers or other persons acting
on the behalf of parties that participate with us in the distribution of the
shares may be deemed to be underwriters and any commissions received or profit
realized by them on the resale of the shares may be deemed to be underwriting
discounts and commissions under the Securities Act. As of the date of this
prospectus, we are not a party, nor are we aware that the selling shareholders
are a party to any agreement, arrangement or understanding between any broker or
dealer and the selling shareholders or us with respect to the offer or sale of
the shares pursuant to this prospectus.
We will bear costs relating to all of the securities being registered
under this prospectus, other than underwriters' discounts, commissions and
transfer taxes accrued for the common stock sold for the account of the selling
shareholders.
The selling shareholders may also sell our common stock pursuant to
Rule 144 promulgated under the Securities Act or in other transactions that are
exempt from registration under the Securities Act.
Pursuant to a requirement by the National Association of Securities
Dealers, Inc., or NASD, the maximum commission or discount to be received by any
NASD member or independent broker/dealer may not be greater than eight percent
(8%) of the gross proceeds received by the offeror for the sale of any
securities being registered pursuant to SEC Rule 415 under the Securities Act of
1933, as amended.
ENFORCEMENT OF CIVIL LIABILITIES
TOP Tankers Inc. is a Marshall Islands company and our executive
offices are located outside of the U.S. in Athens, Greece. A majority of our
directors, officers and the experts named in the prospectus reside outside the
U.S. In addition, a substantial portion of our assets and the assets of our
directors, officers and experts are located outside of the U.S. As a result, you
may have difficulty serving legal process within the U.S. upon us or any of
these persons. You may also have difficulty enforcing, both in and outside the
U.S., judgments you may obtain in U.S. courts against us or these persons in any
action, including actions based upon the civil liability provisions of U.S.
federal or state securities laws.
Furthermore, there is substantial doubt that the courts of the Marshall
Islands or Greece would enter judgments in original actions brought in those
courts predicated on U.S. federal or state securities laws.
DESCRIPTION OF CAPITAL STOCK
Under our articles of incorporation, our authorized capital stock
consists of 100,000,000 shares of common stock, par value $.01 per share, of
which 28,080,840 shares are issued and outstanding as of July 15, 2005, and
20,000,000 shares of preferred stock, none of which were issued as of July 15,
2005.
Common Stock
Each outstanding share of common stock entitles the holder to one vote
on all matters submitted to a vote of stockholders. Subject to preferences that
may be applicable to any outstanding shares of preferred stock, holders of
shares of common stock are entitled to receive ratably all dividends, if any,
declared by our board of directors out of funds legally available for dividends.
Holders of common stock do not have conversion, redemption or preemptive rights
to subscribe to any of our securities. All outstanding shares of common stock
are, and the shares to be sold in this offering when issued and paid for will
be, fully paid and nonassessable. The rights, preferences and privileges of
holders of common stock are subject to the rights of the holders of any shares
of preferred stock which we may issue in the future.
Other Matters
Our Articles of Incorporation and Bylaws. Our purpose, as stated in
Section B of our Articles of Incorporation, is to engage in any lawful act or
activity for which corporations may now or hereafter be organized under the
Marshall Islands Business Corporations Act. Our articles of incorporation and
bylaws do not impose any limitations on the ownership rights of our
shareholders.
Under our bylaws, annual shareholder meetings will be held at a time
and place selected by our board of directors. The meetings may be held in or
outside of the Marshall Islands. Special meetings may be called by shareholders
holding not less than one-tenth of all the outstanding shares entitled to vote
at such meeting. Our board of directors may set a record date between 15 and 60
days before the date of any meeting to determine the shareholders that will be
eligible to receive notice and vote at the meeting.
Directors. Our directors are elected by a majority of the votes cast by
shareholders entitled to vote. There is no provision for cumulative voting.
The board of directors must consist of at least one member.
Shareholders may change the number of directors only by the affirmative vote of
holders of a majority of the outstanding common stock. The board of directors
may change the number of directors only by a majority vote of the entire board.
Each director shall be elected to serve until the next annual meeting of
shareholders and until his successor shall have been duly elected and qualified,
except in the event of his death, resignation, removal, or the earlier
termination of his term of office. The board of directors has the authority to
fix the amounts which shall be payable to the members of our board of directors
for attendance at any meeting or for services rendered to us.
Dividends. While we cannot assure you that we will continue to do so,
and subject to the limitations discussed below, we currently intend to pay
regular cash dividends on our common stock on a quarterly basis. We paid a
quarterly dividend of $0.21 per share to holders of our common stock in January,
April and July 2005 and a special dividend of $0.25 per share to holders of our
common stock in July 2005.
Declaration and payment of any dividend is subject to the discretion of
our board of directors. The timing and amount of dividend payments will be
dependent upon our earnings, financial condition, cash requirements and
availability, restrictions in our loan agreements, the terms of the debt
securities we offer, the provisions of applicable law affecting the payment of
distributions to shareholders and other factors. Because we are a holding
company with no material assets other than the stock of our subsidiaries, our
ability to pay dividends will depend on the earnings and cash flow of our
subsidiaries and their ability to pay dividends to us. The laws governing us and
our subsidiaries generally prohibit the payment of dividends other than from
surplus or while a company is insolvent or would be rendered insolvent.
Dissenters' Rights of Appraisal and Payment. Under the Business
Corporation Act of the Republic of the Marshall Islands, or BCA, our
shareholders have the right to dissent from various corporate actions, including
any merger or sale of all or substantially all of our assets not made in the
usual course of our business, and receive payment of the fair value of their
shares. In the event of any further amendment of the articles, a shareholder
also has the right to dissent and receive payment for his or her shares if the
amendment alters certain rights in respect of those shares. The dissenting
shareholder must follow the procedures set forth in the BCA to receive payment.
In the event that we and any dissenting shareholder fail to agree on a price for
the shares, the BCA procedures involve, among other things, the institution of
proceedings in the circuit court in the judicial circuit in the Marshall Islands
in which our Marshall Islands office is situated. The value of the shares of the
dissenting shareholder is fixed by the court after reference, if the court so
elects, to the recommendations of a court-appointed appraiser.
Shareholders' Derivative Actions. Under the BCA, any of our
shareholders may bring an action in our name to procure a judgment in our favor,
also known as a derivative action, provided that the shareholder bringing the
action is a holder of common stock both at the time the derivative action is
commenced and at the time of the transaction to which the action relates.
Anti-takeover Provisions of our Charter Documents. Several provisions
of our articles of incorporation and by-laws may have anti-takeover effects.
These provisions are intended to avoid costly takeover battles, lessen our
vulnerability to a hostile change of control and enhance the ability of our
board of directors to maximize shareholder value in connection with any
unsolicited offer to acquire us. However, these anti-takeover provisions, which
are summarized below, could also discourage, delay or prevent (1) the merger or
acquisition of our company by means of a tender offer, a proxy contest or
otherwise, that a shareholder may consider in its best interest and (2) the
removal of incumbent officers and directors.
Blank Check Preferred Stock
Under the terms of our articles of incorporation, our board of
directors has authority, without any further vote or action by our shareholders,
to issue up to 20,000,000 shares of blank check preferred stock. Our board of
directors may issue shares of preferred stock on terms calculated to discourage,
delay or prevent a change of control of our company or the removal of our
management.
Classified Board of Directors
Our articles of incorporation provide for the division of our board of
directors into three classes of directors, with each class as nearly equal in
number as possible, serving staggered, three-year terms. Approximately one-third
of our board of directors will be elected each year. This classified board
provision could discourage a third party from making a tender offer for our
shares or attempting to obtain control of our company. It could also delay
shareholders who do not agree with the policies of the board of directors from
removing a majority of the board of directors for two years.
Election and Removal of Directors
Our articles of incorporation prohibit cumulative voting in the
election of directors. Our by-laws require parties other than the board of
directors to give advance written notice of nominations for the election of
directors. Our articles of incorporation also provide that our directors may be
removed only for cause and only upon the affirmative vote of the holders of at
least 80% of the outstanding shares of our capital stock entitled to vote for
those directors. These provisions may discourage, delay or prevent the removal
of incumbent officers and directors.
Limited Actions by Shareholders
Our articles of incorporation and our by-laws provide that any action
required or permitted to be taken by our shareholders must be effected at an
annual or special meeting of shareholders or by the unanimous written consent of
our shareholders. Our articles of incorporation and our by-laws provide that,
subject to certain exceptions, only our board of directors may call special
meetings of our shareholders and the business transacted at the special meeting
is limited to the purposes stated in the notice. Accordingly, a shareholder may
be prevented from calling a special meeting for shareholder consideration of a
proposal over the opposition of our board of directors and shareholder
consideration of a proposal may be delayed until the next annual meeting.
DESCRIPTION OF PREFERRED SHARES
The material terms of any series of preferred shares that we offer
through a prospectus supplement will be described in that prospectus supplement.
Our board of directors is authorized to provide for the issuance of preferred
shares in one or more series with designations as may be stated in the
resolution or resolutions providing for the issue of such preferred shares. At
the time that any series of our preferred shares are authorized, our board of
directors will fix the dividend rights, any conversion rights, any voting
rights, redemption provisions, liquidation preferences and any other rights,
preferences, privileges and restrictions of that series, as well as the number
of shares constituting that series and their designation. Our board of directors
could, without shareholder approval, cause us to issue preferred stock which has
voting, conversion and other rights that could adversely affect the holders of
our ordinary shares or make it more difficult to effect a change in control. Our
preferred shares could be used to dilute the share ownership of persons seeking
to obtain control of us and thereby hinder a possible takeover attempt which, if
our shareholders were offered a premium over the market value of their shares,
might be viewed as being beneficial to our shareholders. In addition, our
preferred shares could be issued with voting, conversion and other rights and
preferences which would adversely affect the voting power and other rights of
holders of our ordinary shares.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our debt or equity securities or
securities of third parties or other rights, including rights to receive payment
in cash or securities based on the value, rate or price of one or more specified
commodities, currencies, securities or indices, or any combination of the
foregoing. Warrants may be issued independently or together with any other
securities and may be attached to, or separate from, such securities. Each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent. The terms of any warrants to be
issued and a description of the material provisions of the applicable warrant
agreement will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the following terms
of any warrants in respect of which this prospectus is being delivered:
o the title of such warrants;
o the aggregate number of such warrants;
o the price or prices at which such warrants will be issued;
o the currency or currencies, in which the price of such warrants
will be payable;
o the securities or other rights, including rights to receive
payment in cash or securities based on the value, rate or price
of one or more specified commodities, currencies, securities or
indices, or any combination of the foregoing, purchasable upon
exercise of such warrants;
o the price at which and the currency or currencies, in which the
securities or other rights purchasable upon exercise of such
warrants may be purchased;
o the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire;
o if applicable, the minimum or maximum amount of such warrants
which may be exercised at any one time;
o if applicable, the designation and terms of the securities with
which such warrants are issued and the number of such warrants
issued with each such security;
o if applicable, the date on and after which such warrants and the
related securities will be separately transferable;
o information with respect to book-entry procedures, if any;
o if applicable, a discussion of any material United States Federal
income tax considerations; and
o any other terms of such warrants, including terms, procedures and
limitations relating to the exchange and exercise of such
warrants.
DESCRIPTION OF DEBT SECURITIES
In this section, references to "holders" mean those who own debt
securities registered in their own names on the books that TOP Tankers Inc. or
the indenture trustee maintains for this purpose, and not those who own
beneficial interests in debt securities registered in street name or in debt
securities issued in book-entry form through one or more depositaries. Owners of
beneficial interests in the debt securities should read the section below
entitled "Global Securities."
General
The debt securities offered by this prospectus will be either senior or
subordinated debt. We will issue senior debt under a senior debt indenture, and
we will issue subordinated debt under a subordinated debt indenture. We
sometimes refer to the senior debt indenture and the subordinated debt indenture
individually as an indenture and collectively as the indentures. The indenture
trustee under each of the senior debt indenture and the subordinated debt
indenture will be Manufacturers and Traders Trust Company. We have filed the
indentures with the SEC as exhibits to the registration statement of which this
prospectus forms a part. You can obtain copies of the indentures by following
the directions outlined in "Where You Can Find More Information", or by
contacting the applicable indenture trustee.
The following briefly summarizes the material provisions of the
indentures and the debt securities, other than pricing and related terms
disclosed for a particular issuance in an accompanying prospectus supplement.
You should read the more detailed provisions of the applicable indenture,
including the defined terms, for provisions that may be important to you. You
should also read the particular terms of a series of debt securities, which will
be described in more detail in an accompanying prospectus supplement. So that
you may easily locate the more detailed provisions, the numbers in parentheses
below refer to sections in the applicable indenture or, if no indenture is
specified, to sections in each of the indentures. Wherever particular sections
or defined terms of the applicable indenture are referred to, such sections or
defined terms are incorporated into this prospectus by reference, and the
statement in this prospectus is qualified by that reference.
The indentures provide that our unsecured senior or subordinated debt
securities may be issued in one or more series, with different terms, in each
case as we authorize from time to time. We also have the right to reopen a
previous issue of a series of debt securities by issuing additional debt
securities of such series.
Information in the Prospectus Supplement
The prospectus supplement for any offered series of debt securities
will describe the following terms, as applicable:
o the title or designation;
o whether the debt is senior or subordinated;
o whether the debt is guaranteed by our subsidiaries and whether
those guarantees are secured and, if so, the collateral securing
the guarantees;
o the aggregate principal amount offered and authorized
denominations;
o the initial public offering price;
o the maturity date or dates;
o any sinking fund or other provision for payment of the debt
securities prior to their stated maturity;
o whether the debt securities are fixed rate debt securities or
floating rate debt securities or original issue discount debt
securities;
o if the debt securities are fixed rate debt securities, the yearly
rate at which the debt security will bear interest, if any; o if
the debt securities are floating rate debt securities, the method
of calculating the interest rate;
o if the debt securities are original issue discount debt
securities, their yield to maturity;
o the date or dates from which any interest will accrue, or how
such date or dates will be determined, and the interest payment
dates and any related record dates;
o if other than in U.S. Dollars, the currency or currency unit in
which payment will be made;
o any provisions for the payment of additional amounts for taxes;
o the denominations in which the currency or currency unit of the
securities will be issuable if other than denominations of $1,000
and integral multiples thereof;
o whether the debt securities will be convertible into or
exchangeable for other securities and, if so, the terms and
conditions upon which such debt securities will be convertible or
exchangeable;
o the terms and conditions on which the debt securities may be
redeemed at the option of the Company;
o any obligation of the Company to redeem, purchase or repay the
debt securities at the option of a holder upon the happening of
any event and the terms and conditions of redemption, purchase or
repayment;
o the names and duties of any co-indenture trustees, depositaries,
authentication agents, calculation agents, paying agents,
transfer agents or registrars for the debt securities;
o any material provisions of the applicable indenture described in
this prospectus that do not apply to the debt securities;
o the ranking of the specific series of debt securities relative to
other outstanding indebtedness, including subsidiaries' debt;
o if the debt securities are subordinated, the aggregate amount of
outstanding indebtedness, as of a recent date, that is senior to
the subordinated securities, and any limitation on the issuance
of additional senior indebtedness;
o the place where we will pay principal and interest;
o additional provisions, if any, relating to the defeasance of the
debt securities;
o any United States federal income tax consequences, if material;
o the dates on which premium, if any, will be paid;
o our right, if any, to defer payment of interest and the maximum
length of this deferral period;
o any listing of the debt securities on a securities exchange; and
o any other specific terms of the debt securities.
We will issue the debt securities only in registered form. As currently
anticipated, debt securities of a series will trade in book-entry form, and
global notes will be issued in physical (paper) form, as described below under
"Global Securities."
Senior Debt
We will issue senior debt securities under the senior debt indenture.
These senior debt securities will rank on an equal basis with all our other
unsecured debt except subordinated debt.
Subordinated Debt
We will issue subordinated debt securities under the subordinated debt
indenture. Subordinated debt will rank subordinate and junior in right of
payment, to the extent set forth in the subordinated debt indenture, to all our
senior debt (both secured and unsecured).
In general, the holders of all senior debt are first entitled to
receive payment of the full amount unpaid on senior debt before the holders of
any of the subordinated debt securities are entitled to receive a payment on
account of the principal or interest on the indebtedness evidenced by the
subordinated debt securities in certain events.
If we default in the payment of any principal of, or premium, if any,
or interest on any senior debt when it becomes due and payable after any
applicable grace period, then, unless and until the default is cured or waived
or ceases to exist, we cannot make a payment on account of or redeem or
otherwise acquire the subordinated debt securities.
If there is any insolvency, bankruptcy, liquidation or other similar
proceeding relating to us or our property, then all senior debt must be paid in
full before any payment may be made to any holders of subordinated debt
securities.
Furthermore, if we default in the payment of the principal of and
accrued interest on any subordinated debt securities that is declared due and
payable upon an event of default under the subordinated debt indenture, holders
of all our senior debt will first be entitled to receive payment in full in cash
before holders of such subordinated debt can receive any payments.
Senior debt means:
o the principal, premium, if any, interest and any other amounts
owing in respect of indebtedness of the Company and/or of our
subsidiaries that may guarantee our debt for money borrowed and
indebtedness evidenced by securities, notes, debentures, bonds or
other similar instruments issued by us, including the senior debt
securities or letters of credit;
o all capitalized lease obligations;
o all hedging obligations;
o all obligations representing the deferred purchase price of
property; and
o all deferrals, renewals, extensions and refundings of obligations
of the type referred to above;
o but senior debt does not include:
o subordinated debt securities;
o any subsidiary guarantees of the subordinated debt securities;
and
o any indebtedness that by its terms is subordinated to, or ranks
on an equal basis with, our subordinated debt securities.
Covenants
Amalgamation and Sale of Assets. We may not, in a single transaction or
a series of related transactions:
o consolidate, amalgamate or merge with or into any other person or
permit any other person to consolidate, amalgamate or merge with
or into us; or
o directly or indirectly, transfer, sell, lease or otherwise
dispose of all or substantially all of our assets,
unless, in either such case:
o in a transaction in which we do not survive or in which we sell,
lease or otherwise dispose of all or substantially all of our
assets, the successor entity to us is organized under the laws of
the United States, or any state thereof or the District of
Columbia, Bermuda, the Republic of Liberia, the Republic of
Cyprus, the Republic of Malta, the Republic of Panama, the
Republic of the Marshall Islands, a member state of the European
Union or any other country recognized by the United States, and
which expressly assumes, by a supplemental indenture executed and
delivered to the indenture trustee in a form reasonably
satisfactory to the indenture trustee, all of our obligations
under the indenture;
o immediately before and after giving effect to the transaction, no
default on the debt securities exists; and
o an officer's certificate and an opinion of counsel setting forth
certain statements are delivered to the indenture trustee.
Amalgamation and Sale of Assets by our subsidiaries that may guarantee
our debt securities. Where the terms of any debt securities we may issue
provide, no subsidiary that guarantees our debt may:
o consolidate or amalgamate or merge with or into any other person
(other than us or another subsidiary that guarantees our debt);
or
o directly or indirectly transfer, sell, lease or otherwise dispose
of its properties and assets substantially as an entirety to any
other person (other than to us or to another subsidiary that
guarantees our debt),
unless, in either such case:
o the entity formed by such consolidation or into which such
subsidiary amalgamates or merges, or which acquires by transfer,
sale or lease the properties and assets of such subsidiary
substantially as an entirety, is organized under the laws of the
United States or any state thereof or the District of Columbia,
Bermuda, the Republic of Liberia, the Republic of Cyprus, the
Republic of Malta, the Republic of Panama, the Republic of the
Marshall Islands, a member state of the European Union or any
other country recognized by the United States, and which
expressly assumes, by a supplemental indenture executed and
delivered to the indenture trustee in a form reasonably
satisfactory to the indenture trustee, all of such subisidiary's
obligations under the indenture;
o immediately before and after giving effect to the transaction, no
default on the debt securities exists; and
o an officer's certificate and an opinion of counsel setting forth
certain statements are delivered to the indenture trustee.
Other Covenants. In addition, any offered series of debt securities may
have additional covenants which will be described in the prospectus supplement,
limiting or restricting, among other things:
o our ability to incur indebtedness;
o our ability to pay dividends and to repurchase or redeem our
capital stock;
o our ability to create dividend and other payment restrictions
affecting our subsidiaries;
o mergers and consolidations by us;
o sales of assets by us;
o our ability to enter into transactions with affiliates;
o our ability to incur liens; and
o our ability to enter into sale and leaseback transactions.
Modification of the Indentures
Under the indentures, we and the relevant indenture trustee may amend
the indentures, without the consent of any holder of the debt securities to:
o cure ambiguities, defects or inconsistencies;
o comply with the covenant described under "Amalgamation and Sale
of Assets";
o add to our covenants or to those of our subsidiaries who may
guarantee the debt securities for the benefit of the holders of
all or any series of debt securities (and if such covenants are
to be for the benefit of less than all series of debt securities,
stating that such covenants are expressly being included for the
benefit of such series) or to surrender any rights or power
conferred upon us or our subsidiaries;
o add any additional events of default for the benefit of the
holders of all or a series of debt securities;
o establish the form or terms of debt securities of any series;
o provide for uncertificated debt securities in addition to or in
place of certificated debt securities;
o add additional guarantors of the debt securities;
o secure the debt securities;
o to evidence the succession of another person to the Company and
the assumption of the covenants in the indentures and in the debt
securities by such successor;
o to make provisions with respect to conversion rights, if any;
o to add or change any provision of the indentures to permit the
issuance of the debt securities in bearer form, registrable or
not registrable as to principal, with or without interest
coupons;
o appoint a successor indenture trustee under either indenture;
o add to, change or eliminate any provision of the indentures so
long as such addition, change or elimination does not affect the
rights of the holders; or
o to conform any provision of the indentures to the "Description of
Debt Securities" contained in this prospectus or any similar
provision in any prospectus supplement relating to an offer of
debt securities under the indentures.
We and the indenture trustee may, with the consent of the holders of at
least a majority in aggregate principal amount of the debt securities of a
series, modify the applicable indenture or the rights of the holders of the
securities of such series. However, no such modification may, without the
consent of each holder of an affected debt security:
o extend the fixed maturity of any such debt securities;
o reduce the rate or change the time of payment of interest on such
debt securities;
o reduce the principal amount of such securities or the premium, if
any, on such debt securities;
o change or waive the redemption provisions of such debt
securities;
o change any obligation of ours to pay additional amounts;
o change any obligation of ours to maintain an office or agency;
o reduce the amount of the principal payable on acceleration of any
debt securities issued originally at a discount;
o adversely affect the ranking on such debt securities;
o adversely affect the right, if any, to convert such debt
securities;
o adversely affect the right of repayment or repurchase at the
option of the holder;
o reduce or postpone any sinking fund or similar provision;
o change the currency or currency unit in which any such debt
securities are payable or the right of selection thereof;
o impair the right to sue for the enforcement of any payment on
such debt securities;
o reduce the percentage of debt securities of a series whose
holders need to consent to the modification or a waiver; or
o with respect to subordinated debt securities, modify or change
any provisions of the indenture or the related definitions
affecting the subordination or ranking of any debt securities or
any guarantees of our subsidiaries, in a manner which adversely
affects the holders.
Defaults
Each indenture provides that events of default regarding any series of
debt securities will be:
o our failure to pay required interest on any debt security of such
series for 30 days;
o our failure to pay principal or premium, if any, on any debt
security of such series when due;
o our failure to make any deposit of any sinking fund payment when
due on debt securities of such series;
o our failure to perform for 30 days after notice any other
covenant in the relevant indenture other than a covenant included
in the relevant indenture solely for the benefit of a series of
debt securities other than such series;
o a breach by us, or by our subsidiaries that may guarantee our
debt securities, of the covenant with respect to amalgamation and
sale of assets;
o our failure to pay beyond any applicable grace period, or the
acceleration of, indebtedness in excess of a specified amount;
o a finding that a guarantee of our debt securities by any of our
subsidiaries is unenforceable or invalid; and
o certain events of bankruptcy or insolvency, whether voluntary or
not.
If an event of default regarding debt securities of any series issued
under the indentures should occur and be continuing, either the indenture
trustee or the holders of 25% in the principal amount of outstanding debt
securities of such series may declare each debt security of that series due and
payable. If an event of default regarding debt securities results from certain
events of bankruptcy, insolvency or reorganization with respect to us, such
amount with respect to the debt securities will be due and payable immediately
without any declaration or other act on the part of the holders of outstanding
debt securities or the indenture trustee. We are required to file annually with
the indenture trustee a statement of an officer as to the fulfillment by us of
our obligations under the indenture during the preceding year.
No event of default regarding one series of debt securities issued
under an indenture is necessarily an event of default regarding any other series
of debt securities.
Holders of a majority in principal amount of the outstanding debt
securities of any series will be entitled to control certain actions of the
indenture trustee under the indentures and to waive past defaults regarding such
series. The indenture trustee generally cannot be required by any of the holders
of debt securities to take any action, unless one or more of such holders shall
have provided to the indenture trustee reasonable security or indemnity.
If an event of default occurs and is continuing regarding a series of
debt securities, the indenture trustee may use any sums that it holds under the
relevant indenture for its own reasonable compensation and expenses incurred
prior to paying the holders of debt securities of such series.
Before any holder of any series of debt securities may institute action
for any remedy, the holders of not less than 25% in principal amount of the debt
securities of that series outstanding must request the indenture trustee to take
action. Holders must also offer and give the satisfactory security and indemnity
against liabilities incurred by the indenture trustee for taking such action,
and the indenture trustee must have failed to institute any proceeding within 60
days after receiving such request and offer of indemnity. These limitations do
not apply, however, to a suit by a holder of any series of debt securities to
enforce payment of principal, interest or premium, if any, and the right to
convert such debt security, if applicable.
Subsidiary Guarantees
Certain of our subsidiaries may guarantee the debt securities we offer.
In that case, the terms and conditions of the subsidiary guarantees will be set
forth in the applicable prospectus supplement. Unless we indicate differently in
the applicable prospectus supplement, if any of our subsidiaries guarantee any
of our debt securities that are subordinated to any of our senior indebtedness,
then the subsidiary guarantees will be subordinated to the senior indebtedness
of such subsidiary to the same extent as our debt securities are subordinated to
our senior indebtedness.
Defeasance
After we have deposited with the indenture trustee cash or government
securities, in trust for the benefit of the holders, sufficient to pay the
principal of, premium, if any, and interest on the debt securities of such
series when due, and satisfied certain other conditions, including receipt of an
opinion of counsel that holders will not recognize taxable gain or loss for
Federal income tax purposes, we may elect to have our obligations and those of
any guarantors of our obligations under the applicable indenture and any
guarantees discharged with respect to the outstanding debt securities of any
series ("defeasance and discharge"). Defeasance and discharge means that we will
be deemed to have paid and discharged the entire indebtedness represented by the
outstanding debt securities of such series under the applicable indenture,
except for:
o the rights of holders of the debt securities to receive
principal, interest and any premium when due;
o our obligations with respect to the debt securities concerning
issuing temporary debt securities, registration of transfer of
debt securities, mutilated, destroyed, lost or stolen debt
securities and the maintenance of an office or agency for payment
for security payments held in trust;
o the rights, powers, trusts, duties and immunities of the
indenture trustee; and
o the defeasance provisions of the indenture.
Alternatively, we may elect to have our obligations released with
respect to certain covenants in the applicable indenture ("covenant
defeasance"). Any omission to comply with these obligations will not constitute
a default or an event of default with respect to the debt securities of any
series. In the event covenant defeasance occurs, certain events, not including
non-payment, bankruptcy and insolvency events, described under "Events of
Default" will no longer constitute an event of default for that series.
Global Securities
The debt securities of a series may be issued in whole or in part in
the form of one or more global securities that will be deposited with, or on
behalf of, a depository identified in an applicable subsequent filing and
registered in the name of the depository or a nominee for the depository. In
such a case, one or more global securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding debt securities of the series to be represented by the global
security or securities. Unless and until it is exchanged in whole or in part for
debt securities in definitive certificated form, a global security may not be
transferred except as a whole by the depository for the global security to a
nominee of the depository or by a nominee of the depository to the depository or
another nominee of the depository or by the depository or any nominee to a
successor depository for that series or a nominee of the successor depository
and except in the circumstances described in an applicable subsequent filing.
We expect that the following provisions will apply to depository
arrangements for any portion of a series of debt securities to be represented by
a global security. Any additional or different terms of the depository
arrangement will be described in an applicable subsequent filing.
Upon the issuance of any global security, and the deposit of that
global security with or on behalf of the depository for the global security, the
depository will credit, on its book-entry registration and transfer system, the
principal amounts of the debt securities represented by that global security to
the accounts of institutions that have accounts with the depository or its
nominee. The accounts to be credited will be designated by the underwriters or
agents engaging in the distribution of the debt securities or by us, if the debt
securities are offered and sold directly by us. Ownership of beneficial
interests in a global security will be limited to participating institutions or
persons that may hold interest through such participating institutions.
Ownership of beneficial interests by participating institutions in the global
security will be shown on, and the transfer of the beneficial interests will be
effected only through, records maintained by the depository for the global
security or by its nominee. Ownership of beneficial interests in the global
security by persons that hold through participating institutions will be shown
on, and the transfer of the beneficial interests within the participating
institutions will be effected only through, records maintained by those
participating institutions. The laws of some jurisdictions may require that
purchasers of securities take physical delivery of the securities in
certificated form. The foregoing limitations and such laws may impair the
ability to transfer beneficial interests in the global securities.
So long as the depository for a global security, or its nominee, is the
registered owner of that global security, the depository or its nominee, as the
case may be, will be considered the sole owner or holder of the debt securities
represented by the global security for all purposes under the applicable
indenture. Unless otherwise specified in an applicable subsequent filing and
except as specified below, owners of beneficial interests in the global security
will not be entitled to have debt securities of the series represented by the
global security registered in their names, will not receive or be entitled to
receive physical delivery of debt securities of the series in certificated form
and will not be considered the holders thereof for any purposes under the
indenture. Accordingly, each person owning a beneficial interest in the global
security must rely on the procedures of the depository and, if such person is
not a participating institution, on the procedures of the participating
institution through which the person owns its interest, to exercise any rights
of a holder under the indenture.
The depository may grant proxies and otherwise authorize participating
institutions to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a holder is entitled to give or
take under the applicable indenture. We understand that, under existing industry
practices, if we request any action of holders or any owner of a beneficial
interest in the global security desires to give any notice or take any action a
holder is entitled to give or take under the applicable indenture, the
depository would authorize the participating institutions to give the notice or
take the action, and participating institutions would authorize beneficial
owners owning through such participating institutions to give the notice or take
the action or would otherwise act upon the instructions of beneficial owners
owning through them.
Unless otherwise specified in an applicable subsequent filings,
payments of principal, premium and interest on debt securities represented by
global security registered in the name of a depository or its nominee will be
made by us to the depository or its nominee, as the case may be, as the
registered owner of the global security.
We expect that the depository for any debt securities represented by a
global security, upon receipt of any payment of principal, premium or interest,
will credit participating institutions' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of the global security as shown on the records of the depository. We also expect
that payments by participating institutions to owners of beneficial interests in
the global security held through those participating institutions will be
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in street
names, and will be the responsibility of those participating institutions. None
of us, the trustees or any agent of ours or the trustees will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests in a global security, or for
maintaining, supervising or reviewing any records relating to those beneficial
interests.
Unless otherwise specified in the applicable subsequent filings, a
global security of any series will be exchangeable for certificated debt
securities of the same series only if:
o the depository for such global securities notifies us that it is
unwilling or unable to continue as depository or such depository
ceases to be a clearing agency registered under the Exchange Act
and, in either case, a successor depository is not appointed by
us within 90 days after we receive the notice or become aware of
the ineligibility,
o we in our sole discretion determine that the global securities
shall be exchangeable for certificated debt securities, or
o there shall have occurred and be continuing an event of default
under the applicable indenture with respect to the debt
securities of that series.
Upon any exchange, owners of beneficial interests in the global
security or securities will be entitled to physical delivery of individual debt
securities in certificated form of like tenor and terms equal in principal
amount to their beneficial interests, and to have the debt securities in
certificated form registered in the names of the beneficial owners, which names
are expected to be provided by the depository's relevant participating
institutions to the applicable trustee.
In the event that the Depository Trust Company, or DTC, acts as
depository for the global securities of any series, the global securities will
be issued as fully registered securities registered in the name of Cede & Co.,
DTC's partnership nominee.
DTC is a limited purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participating institutions deposit with DTC. DTC also
facilitates the settlement among participating institutions of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participating institutions'
accounts, thereby eliminating the need for physical movement of securities
certificates. Direct participating institutions include securities brokers and
dealers, banks, trust companies, clearing corporations and other organizations.
DTC is owned by a number of its direct participating institutions and by the New
York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others, such as securities brokers and dealers and banks and trust
companies that clear through or maintain a custodial relationship with a direct
participating institution, either directly or indirectly. The rules applicable
to DTC and its participating institutions are on file with the Commission.
To facilitate subsequent transfers, the debt securities may be
registered in the name of DTC's nominee, Cede & Co. The deposit of the debt
securities with DTC and their registration in the name of Cede & Co. will effect
no change in beneficial ownership. DTC has no knowledge of the actual beneficial
owners of the debt securities. DTC's records reflect only the identity of the
direct participating institutions to whose accounts debt securities are
credited, which may or may not be the beneficial owners. The participating
institutions remain responsible for keeping account of their holdings on behalf
of their customers.
Delivery of notices and other communications by DTC to direct
participating institutions, by direct participating institutions to indirect
participating institutions, and by direct participating institutions and
indirect participating institutions to beneficial owners of debt securities are
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect.
Neither DTC nor Cede & Co. consents or votes with respect to the debt
securities. Under its usual procedures, DTC mails a proxy to the issuer as soon
as possible after the record date. The proxy assigns Cede & Co.'s consenting or
voting rights to those direct participating institutions to whose accounts the
debt securities are credited on the record date.
If applicable, redemption notices shall be sent to Cede & Co. If less
than all of the debt securities of a series represented by global securities are
being redeemed, DTC's practice is to determine by lot the amount of the interest
of each direct participating institutions in that issue to be redeemed.
To the extent that any debt securities provide for repayment or
repurchase at the option of the holders thereof, a beneficial owner shall give
notice of any option to elect to have its interest in the global security repaid
by us, through its participating institution, to the applicable trustee, and
shall effect delivery of the interest in a global security by causing the direct
participating institution to transfer the direct participating institution's
interest in the global security or securities representing the interest, on
DTC's records, to the applicable trustee. The requirement for physical delivery
of debt securities in connection with a demand for repayment or repurchase will
be deemed satisfied when the ownership rights in the global security or
securities representing the debt securities are transferred by direct
participating institutions on DTC's records.
DTC may discontinue providing its services as securities depository for
the debt securities at any time. Under such circumstances, in the event that a
successor securities depository is not appointed, debt security certificates are
required to be printed and delivered as described above.
We may decide to discontinue use of the system of book-entry transfers
through the securities depository. In that event, debt security certificates
will be printed and delivered as described above.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that we believe to be reliable, but we
take no responsibility for its accuracy.
Governing Law
Unless otherwise stated in the prospectus supplement, the debt
securities and the indentures will be governed by New York law.
Consent to Jurisdiction and Service
The indentures provide that we and each of our subsidiaries that
guaranty our debt securities will appoint Seward & Kissel LLP as their agent for
actions arising out of or relating to the applicable indenture, the debt
securities or the related guarantees brought under Federal or state securities
laws in any Federal or state court located in New York, New York and will submit
to such jurisdiction. If for any reason Seward & Kissel LLP is unable to serve
in such capacity, we will appoint another agent reasonably satisfactory to the
indenture trustee.
Payment and Paying Agents
Distributions on the debt securities other than those represented by
global notes will be made in the designated currency against surrender of the
debt securities at the principal corporate trust office or agency of the
indenture trustee in New York, New York. Payment will be made to the registered
holder at the close of business on the record date for such payment. Interest
payments will be made at the principal corporate trust office or agency of the
indenture trustee in New York, New York, or by a check mailed to the holder at
his registered address. Payments in any other manner will be specified in the
prospectus supplement.
Transfer and Exchange
The debt securities may be presented for exchange, and debt securities
other than a global security may be presented for registration of transfer, at
the principal corporate trust office or agency of the indenture trustee in New
York, New York. Holders will not have to pay any service charge for any
registration of transfer or exchange of debt securities, but we may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection with such registration of transfer or exchange of debt
securities.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of:
o debt or equity securities issued by us or securities of third
parties, a basket of such securities, an index or indices of such
securities or any combination of the above as specified in the
applicable prospectus supplement;
o currencies; or
o commodities.
Each purchase contract will entitle the holder thereof to purchase or
sell, and obligate us to sell or purchase, on specified dates, such securities,
currencies or commodities at a specified purchase price, which may be based on a
formula, all as set forth in the applicable prospectus supplement. We may,
however, satisfy our obligations, if any, with respect to any purchase contract
by delivering the cash value of such purchase contract or the cash value of the
property otherwise deliverable or, in the case of purchase contracts on
underlying currencies, by delivering the underlying currencies, as set forth in
the applicable prospectus supplement. The applicable prospectus supplement will
also specify the methods by which the holders may purchase or sell such
securities, currencies or commodities and any acceleration, cancellation or
termination provisions or other provisions relating to the settlement of a
purchase contract.
The purchase contracts may require us to make periodic payments to the
holders thereof or vice versa, which payments may be deferred to the extent set
forth in the applicable prospectus supplement, and those payments may be
unsecured or prefunded on some basis. The purchase contracts may require the
holders thereof to secure their obligations in a specified manner to be
described in the applicable prospectus supplement. Alternatively, purchase
contracts may require holders to satisfy their obligations thereunder when the
purchase contracts are issued. Our obligation to settle such pre-paid purchase
contracts on the relevant settlement date may constitute indebtedness.
Accordingly, pre-paid purchase contracts will be issued under either the senior
indenture or the subordinated indenture.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue
units consisting of one or more purchase contracts, warrants, debt securities,
preferred shares, common shares or any combination of such securities. The
applicable prospectus supplement will describe:
o the terms of the units and of the purchase contracts, warrants,
debt securities, preferred shares and common shares comprising
the units, including whether and under what circumstances the
securities comprising the units may be traded separately;
o a description of the terms of any unit agreement governing the
units; and
a description of the provisions for the payment, settlement, transfer or
exchange or the units.
EXPENSES
The following are the estimated expenses of the issuance and
distribution of the securities being registered under the Registration Statement
of which this prospectus forms a part, all of which will be paid by us.
SEC registration fee $ 37,978
Blue sky fees and expenses $ 7,500
Printing and engraving expenses $ 150,000
Legal fees and expenses $ 180,000
Rating agency fees $ 100,000
Accounting fees and expenses $ 150,000
Indenture trustee fees and experts $ 35,000
Transfer agent and registrar $ 20,000
Miscellaneous $ 75,000
------
Total $ 755,478
========
LEGAL MATTERS
The validity of the securities offered by this prospectus will be
passed upon for us by Seward & Kissel LLP, New York, New York with respect to
matters of U.S. and Marshall Islands law.
EXPERTS
The financial statements incorporated in this prospectus by reference
from our Annual Report on Form 20-F for the year ended December 31, 2004, filed
with the SEC on June 28, 2005 and any amendments thereto, have been audited by
Ernst & Young (Hellas) Certified Auditors Accountants S.A., independent
registered public accounting firm, as stated in their report, which is
incorporated in this prospectus by reference, and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
Government Filings
We file annual and other information with the Securities and Exchange
Commission. You may read and copy any document that we file at the public
reference facilities maintained by the Commission at 100 Fifth Street, N.E.,
Room 1580, Washington, D.C. 20549. You may obtain information on the operation
of the public reference room by calling 1 (800) SEC-0330, and you may obtain
copies at prescribed rates from the Public Reference Section of the Commission
at its principal office in Washington, D.C. 20549. The SEC maintains a website
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the SEC.
Our SEC filings are also available on our website at http://www.toptankers.com.
Information Incorporated by Reference
The SEC allows us to "incorporate by reference" information that we
file with it. This means that we can disclose important information to you by
referring you to those filed documents. The information incorporated by
reference is considered to be a part of this prospectus, and information that we
file later with the SEC prior to the termination of this offering will also be
considered to be part of this prospectus and will automatically update and
supersede previously filed information, including information contained in this
document.
We incorporate by reference our Annual Report on Form 20-F for the
fiscal year ended December 31, 2006, filed with the SEC on April 20, 2007, and
amended on April 26, 2007, 2005, which contains audited consolidated financial
statements for the most recent fiscal year for which those statements have been
filed. We also incorporate by reference the reports of our 2007 first quarter
results, filed with the SEC on Form 6-K on June 13, 2007. Additionally, we
incorporate by reference any future filings we will make with the SEC under the
Securities Exchange Act if such filings state that they are incorporated by
reference into this prospectus, until we file a post-effective amendment
indicating that the offering of securities made by this prospectus has been
completed.
You may request a free copy of the above mentioned filing or any
subsequent filing we incorporated by reference to this prospectus by writing or
telephoning us at the following address:
TOP Tankers Inc.
Attn: Eirini Alexandropoulou
109-111 Messogion Avenue
Politia Centre
Athens 115 26 GR
(011) (30) 210 69 78 000 http://www.toptankers.com
Information Provided by the Company
We will furnish holders of our common stock with annual reports
containing audited financial statements and a report by our independent
registered public accounting firm. The audited financial statements will be
prepared in accordance with U.S. generally accepted accounting principles. As a
"foreign private issuer," we are exempt from the rules under the Securities
Exchange Act prescribing the furnishing and content of proxy statements to
shareholders. While we furnish proxy statements to shareholders in accordance
with the rules of the Nasdaq National Market, those proxy statements do not
conform to Schedule 14A of the proxy rules promulgated under the Exchange Act.
In addition, as a "foreign private issuer," we are exempt from the rules under
the Exchange Act relating to short swing profit reporting and liability.
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