As
filed with the Securities and Exchange Commission on March 4, 2010
Registration
No. 333-
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
_____________
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________
Overseas
Shipholding Group, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of incorporation or organization)
13-2637623
(I.R.S.
Employer Identification No.)
666
Third Avenue
New
York, New York 10017
(212)
953 4100
(Address,
including zip code, and telephone number, including area code,
of
registrant’s principal executive offices)
James
I. Edelson, Esq.
666
Third Avenue
New
York, New York 10017
(212)
953 4100
(Name,
address, including zip code, and telephone number, including
area
code, of agent for service)
_____________
Copy
to:
Peter
Samuels, Esq.
Frank
J. Lopez, Esq.
Proskauer
Rose LLP
1585
Broadway
New
York, New York 10036
(212)
969-2900
_____________
Approximate
date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
o
If
any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If
this Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If
this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. x
If
this Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the Securities
Act, check the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Large
accelerated filer x
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Accelerated
filer o
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Non-accelerated
filer o
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Smaller
reporting company o
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(Do
not check if a smaller reporting company)
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________________________
CALCULATION
OF REGISTRATION FEE
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Title of Each Class
of Securities to be
Registered
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Amount to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Share(1)
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Proposed
Maximum
Aggregate
Offering Price(1)
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Amount of
Registration Fee(1)
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Common Stock(2)
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– | – | – | – | ||||||||||||
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(1)
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There
is being registered hereunder such indeterminate number of shares of
common stock and debt securities of the registrant as may from time to
time be issued at indeterminate prices. In reliance on Rule
456(b) and Rule 457(r) under the Securities Act, the registrant hereby
defers payment of the registration fee required in connection with this
registration statement.
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(2)
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In
addition to common stock that may be offered for cash, there are being
registered hereunder such indeterminate number of shares of common stock
as may be issuable upon conversion of the debt securities being registered
hereunder, to the extent any of such debt securities are by their terms
convertible into common stock.
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THE
INFORMATION IN THIS PRELIMINARY 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
NOR IS IT AN INVITATION FOR OFFERS TO BUY THESE SECURITIES IN ANY STATE OR
JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT
TO COMPLETION, DATED MARCH 4, 2010
PRELIMINARY
PROSPECTUS
Overseas
Shipholding Group, Inc.
Common
Stock
Overseas
Shipholding Group, Inc. may offer and sell shares of its common stock from time
to time in one or more offerings. Each time any common stock is
offered pursuant to this prospectus, the terms of the offering will be set forth
in a supplement to this prospectus. The prospectus supplement will
contain more specific information about the offering, including the number of
shares of our common stock to be sold. The prospectus supplement may
also add, update or change information contained in this
prospectus. This prospectus may not be used to offer and sell shares
of our common stock unless accompanied by a prospectus supplement.
The
shares of our common stock may be sold at fixed prices, prevailing market prices
at the times of sale, prices related to the prevailing market prices, varying
prices determined at the times of sale or negotiated prices. The
shares of our common stock offered by this prospectus and the accompanying
prospectus supplement may be offered directly to investors or to or through
underwriters, dealers or other agents.
We do not
know when or in what amounts we may offer these shares of our common stock for
sale from time to time. We may sell all, some or none of the shares
of our common stock offered by this prospectus.
You
should carefully read this prospectus and any prospectus supplement before you
make your investment decision.
Our
common stock is traded on the New York Stock Exchange under the symbol
“OSG.” On March 3, 2010, the closing price of our common stock on the
New York Stock Exchange was $46.21 per share.
Investing
in our common stock involves risks. You should carefully consider the
risk factors incorporated herein by reference. We may include
additional risk factors in a prospectus supplement under the heading “Risk
Factors.” You should review that section of the prospectus supplement
for a discussion of matters that investors in our securities should
consider.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date
of this prospectus is March 4, 2010.
TABLE OF
CONTENTS
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Page
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ABOUT
THIS PROSPECTUS
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1
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HOW
TO OBTAIN MORE INFORMATION
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1
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INCORPORATION
BY REFERENCE
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2
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FORWARD-LOOKING
STATEMENTS
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3
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OVERSEAS
SHIPHOLDING GROUP, INC.
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4
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DIVIDEND
POLICY
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4
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RISK
FACTORS
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5
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USE
OF PROCEEDS
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6
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DESCRIPTION
OF COMMON STOCK
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7
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PLAN
OF DISTRIBUTION
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11
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LEGAL
MATTERS
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13
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EXPERTS
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13
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YOU
SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS, ANY PROSPECTUS
SUPPLEMENT OR ANY DOCUMENT TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH INFORMATION THAT IS
DIFFERENT. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT MAY BE USED
ONLY WHERE IT IS LEGAL TO SELL THESE SECURITIES. THE INFORMATION IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS CURRENT ONLY AS OF THE DATE ON
THE FRONT OF THESE DOCUMENTS.
ABOUT
THIS PROSPECTUS
In this
prospectus, we use the terms “OSG,” “we,” “us” and “our” to refer to Overseas
Shipholding Group, Inc., a Delaware corporation
This
prospectus is part of a registration statement on Form S-3 filed with the
Securities and Exchange Commission (the “SEC”) using a “shelf” registration
process. Under this shelf process, we may sell any combination of the
securities described in this prospectus in one or more offerings from time to
time. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add,
update or change information contained in this prospectus and, accordingly, to
the extent inconsistent, information in this prospectus is superseded by the
information in the prospectus supplement. The prospectus supplement
may also add, update or change information contained in this
prospectus. You should read this prospectus, the applicable
prospectus supplement and the information incorporated by reference in this
prospectus or a prospectus supplement before making an investment
decision.
You
should rely only on the information contained in or incorporated by reference in
this prospectus, any accompanying prospectus supplement or in any related free
writing prospectus filed by us with the SEC. We have not authorized
anyone to provide you with additional or different information. No
underwriter, salesperson or other person is authorized to give any information
or to represent anything not contained in this prospectus, any accompanying
prospectus supplement or any related free writing prospectus that we may
authorize to be provided to you. You must not rely on any
unauthorized information or representation. This prospectus and the
accompanying prospectus supplement constitute an offer to sell only the
securities offered hereby, but only under circumstances and in jurisdictions
where it is lawful to do so. You should assume that the information
appearing in this prospectus, any prospectus supplement or any related free
writing prospectus is accurate only as of the date on the front of such document
and that any information we have incorporated by reference is accurate only as
of its respective date, regardless of the time of delivery of this prospectus,
any applicable prospectus supplement or any related free writing prospectus, or
any sale of a security. Our business, financial condition, results of
operations and prospects may have changed since that date.
You
should read both this prospectus, including the “Risk Factors,” and the
accompanying prospectus supplement or any related free writing prospectus,
together with the additional information described under the headings “How to
Obtain More Information” and “Incorporation by Reference.”
HOW
TO OBTAIN MORE INFORMATION
We file
annual, quarterly and interim reports, proxy and information statements and
other information with the SEC. These filings contain important
information, which does not appear in this prospectus. The reports
and other information can be inspected and copied at the SEC’s Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549. Copies of this material can
be obtained by mail from the Public Reference Room of the SEC at 100 F Street,
N.E., Washington, D.C. 20549. The public may obtain information on
the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. The SEC maintains an Internet website
(http://www.sec.gov) that contains reports, proxy and information statements and
other materials that are filed through the SEC’s Electronic Data Gathering,
Analysis and Retrieval (EDGAR) system.
We have
filed with the SEC a registration statement on Form S-3 under the Securities Act
of 1933, as amended, or the Securities Act, with respect to the securities
offered by this prospectus. This prospectus does not contain all of
the information in the registration statement. We have omitted
certain parts of the registration statement, as permitted by the rules and
regulations of the SEC. You may inspect and copy the registration
statement, including exhibits, at the SEC’s public reference facilities or
website. Statements contained in this prospectus concerning the
contents of any document we refer you to are not necessarily complete and in
each instance we refer you to the applicable document filed with the SEC for
more complete information.
1
INCORPORATION
BY REFERENCE
The SEC
allows us to “incorporate by reference” into this prospectus, which means that
we may disclose important information to you by referring you to other documents
that we have filed or will file with the SEC. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
or the Exchange Act, until this offering has been completed. We are
not, however, incorporating by reference any documents or portions thereof
whether specifically listed below or filed in the future, that are not deemed
“filed” with the SEC, including any information furnished pursuant to Items 2.02
or 7.01 of Form 8-K.
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·
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Definitive
Proxy Statement on Schedule 14A, as filed on April 30,
2009.
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Annual
Report on Form 10-K for the year ended December 31, 2009, as filed on
March 1, 2010.
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·
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Current
Reports on Form 8-K dated and filed on the following
dates:
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Dated
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Filed
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February
1, 2010
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February
3, 2010
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January
22, 2010
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January
22, 2010
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January
6, 2010
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January
8,
2010
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You may
request a copy of these filings at no cost, other than exhibits to such
documents which are not specifically incorporated by reference into such
documents or this prospectus, by calling our Investor Relations department at
(212) 578-1699 or by writing to 666 Third Avenue, New York, NY
10017.
2
FORWARD-LOOKING
STATEMENTS
This
prospectus, any prospectus supplement, and the documents incorporated by
reference herein and therein may include forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Forward-looking statements are made pursuant to the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995, as
amended. All statements other than statements of historical fact
should be considered to be forward-looking statements.
This
prospectus contains forward-looking statements regarding the outlook for tanker
and articulated tug/barge markets, and our prospects, including prospects for
certain strategic alliances and investments. There are a number of
factors, risks and uncertainties that could cause actual results to differ from
the expectations reflected in these forward-looking statements,
including:
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changes
in production of or demand for oil and petroleum products, either globally
or in particular regions;
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the
outcome of our negotiations with Maersk Oil Qatar
AS;
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resolution
of possible claims against us by Bender Shipbuilding and Repair Co.,
Inc.;
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prospects
for the growth of the Gas segment;
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greater
than anticipated levels of newbuilding orders or less than anticipated
rates of scrapping of older
vessels;
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changes
in trading patterns for particular commodities significantly impacting
overall tonnage requirements;
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changes
in the global economy and various regional
economies;
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risks
incident to vessel operation, including accidents and discharge of
pollutants;
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unanticipated
changes in laws and regulations; increases in costs of
operation;
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drydocking
schedules differing from those previously
anticipated;
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our
ability to attract and retain experienced, qualified and skilled
crewmembers;
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changes
in credit risk of counterparties, including shipyards, suppliers and
financial lenders;
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delays
(including failure to deliver) or cost overruns in the building of new
vessels or the conversion of existing vessels for other uses; the cost and
availability of insurance coverage;
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the
availability of suitable vessels for acquisition or chartering-in on terms
we deem favorable;
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changes
in the pooling arrangements in which we participate, including withdrawal
of participants or termination of such
arrangements;
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estimates
of future costs and other liabilities for certain environmental matters
and compliance plans; and
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projections
of the costs needed to develop and implement our strategy of being a
market leader in the segments in which we
compete.
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We assume
no obligation to update or revise any forward-looking
statements. Forward-looking statements in this prospectus and written
and oral forward-looking statements attributable to us or our representatives
after the date of this prospectus are qualified in their entirety by the
cautionary statement contained in this paragraph and in other reports hereafter
filed by us with the Securities and Exchange Commission. Please read
the “Risk Factors” incorporated by reference in this prospectus for a list of
important factors that could cause our actual results of operations or financial
condition to differ from the expectations reflected in these forward-looking
statements.
3
OVERSEAS
SHIPHOLDING GROUP, INC.
We are
one of the world’s leading bulk shipping companies engaged primarily in the
ocean transportation of crude oil and petroleum products. At December
31, 2009, the Company owned or operated a modern fleet of 106 vessels
(aggregating 10.9 million deadweight tons and 864,800 cubic meters) of which 84
vessels operated in the international market and 22 operated in the U.S. Flag
market. OSG’s newbuilding program of owned and chartered-in vessels
totaled 23 International and U.S. Flag vessels, bringing the Company’s total
owned, operated and newbuild fleet to 129 vessels. Our vessel
operations are organized into strategic business units and focused on market
segments: crude oil, refined petroleum products, U.S. Flag and
gas. The International Flag Crude Tanker unit manages International
Flag ULCC, VLCC, Suezmax, Aframax, Panamax and Lightering tankers; the
International Flag Product Carrier unit principally manages LR1 and MR product
carriers and the U.S. Flag unit manages most U.S. Flag
vessels. Through joint venture partnerships, we operate four LNG
carriers and, beginning in 2010, two Floating Storage and Offloading service
vessels. Dedicated chartering and commercial personnel manage
specific fleets while our technical ship management operations and corporate
departments support our global operations.
We were
incorporated in the State of Delaware in July, 1969. Our headquarters
are located at 666 Third Avenue, New York, NY 10017, and our phone number is
(212) 953-4100. Our website address
is: www.osg.com. The reference to our website address does
not constitute incorporation by reference of the information contained on the
website, which should not be considered part of this prospectus.
DIVIDEND
POLICY
In June
2008, we increased our annual dividend by 40% to $1.75 per share from
$1.25 per share of common stock. Subsequent thereto, we paid six
regular quarterly dividends of $0.4375 per share of common
stock. Prior to the above change, we paid regular quarterly dividends
of $0.3125 per share of common stock subsequent to June 2007, regular quarterly
dividends of $0.25 per share of common stock between April 2006 and June 2007
and $0.175 per share of common stock prior to April 2006.
On
February 5, 2010, our board of directors declared a quarterly dividend of
$0.4375 pare share, the same dividend we paid in the previous six
quarters. The dividend is payable March 9, 2010 to stockholders of
record on February 25, 2010.
The
payment of cash dividends in the future will depend upon our operating results,
cash flow, working capital requirements and other factors deemed pertinent by
the our board of directors.
4
RISK
FACTORS
Investing
in securities involves a risk of loss. Before investing in our
securities, you should carefully consider the risk factors described in “Risk
Factors” in our Annual Report on Form 10-K filed with the SEC for the fiscal
year ended December 31, 2009 and subsequent filings containing updated
disclosures of such factors, together with all of the other information included
in this prospectus and any prospectus supplement and the other information that
we have incorporated by reference. These risks are not the only ones
facing us. Additional risks not currently known to us or that we
currently deem immaterial also may impair or harm our business and financial
results. Statements in or portions of a future document incorporated
by reference in this prospectus, including, without limitation, those relating
to risk factors, may update and supersede statements in and portions of this
prospectus or such incorporated documents.
5
USE
OF PROCEEDS
Except as
otherwise described in the applicable prospectus supplement, we intend to use
the net proceeds from the sale of the securities offered by this prospectus for
general corporate purposes, including, without limitation, capital expenditures
and working capital. We may
use a portion of the net proceeds from an offering to pay down certain of our
existing debt, including our revolving credit facility. We have not yet
determined the amount of net proceeds, if any, to be used for such
purpose. The prospectus supplement relating to an offering may
contain a more detailed description of the use of proceeds.
6
DESCRIPTION
OF COMMON STOCK
The
following description of our common stock is only a summary of the detailed
provisions of our certificate of incorporation, as amended (the “Certificate of
Incorporation”), and by-laws, as amended (the “By-Laws”). These
statements do not purport to be complete, or to give full effect to the
provisions of statutory or common law, and are subject to, and are qualified in
their entirety by reference to, the terms of the Certificate of Incorporation
and the By-Laws. The Certificate of Incorporation was filed as
Exhibit 3(i) to our Quarterly Report on Form 10-Q for the quarter ended June 30,
2006 and the By-Laws were filed as Exhibit 3.1 to the Current Report on Form 8-K
dated April 12, 2006. We encourage you to read our Certificate of
Incorporation and By-Laws which have been filed with the SEC and are
incorporated by reference into this prospectus for a more complete
description.
General
Our
Certificate of Incorporation authorizes the issuance of a total of 120,000,000
shares of common stock, $1.00 par value. At March 1, 2010, 26,903,262
shares of common stock were outstanding. Stock certificates for our
common stock are issuable in two series, designated respectively Domestic Share
Certificates and Foreign Share Certificates. Except as stated below
under “Qualifications for Ownership and Transfer of Shares,” the rights of the
holders of Domestic Share Certificates and Foreign Share Certificates are
identical in all respects.
Qualifications
for Ownership and Transfer of Shares
Our By-Laws provide that the
outstanding shares must at all times be owned by citizens of the United States
to such extent as will in the judgment of the Board of Directors reasonably
assure the preservation of our status as a United States citizen within the
provisions of 46 U.S.C §50501, the Shipping Act, and related laws, rules
and regulations applicable to the business we conduct. Since some of our vessels
are engaged in the United States coastwise trade, the Shipping Act requires that
at least 75% of the shares be owned by United States citizens, as defined by the
Shipping Act. In order to provide a reasonable margin the Board of
Directors has determined that until further action by the Board at least 77% of
the outstanding shares must be owned by persons who are citizens of the United
States. Shares owned of record or beneficially by foreign citizens
are evidenced by Foreign Share Certificates and are freely transferable both to
United States and foreign citizens. Shares owned of record and
beneficially by United States citizens are evidenced by Domestic Share
Certificates and may be transferred to United States citizens at any time. Such
shares may be transferred to foreign citizens only if at the time the
certificate is presented to our transfer agent, the transfer will not reduce
share holdings of United States citizens below the then permissible percentage
of the total outstanding shares, as determined by the Board of Directors. Any
purported transfer to foreign citizens of shares or of a beneficial interest in
shares evidenced by Domestic Share Certificates in violation of this limitation
will be ineffective for all purposes (including transfer of voting rights), the
shares will not be transferred on our books, and we may regard the share
certificate, whether or not validly issued, as having been invalidly
issued. Subject to the above limitation, upon surrender of any share
certificate for transfer, the transferee will receive Domestic Share
Certificates or Foreign Share Certificates, as the case may be, for shares of
the series appropriate to such person.
7
In the case of transferees that are
corporations, partnerships, associations or trusts, the transferee will be
deemed a citizen of the United States if the following conditions are satisfied:
(1) at least 75% of the shares or interest and voting power in the transferee is
vested in United States citizens, free from any trust or fiduciary obligation in
favor of any non-United States citizen; (2) there is no contract or
understanding by which more than 25% of the voting power in the transferee may
be exercised directly or indirectly on behalf of a non-United States citizen;
(3) control of more than 25% of the interests in the transferee is not by any
other means conferred on or permitted to be exercised by non-United States
citizens; (4) in the case of a corporation or association, its chief executive
officer, by whatever title, and the chairman of the Board of Directors (or any
officer authorized to act in his absence) are citizens of the United States, no
more of its directors than a minority of the number necessary to constitute a
quorum are non-United States citizens, and the corporation is organized under
the laws of the United States or a State; (5) in the case of a partnership or
association, each general partner or member, as the case may be, is a United
States citizen, at least 75% (100% in the case of a general partnership or
association) of the interests are owned by United States citizens free of any
trust or fiduciary obligation in favor of a non-citizen and the partnership or
association is organized under the laws of the United States or a State; and (6)
in the case of a trust, the trustee and each beneficiary with an enforceable
interest in the trust is a United States citizen.
Shares represented by both Domestic
Share Certificates and Foreign Share Certificates are traded on the New York
Stock Exchange at the same price.
Should the percentage of foreign
ownership more closely approach the permitted maximum, the New York Stock
Exchange may institute trading on a dual basis, depending on the circumstances
at the time.
Transfer
Procedures
The Board
of Directors is authorized to establish procedures with respect to the transfer
of shares to enforce the limitations referred to above. Procedures
established by the Board of Directors require that, in connection with each
transfer of shares, the transferee complete and file with our transfer agent an
application for transfer of the shares. Such application calls for
information about the transferee’s citizenship status and the citizenship status
of any person who may have a beneficial interest in the shares being acquired by
the transferee. Such an application for transfer must also be
completed by each person who purchases shares from any of the
Underwriters.
Voting
Rights
Each
holder of common stock is entitled to one vote for each share registered in such
holder’s name on our books on all matters submitted to a vote of
stockholders. Except as otherwise provided by law, the holders of
common stock do not have cumulative voting rights. As a result, the
holders of common Stock entitled to exercise more than 50% of the voting rights
in an election of directors can elect 100% of the directors to be elected if
they choose to do so. In such event, the holders of the remaining
common stock voting for the election of directors will not be able to elect any
persons to the Board of Directors.
8
Dividend
Rights
Holders
of common stock are entitled to such dividends as the Board of Directors may
declare out of funds legally available therefore. Certain of our debt
agreements contain restrictions on certain payments by us including dividends
and purchases of common stock.
Delaware
General Corporation Law Section 203
As a
corporation organized under the laws of the State of Delaware, we are subject to
Section 203 of the Delaware General Corporation Law (the “DGCL”) which restricts
certain business combinations between us and an “interested stockholder” (in
general, a stockholder owning 15% or more of our outstanding voting stock) or
its affiliates or associates for a period of three years following the date on
which the stockholder becomes an “interested stockholder.” The
restrictions do not apply if (i) prior to an interested stockholder becoming
such, the Board of Directors approves either the business combination or the
transaction in which the stockholder becomes an interested stockholder, (ii)
upon consummation of the transaction in which any person becomes an interested
stockholder, such interested stockholder owns at least 85% of our voting stock
outstanding at the time the transaction commences (excluding shares owned by
certain employee stock ownership plans and persons who are both directors and
officers of us) or (iii) on or subsequent to the date an interested stockholder
becomes such, the business combination is both approved by the Board of
Directors and authorized at an annual or special meeting of our stockholders,
not by written consent, by the affirmative vote of at least 66-2/3% of the
outstanding voting stock not owned by the interested stockholder.
Liquidation
Rights and Other Preferences
Subject
to the prior rights of creditors, the holders of the common stock are entitled
in the event of liquidation, dissolution or winding up to share pro rata in the
distribution of all remaining assets. There are no preemptive or
conversion rights or redemption or sinking fund provisions in respect of the
common stock. The outstanding shares of common stock are, and the
shares of common stock offered hereby upon delivery and payment will be, fully
paid and non-assessable.
Our
Certificate of Incorporation provides that none of our directors shall be
personally liable to us or our shareholders for monetary damages for breach of
fiduciary duty as a director, except to the extent the exemption from or
limitation of liability is not permitted under the DGCL. The DGCL
presently does not permit exemption from or limitation of liability (i) for any
breach of the director’s duty of loyalty to us or our shareholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for
any transaction from which the director derived an improper personal
benefit. Section 174 of the DGCL specifies conditions under which
directors of Delaware corporations may be liable for unlawful dividends or
unlawful stock purchases or redemptions.
9
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for the common stock is BNY Mellon Shareholder
Services.
10
PLAN
OF DISTRIBUTION
We may
sell the offered securities in and outside the United States (1) through
underwriters or dealers, (2) directly to purchasers or a single purchaser, (3)
through agents or (4) through a combination of any of these
methods. The prospectus supplement will include the following
information:
|
|
·
|
the
terms of the offering;
|
|
|
·
|
the
names of any underwriters or
agents;
|
|
|
·
|
the
name or names of any managing underwriter or
underwriters;
|
|
|
·
|
the
purchase price of the securities from
us;
|
|
|
·
|
the
net proceeds to us from the sale of the
securities;
|
|
|
·
|
any
delayed delivery arrangements;
|
|
|
·
|
any
underwriting discounts, commissions and other items constituting
underwriters’ compensation;
|
|
|
·
|
any
initial public offering price;
|
|
|
·
|
any
discounts or concessions allowed or reallowed or paid to dealers;
and
|
|
|
·
|
any
commissions paid to agents.
|
Sale
Through Underwriters or Dealers
If we use
underwriters in the sale, the underwriters will acquire the securities for their
own account. The underwriters may resell the securities from time to
time in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of
sale. Underwriters may offer securities to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. If indicated in
a prospectus supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions and the underwriters will be
obligated to purchase all the offered securities if they purchase any of
them. The underwriters may change from time to time any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers. Prospectus supplements relating to underwritten
offerings of securities will also describe: (1) the discounts,
commissions or agents’ fees to be allowed or paid to the underwriters or agents,
as the case may be; (2) all other items constituting underwriting compensation;
(3) the discounts and commissions to be allowed or paid to dealers, if any; and
(4) the exchanges, if any, on which the securities will be listed.
During
and after an offering through underwriters, the underwriters may purchase and
sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the
offering. The underwriters may also impose a penalty bid, which means
that selling concessions allowed to syndicate members or other broker-dealers
for the offered securities sold for their account may be reclaimed by the
syndicate if the offered securities are repurchased by the syndicate in
stabilizing or covering transactions. These activities may stabilize,
maintain or otherwise affect the market price of the offered securities, which
may be higher than the price that might otherwise prevail in the open
market. If commenced, the underwriters may discontinue these
activities at any time.
11
If we use
dealers in the sale of securities, we will sell the securities to them as
principals. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. The
dealers participating in any sale of the securities may be deemed to be
underwriters within the meaning of the Securities Act, with respect to any sale
of those securities. We will include in the prospectus supplement the
names of the dealers and the terms of the transaction.
Direct
Sales and Sales Through Agents
We may
sell the securities directly. In that event, no underwriters or
agents would be involved. We may also sell the securities through
agents we designate from time to time. In the prospectus supplement,
we will name any agent involved in the offer or sale of the offered securities,
and we will describe any commissions payable by us to the
agent. Unless we inform you otherwise in the prospectus supplement,
any agent will agree to use its reasonable best efforts to solicit purchases for
the period of its appointment.
General
Information
We may
have agreements with the remarketing firms, agents, dealers and underwriters to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments that the agents,
dealers or underwriters may be required to make. Such firms, agents,
dealers and underwriters may be customers of, engage in transactions with or
perform services for us in the ordinary course of their
businesses.
12
LEGAL
MATTERS
The
validity of the securities offered hereby has been passed upon for us by
Proskauer Rose LLP in New York, New York. Any underwriters will be
advised about issues related to any offering by their own legal
counsel.
EXPERTS
The
financial statements of Overseas Shipholding Group, Inc. and subsidiaries as of
December 31, 2009 and for the year ended December 31, 2009 and management’s
assessment of the effectiveness of internal control over financial reporting
(which is included in Management’s Report on Internal Control over Financial
Reporting) as of December 31, 2009 incorporated in this prospectus by reference
to Overseas Shipholding Group, Inc’s Annual Report on Form 10-K, for the year
ended December 31, 2009 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
The
consolidated balance sheet of Overseas Shipholding Group, Inc. and subsidiaries
as of December 31, 2008, and the related consolidated statements of operations,
cash flows, and changes in equity for each of the two years in the period ended
December 31, 2008, included in Overseas Shipholding Group, Inc.’s Annual Report
on Form 10-K for the fiscal year ended December 31, 2008, have been incorporated
by reference in this prospectus and in the registration statement of which this
prospectus is a part, in reliance upon the report of Ernst & Young LLP, an
independent registered public accounting firm, incorporated herein by reference,
and upon the authority of such firm as experts in accounting and
auditing.
13
OVERSEAS
SHIPHOLDING GROUP, INC.
_______________
Common
Stock
_______________
PROSPECTUS
_______________
March
4, 2010
PART
II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the various expenses to be incurred in connection
with the registration of the securities being registered hereby, all of which
will be borne by Overseas Shipholding Group, Inc. All of the amounts shown are
estimated.
|
SEC
Registration Fee
|
$ |
*
|
||
|
Printing
|
** | |||
|
Accountants’
Fees and Expenses
|
** | |||
|
Legal
Fees and Expenses
|
** | |||
|
Miscellaneous
Fees and Expenses
|
** | |||
|
Total
|
$ | ** |
|
*
|
The
registrant is deferring payment of the registration fee in reliance on
Rule 456(b) and Rule 457(r) under the Securities
Act.
|
|
**
|
Estimated
expenses are not presently known. The foregoing sets forth the
general categories of expenses (other than underwriting discounts and
commissions) that we anticipate we will incur in connection with the
offering of securities under this registration statement. An
estimate of the aggregate expenses in connection with the issuance and
distribution of securities being offered will be included in the
applicable prospectus supplement.
|
Item
15. Indemnification of Directors and Officers.
We are
incorporated in Delaware. Under Section 145 of the Delaware General
Corporation Law, or the DGCL, a corporation has the power, under specified
circumstances, to indemnify its directors, officers, employees and agents in
connection with actions, suits or proceedings brought against them by a third
party or in the right of the corporation, by reason of the fact that they were
or are such directors, officers, employees or agents, against expenses incurred
in any action, suit or proceeding. Article Sixth of our Certificate
of Incorporation provides for indemnification of directors and officers to the
fullest extent permitted by the DGCL.
Section
102(b)(7) of the DGCL provides that a certificate of incorporation may contain a
provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of a director:
(i) for
any breach of the director’s duty of loyalty to the corporation or its
stockholders;
(ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law;
(iii) under
Section 174 (relating to liability for unauthorized acquisitions or redemptions
of, or dividends on, capital stock) of the DGCL; or
(iv) for
any transactions from which the director derived an improper personal
benefit.
Article
Tenth of our Certificate of Incorporation contains such a
provision.
We have
entered into indemnification agreements with certain of our directors and
officers. In addition, the employment agreements of certain of our officers
provide for indemnification to such officers by us to the fullest extent
permitted by its bylaws or applicable law.
We have
also obtained directors and officers liability insurance policies.
Item
16. Exhibits.
The exhibit index at the end of this
registration statement identifies the exhibits which are included in this
registration statement and are incorporated herein by reference (the "Exhibit
Index").
Item
17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in this registration statement;
provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the SEC by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in
the registration statement, or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That
for the purpose of determining liability under the Securities Act to any
purchaser:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), 424(b)(5), or
424(b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), 415(a)(1)(vii), or
415(a)(1)(x) for the purpose of providing the information required by Section
10(a) of the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of the
securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act to any purchaser in the initial distribution of the securities: the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
(iv)
Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby further undertakes that, for the purposes of
determining any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the undersigned registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The
undersigned registrant hereby undertakes:
(1) For
purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective.
(2) For
the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant, Overseas
Shipholding Group, Inc., certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in New York, New York, on the 4th day of March,
2010.
|
OVERSEAS
SHIPHOLDING GROUP, INC.
|
||
|
By:
|
/s/ Morten Amtzen
|
|
|
Morten
Amtzen, President and
|
||
|
Chief
Executive Officer
|
||
|
(Principal
Executive Officer)
|
||
|
By:
|
/s/ Myles R. Itkin
|
|
|
Myles
R. Itkin, Executive Vice President,
|
||
|
Chief
Financial Officer and Treasurer
|
||
|
(Principal
Financial Officer)
|
||
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Morten Arntzen and Myles R. Itkin, or any of them, his
or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the Registration Statement on Form S-3 and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated:
|
Signature
|
Title
|
Date
|
||
|
/s/ Morten Arntzen
|
Chief
Executive Officer, President and
|
March
4, 2010
|
||
|
Morten
Arntzen
|
Director
(principal
executive officer)
|
|||
|
/s/ Myles R. Itkin
|
Executive
Vice President,
|
March
4, 2010
|
||
|
Myles
R. Itkin
|
Chief
Financial Officer and Treasurer
(principal
financial officer)
|
|||
|
/s/ Oudi Recanati
|
Director
|
March
4, 2010
|
||
|
Oudi
Recanati
|
|
|
||
|
/s/ G. Allen Andreas II
|
Director
|
March
4, 2010
|
||
|
G.
Allen Andreas II
|
|
|
||
|
/s/ Alan R. Batkin
|
Director
|
March
4, 2010
|
||
|
Alan
R. Batkin
|
|
|
||
|
/s/ Thomas B. Coleman
|
Director
|
March
4, 2010
|
||
|
Thomas
B. Coleman
|
|
|
||
|
/s/ Charles A. Fribourg
|
Director
|
March
4, 2010
|
||
|
Charles
A. Fribourg
|
|
|
||
|
/s/ Stanley Komaroff
|
Director
|
March
4, 2010
|
||
|
Stanley
Komaroff
|
|
|
|
|
|
/s/ Solomon N. Merkin
|
Director
|
March
4, 2010
|
||
|
Solomon
N. Merkin
|
|
|
||
|
/s/ Joel I. Picket
|
Director
|
March
4, 2010
|
||
|
Joel
I. Picket
|
|
|
||
|
/s/ Ariel Recanati
|
Director
|
March
4, 2010
|
||
|
Ariel
Recanati
|
|
|
||
|
/s/ Thomas F. Robards
|
Director
|
March
4, 2010
|
||
|
Thomas
F. Robards
|
|
|
||
|
/s/ Jean-Paul Vettier
|
Director
|
March
4, 2010
|
||
|
Jean-Paul
Vettier
|
|
|
||
|
/s/ Michael J. Zimmerman
|
Director
|
March
4, 2010
|
||
|
Michael
J. Zimmerman
|
|
|
EXHIBIT
INDEX
|
Exhibit No.
|
Description
|
|
|
Exhibit
1(1)
|
Underwriting
Agreement
|
|
|
Exhibit
4.1**
|
Certificate
of Incorporation, as amended to date (filed as Exhibit 3(i) to the
Quarterly Report on Form 10-Q for quarter ended June 30, 2006 and
incorporated herein by reference).
|
|
|
Exhibit
4.2**
|
Amended
and Restated Bylaws (filed as Exhibit 3.1 to the Current Report on Form
8-K dated April 12, 2006 and incorporated herein by
reference).
|
|
|
Exhibit
5.1
|
Opinion
of Proskauer Rose LLP
|
|
|
Exhibit
23.1
|
Consent
of Ernst & Young LLP
|
|
|
Exhibit
23.2
|
Consent
of PricewaterhouseCoopers LLP
|
|
|
Exhibit
23.3
|
Consent
of Proskauer Rose LLP is included in Exhibit 5.1
|
|
|
Exhibit
24.1
|
Power
of Attorney (contained in signature
page)
|
|
(1)
|
To
be filed by amendment in connection with a particular
offering.
|
** Incorporated
by reference