UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the month of October 2013
Commission File Number: 000-51672
FREESEAS INC.
(Name of Registrant)
10, Eleftheriou Venizelou Street (Panepistimiou Ave.), 106 71, Athens, Greece
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F x Form 40-F ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ¨
On October 9, 2013, the Supreme Court of the State of New York, County of New York (the “Court”), entered an order (the “Order”) approving, among other things, the fairness to Crede (as defined below) of the terms and conditions of an exchange pursuant to Section 3(a)(10) of the Securities Act of 1933, as amended (the “Securities Act”), in accordance with an Exchange Agreement (the “Exchange Agreement”) between FreeSeas Inc., a corporation organized and existing under the laws of the Republic of the Marshall Islands (the “Company”), and Crede CG III, Ltd. (“Crede”), in the matter entitled Crede CG III, Ltd. v. FreeSeas Inc., Case No. 653328/2013 (the “Action”).
As previously reported in Form 6-Ks filed with the Securities and Exchange Commission on July 10, 2013 and October 1, 2013, the Company, on July 5, 2013, entered into a Debt Purchase and Settlement Agreement (the “Settlement Agreement”) with Deutsche Bank Nederland N.V. (“Deutsche Bank”), Hanover Holdings I, LLC (“Hanover”) and the Company’s wholly-owned subsidiaries: Adventure Two S.A., Adventure Three S.A., Adventure Seven S.A. and Adventure Eleven S.A. (the “Subsidiaries”) On September 25, 2013, the Company entered into an Assignment and Amendment Agreement with Deutsche Bank, Hanover, Crede and the Subsidiaries, pursuant to which Hanover assigned its right under the Settlement Agreement to Crede.
On September 26, 2013, Crede filed the Action against the Company in the Court, seeking to recover an aggregate of $10,500,000 (the “Claim”). The entry of the Order was the only condition to consummation of the transactions contemplated by the Exchange Agreement, which will provide for the full and final settlement of the Claim and the Action.
As a result of the court approval, Crede will pay $10.5 million to Deutsche Bank and Deutsche Bank, upon receipt of the funds, will, in accordance with the Settlement Agreement, forgive the outstanding indebtedness and overdue interest owed by FreeSeas of approximately $19.5 million. In addition, Deutsche Bank will release all collateral associated with the loan, including the lifting of the mortgages over the m/v Free Maverick and the m/v Free Knight.
Pursuant to the Exchange Agreement, on October 10, 2013, the transactions contemplated by the Exchange Agreement will be consummated. The total number of shares of Common Stock to be issued to Crede pursuant to the Exchange Agreement will equal the quotient of (i) $11,850,000 divided by (ii) 78% of the volume weighted average price of the Company’s common stock, $0.001 par value (the “Common Stock”), over the 75-consecutive trading day period immediately following the first trading day after the Court approved the Order (or such shorter trading-day period as may be determined by Crede in its sole discretion by delivery of written notice to the Company) (the “Calculation Period”), rounded up to the nearest whole share (the “Settlement Shares”). 5,059,717 of the Settlement Shares will be issued and delivered to Crede at the closing and such 5,059,717 shares represent approximately 9.9% of the total number of shares of Common Stock outstanding at the time of execution of the Exchange Agreement.
The Exchange Agreement further provides that if, at any time and from time to time during the Calculation Period, the total number of Settlement Shares previously issued to Crede is less than the total number of Settlement Shares to be issued to Crede or its designee in connection with the Exchange Agreement, Crede may, in its sole discretion, deliver one or more written notices to the Company requesting that a specified number of additional shares of Common Stock promptly be issued and delivered to Crede or its designee (subject to the limitations described below), and the Company will upon such request issue the number of additional shares of Common Stock requested to be so issued and delivered in the notice (all of which additional shares shall be considered “Settlement Shares” for purposes of the Exchange Agreement). At the end of the Calculation Period, (i) if the total number of Settlement Shares required to be issued exceeds the number of Settlement Shares previously issued to Crede, then the Company will issue to Crede or its designee additional shares of Common Stock equal to the difference between the total number of Settlement Shares required to be issued and the number of Settlement Shares previously issued to Crede, and (ii) if the total number of Settlement Shares required to be issued is less than the number of Settlement Shares previously issued to Crede, then Crede or its designee will return to the Company for cancellation that number of shares of Common Stock equal to the difference between the number of total number of Settlement Shares required to be issued and the number of Settlement Shares previously issued to Crede. Crede may sell the shares of Common Stock issued to it or its designee in connection with the Exchange Agreement at any time without restriction, even during the Calculation Period.
The Exchange Agreement provides that in no event shall the number of shares of Common Stock issued to Crede or its designee in connection with the Exchange Agreement, when aggregated with all other shares of Common Stock then beneficially owned by Crede and its affiliates (as calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder), result in the beneficial ownership by Crede and its affiliates (as calculated pursuant to Section 13(d) of the Exchange Act and the rules and regulations thereunder) at any time of more than 9.9% of the Common Stock.
The issuance of Common Stock to Crede pursuant to the terms of the Exchange Agreement approved by the Order is exempt from the registration requirements of the Securities Act pursuant to Section 3(a)(10) thereof, as an issuance of securities in exchange for bona fide outstanding claims, where the terms and conditions of such issuance are approved by a court after a hearing upon the fairness of such terms and conditions to the plaintiff at which all persons to whom it is proposed to issue securities in such exchange shall have the right to appear.
The description of the Exchange Agreement and the Order does not purport to be complete and is qualified in its entirety by reference to the Exchange Agreement, which is filed as Exhibit 99.1 to this report and incorporated herein by reference, and the Order, which is filed as Exhibit 99.2 to this report and incorporated herein by reference.
The following exhibits are filed herewith:
Exhibit Number |
Description |
99.1 | Exchange Agreement, dated September 26, 2013, by and between the Company and Crede, filed as an exhibit to the Report of Foreign Private Issuer on Form 6-K, filed with the Securities and Exchange Commission on October 1, 2013 and incorporated herein by reference |
99.2 | Order Approving Fairness, Terms and Conditions of Exchange and Issuance Pursuant to Section 3(a)(10) of the Securities Act of 1933, as amended, dated October 9, 2013 |
99.3 | Press Release, dated October 10, 2013, issued by FreeSeas Inc. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
FREESEAS INC. | |
Date: October 10, 2013 | By: /s/ ALEXANDROS MYLONAS |
Alexandros Mylonas | |
Chief Financial Officer |
Exhibit 99.2
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK |
||
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CREDE CG III, LTD.
Plaintiff,
v.
FREESEAS INC.,
Defendant. |
: : : : |
Index No. 653328/2013
ORDER APPROVING |
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This matter having come for a hearing on October 9, 2013, to approve the fairness of the proposed terms and conditions of the proposed exchange and the issuance of securities in this matter as described herein and reflected in the Exchange Agreement, dated September 26, 2013 (the "Claims Exchange Agreement"), by and between Crede CG III, Ltd. ("Crede") and FreeSeas Inc. ("FreeSeas"), and the Court having first held a hearing as to the fairness (including fairness to Crede) of the terms and conditions of (1) the proposed exchange and transactions contemplated by the Claims Exchange Agreement and (2) the proposed offer and issuance of the Shares (as defined below) by FreeSeas to Crede in exchange for Crede's release of its claims against FreeSeas, the Court hereby finds as follows.
The Court was advised prior to this hearing that FreeSeas will rely on the exemption from registration under the Securities Act of 1933, as amended (the "Securities Act"), provided by Section 3(a)( 10) of the Securities Act to issue a number of shares of common stock of FreeSeas to Crede as determined pursuant to Section I of the Claims Exchange Agreement (the "Shares") in exchange for Crede's claims specified in the Claims Exchange Agreement based on this Court's finding of fairness (including fairness to Crede) and approval of the terms and conditions of (I) the proposed exchange and transactions contemplated by the Claims Exchange Agreement and (2) the offer and issuance of the Shares by FreeSeas to Crede in exchange for Crede's aims against FreeSeas.
The Court's finding of fairness (including fairness to Crede) as set forth above shall be a finding of fairness (including fairness to Crede) both procedurally and substantively.
The fairness hearing was scheduled upon the consent of Crede and FreeSeas, Crede had adequate notice of the fairness hearing and Crede is the only party to this action to whom Shares will be issued pursuant to the Claims Exchange Agreement. The fairness hearing was open to Crede, and Crede was represented by counsel at the fairness hearing. At the fairness hearing, Crede acknowledged that it had received adequate notice of the hearing and supported the entry of this Order.
IT IS, THEREFORE,
ORDERED, that the Court (x) finds that the following are fair (including fair to Crede, the only party to whom the Shares will be issued), and approves as fair, both procedurally and substantively within the meaning of Section 3(a)(10) of the Securities Act and (y) hereby approves the following: (i) the proposed exchange and transactions contemplated by the Claims Exchange Agreement (including the terms and conditions thereof) and (ii) the offer and issuance of the Shares by FreeSeas to Crede in exchange for Crede's claims against FreeSeas (including the terms and conditions thereof),
ORDERED, that the offer and issuance of the Shares by FreeSeas to Crede is hereby exempt from registration under Section 3(a)(10) of the Securities Act; and it is further
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ORDERED, that this Court shall retain jurisdiction to enforce the terms and conditions of the Claims Exchange Agreement.
SO ORDERED: | |
_____/s/ MELVIN L. SCHWEITZER_____ | |
J.S.C. |
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Exhibit 99.3
FreeSeas Announces Elimination of $30 million Debt
Athens, Greece, October 10, 2013 -- FreeSeas Inc. (Nasdaq CM: FREE)(“FreeSeas'' or the“Company”), a transporter of dry-bulk cargoes through the ownership and operation of a fleet of six Handysize vessels and one Handymax vessel, announced today that approval was received on October 9, 2013, by the Supreme Court of the State of New York of the terms and conditions of an exchange agreement (the “Exchange Agreement”) between FreeSeas and Crede CG III, Ltd (“Crede”), a wholly owned subsidiary of Crede Capital Group.
Mr. Ion G. Varouxakis, Chairman, President and Chief Executive Officer of the Company made the following comments: “We are pleased to announce the extinguishment of approximately $30 million of debt, representing approximately one third of the Company’s total bank debt. This transaction will result in significant gains, which are presently estimated to exceed $12 million. As a result, our balance sheet will be completely transformed, resetting us in position for future growth.”
Previously, the Company amended a settlement agreement (the “Settlement Agreement”) with Deutsche Bank Nederland N.V. (“Deutsche Bank”), and Crede became a party thereto and agreed to purchase $10.5 million of outstanding indebtedness owed by the Company to Deutsche Bank, subject to, among other things, court approval of the Exchange Agreement. As a result of the court approval, Crede will release today $10.5 million to Deutsche Bank Nederland N.V. (“Deutsche Bank”), presently held in escrow, and Deutsche Bank, upon receipt of the funds, will, in accordance with the Settlement Agreement, forgive the remaining outstanding indebtedness and overdue interest owed by FreeSeas of approximately $19.5 million in total as well as release all collateral associated with the loan, including the lifting of the mortgages over the M/V Free Maverick and the M/V Free Knight. The other $10.5 million of outstanding indebtedness will be eliminated upon consummation of the transactions contemplated by the Exchange Agreement, which will occur later today. A complete description of the Exchange Agreement and the court approval is more fully described in a 6-K Form being filed with the Securities and Exchange Commission contemporaneously herewith.
The Company is reviewing the accounting treatment of the transaction and preliminary expects to recognize a gain on extinguishment of debt during the year ending December 31, 2013. The gain, which represents the difference between the fair value of the equity interest granted by the Company and the carrying amount of the debt, is estimated to be in excess of $12 million.
About FreeSeas Inc.
FreeSeas Inc. is a Marshall Islands corporation with principal offices in Athens, Greece. FreeSeas is engaged in the transportation of drybulk cargoes through the ownership and operation of drybulk carriers. Currently, it has a fleet of Handysize and Handymax vessels. FreeSeas' common stock trades on the NASDAQ Capital Market under the symbol FREE. Risks and uncertainties are described in reports filed by FreeSeas Inc. with the U.S. Securities and Exchange Commission, which can be obtained free of charge on the SEC's website at http://www.sec.gov. For more information about FreeSeas Inc., please visit the corporate website, www.freeseas.gr.
FreeSeas Inc. | Page 2 |
October10, 2013 |
Forward-Looking Statements
This press release contains forward-looking statements (as defined in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended) concerning future events and the Company's growth strategy and measures to implement such strategy. Words such as ``expects,'' ``intends,'' ``plans,'' ``believes,'' ``anticipates,'' ``hopes,'' ``estimates,'' and variations of such words and similar expressions are intended to identify forward-looking statements. Although the Company believes that the expectations reflected in such forward-looking statements are reasonable, no assurance can be given that such expectations will prove to be correct. These statements involve known and unknown risks and are based upon a number of assumptions and estimates which are inherently subject to significant uncertainties and contingencies, many of which are beyond the control of the Company. Actual results may differ materially from those expressed or implied by such forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited to, changes in the demand for dry bulk vessels; competitive factors in the market in which the Company operates; risks associated with operations outside the United States; and other factors listed from time to time in the Company's filings with the Securities and Exchange Commission. The Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the Company's expectations with respect thereto or any change in events, conditions or circumstances on which any statement is based.
Contact Information:
At the Company
FreeSeas Inc.
AlexandrosMylonas, Chief Financial Officer
011-30-210-45-28-770
Fax: 011-30-210-429-10-10
info@freeseas.gr
www.freeseas.gr
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