Bermuda (State or Other Jurisdiction of Incorporation or Organization) |
98-0536376 (I.R.S. Employer Identification No.) |
Large accelerated filer o | Accelerated filer þ | Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
Proposed | Proposed | |||||||||||||||||||||
Amount to be | Maximum Offering | Maximum Aggregate | Amount of | |||||||||||||||||||
Title of Securities to be Registered | Registered(1) | Price Per Share | Offering Price(2) | Registration Fee | ||||||||||||||||||
Common Shares (2), par value $0.001 per share |
1,500,000 shares | $ | 11.84 | (3) | $ | 17,760,000 | (3) | $ | 1,267 | (3) | ||||||||||||
(1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended, there shall also be deemed registered hereby such additional number of common shares of the Registrant as may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. | |
(2) | These shares may be represented by the Registrants American Depositary Shares, or ADSs, each of which represents one common share. American Depositary Shares issuable upon deposit of the securities registered hereby have been registered under a separate registration statement on Form F-6 (333-145997). | |
(3) | Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933, based upon the average of the high and low sales prices for the ADSs, as quoted on the New York Stock Exchange on May 5, 2010, of $11.84 per ADS. |
| the Companys annual report on Form 20-F for the year ended December 31, 2009 (File No. 001-33701), as amended, which was originally filed with the Commission on March 8, 2010; | ||
| the Companys Report of a Foreign Private Issuer on Form 6-K filed with the Commission on April 7, 2010 (relating to the Companys agreement to repurchase ADSs and to a proposed investment in the Companys manager), April 29, 2010 (relating to the completion of the Companys ADS repurchase and investment in its manager), and May 7, 2010 (relating to the Company financial statements as of and for the three months ended March 31, 2010); and | ||
| the description of the Companys common shares, par value $0.001 per share, and American Depositary Shares contained in its Registration Statement on Form 8-A filed with the Commission on September 25, 2007 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the Exchange Act), which incorporates by reference the description of the Companys common shares set forth under Description of Share Capital and the description of the Companys American Depositary Shares set forth under Description of American Depositary Shares in the Companys Registration Statement on Form F-1 (File No. 333-145994), as amended, which was originally filed with the Commission on September 12, 2007. |
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Exhibit No. | Description | |||
4.1 | Form of Common Share Certificate (incorporated herein by reference to Exhibit
4.1 of the Companys Registration Statement on Form F-1 (No. 333-145994), as
amended, originally filed with the Commission on September 12, 2007) (the
F-1 Registration Statement)). |
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4.2 | Form of Deposit Agreement, between Deutsche Bank Trust Company Americas and
Babcock & Brown Air Limited (incorporated herein by reference to Exhibit 4.2
of the F-1 Registration Statement). |
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4.3 | Form of American Depositary Receipt (included in Exhibit 4.2) (incorporated
herein by reference to Exhibits 4.2 and 4.3 of the F-1 Registration
Statement). |
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5.1 | Opinion of Conyers Dill & Pearman (filed herewith). |
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10.1 | Babcock & Brown Air Limited 2010 Omnibus Incentive Plan (incorporated herein
by reference to Exhibit 4.5 of the Companys Report on Form 6-K filed with
the Commission on May 7, 2010). |
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10.2 | Form of Stock Appreciation Right Award Agreement (incorporated herein by
reference to Exhibit 4.6 of the Companys Report on Form 6-K filed with the
Commission on May 7, 2010). |
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10.3 | Form of Restricted Stock Unit Award Agreement (incorporated herein by
reference to Exhibit 4.7 of the Companys Report on Form 6-K filed with the
Commission on May 7, 2010). |
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Exhibit No. | Description | |||
23.1 | Consent of Conyers Dill & Pearman (included in Exhibit 5.1). |
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23.2 | Consent of Ernst & Young LLP (filed herewith). |
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23.3 | Consent of Ernst & Young LLP (filed herewith). |
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24.1 | Power of Attorney (included in signature page to this Registration Statement). |
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(a) | The Company hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the Securities Act); | ||
(ii) | To reflect in the prospectus any facts or events arising after the effective date of this 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 the 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 and the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission 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 the Registration Statement or any material change to such information in the Registration Statement; |
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) 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 Securities and Exchange Commission by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in this Registration Statement; and |
(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. |
(b) | The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Companys annual report pursuant to Section 13(a) or 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 Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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. |
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BABCOCK & BROWN AIR LIMITED |
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By: | /s/ Colm Barrington | |||
Name: | Colm Barrington | |||
Title: | Chief Executive Officer and Director | |||
Puglisi & Associates |
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By: | /s/ Donald J. Puglisi | |||
Name: | Donald J. Puglisi | |||
Title: | Managing Director, Puglisi & Associates | |||
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Signature | Title | Date | ||
/s/ Colm Barrington
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Chief Executive Officer and
Director (Principal Executive Officer) |
May 7, 2010 | ||
/s/ Gary Dales
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Chief Financial Officer (Principal Financial and Accounting Officer) |
May 7, 2010 | ||
/s/ Joseph M. Donovan
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Chairman | May 7, 2010 | ||
/s/ Erik G. Braathen
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Director | May 7, 2010 | ||
/s/ Sean Donlon
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Director | May 7, 2010 | ||
/s/ James Fantaci
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Director | May 7, 2010 | ||
/s/ Robert Tomczak
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Director | May 7, 2010 | ||
/s/ Susan M. Walton
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Director | May 7, 2010 | ||
/s/ Steven Zissis
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Director | May 7, 2010 |
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