Item 4 is hereby amended and restated in its entirety as follows:
“The Reporting Persons acquired the Subject Shares for investment purposes and for the purposes described below.
The descriptions of the Transactions, the Merger Agreement and the Oaktree Shareholders Agreement (each, as hereinafter defined) contained in Item 6 below are hereby incorporated by reference into this Item 4.
As described in Item 6, pursuant to the shareholders agreement by and among the Issuer, VOF, Fund IX, Parallel 2 and Dry Bulk Holdings, dated July 11, 2014, (the “
Oaktree Shareholders Agreement
”), the board of directors of the Issuer (the “
Board
”) has increased from six to nine members, effective as of the closing of the Merger. For so long as Dry Bulk Holdings and its affiliates (the “
Oaktree Shareholders
”) in the aggregate beneficially own 40% or more of the outstanding voting securities of the Issuer, the Oaktree Shareholders will have the right to nominate a maximum of four out of the nine members of the Board, subject to certain limitations. The Oaktree Shareholders will be entitled to nominate fewer directors if their share ownership in the Issuer decreases. In addition, for so long as the Oaktree Shareholders in the aggregate beneficially own 15% or more of the outstanding voting securities of the Issuer, the compensation committee and nominating and corporate governance committee of the Board shall consist of three members each, and the Oaktree Shareholders shall be entitled to include one of the four directors they have a right to nominate to the Board on each such committee.
The Reporting Persons will continuously evaluate the Issuer’s businesses and prospects, alternative investment opportunities and all other factors deemed relevant in determining whether additional Common Shares will be acquired by the Reporting Persons or by other affiliated investment funds or accounts or whether the Reporting Persons or any such other affiliated investment funds or accounts will dispose of Common Shares. At any time, additional Common Shares may be acquired or some or all of the Common Shares beneficially owned by the Reporting Persons may be sold, in either case in the open market, in privately negotiated transactions or otherwise. Other than as described in this Schedule 13D, none of the Reporting Persons and, to the best of their knowledge, none of the Covered Persons has any current plans or proposals which relate to or would result in any of the matters described in Items 4(a)-(j) of Schedule 13D. However, as part of their ongoing evaluation of their investment in the Subject Shares and
CUSIP No.
Y8162K121
|
SCHEDULE 13D
|
Page 25 of 40
|
investment alternatives, the Reporting Persons may consider such matters in the future and, subject to applicable law, may formulate a plan with respect to such matters, and, from time to time, the Reporting Persons may hold discussions with or make formal proposals to management or the Board, other shareholders of the Issuer or other third parties regarding such matters.”
Item 5 is hereby amended and restated in its entirety as follows:
“(a) and (b)
The information contained on the cover pages of this Schedule 13D is hereby incorporated by reference into this Item 5.
Ownership percentages set forth in this Schedule 13D are based upon a total of 83,597,969 Common Shares issued and outstanding as of July 11, 2014, upon the closing of the Merger, as reported in the Issuer’s proxy statement as an exhibit to the Issuer
’
s Form 6-K filed with the Securities and Exchange Commission on June 20, 2014.
VOF directly holds 3,501,907 Common Shares, representing approximately 4.2% of the issued and outstanding Common Shares, and has the sole power to vote and dispose of such Common Shares.
VOF GP, in its capacity as the general partner of VOF, has the ability to direct the management of VOF’s business, including the power to vote and dispose of securities held by VOF; therefore, VOF GP may be deemed to beneficially own VOF’s Subject Shares.
VOF GP Ltd., in its capacity as the general partner of VOF GP, has the ability to direct the management of VOF GP’s business, including the power to direct the decisions of VOF GP regarding the voting and disposition of securities held by VOF; therefore, VOF GP Ltd. may be deemed to have indirect beneficial ownership of VOF’s Subject Shares.
Fund IX directly holds 2,251,325 Common Shares, representing approximately 2.7% of the issued and outstanding Common Shares, and has the sole power to vote and dispose of such Common Shares.
GP LLC, in its capacity as the general partner of Fund IX, has the ability to direct the management of Fund IX's business, including the power to direct the decisions of Fund IX regarding the voting and disposition of securities held by Fund IX; therefore, GP LLC may be deemed to have indirect beneficial ownership of Fund IX’s Subject Shares.
Parallel 2 directly holds 20,675 Common Shares, representing approximately, 0.0% of the issued and outstanding Common Shares, and has the sole power to vote and dispose of such Common Shares.
IX GP, in its capacity as the general partner of Parallel 2, has the ability to direct the management of Parallel 2’s business, including the power to vote and dispose of securities held by Parallel 2; therefore IX GP may be deemed to beneficially own Parallel 2’s Subject Shares.
CUSIP No.
Y8162K121
|
SCHEDULE 13D
|
Page 26 of 40
|
IX Ltd., in its capacity as the general partner of IX GP, has the ability to direct the management of IX GP’s business, including the power to direct the decisions of IX GP regarding the voting and disposition of securities held by Parallel 2; therefore IX GP may be deemed to have indirect beneficial ownership of Parallel 2’s Subject Shares.
Dry Bulk Holdings directly holds 43,556,189 Common Shares and has the right to acquire an additional 1,904,135 Common Shares, which are currently held in escrow and will be released upon the distribution of the Heron Vessels, which could occur within 60 days, representing approximately 54.4% of the issued and outstanding Common Shares, and has the sole power to vote and dispose of such Common Shares, subject to the foregoing escrow arrangements.
Fund VIII, in its capacity as the controlling member of Dry Bulk Holdings, has the ability to direct the management of Dry Bulk Holdings’ business, including the power to vote and dispose of securities held by Dry Bulk Holdings; therefore, Fund VIII may be deemed to beneficially own Dry Bulk Holdings’ Subject Shares.
VIII GP, in its capacity as the general partner of Fund VIII, has the ability to direct the management of Fund VIII’s business, including the power to direct the decisions of Fund VIII regarding the voting and disposition of securities held by Dry Bulk Holdings; therefore, VIII GP may be deemed to have indirect beneficial ownership of Dry Bulk Holdings’ Subject Shares.
VIII Ltd., in its capacity as the general partner of VIII GP, has the ability to direct the management of VIII GP’s business, including the power to direct the decisions of Fund VIII regarding the voting and disposition of securities held by Dry Bulk Holdings; therefore, VIII Ltd. may be deemed to have indirect beneficial ownership of Dry Bulk Holdings’ Subject Shares.
GP I, (i) in its capacity as the sole shareholder of each of VOF GP Ltd., IX Ltd. and VIII Ltd., has the ability to appoint and remove the directors and direct the management of the business of each of VOF GP Ltd., IX Ltd. and VIII Ltd., and (ii) in its capacity as the managing member of GP LLC, has the ability to direct the management of GP LLC’s business, including the power to direct the decisions of GP LLC regarding the voting and disposition of securities held by Fund IX; therefore, GP I may be deemed to have indirect beneficial ownership of the Subject Shares.
Capital I, in its capacity as the general partner of GP I, has the ability to direct the management of GP I’s business, including the power to direct the decisions of GP I regarding the voting and disposition of securities held by VOF, Fund IX, Parallel 2 and Dry Bulk Holdings; therefore, Capital I may be deemed to have indirect beneficial ownership of the Subject Shares.
Holdings I, in its capacity as the general partner of Capital I, has the ability to direct the management of Capital I’s business, including the power to direct the decisions of Capital I regarding the voting and disposition of securities held by VOF, Fund IX, Parallel 2 and Dry Bulk Holdings; therefore, Holdings I may be deemed to have indirect beneficial ownership of the Subject Shares.
Holdings, in its capacity as the managing member of Holdings I, has the ability to direct the management of Holding I’s business, including the power to direct the decisions of Holdings I regarding the voting and disposition of securities held by VOF, Fund IX, Parallel 2 and Dry Bulk
CUSIP No.
Y8162K121
|
SCHEDULE 13D
|
Page 27 of 40
|
Holdings; therefore, Holdings may be deemed to have indirect beneficial ownership of the Subject Shares.
Management, in its capacity as the sole director of each of VOF GP Ltd., IX Ltd. and VIII Ltd., has the ability to direct the management of VOF GP Ltd., IX Ltd. and VIII Ltd., including the power to direct the decisions of VOF GP Ltd., IX Ltd. and VIII Ltd. regarding the voting and dispositions of the securities held by VOF, Parallel 2 and Dry Bulk Holdings, respectively; therefore, Management may be deemed to have indirect beneficial ownership of VOF’s, Parallel 2’s and Dry Bulk Holdings’ Subject Shares.
Holdings, Inc., in its capacity as the general partner of Management, has the ability to direct the management of Management’s business, including the power to direct the decisions of Management regarding the voting and disposition of securities held by VOF, Parallel 2 and Dry Bulk Holdings; therefore, Holdings, Inc. may be deemed to have indirect beneficial ownership of VOF’s, Parallel 2’s and Dry Bulk Holdings’ Subject Shares.
OCG, in its capacity as the sole shareholder of Holdings, Inc., has the ability to appoint and remove directors of Holdings, Inc. and, as such, may indirectly control the decisions of Holdings, Inc. regarding the voting and disposition of securities held by VOF, Parallel 2 and Dry Bulk Holdings. Additionally, OCG, in its capacity as the managing member of Holdings, has the ability to direct the management of Holdings’ business, including the power to direct the decisions of Holdings regarding the voting and disposition of securities held by VOF, Fund IX, Parallel 2 and Dry Bulk Holdings. Therefore, OCG may be deemed to have indirect beneficial ownership of the Subject Shares.
OCGH GP, in its capacity as the duly appointed manager of OCG, has the ability appoint and remove directors of OCG and, as such, may indirectly control the decisions of OCG regarding the voting and disposition of securities held by VOF, Fund IX, Parallel 2 and Dry Bulk Holdings; therefore, OCGH GP may be deemed to have indirect beneficial ownership of the Subject Shares.
(c)
Except for the transaction described herein, there have been no other transactions in the securities of the Issuer effected by any Reporting Person within the last 60 days.
(d) and (e)
Not applicable.”
In connection with the Merger Agreement, on July 11, 2014, the Oaktree Shareholders, the Pappas Seller and the Monarch Stockholders entered into an Amended and Restated Registration Rights agreement with the Issuer (the “
Registration Rights Agreement
”). Pursuant to the terms of the Registration Rights Agreement, the Issuer has, among other things, committed to prepare and file a resale registration statement within 30 days of the closing date of the Merger, which shall cover the resale of shares owned by the Oaktree Shareholders, the Pappas Seller and the Monarch Stockholders. In addition, the Registration Rights Agreement also provides the Oaktree Shareholders with certain demand registration rights and the Oaktree Shareholders, Pappas Seller and the Monarch Stockholders with certain shelf registration rights in respect of any common shares held by them, subject to certain conditions, including those shares acquired pursuant to the Merger Agreement. In addition, in the event that the Issuer registers additional common shares for sale to the public following the closing of the Transactions, the Issuer will be required to give notice to the Oaktree Shareholders, Pappas Seller and Monarch Stockholders of its intention to effect such registration and, subject to certain limitations, the Issuer will be required to include common shares held by those holders in such registration. The Issuer will be required to bear the registration expenses, other than underwriting discounts and commissions and transfer taxes, if any, attributable to the sale of any holder’s securities pursuant to the Registration Rights Agreement. The Registration Rights Agreement will include customary indemnification provisions in favor of the Oaktree Shareholders, the Pappas Seller and the Monarch Stockholders, any person who is or might be deemed a control person (within the meaning of the Securities Act and the Exchange Act) and related parties against certain losses and liabilities (including reasonable costs of investigation and legal expenses) arising out of or relating to any filing or other disclosure made by us under the securities laws relating to any such registration.
The foregoing summaries of (i) the Merger Agreement and the transactions contemplated thereby, (ii) the Shareholders Agreement and the transactions contemplated thereby and (iii) the Registration Rights Agreement and the transactions contemplated thereby, in each case, do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Merger Agreement, the Shareholders Agreement and the Registration Rights Agreement filed herewith as Exhibits 2, 3 and 4, respectively, which are incorporated herein by reference.