UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 10, 2015
GENCO SHIPPING & TRADING LIMITED
(Exact Name of Registrant as Specified in Charter)
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Republic of the Marshall Islands |
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001-33393 |
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98-043-9758 |
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(State or Other Jurisdiction
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(Commission
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(I.R.S. Employer
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299 Park Avenue
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10171 |
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Registrant’s telephone number, including area code: (646) 443-8550
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
x Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
x Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 Entry Into A Material Definitive Agreement
On June 10, 2015, Genco Shipping & Trading Limited, a Marshall Islands corporation (“ Genco ” or the “ Company ”), Baltic Trading Limited, a Marshall Islands corporation (“ Baltic Trading ”) and Poseidon Merger Sub Limited, a Marshall Islands corporation and an indirect wholly owned subsidiary of the Company (“ Merger Sub ”), entered into an Amendment No. 1 (the “ Amendment ”) to the Agreement and Plan of Merger (the “ Merger Agreement ”) by and among such parties dated as of April 7, 2015. The Merger Agreement contains a condition to the merger that the merger be approved by holders of a majority of Baltic Trading common stock and Class B Stock outstanding and entitled to vote thereon, excluding the Company, its subsidiaries, and directors and officers of Baltic Trading who are also directors or officers of the Company. The Amendment clarifies, as was the parties’ intention, that such condition is non-waivable by the parties to the Merger Agreement.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment, which is filed as Exhibit 2.1 hereto, and is incorporated into this report by reference.
Important Information for Investors and Shareholders
In connection with the proposed transaction between Baltic Trading and the Company, Baltic Trading and the Company intend to file relevant materials with the Securities and Exchange Commission (the “ SEC ”), including a Company registration statement on Form S-4 filed on May 4, 2015 that includes a preliminary joint proxy statement of the Company and Baltic Trading that also constitutes a preliminary prospectus of the Company. The definitive joint proxy statement/prospectus will be delivered to shareholders of the Company and Baltic Trading. INVESTORS AND SECURITY HOLDERS OF THE COMPANY AND BALTIC TRADING ARE URGED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS AND ANY OTHER RELEVANT DOCUMENTS THAT WILL BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY, BALTIC TRADING AND THE PROPOSED TRANSACTION. Investors and security holders will be able to obtain free copies of the registration statement and the definitive joint proxy statement/prospectus (when available) and other documents filed with the SEC by the Company and Baltic Trading through the website maintained by the SEC at http://www.sec.gov. Copies of the documents filed with the SEC by the Company (when available) will be available free of charge on the Company’s internet website at www.gencoshipping.com. Copies of the documents filed with the SEC by Baltic Trading (when available) will be available free of charge on Baltic Trading’s internet website at www.baltictrading.com.
Participants in the Merger Solicitation
This communication is not a solicitation of a proxy from any investor or securityholder. However, Baltic Trading, the Company, their respective directors and certain of their executive officers and employees may be deemed to be participants in the solicitation of proxies in connection with the proposed transaction under the rules of the SEC. In addition, Baltic Trading and the Company have retained D.F. King & Co., Inc. to solicit proxies in connection with the proposed transaction. Information regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of Baltic Trading and the Company shareholders in connection with the proposed transaction and a description of their direct and indirect interests, by security holdings or otherwise, is set forth in the preliminary joint proxy statement/prospectus. Information about the directors and executive officers of Baltic Trading and of the Company is set forth in the preliminary joint proxy statement/prospectus and amendments to both companies’ Annual Report on Form 10-K for the year ended December 31, 2014 filed with the SEC on April 30, 2015. These documents are available free of charge from the sources indicated above.
Non-Solicitation
This communication shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
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(d) |
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Exhibits. |
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2.1 |
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Amendment No. 1 to Agreement and Plan of Merger, dated as of June 10, 2015, by and among Genco Shipping & Trading Limited, Poseidon Merger Sub Limited and Baltic Trading Limited. |
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 hereunto duly authorized.
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Date: June 10, 2015 |
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GENCO SHIPPING & TRADING LIMITED |
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/s/ John C. Wobensmith |
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John C. Wobensmith |
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President |
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Exhibit 2.1
EXECUTION VERSION
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger, dated as of June 10, 2015 (this “ Amendment ”), by and among Genco Shipping & Trading Limited, a corporation organized under the Laws of the Republic of the Marshall Islands (“ Parent ”), Poseidon Merger Sub Limited, a corporation organized under the Laws of the Republic of the Marshall Islands and a wholly owned Subsidiary of Parent (“ Merger Sub ”), and Baltic Trading Limited, a corporation organized under the Laws of the Republic of the Marshall Islands (the “ Company ”), amends the Agreement and Plan of Merger, dated as of April 7, 2015 (the “ Merger Agreement ”), by and among Parent, Merger Sub and the Company. Parent, Merger Sub and the Company are each referred to herein as a “ Party ” and collectively as the “ Parties .” Capitalized terms used but not otherwise defined in this Amendment shall have the meanings assigned to them in the Merger Agreement.
RECITALS
WHEREAS , in connection with execution and delivery of the Merger Agreement, it was the intent of the Parties that the condition that the Company obtain the Company Unaffiliated Shareholder Approval be non-waivable;
WHEREAS , the Parties desire to amend the Merger Agreement to expressly reflect and clarify such intent;
WHEREAS , the Company Board has, acting upon the recommendation of the Company Special Committee, (i) determined that it is in the best interests of the Company and the Company Unaffiliated Shareholders, and declared it advisable, to enter into this Amendment, (ii) approved this Amendment and the execution, delivery and performance by the Company of this Amendment, and (iii) resolved to recommend to the Company Shareholders that they adopt and approve the Merger Agreement, as amended by this Amendment; and
WHEREAS , the Parent Board has, acting upon the recommendation of the Parent Independent Directors’ Committee, (i) determined that it is in the best interests of Parent and the Parent Shareholders, and declared it advisable, to enter into this Amendment, (ii) approved this Amendment and the execution, delivery and performance by Parent of this Amendment, and (iii) resolved to recommend to the Parent Shareholders that they adopt and approve the Merger Agreement, as amended by this Amendment.
NOW THEREFORE , in consideration of the foregoing and the mutual covenants and agreements contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be bound hereby, the Parties agree as follows:
ARTICLE I — AMENDMENTS
Section 1.1 Section 7.1 of the Merger Agreement is hereby amended by adding before the “:” in the preamble thereof the following: “(except that, notwithstanding anything in this Agreement to the contrary, the condition set forth in clause (ii) of Section 7.1(a) below is not waivable by any Party)”.
Section 1.2 Section 8.5 of the Merger Agreement is hereby amended and restated in its entirety as follows:
“Section 8.5 Waiver . At any time prior to the Effective Time, subject to applicable Law, any Party may (a) extend the time for the performance of any obligation or other act of any other Party, (b) waive any inaccuracy in the representations and warranties of the other Parties contained herein or in any document delivered pursuant hereto and (c) subject to the exception set forth in the parenthetical in the preamble of Section 7.1 and the proviso of Section 8.4 , waive compliance with any agreement or condition contained herein. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party or Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by the Company, Parent or Merger Sub in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.”
ARTICLE II — General
Section 2.1 Merger Agreement Remains in Effect . This Amendment supersedes and shall control over any inconsistent provisions of the Merger Agreement. Except as amended herein, the Merger Agreement shall remain in full force and effect as written, is hereby reaffirmed and ratified in all respects without qualification or condition and the provisions of the Merger Agreement shall remain unaffected, unchanged and unimpaired, and are enforceable in accordance with their respective terms. Unless the context otherwise requires, any reference in the Merger Agreement to “the Agreement”, “this Agreement”, “hereof”, “hereunder” or words of similar import referring to the Merger Agreement shall mean the Merger Agreement as amended by this Amendment.
Section 2.2 Interpretatio n . The provisions of Article IX of the Merger Agreement shall apply mutatis mutandis to this Amendment.
[ Remainder of page intentionally left blank; signature page follows .]
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
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GENCO SHIPPING & TRADING LIMITED |
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By: |
/s/ Apostolos Zafolias |
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Name: Apostolos Zafolias |
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Title: Chief Financial Officer |
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POSEIDON MERGER SUB LIMITED |
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By: |
/s/ John C. Wobensmith |
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Name: John C. Wobensmith |
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Title: President |
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BALTIC TRADING LIMITED |
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By: |
/s/ John C. Wobensmith |
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Name: John C. Wobensmith |
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Title: President and Chief Financial Officer |
[Signature Page to Amendment No. 1 to the Merger Agreement]