SEC Form SC 13D/A filed by Grindrod Shipping Holdings Ltd. (Amendment)

1	NAMES OF REPORTING PERSONS
	Good Falkirk (MI) Limited
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP			(a)	☐
				(b)	☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	BK, AF, WC, OO (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)				☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	Republic of the Marshall Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
			4,925,023
		8	SHARED VOTING POWER
			None
		9	SOLE DISPOSITIVE POWER
			4,925,023
		10	SHARED DISPOSITIVE POWER
			None
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	4,925,023
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)				☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	25.9% (1)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	IV, CO

1	NAMES OF REPORTING PERSONS
	Taylor Maritime Investments Limited
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP			(a)	☐
				(b)	☐
3	SEC USE ONLY
4	SOURCE OF FUNDS (SEE INSTRUCTIONS)
	BK, AF, WC, OO (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)				☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	Guernsey
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER
			4,925,023
		8	SHARED VOTING POWER
			None
		9	SOLE DISPOSITIVE POWER
			4,925,023
		10	SHARED DISPOSITIVE POWER
			None
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	4,925,023
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)				☐
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	25.9% (1)
14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
	IV, CO

ITEM 3.

SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION

ITEM 4.

PURPOSE OF TRANSACTION

•

if the consent of the relevant holder to the cancellation of all his or her Outstanding FSA so vested has been obtained, such holder shall be entitled, in consideration of such cancellation, to receive an amount in cash, without interest, equal to the Offer Price in respect of each Share which would have accrued on the Outstanding FSA held by such holder, using cash provided by the Offeror (each such payment, an “FSA Payment” and the aggregate of all such FSA Payments, the “Aggregate FSA Payment”);

•

if the consent of the relevant holder to the cancellation of all his or her Outstanding FSA so vested has not been obtained, such holder shall be entitled to be issued such number of Shares accruing to such Outstanding FSA, with such Shares to be delivered by the Company to such holder as promptly as practicable after the Acceptance Time (the “FSA Payment Issuance”); and

•

subject to the occurrence of the Acceptance Time, each holder of outstanding FSA shall receive payment of $5.00 (in lieu of the Special Dividend) (the “Special Dividend Equivalent Payment”) in respect of each Share which would have accrued on the Outstanding FSA held by such holder as at the Dividend Record Date (as defined below), using cash provided by the Company.

•

organization and power to do business;

•

capitalization;

•

corporate power and authority, including relating to the execution, delivery and performance of the Implementation Agreement;

•

consents and approvals relating to the execution, delivery and performance of the Implementation Agreement and the absence of certain violations;

•

the forms, documents and reports required to be filed or furnished with the SEC,

•

the accuracy of the information supplied for the purposes of the offer documents;

•

the absence of certain liabilities;

•

the absence of certain changes or events;

•

the absence of certain actions, proceedings or orders;

•

compliance with applicable laws, the provisions of anti-bribery and anti-corruption laws, and export and sanctions regulations;

•

material contracts;

•

tax returns and other tax matters;

•

real and personal property matters, including vessel owned by the Company or its subsidiaries;

•

employee benefit plans and other matters concerning employees;

•

intellectual property;

•

insurance policies;

•

related-party arrangements;

•

certain representations relating to Regulation S under the Securities Act; and

•

brokers’ fees.

•

organization and power to do business;

•

corporate power and authority relating to the execution, delivery and performance of the Implementation Agreement;

•

confirmation of sufficient financial resources or committed financing facilities to undertake and complete the Offer, to satisfy full acceptance of the Offer, the Aggregate FSA Payment and related fees and expenses in connection with the Offer; and

•

certain representations relating to Regulation S under the Securities Act.

(1)

take such actions (if any) as may be required to cause the expiration of the notice or suspension periods or to obtain approvals under the applicable competition laws and other applicable laws with respect to such transactions as promptly as practicable after the execution of the Implementation Agreement,

(2)

cause the satisfaction of the conditions to the Offer,

(3)

defend and seek to prevent lawsuits or other legal proceedings, whether judicial or administrative, challenging or affecting the Implementation Agreement or the transactions contemplated thereby;

(4)

make registrations, filings, notifications or submissions which are necessary or required with respect to the Implementation Agreement and transactions contemplated thereby,

(5)

refrain from taking certain actions that would reasonably be expected to result in any delay in obtaining, or the failure to obtain, any regulatory or other approvals required in connection with the transactions contemplated the Implementation Agreement, or which would otherwise reasonably be expected to prevent or delay the consummation of the Offer,

(6)

obtain from governmental entities and third parties any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by the Company, the Parent, or the Offeror or any of their respective subsidiaries in connection with the authorization, execution, delivery and performance of the Implementation Agreement and the completion of the transactions contemplated thereby, and

(7)

take all reasonable steps as may be necessary to obtain such consents and approvals.

•

soliciting any inquiries, proposals or offers with respect to or that would reasonably be expected to lead to a Company Acquisition Proposal or engage in any discussions or negotiations with respect thereto;

•

approve, or recommend, or publicly propose to approve, or recommend, any Company Acquisition Proposal;

•

effectuate a Company Change of Board Recommendation;

•

enter into any implementation agreement, merger agreement, acquisition agreement, letter of intent or other similar agreement providing for any Company Acquisition Proposal (other than certain confidentiality agreements), or

•

resolve or agree to do any of the foregoing.

(a)

a scheme of arrangement, business combination, amalgamation or other similar transaction involving acquisition of more than 50% of the issued Shares (other than Shares held in treasury),

(b)

a sale, lease, license, mortgage, pledge or other disposition, directly or indirectly, by merger, consolidation, business combination, share exchange, partnership, joint venture or otherwise, of assets of the Company or its subsidiaries representing more than 50% of the consolidated assets of the Company and its subsidiaries,

(c)

an issuance or sale (including by way of scheme of arrangement, business combination, amalgamation or otherwise) of equity interests representing more than 50% of the issued Shares (other than Shares held in treasury),

(d)

a tender offer or exchange offer involving acquisition of 50% of the issued Shares (other than Shares held in treasury), or

(e)

any combination of the foregoing (in each case, other than the Offer).

(1)

receives a written Company Acquisition Proposal which was made or renewed on or after the date of the Implementation Agreement and did not result from its breach in any material respect of the non-solicitation provisions therein, and

(2)

the Company Board determines in good faith, after consultation with outside counsel and/or its financial advisor in accordance with the Implementation Agreement,

(A)

that such Company Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Company Proposal and

(B)

the failure to take the following actions would be inconsistent with the directors’ duties under applicable law,

•

withdraw or modify (or publicly propose to withdraw or modify), in each case in a manner adverse to the Parent, the approval by the Company Board of the Implementation Agreement and the transactions contemplated thereunder, and the recommendation of the Company Board that the Company’s stockholders tender their Shares to the Offeror pursuant to the Offer (the “Company Recommendation”);

•

publicly recommend the approval or adoption of, or publicly proposes to recommend, approve or adopt any Company Acquisition Proposal;

•

fail to include the Company Recommendation in the Schedule 14D-9, or to permit the inclusion of the Company Recommendation in the Offer Announcement or the Offer; or

•

fail to publicly reaffirm the Company Recommendation within 10 business days after Parent so requests in writing following any public disclosure of a Company Acquisition Proposal.

•

The Company must have given Parent at least five business days’ prior written notice that it intends to make a Company Change of Recommendation and/or terminate the Implementation Agreement, which notice must specify material terms and conditions of such Superior Company Proposal;

•

after providing such notice and prior to making a Change of Recommendation and/or terminating the Implementation Agreement, the Company must have negotiated in good faith with the Parent and the Offeror (to the extent the Parent requests) during the five-business day notice period to make adjustments or amendments to the Implementation Agreement as would obviate the need for the Company to effect a Company Change of Recommendation and/or terminate the Implementation Agreement; and

•

at the end of the five-business day notice period, the Company Board must have determined in good faith, after consultation with their outside legal counsel, taking into account any changes to the Implementation Agreement proposed in writing by Parent, that the failure of the Company Board to make a Company Change of Recommendation would continue to be reasonably likely to be inconsistent with its fiduciary obligations under applicable law.

•

taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to stockholders),

•

upon advice of legal counsel, complying with its fiduciary obligations under applicable law,

•

making any “stop-look-and-listen” communication to shareholders of the Company pursuant to Rule 14d-9(f) and 14e-2(a) under the Exchange Act; provided that such statement shall not constitute a Company Change of Board Recommendation; or

•

taking certain action that is required on the part of the Company or the Company Board under the provisions of Rule 9.2 of the Singapore Code by the SIC, provide that such proposed action did not result from a solicitation by the Company in violation of the provisions of the Implementation Agreement.

(1)

a base salary or wage rate and cash incentive compensation opportunities (subject to certain exceptions), that, in each case, is not less than the base salary or wage rate and cash incentive compensation opportunities available to the applicable continuing employee as of immediately prior to the Acceptance Time;

(2)

retirement and health and welfare benefits (excluding severance, post-employment welfare and defined benefit pension benefits or transaction-based or other one-time payments), that are substantially comparable in the aggregate to those provided to the applicable continuing employee immediately before the Acceptance Time; and

(3)

severance and related benefits under the severance plan of the Company or its subsidiaries in existence as at the date of the Implementation Agreement, or a substantially similar plan.

•

waive all eligibility waiting periods, pre-existing condition exclusions and actively-at-work requirements to the extent waived under the comparable Old Plans, and

•

for purposes of applying deductible, coinsurance and out-of-pocket maximums under such New Plan, to recognize for any continuing employee and his or her covered dependents any eligible expenses incurred during the portion of the plan year of the Old Plans ending on the date such employee’s participation in the corresponding New Plan begins.

(A)

if the Offeror has not received, by the close of the Offer, Shares validly tendered and not validly withdrawn of such number which, together with Shares acquired before (or, with the approval of the Company, during) the Offer (and including any Shares issued to the Offeror pursuant to the FSA Payment Issuance) will result in the Offeror and persons acting in concert with it holding more than 50% of the voting rights attributable to the aggregate of (x) all the Shares in issue (other than Shares held in treasury) and (y) the number of Shares that would result from the valid vesting and settlement in full of the Company Forfeitable Shares (the “Minimum Condition”); or

(B)

any of the following shall have occurred since the date of the Implementation Agreement and continue to exist:

(1)

the Parent shall not have satisfied the Investment Policy Amendment Condition;

(2)

the Irrevocable Instruction Condition relating to the Special Dividend shall not have been satisfied;

(3)

(a) all applicable suspension periods (including any extensions thereof) relating to the Offer under the Competition Act, No. 89 of 1998 (as amended) shall not have expired or lapsed and (b) the South African Competition Commission’s approval relating to the Offer shall not have been obtained (the “Regulatory Condition”);

(4)

the Implementation Agreement shall have been terminated in accordance with its terms (the “Termination Condition”);

(5)

since the date of the Implementation Agreement, any of the following shall have occurred:

(a)

a material adverse change in the assets, financial condition, profits or results of operation of the Company and its subsidiaries, taken as a whole (excluding, for avoidance of doubt, the impact of the Special Dividend and certain other dividends permitted under the Implementation Agreement);

(b)

any litigation, arbitration, prosecution or other legal proceedings having been instituted, announced or threatened by or against or remaining outstanding against the Company or any of its subsidiaries which would or would reasonably be expected to have a material adverse effect on the assets, financial condition or results of operation of the Company and its subsidiaries, taken as a whole; and/or

(c)

the discovery by Parent that any financial, business, or other information concerning the Company and its subsidiaries, publicly disclosed by the Company or any of its Subsidiaries in a filing with the SEC or the JSE within the 3 years preceding the date of this Implementation Agreement was materially misleading, contained a material misrepresentation of fact, or omitted to state a fact necessary to make the information not misleading, in each case, as at the time of such public disclosure and which in any case is materially adverse to the assets, financial condition or results of operations of Company and its subsidiaries taken as a whole;

(6)

any representation and warranty of the Company in the Implementation Agreement not being true and correct as of the date of the Implementation Agreement and immediately prior to the Expiration Time, as though made on and as of such time (except to the extent such representation or warranty is expressly made as of a specific date or time, in which case as of such date or time), except where the failure to be so true and correct would not have or reasonably be expected to have a material adverse effect on the assets, financial condition or results of operation of the Company and its subsidiaries, taken as a whole, and having the effect of causing a diminution of the consolidated net asset value (excluding intangible assets and interests in joint ventures) of the Company and its subsidiaries by more than 20% as compared to the same value in the publicly disclosed consolidated balance sheet as of 30 June 2022 of the Company and its subsidiaries; or

(C)

as further provided in Annex B to the Implementation Agreement, certain other occurrences shall have arisen and continue to exist, including:

(1)

certain prohibited actions by the Company concerning its equity or debt securities, including, other than otherwise permitted under the Implementation Agreement, declaration or payment of dividends or other forms of distribution to its shareholders,

(2)

any governmental order issued by any court of competent jurisdiction restraining, enjoining, preventing or otherwise prohibiting the consummation of the Offer,

(3)

any criminal investigation and/or proceeding that would, or is reasonably likely to, have a material adverse effect on the assets, financial condition or results of operation of the Company and its subsidiaries taken as a whole,

(4)

the winding up of, appointment of a liquidator or similar officer of, the Company or certain major subsidiaries of the Company, entering into any arrangement or general assignment or composition for the benefit of its creditors by the Company or such subsidiaries, and

(5)

all or substantially all of the Company group ceasing to carry on business in the ordinary and usual course.

•

amend or waive the Minimum Condition, the Termination Condition, the Regulatory Condition and Termination Condition;

•

reduce the number of Shares sought to be purchased in the Offer;

•

unless otherwise permitted in the Implementation Agreement, decrease the Offer Price;

•

change the form of consideration payable in the Offer;

•

add to conditions to the Offer;

•

extend the Offer in any manner other than in accordance with the terms of the Implementation Agreement; or

•

amend or modify any of the conditions to the Offer in a manner that is adverse to the Company or the holders of Shares or in a manner not permitted by the Singapore Code.

•

by the mutual written consent of the Company and Parent;

•

by either the Company or Parent, if the Acceptance Time has not occurred on or before 11:59 p.m. New York City time on January 13, 2023 (the “Outside Date”); provided that the right to terminate the Implementation Agreement pursuant to the termination provision referred to in this bullet point will not be available to a party if the failure of the Offer to have been completed on or before the Outside Date was primarily caused by the failure of such party to perform any of its obligations under the Implementation Agreement;

•

by either the Company or Parent, if an order issued prior to the Acceptance Time by a court of competent jurisdiction permanently restraining, enjoining or otherwise prohibiting the consummation of the Offer and, in each case has become final and non-appealable, subject to the condition that the party seeking to terminate the Implementation Agreement pursuant to this provision shall have satisfied its obligations to obtain consents and approval for, and defend and seek to prevent any proceeding prohibiting, the consummation of the Offer or the other transactions contemplated by the Implementation Agreement;

•

by Parent or the Offeror, at any time prior to the Acceptance Time, if (x) the Company Board or any committee thereof shall have effected a Company Change of Board Recommendation, or (y) the Company shall have entered into a definitive acquisition agreement with respect to a Company Acquisition Proposal;

•

by the Company, at any time prior to the Acceptance Time, in order to, immediately following or concurrently with such termination, enter into a definitive agreement with respect to a Superior Company Proposal, in accordance with and in compliance with the non-solicitation provisions of the Implementation Agreement;

•

by either Parent or the Company, if there has been a material breach by the other party of its representations, warranties or covenants contained in the Implementation Agreement such that any condition to the Offer is not reasonably capable of being satisfied while such breach is continuing, and such breach is not capable of cure or shall not have been cured within the earlier of the Outside Date or 30 days from the date of delivery of a written notice of the breach by the non-breaching party to the breaching party; provided, that any party shall not be permitted to terminate the Implementation Agreement pursuant to this provision if there has been any material breach by such party of its obligations under the Implementation Agreement;

•

by Parent or the Company, if the Offer shall have expired or been terminated in a circumstance in which all conditions to the Offer are satisfied or have been waived (other than the Minimum Condition and conditions which by their nature are to be satisfied at the expiration of the Offer) following the end of the maximum 35 business day extension period permitted under the Implementation Agreement, or the Expiration Time shall not have occurred 60 calendar days after the Commencement Time, unless otherwise agreed by the Parent and the Company with the prior written consent of the SIC; or

•

by Parent or the Company, if the Investment Policy Amendment has been submitted to the Parent shareholders for approval at a duly convened Parent Shareholder Meeting and the required vote or consent from the Parent’s shareholders shall not have been obtained at such meeting (unless such Parent Shareholder Meeting has been adjourned or postponed, in which case at the final adjournment or postponement thereof).

ITEM 5.

INTEREST IN SECURITIES OF THE ISSUER

ITEM 6.

CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

ITEM 7.

MATERIAL TO BE FILED AS EXHIBITS

Exhibit 99.6	Implementation Agreement, dated October 11, 2022, by and among Taylor Maritime Investments Limited, Good Falkirk (MI) Limited, and Grindrod Shipping Holdings Ltd. (incorporated by reference to Exhibit 99.3 to the Form 6-K furnished by Grindrod Shipping Holdings Ltd. on October 12, 2022).
Exhibit 99.7	Tender and Support Agreement, dated October 11, 2022, by and among Taylor Maritime Investments Limited, Good Falkirk (MI) Limited and Grindrod Investments Proprietary Limited.
Exhibit 99.8	Tender and Support Agreement, dated October 11, 2022, by and among Taylor Maritime Investments Limited, Good Falkirk (MI) Limited and Michael Hankinson.
Exhibit 99.9	Facility Agreement, dated October 11, 2022, among, inter alia, Good Falkirk (MI) Limited, Taylor Maritime Investments Limited, Nordea Bank ABP, Filial I Norge and Skandinaviska Enskilda Banken AB (publ), Singapore Branch.

	TAYLOR MARITIME INVESTMENTS LIMITED
	By: /s/ Ed Buttery
	Name: Ed Buttery
	Title: Director
	GOOD FALKIRK (MI) LIMITED
	By: /s/ Alexander William Wolf Slee
	Name: Alexander William Wolf Slee
	Title: Duly authorized signatory for TMI Director 1 Limited, the sole director of Good Falkirk (MI) Limited