Form 8-K - Current report

 

 

 

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): July 5, 2023

 

 

 

Diversey Holdings, Ltd.

(Exact name of Registrant as specified in its charter)

 

 

 

Cayman Islands (State or other jurisdiction of incorporation)

001-40293 (Commission File No.)

Not Applicable (IRS Employer Identification No.)

 

1300 Altura Road, Suite 125 Fort Mill, SC 29708

(Address of principal executive offices) (Zip code)

 

[phone]

(Registrant’s telephone number, including area code)

 

N/A

(Former name or former address, if changed since last report.)

 

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:

 

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol		Name of each exchange on which registered
Ordinary Shares, $0.0001 par value		DSEY		The Nasdaq Stock Market LLC

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging Growth Company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

 

 

 

Introductory Note

 

This Current Report on Form 8-K is being filed in connection with the completion of the transactions contemplated by the previously announced Agreement and Plan of Merger, dated as of March 8, 2023 (the “Merger Agreement”), by and among Diversey Holdings, Ltd., a Cayman Islands exempted company (the “Company”), Olympus Water Holdings IV, L.P., a Cayman Islands exempted limited partnership (“Parent”), acting by its general partner, Olympus Water Holdings Limited, a Cayman Islands exempted company incorporated with limited liability and Diamond Merger Limited, a Cayman Islands exempted company and wholly owned subsidiary of Parent (“Merger Sub”). Parent and Merger Sub are affiliates of Platinum Equity Advisors, LLC (“Platinum”) and affiliates of Solenis LLC (“Solenis”), which is a portfolio company of Platinum.

 

On July 5, 2023 (the “Closing Date”), pursuant to the Merger Agreement, Merger Sub merged with and into the Company (the “Merger”), with the Company continuing as the surviving company as a wholly owned subsidiary of Parent.

 

Item 1.01 – Entry into a Material Definitive Agreement.

 

On July 5, 2023, the Company amended and restated the Rollover Contribution Agreement, dated as of March 8, 2023, by and among BCPE Diamond Investor, LP (the “Bain Shareholder”), an entity advised by Bain Capital Private Equity, LP, and Olympus Water Holdings IV, L.P. (the “Rollover Agreement”) to give effect to the previously disclosed intention for the Issuing Entity (as defined in the Rollover Agreement) to be treated as a corporation for U.S. federal income tax purposes.

 

The foregoing description of the Rollover Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Rollover Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein.

 

Item 1.02 – Termination of a Material Definitive Agreement.

 

The information set forth in the Introductory Note and under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 1.02.

 

Redemption of Notes

 

In connection with the consummation of the transactions contemplated by the Merger Agreement, on July 5, 2023, Diamond (BC) B.V. (the “Issuer”), a private limited liability company incorporated under the laws of the Netherlands and an indirect wholly owned subsidiary of the Company, redeemed all of the Issuer’s outstanding 4.625% Senior Notes due 2029 (the “Notes”) issued pursuant to the Indenture dated as of September 29, 2021 (as supplemented and amended from time to time, the “Indenture”), by and among the Issuer, the guarantors party thereto and Wilmington Trust, National Association, as trustee (the “Trustee”). In accordance with the Indenture, the Issuer redeemed all of the outstanding principal amount of the Notes at a redemption price equal to 100.000% of the principal amount of the Notes, together with the relevant Applicable Premium (as defined in the Indenture) as of, plus accrued and unpaid interest and Additional Amounts (as defined in the Indenture), if any, to, but excluding July 5, 2023. On July 5, 2023, Parent or its subsidiaries deposited or caused to be deposited with the Trustee proceeds in an amount sufficient to pay and discharge the Notes and the Issuer irrevocably instructed the Trustee to apply such funds to the full payment of the Notes. Concurrently therewith, the Issuer elected to satisfy and discharge the Indenture in accordance with its terms and the Trustee acknowledged such discharge and satisfaction. As a result of the satisfaction and discharge of the Indenture, the Issuer and the guarantors of the Notes have been released from their remaining obligations under the Indenture.

 

2

 

 

Termination of the Credit Agreement

 

Concurrently with the closing of the Merger, the Company repaid all obligations outstanding under, and concurrently terminated, the credit agreement, dated as of September 6, 2017 (as amended through that certain Third Amendment, dated as of September 29, 2021, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among BCPE Diamond Netherlands Topco B.V., a private limited liability company incorporated under laws of the Netherlands, the Issuer, the lenders from time to time party thereto and Credit Suisse AG, Cayman Islands Branch, as the administrative agent, the collateral agent, a lender and a letter of credit issuer. No early termination penalties were incurred by the Company.

 

Item 2.01 – Completion of Acquisition or Disposition of Assets.

 

The information set forth in the Introductory Note and in Items 3.03, 5.01, 5.02, 5.03 and 8.01 of this Current Report on Form 8-K are incorporated by reference into this Item 2.01.

 

At the effective time of the Merger (the “Effective Time”), upon the terms of the Merger Agreement, each ordinary share, par value $0.0001 per share, of the Company (each, an “Ordinary Share”) issued and outstanding immediately prior to the Effective Time (other than (1) Ordinary Shares held by the Company, Parent, Merger Sub or any direct or indirect wholly owned subsidiary of Parent or Merger Sub (each, an “Excluded Company Share”), (2) Ordinary Shares as to which the holder has validly exercised and perfected and not effectively withdrawn or lost their rights to dissent under the applicable provisions of the Companies Act (2023 Revision) of the Cayman Islands, (3) certain Ordinary Shares exchanged by the Bain Shareholder immediately prior to the Effective Time for common and preferred shares of Solenis Holding Limited, a private limited company incorporated in England and affiliate of Platinum, and as a result of the Merger, an indirect parent of the Company (the “Rollover Shares”) and (4) Ordinary Shares held by the Bain Shareholder, that are not Rollover Shares (the “Bain Shares”)) was automatically cancelled and exchanged into the right to receive cash in an amount equal to $8.40 per Ordinary Share, without interest thereon and subject to applicable withholding taxes (the “Merger Consideration”). At the Effective Time, each Excluded Company Share was automatically cancelled and extinguished without any conversion thereof or consideration paid therefor, and the Bain Shares were automatically cancelled and exchanged into the right to receive cash in an amount equal to $7.84 per Ordinary Share, without interest thereon and subject to applicable withholding taxes.

 

In addition, pursuant to the Merger Agreement, at the Effective Time:

 

·	Each option to purchase Ordinary Shares outstanding immediately prior to the Effective Time was automatically cancelled without payment (whether in cash or other consideration);

 

3

 

 

·

Each Ordinary Share (other than the Bain Shares or any Excluded Company Shares) that was subject to vesting or certain specified restrictions on transfer, other than general restrictions pursuant to the Securities Act of 1933, as amended, or similar applicable law automatically vested and was cancelled and converted into the right to receive an amount in cash, without interest thereon, equal to the Merger Consideration;

 

·

Each Company restricted share unit subject solely to service-based vesting conditions (each, a “Company RSU”) identified as an “Unvested Non-IPO RSU” under the Merger Agreement (each, an “Unvested Non-IPO RSU”) and each Company RSU identified as an “Unvested IPO RSU” under the Merger Agreement (each, an “Unvested IPO RSU”), in each case that was held by a non-employee director of the Company, and each Company restricted share unit subject to performance-based vesting conditions (each, a “Company PSU”) that was outstanding and vested as of immediately prior to the Effective Time (each, a “Vested Company PSU”), each Company RSU that was vested as of immediately prior to the Effective Time and each Company RSU identified as a “2022 Bonus RSU” under the Merger Agreement was automatically cancelled and converted into the right to receive an amount in cash, based on the Merger Consideration;

 

·

Each Company RSU identified as a “Transaction Bonus RSU” under the Merger Agreement and each Unvested IPO RSU that was held by an individual other than a non-employee director of the Company was automatically cancelled and converted into the right to receive an amount in cash, based on the Merger Consideration, payable on December 31, 2023, subject to continued employment through the payment date, with accelerated vesting protection upon a termination without Cause or for Good Reason (each, as defined in the Merger Agreement) (each, a “Qualifying Termination”);

 

·

Each Company PSU that was outstanding as of immediately prior to the Effective Time that is not a Vested Company PSU (each, an “Unvested Company PSU”), each Company RSU identified as an “Unvested Closing RSU” under the Merger Agreement (each, an “Unvested Closing RSU”), each Company RSU identified as a “Retention RSU” under the Merger Agreement and each Company RSU identified as a “TRA RSU” under the Merger Agreement (each, a “TRA RSU”) was automatically cancelled and converted into the right to receive an amount in cash, based on the Merger Consideration, payable on December 31, 2024, subject to continued employment through the payment date, with accelerated vesting protection upon a Qualifying Termination for each Unvested Company PSU, Unvested Closing RSU and TRA RSU;

 

·

Each Company RSU identified as an “Unvested IPO Celebration RSU” under the Merger Agreement was automatically cancelled and converted into the right to receive an amount in cash, based upon the Merger Consideration, payable on March 25, 2024, subject to continued employment through the payment date; and

 

·

Each Unvested Non-IPO RSU that was held by an individual other than a non-employee director of the Company was automatically cancelled and converted into the right to receive cash, based on the Merger Consideration, with 50% payable on December 31, 2023, and 50% payable on December 31, 2024, subject to continued employment through the payment date, with full accelerated vesting upon a Qualifying Termination.

 

4

 

 

The foregoing description of the Merger, the Merger Agreement and the other transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Current Report on Form 8-K/A filed by the Company with the Securities and Exchange Commission (the “SEC”) on March 8, 2023, which is incorporated by reference herein.

 

Item 3.01 – Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

 

The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.

 

On the Closing Date, the Company (i) notified The Nasdaq Stock Market LLC (“Nasdaq”) of the consummation of the Merger and (ii) requested that Nasdaq file with the SEC a Form 25 Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) to delist and deregister the Ordinary Shares under Section 12(b) of the Exchange Act. Upon effectiveness of the Form 25, the Company intends to file with the SEC a Certification and Notice of Termination on Form 15 to deregister the Ordinary Shares and suspend the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act. Trading of the Ordinary Shares on Nasdaq was halted following the closing of trading on the Closing Date.

 

Item 3.03 – Material Modification to Rights of Security Holders.

 

The information set forth in the Introductory Note and Items 2.01, 3.01, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

 

As a result of the Merger, each Ordinary Share that was issued and outstanding immediately prior to the Effective Time (except as described in Item 2.01 of this Current Report on Form 8-K) was automatically cancelled and exchanged, at the Effective Time, into the right to receive the Merger Consideration. Accordingly, at the Effective Time, the holders of such Ordinary Shares ceased to have any rights as shareholders of the Company, other than the right to receive the Merger Consideration.

 

Item 5.01 – Changes in Control of Registrant.

 

The information set forth in the Introductory Note and Items 2.01, 3.01, 3.03, 5.02 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.

 

As a result of the Merger, at the Effective Time, a change of control of the Company occurred, and the Company became a wholly owned subsidiary of Parent.

 

Item 5.02 – Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

The information set forth in the Introductory Note and Items 2.01 and 5.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.02.

 

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Pursuant to the Merger Agreement, at the Effective Time, Emily Ashworth, Selim Bassoul, Robert Farkas, Juan Figuereo, Eric Foss, Kenneth Hanau, Rodney Hochman, M.D., Susan Levine, Michel Plantevin, Philip Wieland and Katherine Zanotti each resigned from the Company’s Board of Directors (the “Board”) and from any and all committees of the Board on which they served, and the sole director of Merger Sub immediately prior to the Effective Time became the sole director of the Company.

 

In addition, pursuant to the Merger Agreement, at the Effective Time, Philip Wieland, Somer Gundogdu, Todd Herndon, Sinéad Kwant, Gaetano Redaelli, Rudolf Verheul and each of the other incumbent officers of the Company immediately prior to the Effective Time each resigned from their respective positions as officers of the Company, and the sole officer of Merger Sub immediately prior to the Effective Time became the sole officer of the Company.

 

Item 5.03 – Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

The information set forth in the Introductory Note and Items 2.01 and 5.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.

 

Pursuant to the Merger Agreement, at the Effective Time, the Amended and Restated Memorandum and Articles of Association of the Company were amended and restated to be in the form of the Amended and Restated Memorandum and Articles of Association of the Company attached as Exhibit 3.1 hereto, which is incorporated herein by reference.

 

Item 8.01 Other Events.

 

On July 5, 2023, Solenis issued a press release announcing the closing of the Merger. A copy of the press release is filed as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit Number	Description
2.1†	Agreement and Plan of Merger, dated as of March 8, 2023, by and among Olympus Water Holdings IV, L.P., acting by its general partner, Olympus Water Holdings Limited, Diamond Merger Limited and Diversey Holdings, Ltd. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K/A filed on March 8, 2023).
3.1	Amended and Restated Memorandum and Articles of Association of Diversey Holdings, Ltd.
10.1†	Amended and Restated Rollover Contribution Agreement, dated as of July 5, 2023, by and among BCPE Diamond Investor, LP, Olympus Water Holdings I, L.P. and Solenis Holding Limited.
99.1	Press Release, dated as of July 5, 2023.

 

104	Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document).

 

†	Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request.

 

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SIGNATURES

 

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.

 

	DIVERSEY HOLDINGS, LTD.
	(Registrant)
Date: July 5, 2023
	By:	/s/ Mary Ann Sigler
	Name:	Mary Ann Sigler
	Title:	President

 

 

 

Exhibit 3.1

 

THE COMPANIES ACT (AS AMENDED)

 

COMPANY LIMITED BY SHARES

 

AMENDED AND RESTATED

 

MEMORANDUM OF ASSOCIATION

 

OF

 

DIVERSEY HOLDINGS, LTD.

 

(EFFECTIVE ON 5 JULY 2023 PURSUANT TO A PLAN OF MERGER DATED 5 JULY 2023)

 

 

REF: SB/NH/P1760-176577

 

 

 

 

THE COMPANIES ACT (AS AMENDED)

 

COMPANY LIMITED BY SHARES

 

AMENDED AND RESTATED

 

MEMORANDUM OF ASSOCIATION

 

OF

 

DIVERSEY HOLDINGS, LTD.

 

(EFFECTIVE ON 5 JULY 2023 PURSUANT TO A PLAN OF MERGER DATED 5 JULY 2023)

 

1.

The name of the company is Diversey Holdings, Ltd. (the “Company”).

 

2.

The registered office of the Company will be situated at the offices of Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands, or at such other location as the Directors may from time to time determine.

 

3.

The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by any law as provided by Section 7(4) of the Companies Act (as amended) of the Cayman Islands (the “Companies Act”).

 

4.

The Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit as provided by Section 27(2) of the Companies Act.

 

5.

The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands; provided that nothing in this section shall be construed as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands.

 

6.

The liability of the shareholders of the Company is limited to the amount, if any, unpaid on the shares respectively held by them.

 

7.

The authorised share capital of the Company is US$50,000 divided into 5,000,000 Ordinary shares with a nominal or par value of US$0.01 each provided always that subject to the Companies Act and the Articles of Association the Company shall have power to redeem or purchase any of its shares and to sub-divide or consolidate the said shares or any of them and to issue all or any part of its capital whether original, redeemed, increased or reduced with or without any preference, priority, special privilege or other rights or subject to any postponement of rights or to any conditions or restrictions whatsoever and so that unless the conditions of issue shall otherwise expressly provide every issue of shares whether stated to be ordinary, preference or otherwise shall be subject to the powers on the part of the Company hereinbefore provided.

 

8.

The Company may exercise the power contained in Section 206 of the Companies Act to deregister in the Cayman Islands and be registered by way of continuation in some other jurisdiction.

 

 

 

 

THE COMPANIES ACT (AS AMENDED)

 

COMPANY LIMITED BY SHARES

 

AMENDED AND RESTATED

 

ARTICLES OF ASSOCIATION

 

OF

 

DIVERSEY HOLDINGS, LTD.

 

(EFFECTIVE ON 5 JULY 2023 PURSUANT TO A PLAN OF MERGER DATED 5 JULY 2023)

 

 

REF: SB/NH/P1760-176577

 

 

 

 

TABLE OF CONTENTS

 

CLAUSE	PAGE
TABLE A	1
INTERPRETATION	1
PRELIMINARY	4
SHARES	4
MODIFICATION OF RIGHTS	5
CERTIFICATES	5
FRACTIONAL SHARES	6
LIEN	6
CALLS ON SHARES	6
FORFEITURE OF SHARES	7
TRANSFER OF SHARES	8
TRANSMISSION OF SHARES	9
ALTERATION OF SHARE CAPITAL	9
REDEMPTION, PURCHASE AND SURRENDER OF SHARES	10
TREASURY SHARES	10
GENERAL MEETINGS	11
NOTICE OF GENERAL MEETINGS	12
PROCEEDINGS AT GENERAL MEETINGS	12
VOTES OF SHAREHOLDERS	13
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS	14

 

 

 

 

DIRECTORS	15
ALTERNATE DIRECTOR	15
POWERS AND DUTIES OF DIRECTORS	15
BORROWING POWERS OF DIRECTORS	17
THE SEAL	17
DISQUALIFICATION OF DIRECTORS	18
PROCEEDINGS OF DIRECTORS	18
DIVIDENDS	20
ACCOUNTS, AUDIT AND ANNUAL RETURN AND DECLARATION	21
CAPITALISATION OF RESERVES	22
SHARE PREMIUM ACCOUNT	23
NOTICES	23
INDEMNITY	24
NON-RECOGNITION OF TRUSTS	26
WINDING UP	26
AMENDMENT OF ARTICLES OF ASSOCIATION	26
CLOSING OF REGISTER OR FIXING RECORD DATE	27
REGISTRATION BY WAY OF CONTINUATION	27
MERGERS AND CONSOLIDATION	27
DISCLOSURE	28

 

 

 

 

THE COMPANIES ACT (AS AMENDED)

 

COMPANY LIMITED BY SHARES

 

AMENDED AND RESTATED

 

ARTICLES OF ASSOCIATION

 

OF

 

DIVERSEY HOLDINGS, LTD.

 

(EFFECTIVE ON 5 JULY 2023 PURSUANT TO A PLAN OF MERGER DATED 5 JULY 2023)

 

TABLE A

 

The Regulations contained or incorporated in Table ‘A’ in the First Schedule of the Companies Act shall not apply to Diversey Holdings, Ltd. (the “Company”) and the following Articles shall comprise the Articles of Association of the Company.

 

INTERPRETATION

 

1.

In these Articles the following defined terms will have the meanings ascribed to them, if not inconsistent with the subject or context:

 

“Articles” means these articles of association of the Company, as amended or substituted from time to time.

 

“Branch Register” means any branch Register of such category or categories of Members as the Company may from time to time determine.

 

“Class” or “Classes” means any class or classes of Shares as may from time to time be issued by the Company.

 

“Companies Act” means the Companies Act (as amended) of the Cayman Islands.

 

“Directors” means the directors of the Company for the time being, or as the case may be, the directors assembled as a board or as a committee thereof.

 

“Memorandum of Association” means the memorandum of association of the Company, as amended or substituted from time to time.

 

“Office” means the registered office of the Company as required by the Companies Act.

 

“Officers” means the officers for the time being and from time to time of the Company.

 

1

 

 

“Ordinary Resolution” means a resolution:

 

(a)

passed by a simple majority of such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Shareholder is entitled; or

 

(b)

approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments, if more than one, is executed.

 

“paid up” means paid up as to the par value in respect of the issue of any Shares and includes credited as paid up.

 

“Person” means any natural person, firm, company, joint venture, partnership, corporation, association or other entity (whether or not having a separate legal personality) or any of them as the context so requires, other than in respect of a Director or Officer in which circumstances Person shall mean any person or entity permitted to act as such in accordance with the laws of the Cayman Islands.

 

“Principal Register”, where the Company has established one or more Branch Registers pursuant to the Companies Act and these Articles, means the Register maintained by the Company pursuant to the Companies Act and these Articles that is not designated by the Directors as a Branch Register.

 

“Register” means the register of Members of the Company required to be kept pursuant to the Companies Act and includes any Branch Register(s) established by the Company in accordance with the Companies Act.

 

“Seal” means the common seal of the Company (if adopted) including any facsimile thereof.

 

“Secretary” means any Person appointed by the Directors to perform any of the duties of the secretary of the Company.

 

“Share” means a share in the capital of the Company. All references to “Shares” herein shall be deemed to be Shares of any or all Classes as the context may require. For the avoidance of doubt in these Articles the expression “Share” shall include a fraction of a Share.

 

“Shareholder” or “Member” means a Person who is registered as the holder of Shares in the Register and includes each subscriber to the Memorandum of Association pending entry in the Register of such subscriber.

 

“Share Premium Account” means the share premium account established in accordance with these Articles and the Companies Act.

 

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“signed” means bearing a signature or representation of a signature affixed by mechanical means.

 

“Special Resolution” means a special resolution of the Company passed in accordance with the Companies Act, being a resolution:

 

(a)

passed by a majority of not less than two-thirds of such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a special resolution has been duly given and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Shareholder is entitled; or

 

(b)

approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the special resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed.

 

“Treasury Shares” means Shares that were previously issued but were purchased, redeemed, surrendered or otherwise acquired by the Company and not cancelled.

 

2.

In these Articles, save where the context requires otherwise:

 

(a)

words importing the singular number shall include the plural number and vice versa;

 

(b)

words importing the masculine gender only shall include the feminine gender and any Person as the context may require;

 

(c)

the word “may” shall be construed as permissive and the word “shall” shall be construed as imperative;

 

(d)

reference to a dollar or dollars or USD (or $) and to a cent or cents is reference to dollars and cents of the United States of America;

 

(e)

reference to a statutory enactment shall include reference to any amendment or re-enactment thereof for the time being in force;

 

(f)

reference to any determination by the Directors shall be construed as a determination by the Directors in their sole and absolute discretion and shall be applicable either generally or in any particular case; and

 

(g)

reference to “in writing” shall be construed as written or represented by any means reproducible in writing, including any form of print, lithograph, email, facsimile, photograph or telex or represented by any other substitute or format for storage or transmission for writing or partly one and partly another.

 

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3.

Subject to the preceding Articles, any words defined in the Companies Act shall, if not inconsistent with the subject or context, bear the same meaning in these Articles.

 

PRELIMINARY

 

4.

The business of the Company may be commenced at any time after incorporation.

 

5.

The Office shall be at such address in the Cayman Islands as the Directors may from time to time determine. The Company may in addition establish and maintain such other offices and places of business and agencies in such places as the Directors may from time to time determine.

 

6.

The expenses incurred in the formation of the Company and in connection with the offer for subscription and issue of Shares shall be paid by the Company. Such expenses may be amortised over such period as the Directors may determine and the amount so paid shall be charged against income and/or capital in the accounts of the Company as the Directors shall determine.

 

7.

The Directors shall keep, or cause to be kept, the Register at such place or (subject to compliance with the Companies Act and these Articles) places as the Directors may from time to time determine. In the absence of any such determination, the Register shall be kept at the Office. The Directors may keep, or cause to be kept, one or more Branch Registers as well as the Principal Register in accordance with the Companies Act, provided always that a duplicate of such Branch Register(s) shall be maintained with the Principal Register in accordance with the Companies Act.

 

SHARES

 

8.

Subject to these Articles, all Shares for the time being unissued shall be under the control of the Directors who may:

 

(a)

issue, allot and dispose of the same to such Persons, in such manner, on such terms and having such rights and being subject to such restrictions as they may from time to time determine; and

 

(b)

grant options with respect to such Shares and issue warrants or similar instruments with respect thereto;

 

and, for such purposes, the Directors may reserve an appropriate number of Shares for the time being unissued.

 

9.

The Directors, or the Shareholders by Ordinary Resolution, may authorise the division of Shares into any number of Classes and sub-classes and the different Classes and sub-classes shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative rights (including, without limitation, voting, dividend and redemption rights), restrictions, preferences, privileges and payment obligations as between the different Classes (if any) may be fixed and determined by the Directors or the Shareholders by Ordinary Resolution.

 

4

 

 

10.

The Company may insofar as may be permitted by law, pay a commission to any Person in consideration of their subscribing or agreeing to subscribe whether absolutely or conditionally for any Shares. Such commissions may be satisfied by the payment of cash or the lodgement of fully or partly paid-up Shares or partly in one way and partly in the other. The Company may also pay such brokerage as may be lawful on any issue of Shares.

 

11.

The Directors may refuse to accept any application for Shares, and may accept any application in whole or in part, for any reason or for no reason.

 

MODIFICATION OF RIGHTS

 

12.

Whenever the capital of the Company is divided into different Classes (and as otherwise determined by the Directors) the rights attached to any such Class may, subject to any rights or restrictions for the time being attached to any Class only be materially adversely varied or abrogated with the consent in writing of the holders of not less than two-thirds of the issued Shares of the relevant Class, or with the sanction of a resolution passed at a separate meeting of the holders of the Shares of such Class by a majority of two-thirds of the votes cast at such a meeting. To every such separate meeting all the provisions of these Articles relating to general meetings of the Company or to the proceedings thereat shall, mutatis mutandis, apply, except that the necessary quorum shall be one or more Persons at least holding or representing by proxy one-third in nominal or par value amount of the issued Shares of the relevant Class (but so that if at any adjourned meeting of such holders a quorum as above defined is not present, those Shareholders who are present shall form a quorum) and that, subject to any rights or restrictions for the time being attached to the Shares of that Class, every Shareholder of the Class shall on a poll have one vote for each Share of the Class held by them. For the purposes of this Article the Directors may treat all the Classes or any two or more Classes as forming one Class if they consider that all such Classes would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate Classes. The Directors may vary the rights attaching to any Class without the consent or approval of Shareholders provided that the rights will not, in the determination of the Directors, be materially adversely varied or abrogated by such action.

 

13.

The rights conferred upon the holders of the Shares of any Class issued with preferred or other rights shall not, subject to any rights or restrictions for the time being attached to the Shares of that Class, be deemed to be materially adversely varied or abrogated by, inter alia, the creation, allotment or issue of further Shares ranking pari passu with or subsequent to them or the redemption or purchase of any Shares of any Class by the Company.

 

CERTIFICATES

 

14.

No Person shall be entitled to a certificate for any or all of their Shares, unless the Directors shall determine otherwise.

 

5

 

 

FRACTIONAL SHARES

 

15.

The Directors may issue fractions of a Share and, if so issued, a fraction of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to nominal or par value, premium, contributions, calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights (including, without prejudice to the generality of the foregoing, voting and participation rights) and other attributes of a whole Share. If more than one fraction of a Share of the same Class is issued to or acquired by the same Shareholder such fractions shall be accumulated.

 

LIEN

 

16.

The Company has a first and paramount lien on every Share (whether or not fully paid) for all amounts (whether presently payable or not) payable at a fixed time or called in respect of that Share. The Company also has a first and paramount lien on every Share (whether or not fully paid) registered in the name of a Person indebted or under liability to the Company (whether they are the sole registered holder of a Share or one of two or more joint holders) for all amounts owing by them or their estate to the Company (whether or not presently payable). The Directors may at any time declare a Share to be wholly or in part exempt from the provisions of this Article. The Company’s lien on a Share extends to any amount payable in respect of it.

 

17.

The Company may sell, in such manner as the Directors may determine, any Share on which the Company has a lien, but no sale shall be made unless an amount in respect of which the lien exists is presently payable nor until the expiration of fourteen days after a notice in writing, demanding payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the registered holder for the time being of the Share, or the Persons entitled thereto by reason of their death or bankruptcy.

 

18.

For giving effect to any such sale the Directors may authorise some Person to transfer the Shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the Shares comprised in any such transfer and they shall not be bound to see to the application of the purchase money, nor shall their title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the sale.

 

19.

The proceeds of the sale after deduction of expenses, fees and commission incurred by the Company shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is presently payable, and the residue shall (subject to a like lien for sums not presently payable as existed upon the Shares prior to the sale) be paid to the Person entitled to the Shares immediately prior to the sale.

 

CALLS ON SHARES

 

20.

The Directors may from time to time make calls upon the Shareholders in respect of any moneys unpaid on their Shares, and each Shareholder shall (subject to receiving at least fourteen days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on such Shares.

 

6

 

 

21.

The joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof.

 

22.

If a sum called in respect of a Share is not paid before or on the day appointed for payment thereof, the Person from whom the sum is due shall pay interest upon the sum at the rate of eight percent per annum from the day appointed for the payment thereof to the time of the actual payment, but the Directors shall be at liberty to waive payment of that interest wholly or in part.

 

23.

The provisions of these Articles as to the liability of joint holders and as to payment of interest shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the amount of the Share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified.

 

24.

The Directors may make arrangements on the issue of partly paid Shares for a difference between the Shareholders, or the particular Shares, in the amount of calls to be paid and in the times of payment.

 

25.

The Directors may, if they think fit, receive from any Shareholder willing to advance the same all or any part of the moneys uncalled and unpaid upon any partly paid Shares held by them, and upon all or any of the moneys so advanced may (until the same would, but for such advance, become presently payable) pay interest at such rate (not exceeding without the sanction of an Ordinary Resolution, eight percent per annum) as may be agreed upon between the Shareholder paying the sum in advance and the Directors.

 

FORFEITURE OF SHARES

 

26.

If a Shareholder fails to pay any call or instalment of a call in respect of any Shares on the day appointed for payment, the Directors may, at any time thereafter during such time as any part of such call or instalment remains unpaid, serve a notice on them requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued.

 

27.

The notice shall name a further day (not earlier than the expiration of fourteen days from the date of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed the Shares in respect of which the call was made will be liable to be forfeited.

 

28.

If the requirements of any such notice as aforesaid are not complied with, any Share in respect of which the notice has been given may at any time thereafter, before the payment required by notice has been made, be forfeited by a resolution of the Directors to that effect.

 

29.

A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit, and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think fit.

 

7

 

 

30.

A Person whose Shares have been forfeited shall cease to be a Shareholder in respect of the forfeited Shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which at the date of forfeiture were payable by them to the Company in respect of the Shares forfeited, but their liability shall cease if and when the Company receives payment in full of the amount unpaid on the Shares forfeited.

 

31.

A statutory declaration in writing that the declarant is a Director, and that a Share has been duly forfeited on a date stated in the declaration, shall be conclusive evidence of the facts in the declaration as against all Persons claiming to be entitled to the Share.

 

32.

The Company may receive the consideration, if any, given for a Share on any sale or disposition thereof pursuant to the provisions of these Articles as to forfeiture and may execute a transfer of the Share in favour of the Person to whom the Share is sold or disposed of and that Person shall be registered as the holder of the Share, and shall not be bound to see to the application of the purchase money, if any, nor shall their title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the disposition or sale.

 

33.

The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which by the terms of issue of a Share becomes due and payable, whether on account of the amount of the Share, or by way of premium, as if the same had been payable by virtue of a call duly made and notified.

 

TRANSFER OF SHARES

 

34.

The instrument of transfer of any Share shall be in any usual or common form or such other form as the Directors may determine and be executed by or on behalf of the transferor and if in respect of a nil or partly paid up Share, or if so required by the Directors, shall also be executed on behalf of the transferee and shall be accompanied by the certificate (if any) of the Shares to which it relates and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. The transferor shall be deemed to remain a Shareholder until the name of the transferee is entered in the Register in respect of the relevant Shares.

 

35.

Subject to the terms of issue thereof, the Directors may determine to decline to register any transfer of Shares without assigning any reason therefor.

 

36.

The registration of transfers may be suspended at such times and for such periods as the Directors may from time to time determine.

 

37.

All instruments of transfer that are registered shall be retained by the Company, but any instrument of transfer that the Directors decline to register shall (except in any case of fraud) be returned to the Person depositing the same.

 

8

 

 

TRANSMISSION OF SHARES

 

38.

The legal personal representative of a deceased sole holder of a Share shall be the only Person recognised by the Company as having any title to the Share. In the case of a Share registered in the name of two or more holders, the survivors or survivor, or the legal personal representatives of the deceased holder of the Share, shall be the only Person recognised by the Company as having any title to the Share.

 

39.

Any Person becoming entitled to a Share in consequence of the death or bankruptcy of a Shareholder shall upon such evidence being produced as may from time to time be required by the Directors, have the right either to be registered as a Shareholder in respect of the Share or, instead of being registered themself, to make such transfer of the Share as the deceased or bankrupt Person could have made; but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the deceased or bankrupt Person before the death or bankruptcy.

 

40.

A Person becoming entitled to a Share by reason of the death or bankruptcy of a Shareholder shall be entitled to the same dividends and other advantages to which they would be entitled if they were the registered Shareholder, except that they shall not, before being registered as a Shareholder in respect of the Share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the Company.

 

ALTERATION OF SHARE CAPITAL

 

41.

The Company may from time to time by Ordinary Resolution increase the share capital by such sum, to be divided into Shares of such Classes and amount, as the resolution shall prescribe.

 

42.

The Company may by Ordinary Resolution:

 

(a)

consolidate and divide all or any of its share capital into Shares of a larger amount than its existing Shares;

 

(b)

convert all or any of its paid up Shares into stock and reconvert that stock into paid up Shares of any denomination;

 

(c)

subdivide its existing Shares, or any of them into Shares of a smaller amount provided that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in case of the Share from which the reduced Share is derived; and

 

(d)

cancel any Shares that, at the date of the passing of the resolution, have not been taken or agreed to be taken by any Person and diminish the amount of its share capital by the amount of the Shares so cancelled.

 

9

 

 

43.

The Company may by Special Resolution reduce its share capital and any capital redemption reserve in any manner authorised by law.

 

REDEMPTION, PURCHASE AND SURRENDER OF SHARES

 

44.

Subject to the Companies Act, the Company may:

 

(a)

issue Shares on terms that they are to be redeemed or are liable to be redeemed at the option of the Company or the Shareholder on such terms and in such manner as the Directors may determine;

 

(b)

purchase its own Shares (including any redeemable Shares) on such terms and in such manner as the Directors may determine and agree with the Shareholder;

 

(c)

make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Companies Act, including out of its capital; and

 

(d)

accept the surrender for no consideration of any paid up Share (including any redeemable Share) on such terms and in such manner as the Directors may determine.

 

45.

Any Share in respect of which notice of redemption has been given shall not be entitled to participate in the profits of the Company in respect of the period after the date specified as the date of redemption in the notice of redemption.

 

46.

The redemption, purchase or surrender of any Share shall not be deemed to give rise to the redemption, purchase or surrender of any other Share.

 

47.

The Directors may when making payments in respect of redemption or purchase of Shares, if authorised by the terms of issue of the Shares being redeemed or purchased or with the agreement of the holder of such Shares, make such payment either in cash or in specie including, without limitation, interests in a special purpose vehicle holding assets of the Company or holding entitlement to the proceeds of assets held by the Company or in a liquidating structure.

 

TREASURY SHARES

 

48.

Shares that the Company purchases, redeems or acquires (by way of surrender or otherwise) may, at the option of the Company, be cancelled immediately or held as Treasury Shares in accordance with the Companies Act. In the event that the Directors do not specify that the relevant Shares are to be held as Treasury Shares, such Shares shall be cancelled.

 

49.

No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company’s assets (including any distribution of assets to members on a winding up) may be declared or paid in respect of a Treasury Share.

 

10

 

 

50.

The Company shall be entered in the Register as the holder of the Treasury Shares provided that:

 

(a)

the Company shall not be treated as a member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall be void;

 

(b)

a Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company and shall not be counted in determining the total number of issued shares at any given time, whether for the purposes of these Articles or the Companies Act, save that an allotment of Shares as fully paid bonus shares in respect of a Treasury Share is permitted and Shares allotted as fully paid bonus shares in respect of a treasury share shall be treated as Treasury Shares.

 

51.

Treasury Shares may be disposed of by the Company on such terms and conditions as determined by the Directors.

 

GENERAL MEETINGS

 

52.

The Directors may, whenever they think fit, convene a general meeting of the Company.

 

53.

The Directors may cancel or postpone any duly convened general meeting at any time prior to such meeting, except for general meetings requisitioned by the Shareholders in accordance with these Articles, for any reason or for no reason at any time prior to the time for holding such meeting or, if the meeting is adjourned, the time for holding such adjourned meeting. The Directors shall give Shareholders notice in writing of any cancellation or postponement. A postponement may be for a stated period of any length or indefinitely as the Directors may determine.

 

54.

General meetings shall also be convened on the requisition in writing of any Shareholder or Shareholders entitled to attend and vote at general meetings of the Company holding at least ten percent of the paid up voting share capital of the Company deposited at the Office specifying the objects of the meeting by notice given no later than 21 days from the date of deposit of the requisition signed by the requisitionists, and if the Directors do not convene such meeting for a date not later than 45 days after the date of such deposit, the requisitionists themselves may convene the general meeting in the same manner, as nearly as possible, as that in which general meetings may be convened by the Directors, and all reasonable expenses incurred by the requisitionists as a result of the failure of the Directors to convene the general meeting shall be reimbursed to them by the Company.

 

55.

If at any time there are no Directors, any two Shareholders (or if there is only one Shareholder then that Shareholder) entitled to vote at general meetings of the Company may convene a general meeting in the same manner as nearly as possible as that in which general meetings may be convened by the Directors.

 

11

 

 

NOTICE OF GENERAL MEETINGS

 

56.

At least seven clear days’ notice in writing counting from the date service is deemed to take place as provided in these Articles specifying the place, the day and the hour of the meeting and the general nature of the business, shall be given in the manner hereinafter provided or in such other manner (if any) as may be prescribed by the Company by Ordinary Resolution to such Persons as are, under these Articles, entitled to receive such notices from the Company, but with the consent of all the Shareholders entitled to receive notice of some particular meeting and attend and vote thereat, that meeting may be convened by such shorter notice or without notice and in such manner as those Shareholders may think fit.

 

57.

The accidental omission to give notice of a meeting to or the non-receipt of a notice of a meeting by any Shareholder shall not invalidate the proceedings at any meeting.

 

PROCEEDINGS AT GENERAL MEETINGS

 

58.

All business carried out at a general meeting shall be deemed special with the exception of sanctioning a dividend, the consideration of the accounts, balance sheets, any report of the Directors or of the Company’s auditors, and the fixing of the remuneration of the Company’s auditors. No special business shall be transacted at any general meeting without the consent of all Shareholders entitled to receive notice of that meeting unless notice of such special business has been given in the notice convening that meeting.

 

59.

No business shall be transacted at any general meeting unless a quorum of Shareholders is present at the time when the meeting proceeds to business. Save as otherwise provided by these Articles, one or more Shareholders holding at least a majority of the paid up voting share capital of the Company present in person or by proxy and entitled to vote at that meeting shall form a quorum.

 

60.

If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of Shareholders, shall be dissolved. In any other case it shall stand adjourned to the same day in the next week, at the same time and place, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting the Shareholder or Shareholders present and entitled to vote shall form a quorum.

 

61.

If the Directors wish to make this facility available for a specific general meeting or all general meetings of the Company, participation in any general meeting of the Company may be by means of a telephone or similar communication equipment by way of which all Persons participating in such meeting can communicate with each other and such participation shall be deemed to constitute presence in person at the meeting.

 

62.

The chair, if any, of the Directors shall preside as chair at every general meeting of the Company.

 

63.

If there is no such chair, or if at any general meeting they are not present within fifteen minutes after the time appointed for holding the meeting or is unwilling to act as chair, any Director or Person nominated by the Directors shall preside as chair, failing which the Shareholders present in person or by proxy shall choose any Person present to be chair of that meeting.

 

12

 

 

64.

The chair may adjourn a meeting from time to time and from place to place either:

 

(a)

with the consent of any general meeting at which a quorum is present (and shall if so directed by the meeting); or

 

(b)

without the consent of such meeting if, in their sole opinion, they consider it necessary to do so to:

 

(i)

secure the orderly conduct or proceedings of the meeting; or

 

(ii)

give all persons present in person or by proxy and having the right to speak and / or vote at such meeting, the ability to do so,

 

but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting, or adjourned meeting, is adjourned for fourteen days or more, notice of the adjourned meeting shall be given in the manner provided for the original meeting. Save as aforesaid, it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.

 

65.

At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded by the chair or one or more Shareholders present in person or by proxy entitled to vote, and unless a poll is so demanded, a declaration by the chair that a resolution has, on a show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book of the proceedings of the Company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of, or against, that resolution.

 

66.

If a poll is duly demanded it shall be taken in such manner as the chair directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.

 

67.

In the case of an equality of votes, whether on a show of hands or on a poll, the chair of the meeting at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote.

 

68.

A poll demanded on the election of a chair of the meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chair of the meeting directs.

 

VOTES OF SHAREHOLDERS

 

69.

Subject to any rights and restrictions for the time being attached to any Share, on a show of hands every Shareholder present in person and every Person representing a Shareholder by proxy shall, at a general meeting of the Company, each have one vote and on a poll every Shareholder and every Person representing a Shareholder by proxy shall have one vote for each Share of which they or the Person represented by proxy is the holder.

 

13

 

 

70.

In the case of joint holders the vote of the senior who tenders a vote whether in person or by proxy shall be accepted to the exclusion of the votes of the other joint holders and for this purpose seniority shall be determined by the order in which the names stand in the Register.

 

71.

A Shareholder of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote in respect of Shares carrying the right to vote held by them, whether on a show of hands or on a poll, by their committee, or other Person in the nature of a committee appointed by that court, and any such committee or other Person, may vote in respect of such Shares by proxy.

 

72.

No Shareholder shall be entitled to vote at any general meeting of the Company unless all calls, if any, or other sums presently payable by them in respect of Shares carrying the right to vote held by them have been paid.

 

73.

On a poll votes may be given either personally or by proxy.

 

74.

The instrument appointing a proxy shall be in writing under the hand of the appointor or of their attorney duly authorised in writing or, if the appointor is a corporation, either under Seal or under the hand of an Officer or attorney duly authorised. A proxy need not be a Shareholder.

 

75.

An instrument appointing a proxy may be in any usual or common form or such other form as the Directors may approve.

 

76.

The instrument appointing a proxy shall be deposited at the Office or at such other place as is specified for that purpose in the notice convening the meeting no later than the time for holding the meeting or, if the meeting is adjourned, the time for holding such adjourned meeting.

 

77.

The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll.

 

78.

A resolution in writing signed by all the Shareholders for the time being entitled to receive notice of and to attend and vote at general meetings of the Company (or being corporations by their duly authorised representatives) shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held.

 

CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS

 

79.

Any corporation which is a Shareholder or a Director may by resolution of its directors or other governing body authorise such Person as it thinks fit to act as its representative at any meeting of the Company or of any meeting of holders of a Class or of the Directors or of a committee of Directors, and the Person so authorised shall be entitled to exercise the same powers on behalf of the corporation which they represent as that corporation could exercise if it were an individual Shareholder or Director.

 

14

 

 

DIRECTORS

 

80.

The name(s) of the first Director(s) shall either be determined in writing by a majority (or in the case of a sole subscriber that subscriber) of, or elected at a meeting of, the subscribers of the Memorandum of Association.

 

81.

The Company may by Ordinary Resolution appoint any Person to be a Director.

 

82.

Subject to these Articles, a Director shall hold office until such time as they are removed from office by Ordinary Resolution.

 

83.

The Company may by Ordinary Resolution from time to time fix the maximum and minimum number of Directors to be appointed but unless such numbers are fixed as aforesaid the minimum number of Directors shall be one and the maximum number of Directors shall be unlimited.

 

84.

The remuneration of the Directors may be determined by the Directors or by Ordinary Resolution.

 

85.

There shall be no shareholding qualification for Directors unless determined otherwise by Ordinary Resolution.

 

86.

The Directors shall have power at any time and from time to time to appoint any Person to be a Director, either as a result of a casual vacancy or as an additional Director, subject to the maximum number (if any) imposed by Ordinary Resolution.

 

ALTERNATE DIRECTOR

 

87.

Any Director may in writing appoint another Person to be their alternate and, save to the extent provided otherwise in the form of appointment, such alternate shall have authority to sign written resolutions on behalf of the appointing Director, but shall not be authorised to sign such written resolutions where they have been signed by the appointing Director, and to act in such Director’s place at any meeting of the Directors. Every such alternate shall be entitled to attend and vote at meetings of the Directors as the alternate of the Director appointing them and where they are Director to have a separate vote in addition to their own vote. A Director may at any time in writing revoke the appointment of an alternate appointed by them. Such alternate shall not be an Officer solely as a result of their appointment as an alternate other than in respect of such times as the alternate acts as a Director. The remuneration of such alternate shall be payable out of the remuneration of the Director appointing them and the proportion thereof shall be agreed between them.

 

POWERS AND DUTIES OF DIRECTORS

 

88.

Subject to the Companies Act, these Articles and to any resolutions passed in a general meeting, the business of the Company shall be managed by the Directors, who may pay all expenses incurred in setting up and registering the Company and may exercise all powers of the Company. No resolution passed by the Company in general meeting shall invalidate any prior act of the Directors that would have been valid if that resolution had not been passed.

 

15

 

 

89.

The Directors may from time to time appoint any Person, whether or not a Director to hold such office in the Company as the Directors may think necessary for the administration of the Company, including but not limited to, the office of president, one or more vice-presidents, treasurer, assistant treasurer, manager or controller, and for such term and at such remuneration (whether by way of salary or commission or participation in profits or partly in one way and partly in another), and with such powers and duties as the Directors may think fit. Any Person so appointed by the Directors may be removed by the Directors or by the Company by Ordinary Resolution. The Directors may also appoint one or more of their number to the office of managing director upon like terms, but any such appointment shall ipso facto terminate if any managing director ceases from any cause to be a Director, or if the Company by Ordinary Resolution resolves that their tenure of office be terminated.

 

90.

The Directors may appoint any Person to be a Secretary (and if need be an assistant Secretary or assistant Secretaries) who shall hold office for such term, at such remuneration and upon such conditions and with such powers as they think fit. Any Secretary or assistant Secretary so appointed by the Directors may be removed by the Directors or by the Company by Ordinary Resolution.

 

91.

The Directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit; any committee so formed shall in the exercise of the powers so delegated conform to any regulations that may be imposed on it by the Directors.

 

92.

The Directors may from time to time and at any time by power of attorney (whether under Seal or under hand) or otherwise appoint any company, firm or Person or body of Persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys or authorised signatory (any such person being an “Attorney” or “Authorised Signatory”, respectively) of the Company for such purposes and with such powers, authorities and discretion (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such power of attorney or other appointment may contain such provisions for the protection and convenience of Persons dealing with any such Attorney or Authorised Signatory as the Directors may think fit, and may also authorise any such Attorney or Authorised Signatory to delegate all or any of the powers, authorities and discretion vested in them.

 

93.

The Directors may from time to time provide for the management of the affairs of the Company in such manner as they shall think fit and the provisions contained in the three next following Articles shall not limit the general powers conferred by this Article.

 

94.

The Directors from time to time and at any time may establish any committees, local boards or agencies for managing any of the affairs of the Company and may appoint any Person to be a member of such committees or local boards and may appoint any managers or agents of the Company and may fix the remuneration of any such Person.

 

16

 

 

95.

The Directors from time to time and at any time may delegate to any such committee, local board, manager or agent any of the powers, authorities and discretions for the time being vested in the Directors and may authorise the members for the time being of any such local board, or any of them to fill any vacancies therein and to act notwithstanding vacancies and any such appointment or delegation may be made on such terms and subject to such conditions as the Directors may think fit and the Directors may at any time remove any Person so appointed and may annul or vary any such delegation, but no Person dealing in good faith and without notice of any such annulment or variation shall be affected thereby.

 

96.

Any such delegates as aforesaid may be authorised by the Directors to sub-delegate all or any of the powers, authorities, and discretion for the time being vested in them.

 

97.

The Directors may agree with a Shareholder to waive or modify the terms applicable to such Shareholder’s subscription for Shares without obtaining the consent of any other Shareholder; provided that such waiver or modification does not amount to a variation or abrogation of the rights attaching to the Shares of such other Shareholders.

 

98.

The Directors shall have the authority to present a winding up petition on behalf of the Company on the grounds that the Company is unable to pay its debts within the meaning of section 93 of the Companies Act or where a winding up petition has been presented, apply on behalf of the Company, for the appointment of a provisional liquidator without the sanction of a resolution passed by the Company at a general meeting.

 

BORROWING POWERS OF DIRECTORS

 

99.

The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof, or to otherwise provide for a security interest to be taken in such undertaking, property or uncalled capital, and to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party.

 

THE SEAL

 

100.

The Seal shall not be affixed to any instrument except by the authority of a resolution of the Directors provided always that such authority may be given prior to or after the affixing of the Seal and if given after may be in general form confirming a number of affixings of the Seal. The Seal shall be affixed in the presence of a Director or a Secretary (or an assistant Secretary) or in the presence of any one or more Persons as the Directors may appoint for the purpose and every Person as aforesaid shall sign every instrument to which the Seal is so affixed in their presence.

 

101.

The Company may maintain a facsimile of the Seal in such countries or places as the Directors may appoint and such facsimile Seal shall not be affixed to any instrument except by the authority of a resolution of the Directors provided always that such authority may be given prior to or after the affixing of such facsimile Seal and if given after may be in general form confirming a number of affixings of such facsimile Seal. The facsimile Seal shall be affixed in the presence of such Person or Persons as the Directors shall for this purpose appoint and such Person or Persons as aforesaid shall sign every instrument to which the facsimile Seal is so affixed in their presence and such affixing of the facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the Seal had been affixed in the presence of and the instrument signed by a Director or a Secretary (or an assistant Secretary) or in the presence of any one or more Persons as the Directors may appoint for the purpose.

 

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102.

Notwithstanding the foregoing, a Secretary or any assistant Secretary shall have the authority to affix the Seal, or the facsimile Seal, to any instrument for the purposes of attesting authenticity of the matter contained therein but which does not create any obligation binding on the Company.

 

DISQUALIFICATION OF DIRECTORS

 

103.

The office of Director shall be vacated, if the Director:

 

(a)

becomes bankrupt or makes any arrangement or composition with their creditors;

 

(b)

dies or is found to be or becomes of unsound mind;

 

(c)

resigns their office by notice in writing to the Company;

 

(d)

is removed from office by Ordinary Resolution;

 

(e)

is removed from office by notice addressed to them at their last known address and signed by all of their co-Directors (not being less than two in number); or

 

(f)

is removed from office pursuant to any other provision of these Articles.

 

PROCEEDINGS OF DIRECTORS

 

104.

The Directors may meet together (either within or outside the Cayman Islands) for the despatch of business, adjourn, and otherwise regulate their meetings and proceedings as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In case of an equality of votes the chair shall have a second or casting vote. A Director may, and a Secretary or assistant Secretary on the requisition of a Director shall, at any time summon a meeting of the Directors.

 

105.

A Director may participate in any meeting of the Directors, or of any committee appointed by the Directors of which such Director is a member, by means of telephone or similar communication equipment by way of which all Persons participating in such meeting can communicate with each other and such participation shall be deemed to constitute presence in person at the meeting.

 

106.

The quorum necessary for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed, if there be two or more Directors the quorum shall be two, and if there be one Director the quorum shall be one. A Director represented by an alternate Director at any meeting shall be deemed to be present for the purposes of determining whether or not a quorum is present.

 

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107.

A Director who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the Company shall declare the nature of their interest at a meeting of the Directors. A general notice given to the Directors by any Director to the effect that they are to be regarded as interested in any contract or other arrangement which may thereafter be made with that company or firm shall be deemed a sufficient declaration of interest in regard to any contract so made. A Director may vote in respect of any contract or proposed contract or arrangement notwithstanding that they may be interested therein and if they do so their vote shall be counted and they may be counted in the quorum at any meeting of the Directors at which any such contract or proposed contract or arrangement shall come before the meeting for consideration.

 

108.

A Director may hold any other office or place of profit under the Company (other than the office of auditor) in conjunction with their office of Director for such period and on such terms (as to remuneration and otherwise) as the Directors may determine and no Director or intending Director shall be disqualified by their office from contracting with the Company either with regard to their tenure of any such other office or place of profit or as vendor, purchaser or otherwise, nor shall any such contract or arrangement entered into by or on behalf of the Company in which any Director is in any way interested, be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relation thereby established. A Director, notwithstanding their interest, may be counted in the quorum present at any meeting of the Directors whereat such Director or any other Director is appointed to hold any such office or place of profit under the Company or whereat the terms of any such appointment are arranged and they may vote on any such appointment or arrangement.

 

109.

Any Director may act by themselves or their firm in a professional capacity for the Company, and they or their firm shall be entitled to remuneration for professional services as if they were not a Director; provided that nothing herein contained shall authorise a Director or their firm to act as auditor to the Company.

 

110.

The Directors shall cause minutes to be made in books or loose-leaf folders provided for the purpose of recording:

 

(a)

all appointments of Officers made by the Directors;

 

(b)

the names of the Directors present at each meeting of the Directors and of any committee of the Directors; and

 

(c)

all resolutions and proceedings at all meetings of the Company, and of the Directors and of committees of Directors.

 

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111.

When the chair of a meeting of the Directors signs the minutes of such meeting the same shall be deemed to have been duly held notwithstanding that all the Directors have not actually come together or that there may have been a technical defect in the proceedings.

 

112.

A resolution in writing signed by all the Directors or all the members of a committee of Directors entitled to receive notice of a meeting of Directors or committee of Directors, as the case may be (an alternate Director, subject as provided otherwise in the terms of appointment of the alternate Director, being entitled to sign such a resolution on behalf of their appointer), shall be as valid and effectual as if it had been passed at a duly called and constituted meeting of Directors or committee of Directors, as the case may be. When signed a resolution may consist of several documents each signed by one or more of the Directors or their duly appointed alternate.

 

113.

The continuing Directors may act notwithstanding any vacancy in their body but if and for so long as their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors, the continuing Directors may act for the purpose of increasing the number, or of summoning a general meeting of the Company, but for no other purpose.

 

114.

The Directors may elect a chair of their meetings and determine the period for which they are to hold office but if no such chair is elected, or if at any meeting the chair is not present within fifteen minutes after the time appointed for holding the meeting, the Directors present may choose one of their number to be chair of the meeting.

 

115.

Subject to any regulations imposed on it by the Directors, a committee appointed by the Directors may elect a chair of its meetings. If no such chair is elected, or if at any meeting the chair is not present within fifteen minutes after the time appointed for holding the meeting, the committee members present may choose one of their number to be chair of the meeting.

 

116.

A committee appointed by the Directors may meet and adjourn as it thinks proper. Subject to any regulations imposed on it by the Directors, questions arising at any meeting shall be determined by a majority of votes of the committee members present and in case of an equality of votes the chair shall have a second or casting vote.

 

117.

All acts done by any meeting of the Directors or of a committee of Directors, or by any Person acting as a Director, shall notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or Person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such Person had been duly appointed and was qualified to be a Director.

 

DIVIDENDS

 

118.

Subject to any rights and restrictions for the time being attached to any Shares, or as otherwise provided for in the Companies Act and these Articles, the Directors may from time to time declare dividends (including interim dividends) and other distributions on Shares in issue and authorise payment of the same out of the funds of the Company lawfully available therefor.

 

20

 

 

119.

Subject to any rights and restrictions for the time being attached to any Shares, the Company by Ordinary Resolution may declare dividends, but no dividend shall exceed the amount recommended by the Directors.

 

120.

The Directors may determine, before recommending or declaring any dividend, to set aside out of the funds legally available for distribution such sums as they think proper as a reserve or reserves which shall be applicable for meeting contingencies, or for equalising dividends or for any other purpose to which those funds may be properly applied and pending such application may, at the determination of the Directors, either be employed in the business of the Company or be invested in such investments as the Directors may from time to time think fit.

 

121.

Any dividend may be paid in any manner as the Directors may determine. If paid by cheque it will be sent through the post to the registered address of the Shareholder or Person entitled thereto, or in the case of joint holders, to any one of such joint holders at their registered address or to such Person and such address as the Shareholder or Person entitled, or such joint holders as the case may be, may direct. Every such cheque shall be made payable to the order of the Person to whom it is sent or to the order of such other Person as the Shareholder or Person entitled, or such joint holders as the case may be, may direct.

 

122.

The Directors when paying dividends to the Shareholders in accordance with the foregoing provisions of these Articles may make such payment either in cash or in specie and may determine the extent to which amounts may be withheld therefrom (including, without limitation, any taxes, fees, expenses or other liabilities for which a Shareholder (or the Company, as a result of any action or inaction of the Shareholder) is liable).

 

123.

Subject to any rights and restrictions for the time being attached to any Shares, all dividends shall be declared and paid according to the amounts paid up on the Shares, but if and for so long as nothing is paid up on any of the Shares dividends may be declared and paid according to the par value of the Shares.

 

124.

If several Persons are registered as joint holders of any Share, any of them may give effectual receipts for any dividend or other moneys payable on or in respect of the Share.

 

125.

No dividend shall bear interest against the Company.

 

ACCOUNTS, AUDIT AND ANNUAL RETURN AND DECLARATION

 

126.

The books of account relating to the Company’s affairs shall be kept in such manner as may be determined from time to time by the Directors.

 

127.

The books of account shall be kept at the Office, or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors.

 

128.

The Directors may from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Shareholders not being Directors, and no Shareholder (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by law or authorised by the Directors or by Ordinary Resolution.

 

21

 

 

129.

The accounts relating to the Company’s affairs shall only be audited if the Directors so determine, in which case the accounting principles will be determined by the Directors. The financial year of the Company shall end on 31 December of each year or such other date as the Directors may determine.

 

130.

The Directors in each year shall prepare, or cause to be prepared, an annual return and declaration setting forth the particulars required by the Companies Act and deliver a copy thereof to the Registrar of Companies in the Cayman Islands.

 

CAPITALISATION OF RESERVES

 

131.

Subject to the Companies Act and these Articles, the Directors may:

 

(a)

resolve to capitalise an amount standing to the credit of reserves (including a Share Premium Account, capital redemption reserve and profit and loss account), whether or not available for distribution;

 

(b)

appropriate the sum resolved to be capitalised to the Shareholders in proportion to the nominal amount of Shares (whether or not fully paid) held by them respectively and apply that sum on their behalf in or towards:

 

(i)

paying up the amounts (if any) for the time being unpaid on Shares held by them respectively, or

 

(ii)

paying up in full unissued Shares or debentures of a nominal amount equal to that sum,

 

and allot the Shares or debentures, credited as fully paid, to the Shareholders (or as they may direct) in those proportions, or partly in one way and partly in the other, but the Share Premium Account, the capital redemption reserve and profits which are not available for distribution may, for the purposes of this Article, only be applied in paying up unissued Shares to be allotted to Shareholders credited as fully paid;

 

(c)

make any arrangements they think fit to resolve a difficulty arising in the distribution of a capitalised reserve and in particular, without limitation, where Shares or debentures become distributable in fractions the Directors may deal with the fractions as they think fit;

 

(d)

authorise a Person to enter (on behalf of all the Shareholders concerned) into an agreement with the Company providing for either:

 

(i)

the allotment to the Shareholders respectively, credited as fully paid, of Shares or debentures to which they may be entitled on the capitalisation, or

 

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(ii)

the payment by the Company on behalf of the Shareholders (by the application of their respective proportions of the reserves resolved to be capitalised) of the amounts or part of the amounts remaining unpaid on their existing Shares,

 

and any such agreement made under this authority being effective and binding on all those Shareholders; and

 

(e)

generally do all acts and things required to give effect to any of the actions contemplated by this Article.

 

SHARE PREMIUM ACCOUNT

 

132.

The Directors shall in accordance with the Companies Act establish a Share Premium Account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any Share.

 

133.

There shall be debited to any Share Premium Account on the redemption or purchase of a Share the difference between the nominal value of such Share and the redemption or purchase price provided always that at the determination of the Directors such sum may be paid out of the profits of the Company or, if permitted by the Companies Act, out of capital.

 

NOTICES

 

134.

Any notice or document may be served by the Company or by the Person entitled to give notice to any Shareholder either personally, or by posting it airmail or air courier service in a prepaid letter addressed to such Shareholder at their address as appearing in the Register, or by electronic mail to any electronic mail address such Shareholder may have specified in writing for the purpose of such service of notices, or by facsimile should the Directors deem it appropriate. In the case of joint holders of a Share, all notices shall be given to that one of the joint holders whose name stands first in the Register in respect of the joint holding, and notice so given shall be sufficient notice to all the joint holders.

 

135.

Any Shareholder present, either personally or by proxy, at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where requisite, of the purposes for which such meeting was convened.

 

136.

Any notice or other document, if served by:

 

(a)

post, shall be deemed to have been served five clear days after the time when the letter containing the same is posted;

 

23

 

 

(b)

facsimile, shall be deemed to have been served upon production by the transmitting facsimile machine of a report confirming transmission of the facsimile in full to the facsimile number of the recipient;

 

(c)

recognised courier service, shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the courier service; or

 

(d)

electronic mail, shall be deemed to have been served immediately upon the time of the transmission by electronic mail.

 

In proving service by post or courier service it shall be sufficient to prove that the letter containing the notice or documents was properly addressed and duly posted or delivered to the courier service.

 

137.

Any notice or document delivered or sent in accordance with the terms of these Articles shall notwithstanding that such Shareholder be then dead or bankrupt, and whether or not the Company has notice of their death or bankruptcy, be deemed to have been duly served in respect of any Share registered in the name of such Shareholder as sole or joint holder, unless their name shall at the time of the service of the notice or document, have been removed from the Register as the holder of the Share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all Persons interested (whether jointly with or as claiming through or under them) in the Share.

 

138.

Notice of every general meeting of the Company shall be given to:

 

(a)

all Shareholders holding Shares with the right to receive notice and who have supplied to the Company an address for the giving of notices to them; and

 

(b)

every Person entitled to a Share in consequence of the death or bankruptcy of a Shareholder, who but for their death or bankruptcy would be entitled to receive notice of the meeting.

 

No other Person shall be entitled to receive notices of general meetings.

 

INDEMNITY

 

139.

Every current and former Director (including for the purposes of this Article any alternate Director appointed pursuant to the provisions of these Articles), Secretary, assistant Secretary, or other Officer (but not including the Company’s auditors) and the personal representatives of the same of the Company or any predecessor of the Company (each an “Indemnified Person”) shall be indemnified and secured harmless out of the assets and funds of the Company against all actions, proceedings, costs, claims, demands, charges, expenses, losses, damages or liabilities incurred or sustained by such Indemnified Person, other than by reason of such Indemnified Person’s own dishonesty, wilful default or fraud as determined by a court of competent jurisdiction, in or about the conduct of the Company’s business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of their duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by such Indemnified Person in defending (whether successfully or otherwise) any civil proceedings concerning the Company or its affairs in any court whether in the Cayman Islands or elsewhere. Each member agrees to waive any claim or right of action he or she might have, whether individually or by or in the right of the Company, against any Director on account of any action taken by such Director, or the failure of such Director to take any action in the performance of his duties with or for the Company; provided that such waiver shall not extend to any matter in respect of any actual fraud or wilful default which may attach to such Director.

 

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140.

No Indemnified Person shall be liable:

 

(a)

for the acts, receipts, neglects, defaults or omissions of any other Director or Officer or agent of the Company; or

 

(b)

for any loss on account of defect of title to any property of the Company; or

 

(c)

on account of the insufficiency of any security in or upon which any money of the Company shall be invested; or

 

(d)

for any loss incurred through any bank, broker or other similar Person; or

 

(e)

for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgement or oversight on such Indemnified Person’s part; or

 

(f)

for any loss, damage, liability or misfortune whatsoever which may happen in or arise from the execution or discharge of the duties, powers, authorities, or discretions of such Indemnified Person’s office or in relation thereto;

 

unless the same shall happen through such Indemnified Person’s own dishonesty, wilful default or fraud as determined by a court of competent jurisdiction.

 

141.

The Company shall advance to each Indemnified Person reasonable attorneys’ fees and other costs and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification pursuant to this Article. If it shall be determined by a final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses, then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the Company (without interest) by the Indemnified Person.

 

25

 

 

142.

The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director, alternate Director, Secretary, assistant Secretary or other Officer of the Company against any liability which, by virtue of any rule of law, would otherwise attach to such person in respect of any negligence, default, breach of duty or breach of trust of which such person may be guilty in relation to the Company.

 

143.

Neither any amendment nor repeal of these Articles set forth under this heading of “Indemnity” (the “Indemnification Articles”), nor the adoption of any provision of the Company’s Articles of Association inconsistent with the Indemnification Articles, shall eliminate or reduce the effect of the Indemnification Articles, in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for these Indemnification Articles, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.

 

NON-RECOGNITION OF TRUSTS

 

144.

Subject to the proviso hereto, no Person shall be recognised by the Company as holding any Share upon any trust and the Company shall not, unless required by law, be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any Share or (except only as otherwise provided by these Articles or as the Companies Act requires) any other right in respect of any Share except an absolute right to the entirety thereof in each Shareholder registered in the Register, provided that, notwithstanding the foregoing, the Company shall be entitled to recognise any such interests as shall be determined by the Directors.

 

WINDING UP

 

145.

If the Company shall be wound up the liquidator shall apply the assets of the Company in such manner and order as they think fit in satisfaction of creditors’ claims.

 

146.

If the Company shall be wound up, the liquidator may, with the sanction of an Ordinary Resolution divide amongst the Shareholders in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for such purpose set such value as they deem fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Shareholders or different Classes. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Shareholders as the liquidator, with the like sanction shall think fit, but so that no Shareholder shall be compelled to accept any assets whereon there is any liability.

 

AMENDMENT OF ARTICLES OF ASSOCIATION

 

147.

Subject to the Companies Act and the rights attaching to the various Classes, the Company may at any time and from time to time by Special Resolution alter or amend these Articles in whole or in part.

 

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CLOSING OF REGISTER OR FIXING RECORD DATE

 

148.

For the purpose of determining those Shareholders that are entitled to receive notice of, attend or vote at any meeting of Shareholders or any adjournment thereof, or those Shareholders that are entitled to receive payment of any dividend, or in order to make a determination as to who is a Shareholder for any other purpose, the Directors may provide that the Register shall be closed for transfers for a stated period which shall not exceed in any case 40 days. If the Register shall be so closed for the purpose of determining those Shareholders that are entitled to receive notice of, attend or vote at a meeting of Shareholders the Register shall be so closed for at least ten days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register.

 

149.

In lieu of or apart from closing the Register, the Directors may fix in advance a date as the record date for any such determination of those Shareholders that are entitled to receive notice of, attend or vote at a meeting of the Shareholders and for the purpose of determining those Shareholders that are entitled to receive payment of any dividend the Directors may, at or within 90 days prior to the date of declaration of such dividend, fix a subsequent date as the record date for such determination.

 

150.

If the Register is not so closed and no record date is fixed for the determination of those Shareholders entitled to receive notice of, attend or vote at a meeting of Shareholders or those Shareholders that are entitled to receive payment of a dividend, the date on which notice of the meeting is posted or the date on which the resolution of the Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of Shareholders. When a determination of those Shareholders that are entitled to receive notice of, attend or vote at a meeting of Shareholders has been made as provided in this Article, such determination shall apply to any adjournment thereof.

 

REGISTRATION BY WAY OF CONTINUATION

 

151.

The Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance of a resolution adopted pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company.

 

MERGERS AND CONSOLIDATION

 

152.

The Company may merge or consolidate in accordance with the Companies Act.

 

153.

To the extent required by the Companies Act, the Company may by Special Resolution resolve to merge or consolidate the Company.

 

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DISCLOSURE

 

154.

The Directors, or any authorised service providers (including the Officers, the Secretary and the registered office agent of the Company), shall be entitled to disclose to any regulatory or judicial authority, or to any stock exchange on which the Shares may from time to time be listed, any information regarding the affairs of the Company including, without limitation, information contained in the Register and books of the Company.

 

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Exhibit 10.1

 

AMENDED AND RESTATED ROLLOVER CONTRIBUTION AGREEMENT

 

THIS AMENDED AND RESTATED ROLLOVER CONTRIBUTION AGREEMENT (this “Agreement”) is made as of July 5, 2023, by and among Olympus Water Holdings I, L.P., a Cayman Islands exempted limited partnership, acting by its general partner, Topco GP (as defined below) (“Topco”), Solenis Holding Limited, a private limited company incorporated in England registered under company number 14910669, whose registered office is at 100 New Bridge Street, London, United Kingdom, EC4V 6JA (“Solenis UK”), and the investor listed on Schedule I attached hereto (“Investor”), and amends and restates in full that certain Rollover Contribution Agreement made as of March 8, 2023 (the “Original Rollover Agreement”), by and between Topco and Investor. Capitalized terms used in this Agreement, but not defined herein, shall have the meanings ascribed to such terms in that certain Agreement and Plan of Merger (as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”), dated as of March 8, 2023, by and among, Olympus Water Holdings IV, L.P., a Cayman Islands exempted limited partnership (“Parent”), Diamond Merger Limited, a Cayman Islands exempted company (“Merger Sub”) and Diversey Holdings, Ltd., a Cayman Islands exempted company (the “Company”). “Topco GP” means Olympus Water Holdings Limited, a Cayman Islands exempted company. Any references herein to a Cayman Islands exempted limited partnership taking any action, having any power or authority or owning, holding or dealing with any asset are to such partnership acting through its general partner.

 

WHEREAS, pursuant to Section 17 of the Original Rollover Agreement, it was agreed by Topco and Investor that, at such parties’ election, the Preferred Exchange (as defined below) may be structured as a direct contribution of Company Preferred Rollover Shares (as defined below) to a Subsidiary of Topco in exchange for equity interests in such Subsidiary;

 

WHEREAS, Topco and Investor have elected to structure the Preferred Exchange as a direct contribution of Company Preferred Rollover Shares to Solenis UK, an indirect wholly-owned subsidiary of Topco, in exchange for Solenis UK Preferred Shares (as defined below) (the “Preferred Election”);

 

WHEREAS, in connection with the Preferred Election and in accordance with Section 17 of the Original Rollover Agreement, the parties hereto desire to amend and restate the Original Rollover Agreement to implement the Preferred Election;

 

WHEREAS, as of the date hereof, Investor is the record and beneficial owner of 236,983,211 Company Shares;

 

WHEREAS, subject to the terms and conditions set forth in this Agreement, immediately prior to the Effective Time, (i) Investor shall contribute, transfer and assign to Topco all of its right, title and interest in the number of Company Shares set forth on Schedule I attached hereto opposite Investor’s name in the column titled “Company Common Rollover Shares” (such contributed Company Shares, the “Company Common Rollover Shares”, and such contribution, the “Investor Topco Common Contribution”), free and clear of all pledges, claims, liens, charges, options, rights of first refusal, encumbrances or security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”) (other than Liens under applicable securities laws) in exchange for the issuance by Topco to Investor of the number of common units of Topco (“Topco Common Units”) set forth on Schedule I attached hereto opposite Investor’s name in the column

 

 

 

 

titled “Subscribed Topco Common Units” (“Subscribed Topco Common Units”) at the per Subscribed Topco Common Unit agreed upon value set forth therein; and (ii) Investor shall contribute, transfer and assign to Solenis UK all of its right, title and interest in the number of Company Shares set forth on Schedule II attached hereto opposite Investor’s name in the column titled “Company Preferred Rollover Shares” (such contributed Company Shares, the “Company Preferred Rollover Shares”, and such contribution, the “Investor Solenis UK Preferred Contribution”), free and clear of all Liens (other than Liens under applicable securities laws) in exchange for the issuance by Solenis UK to Investor of non-voting, redeemable preferred shares of $1.00 each in the capital of Solenis UK (“Solenis UK Preferred Shares”) set forth on Schedule II attached hereto opposite Investor’s name in the column titled “Subscribed Solenis UK Preferred Shares” (“Subscribed Solenis UK Preferred Shares”) at the per Solenis UK Preferred Share purchase price set forth therein;

 

WHEREAS, concurrently with (i) the Investor Topco Common Contribution, Topco shall accept the Company Common Rollover Shares from Investor and, in exchange therefor and subject to the terms and conditions hereof, issue the Subscribed Topco Common Units to Investor (the “Common Exchange”), and (ii) the Investor Solenis UK Preferred Contribution (together with the Investor Topco Common Contribution, the “Investor Contribution”), Solenis UK shall accept the Company Preferred Rollover Shares (together with the Company Common Rollover Shares, the “Company Rollover Shares”) and, in exchange therefor and subject to the terms and conditions hereof, Solenis UK shall issue the Subscribed Solenis UK Preferred Shares (together with the Subscribed Topco Common Units, the “Subscribed Units & Shares”) to the Investor (the “Preferred Exchange” and together with the Common Exchange, the “Exchange”); and

 

WHEREAS, immediately before the closing of the Investor Contribution and Exchange (the “Contribution Closing”), (i) Investor shall execute and deliver to Topco a counterpart or joinder to the Second Amended and Restated Agreement of Exempted Limited Partnership of Topco, dated as of the date hereof in the form attached hereto as Exhibit A (the “Partnership Agreement”) and (ii) Solenis UK shall circulate a resolution (the “Special Resolution”) to its sole shareholder, Topco GP, in its capacity as general partner of Olympus Water Holdings III, L.P., which Topco shall procure is duly passed as a special resolution, pursuant to which Solenis UK shall adopt new Articles of Association in the form attached hereto as Exhibit B (the “New Articles of Association”) and (iii) Solenis UK and Investor shall execute and deliver a Restrictive Covenant Agreement in the form attached hereto as Exhibit C (the “Restrictive Covenant Agreement”).

 

NOW, THEREFORE, in consideration of the promises and mutual covenants contained in this Agreement, the parties hereby agree as follows:

 

1.            Investor Contribution and Sale. On and subject to the terms and conditions set forth herein, Investor, on the Closing Date, but immediately prior to the Effective Time, shall contribute, assign, transfer, convey and deliver to Topco and Solenis UK free and clear of any Lien (other than Liens under applicable securities laws), and Topco and Solenis UK shall accept and receive, Investor’s Company Common Rollover Shares and Company Preferred Shares, respectively, in exchange for the issuance by Topco and Solenis UK of the Subscribed Units & Shares, in the case of the Subscribed Solenis UK Preferred Shares, credited as fully paid, and in each case to be issued free and clear of any Liens, except as may exist by reason of this Agreement, under applicable securities laws, the Partnership Agreement or the New Articles of Association (as applicable) or any Liens created by Investor. The issuance by Topco and Solenis UK of the Subscribed Units &

 

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Shares to Investor hereunder is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) pursuant to Rule 506 of Regulation D and/or Section 4(a)(2) of the Securities Act.

 

2.            Contribution Closing. Subject to the satisfaction or waiver of the conditions set forth in Section 4, the Contribution Closing shall occur on the Closing Date immediately prior to the Effective Time. The Contribution Closing shall take place virtually, via the electronic exchange of documents and signature pages or at such other time or place as mutually agreed by the parties.

 

3.            Failure to Consummate the Closing. In the event that after the Contribution Closing, the Closing fails to occur for any reason whatsoever and the Merger Agreement is terminated, the parties hereto agree that concurrently with the termination of the Merger Agreement, (a) Topco shall assign, transfer, convey and deliver to Investor the Company Common Rollover Shares and Investor shall assign, transfer, convey and deliver to Topco the Subscribed Topco Common Units issued to Investor, and (b) Solenis UK shall assign, transfer, convey and deliver to Investor the Company Preferred Rollover Shares and Investor shall, subject to applicable law, transfer to Solenis UK the Subscribed Solenis UK Preferred Shares issued to Investor, and/or shall take any steps as may be reasonably necessary in connection with the transfer, cancellation or reduction of the Subscribed Solenis UK Preferred Shares as Solenis UK or Topco may reasonably require. In such event, each party shall provide all such cooperation as the other parties hereto may reasonably request in order to ensure that the foregoing has been made effective.

 

4.            Conditions to Closing. The consummation of the Investor Contribution and Exchange shall be subject to the satisfaction of the following conditions unless waived in writing by Topco and Investor: either (a) the conditions set forth in Article VII of the Merger Agreement (other than conditions that by their nature are to be satisfied at the Closing) shall have been satisfied or waived, or (b) a final, non-appealable and binding order or judgment awarding specific performance shall have been entered by a court of competent jurisdiction to cause Parent to consummate the Closing pursuant to Section 9.8(b) of the Merger Agreement.

 

5.            Deliveries at the Contribution Closing.

 

(a)           Deliveries by Topco. At the Contribution Closing, Topco shall:

 

(i)           issue the Subscribed Topco Common Units to Investor; and

 

(ii)          deliver to Investor a counterpart to the Partnership Agreement, duly executed by Topco.

 

(b)          Deliveries by Solenis UK. At the Contribution Closing, Solenis UK shall:

 

(i)           deliver to the Investor certified copies of: (A) the Special Resolution duly adopted by Topco GP, in its capacity as general partner of Olympus Water Holdings III, L.P., in its capacity as sole shareholder of Solenis UK and (B) a resolution adopted by the board of directors of Solenis UK authorizing the allotment and issue of the Subscribed Solenis UK Preferred to the Investor;

 

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(ii)          issue the Subscribed Solenis UK Preferred Shares to Investor, credited as fully paid and record the Investor as the holder of such shares in its register of members;

 

(iii)         deliver a duly executed share certificate in respect of the Subscribed Solenis UK Preferred Shares in favor of the Investor;

 

(iv)         file the New Articles of Association with Companies House; and

 

(v)          a duly executed counterpart copy of the Restrictive Covenant Agreement.

 

(c)           At or prior to the Contribution Closing, Investor shall deliver to Topco and/or Solenis UK:

 

(i)           a duly executed counterpart signature page or joinder to the Partnership Agreement;

 

(ii)          a duly executed counterpart copy of the Restrictive Covenant Agreement; and

 

(iii)         a properly completed and duly executed Internal Revenue Service Form W-9 or W-8 (and any required underlying documentation), as applicable, and such other documents as Topco or Solenis UK may reasonably request and as are required by applicable law to permit it to properly file information returns with the proper authorities and comply with its tax reporting, withholding, and payment obligations.

 

6.           Transfer Agent Instruction. At or prior to the Contribution Closing, Investor shall deliver or cause to be delivered to American Stock Transfer & Trust Company, LLC, in its capacity as the Company’s transfer agent, with a copy to Topco, an instruction in the form attached hereto as Exhibit D, to cancel the Company Common Rollover Shares and Company Preferred Rollover Shares in accordance thereith.

 

7.           Reserved.

 

8.           Representations and Warranties of Investor. Investor hereby represents and warrants to Topco and Solenis UK, as of the date of this Agreement and as of the Contribution Closing:

 

(a)           Organization. Investor is a partnership duly organized and validly existing under the Laws of Delaware and has all requisite business entity power and authority to carry on its business as presently conducted.

 

(b)          Authority. Investor has the requisite power and authority to execute and deliver this Agreement and the Partnership Agreement (or a joinder thereto) and to consummate the transactions contemplated hereby. The execution and delivery by Investor of this Agreement, the Partnership Agreement, the performance by Investor of its

 

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obligations hereunder and the consummation by Investor of the transactions contemplated hereby have been duly and validly authorized by all necessary limited partnership action on the part of Investor, and no limited partnership or other proceedings on the part of Investor or its general partner are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Investor and constitutes a valid, legal and binding agreement of Investor (assuming that this Agreement has been duly and validly authorized, executed and delivered by Topco and Solenis UK), enforceable against Investor in accordance with its terms, except (i) to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, receivership, moratorium or other Laws affecting the enforcement of creditors’ rights generally and (ii) that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding thereof may be brought.

 

(c)           No Conflicts. None of the execution, delivery or performance by Investor of this Agreement, nor the consummation by Investor of the transactions contemplated hereby, nor compliance by Investor with any of the provisions herein will (i) conflict with or result in any breach of any provision of the governing documents of Investor, (ii) require any consent of or other action by any Person, (iii) violate any Law or Permit applicable to Investor, or (iv) result in the creation of any Lien on the assets of Investor.

 

(d)           Governmental Authorization; Litigation. No Governmental Authorization is required on the part of Investor (i) in connection with the execution and delivery of this Agreement by Investor; or (ii) the consummation of the transactions contemplated hereby, except (A) the filing of the Plan of Merger and related documentation with the Registrar of Companies of the Cayman Islands pursuant to the CICA; (B) such filings and approvals as may be required by any federal or state securities Laws, including compliance with any applicable requirements of the Exchange Act; (C) compliance with any applicable requirements of the HSR Act and any other applicable Antitrust Laws and Foreign Investment Laws; (D) such other Governmental Authorizations the failure of which to obtain would prevent, delay, or adversely affect, in each case, in any material respect, Investor’s performance of any of its obligations under this Agreement or the consummation of the transactions contemplated hereby; or (E) as set forth on Schedule 8(d). There are no Legal Proceedings pending or, to Investor’s knowledge, threatened in writing against Investor at law or in equity before any Governmental Authority which would prevent, delay, or adversely affect, in each case, in any material respect, Investor’s performance of any of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

(e)           Investment Characteristics; Risk; Liquidity; Registration. Investor understands that (i) an investment in the Subscribed Units & Shares is a speculative investment that involves a high degree of risk, and that Investor may lose the entire amount of its investment, (ii) the Subscribed Units & Shares are illiquid, and Investor must, and can, bear the economic risk of an investment in the Subscribed Units & Shares for an indefinite period of time unless and until the Subscribed Units & Shares are subsequently registered under the Securities Act, an exemption from such registration is available or the Subscribed Topco Common Units are transferred in accordance with the Partnership

 

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Agreement or the Subscribed Solenis UK Preferred Shares are transferred in accordance with the New Articles of Association, (iii) there is no existing public or other market for the Subscribed Units & Shares, and there can be no assurance as to when, or whether, any such market will develop, or that Investor will be able to sell or dispose of the Subscribed Units & Shares, (iv) the Subscribed Units & Shares have not been registered under the Securities Act or under the securities laws of any other jurisdiction, and except as contemplated by the Partnership Agreement, Topco and Solenis UK are under no obligation to, and currently do not intend to, register or qualify the Subscribed Units & Shares for resale by Investor or assist Investor in complying with any exemption under the Securities Act or the securities laws of any other jurisdiction, (v) an offer or sale of the Subscribed Units & Shares by Investor in the absence of registration under the Securities Act will require the availability of an exemption thereunder, and (vi) a notation shall be made in the appropriate records of Topco and Solenis UK indicating that the Subscribed Units & Shares are subject to restrictions on transfer.

 

(f)           Additional Investment Representations and Covenants.

 

(i)           Investor is an “accredited investor” within the meaning of Securities and Exchange Commission Rule 501 of Regulation D of the Securities Act. No events described in Securities and Exchange Commission Rule 506(d)(1)(i)-(viii) of Regulation D of the Securities Act (each, a “Disqualifying Event”) have occurred with respect to Investor. Investor covenants and agrees to notify Topco and Solenis UK as soon as practicable in the event that a Disqualifying Event occurs or any other event occurs that would cause the representations set forth in this Section 8(f)(i) to be inaccurate.

 

(ii)          Investor’s financial situation is such that Investor has adequate means for providing for Investor’s needs and contingencies, and can afford to suffer a complete loss of Investor’s investment in the Subscribed Units & Shares.

 

(iii)         Investor’s knowledge and experience in financial and business matters are such that Investor is capable of evaluating the merits and risks of the investment in the Subscribed Units & Shares.

 

(iv)         Investor understands that after consummation of the Investor Contribution and the Closing, the consolidated total indebtedness of Topco and its Subsidiaries (including Solenis UK) may be significantly greater than the consolidated total funded debt of the Company prior to the Closing Date, and that Topco and Solenis UK have other financial commitments which may limit the return available to Investor on its investment.

 

(v)          Investor acknowledges and agrees that (A) Topco and Solenis UK have not provided any advice or recommendation in connection with the Investor Contribution, (B) Topco and Solenis UK are not making, and Investor hereby specifically disclaims, any representation, warranty or agreement regarding any pro forma financial information, budgets, estimates, projections, forecasts or other forward looking statements, business plans or any other matter (including the

 

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reasonableness of any assumptions underlying such estimates, projections, forecasts, forward-looking statements or business plans) with respect to Topco, Solenis UK and their respective Subsidiaries, or any of its or their respective businesses (collectively, “Information”), (C) except for the representations and warranties expressly set forth in Sections 9 and 10, neither Topco, Solenis UK, nor any other Person makes, or has made, any representation or warranty relating to Topco, Solenis UK, their respective Subsidiaries or any of their businesses, operations or otherwise in connection with this Agreement, (D) no Person has been authorized by Topco, Solenis UK, or any of their respective Subsidiaries or any of their respective Affiliates or Representatives to make any representation or warranty relating to Topco, Solenis UK, their respective Subsidiaries or any of their businesses or operations or otherwise in connection with this Agreement, and if made, such representation or warranty must not be relied upon by Investor or any of its Affiliates or Representatives as having been authorized by Topco, Solenis UK, any of their respective Subsidiaries or any of their respective Affiliates or Representatives (or any other Person), (E) Topco and Solenis UK will not have any responsibility, liability or obligation with respect to any representations, warranties or agreements made by any other Person under or in connection with the Investor Contribution or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any other Person) of any thereof (including, without limitation, any representations and warranties made by the Company in the Merger Agreement), (F) the representations and warranties made by Topco in Section 9 and by Solenis UK in Section 10 of this Agreement are in lieu of and are exclusive of all other representations and warranties, including any express or implied or as to merchantability or fitness for a particular purpose, with respect to Topco, Solenis UK and their respective Subsidiaries in connection with the Investor Contribution and (G) without limiting Topco or Solenis UK’s respective obligations under their governing documents, Topco and Solenis UK shall not have any liability or obligation (including, without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Investor or any other Person), whether in contract, tort or otherwise, to Investor, or to any Person claiming through Investor, in respect of the Investor Contribution.

 

(g)           Investment Purpose; No Resale or Distribution Intent. The Subscribed Units & Shares are being acquired solely for Investor’s own account and for investment only. Investor is not acquiring the Subscribed Units & Shares with a view to or for the resale, distribution, subdivision or fractionalization thereof and Investor does not have any plans to enter into any contract, undertaking, agreement or arrangement for any such purpose. Investor understands and agrees that Topco and Solenis UK shall not have any obligation to recognize the ownership, beneficial or otherwise, of the Subscribed Units & Shares by any Person other than Investor, except as set forth in the Partnership Agreement and New Articles of Association, as applicable, and that no Subscribed Units & Shares shall be transferable except upon the conditions set forth in the Partnership Agreement and New Articles of Association, as applicable.

 

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(h)          Investigation; Advice. Investor acknowledges that it has been provided with such information as it deems necessary to evaluate the merits and risks of investing in the Subscribed Units & Shares (including, without limitation, financial and other information regarding Topco and its Subsidiaries (including Solenis UK)) and has been afforded the opportunity to ask such questions as it deemed necessary of, and to receive answers from, representatives of Topco and Solenis UK concerning the merits and risks of investing in the Subscribed Units & Shares, and in making the decision to invest in Topco and Solenis UK, Investor has relied solely upon independent investigations made by Investor and the representations and warranties contained in the Merger Agreement and herein. Investor is not relying, and has not relied, on any Information or any other information, representations or warranties concerning Topco, Solenis UK, or any of their respective Subsidiaries (or any of their businesses, operations or otherwise) in connection with this Agreement and the transactions contemplated hereby (including the Investor Contribution) other than the representations and warranties expressly set forth in Section 9 and Section 10 of this Agreement. No representations or warranties, oral or otherwise, have been made to Investor or any party acting on Investor’s behalf that are inconsistent with the written materials which have been supplied to Investor by Topco or Solenis UK. Investor has consulted, to the extent deemed appropriate by Investor, with Investor’s own advisers as to the financial, tax, legal and related matters concerning an investment in the issued Subscribed Units & Shares and on that basis understands the financial, tax, legal and related consequences of an investment in the issued Subscribed Units & Shares. Without limiting the foregoing, Investor is not relying on Topco, Solenis UK, or any of their respective Affiliates for tax advice with respect to the tax consequences of, and related tax considerations involved in, an investment in the Subscribed Units & Shares. Neither Topco, Solenis UK, nor their respective Affiliates is guaranteeing or will have any liability to Investor in respect of the tax treatment of the transactions contemplated hereby. For the avoidance of doubt, nothing in this Section 8(h) shall limit the parties’ obligations under Section 18(b).

 

(i)           No Brokers’ or Finders’ Fees. Investor has not entered into any agreement to pay any brokers’ or finders’ fees to any person with respect to this Agreement or the purchase and sale of the Subscribed Units & Shares contemplated hereby.

 

(j)           Title to Company Rollover Shares. Investor (i) is the sole record and beneficial owner of the Maximum Company Rollover Shares, and will at the Investor Contribution be the sole record and owner of the Investor’s Company Rollover Shares, (ii) has sole voting power, power of disposition and power to issue instructions with respect to the Maximum Company Rollover Shares, and will at the Investor Contribution have sole voting power, power of disposition, and power to issue instructions with respect to the Company Rollover Shares, and (iii) has, and will have at the Investor Contribution good and valid title to Investor’s Company Rollover Shares, free and clear of any Liens (other than Liens arising under applicable securities laws). Upon delivery of the Company Rollover Shares by Investor as contemplated by Section 1, Investor will transfer (1) to Topco, good and valid title to Investor’s Company Common Rollover Shares free and clear of any Liens (other than Liens arising under applicable securities laws and Liens created by Topco) and (2) to Solenis UK, good and valid title to Investor’s Company Preferred

 

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Rollover Shares free and clear of any Liens (other than Liens arising under applicable securities laws and Liens created by Solenis UK).

 

(k)           No Certificates for Subscribed Common Units. Investor acknowledges and agrees that, as of the Contribution Closing: (i) the Subscribed Common Units are uncertificated and Investor is not entitled to any certificate representing the Subscribed Common Units issued upon the consummation of the Common Exchange, unless and to the extent Topco shall otherwise determine, and (ii) if at any time the “Topco GP” shall determine that the Subscribed Common Units should be certificated, such certificates will contain such legends as contemplated by the Partnership Agreement.

 

(l)           Taxes. Investor is treated as a partnership for United States federal and applicable state income tax purposes. To the knowledge of Investor, no Person who owns, directly or indirectly, equity interests in Investor is (A) a “United States shareholder” of the Company within the meaning of Section 951(b) of the Code and would be required to include Subpart F or GILTI income of the Company under Code Section 951 and 951A immediately after the date hereof or (B) will own 5% or more of both the total voting power and the total value of the stock of any Subsidiary of Topco immediately after the date hereof for purposes of Treasury Regulations § 1.367(a)-3(b)(1)(i).

 

9.            Representations and Warranties of Topco. Except as set forth in the disclosure schedules delivered by Topco to Investor on the date of the Original Agreement (the “Topco Disclosure Schedules”), Topco represents and warrants to Investor (i) with respect to the representations and warranties in Sections 9(b) (Authority), 9(c) (No Conflicts), 9(d) (Governmental Authorization; Litigation), 9(m) (No Brokers or Finders’ Fees) and 9(o) (Exclusivity of Representations and Warranties) as of the date of this Agreement and the Contribution Closing, and (ii) with respect to all other representations and warranties in this Section 9 solely as of the date of the Original Agreement and the Contribution Closing, as follows. For the avoidance doubt, Topco makes no representation or warranty regarding the Company or any or its Subsidiaries, and any representation and warranty made regarding any Subsidiary(ies) of Topco shall not be deemed to include the Company or any of its Subsidiaries.

 

(a)           Organization. Topco is an exempted limited partnership, duly registered and validly existing under the Laws of the Cayman Island, and has all requisite business entity power and authority to carry on its business as presently conducted and to own, lease or operate its properties. Topco is duly qualified to transact business and is in good standing in each jurisdiction in which the property and assets owned, leased or operated by it, or the nature of the business conducted by it, make such qualification necessary (with respect to jurisdictions that recognize the concept of good standing), except where the failure to be so qualified or in good standing has not had since the Prior Acquisition Date (as defined below), and would not reasonably be expected to have, individually or in the aggregate, a Topco Material Adverse Effect.

 

(b)          Authority. Topco has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery by Topco of this Agreement, the performance by Topco of its obligations hereunder and the consummation by Topco of the transactions contemplated

 

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hereby have been duly and validly authorized by all necessary limited partnership action on the part of Topco, and no other limited partnership or other proceedings on the part of Topco or the Topco GP are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Topco, and constitutes a valid, legal and binding agreement of Topco (assuming that this Agreement has been duly and validly authorized, executed and delivered by Investor and Solenis UK), enforceable against Topco in accordance with its terms, except (i) to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, receivership, moratorium or other Laws affecting the enforcement of creditors’ rights generally and (ii) that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding thereof may be brought.

 

(c)           No Conflicts. None of the execution, delivery or performance by Topco of this Agreement, nor the consummation by Topco of the transactions contemplated hereby, nor compliance by Topco with any of the provisions herein will (i) conflict with or result in any breach of any provision of the governing documents of Topco, (ii) require any consent of or other action by any Person, (iii) violate any Law or permit applicable to Topco or by which any of its respective properties or assets are bound, or (iv) result in the creation of any Lien on Topco’s assets.

 

(d)          Governmental Authorization; Litigation. No Governmental Authorization is required on the part of Topco (i) in connection with the execution and delivery of this Agreement by Topco; or (ii) the consummation of the transactions contemplated hereby, except (A) the filing of the Plan of Merger and related documentation with the Registrar of Companies of the Cayman Islands pursuant to the CICA; (B) such filings and approvals as may be required by any federal or state securities Laws, including compliance with any applicable requirements of the Exchange Act; (C) compliance with any applicable requirements of the HSR Act and any other applicable Antitrust Laws and Foreign Investment Laws; (D) such other Governmental Authorizations the failure of which to obtain would not reasonably be expected to have, individually or in the aggregate, a Topco Material Adverse Effect or prevent, hinder, modify, delay or challenge the transactions contemplated by this Agreement; or (E) as set forth on Schedule 9(d) of the Topco Disclosure Schedules. There are no Legal Proceedings (and for the avoidance of doubt, other than any Transaction Litigation brought after the date of the Original Agreement), pending or, to Topco’s knowledge, threatened in writing, against Topco at law or in equity before any Governmental Authority which would reasonably be expected to prevent, hinder, modify, delay or challenge the transactions contemplated by this Agreement.

 

(e)           Issuance of and Title to the Subscribed Topco Common Units. Upon issuance, the Subscribed Topco Common Units will be duly authorized and validly issued to Investor. Upon issuance of the Subscribed Topco Common Units to Investor, Investor will acquire good and valid title to such Subscribed Topco Common Units, free and clear of any Lien except as may exist by reason of this Agreement, applicable securities laws, the Partnership Agreement or any Liens created by Investor. Other than the Existing Partnership Agreement or as contemplated by this Agreement (including the Partnership Agreement), Topco is not a party to any Contract relating to the voting of, requiring

 

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registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or other similar rights with respect to any equity securities of Topco.

 

(f)           Capitalization. Schedule 9(f)(i) of the Topco Disclosure Schedules sets forth, as of the date of the Original Agreement, the number of issued and outstanding equity securities of Topco. All such securities are owned by Platinum and current and former employees of the Partnership and its Subsidiaries. As of the date of the Original Agreement, the number of and type of securities owned by each of (i) Platinum, (ii) current employees and (iii) former employees, in each case, in the aggregate, is set forth on Schedule 9(f)(i) of the Topco Disclosure Schedules. Immediately following the Contribution Closing, the capitalization of Topco shall be as set forth in the Partnership Agreement and the schedules, exhibits and unit ledger attached thereto. The rights, privileges and preferences of all of the Topco Units are as stated in the Existing Partnership Agreement and, as of the Contribution Closing will be as stated in the Partnership Agreement. Except as contemplated by this Agreement and as set forth on Schedule 9(f)(ii) of the Topco Disclosure Schedules, Topco has not issued nor agreed to issue, and there are no outstanding (A) equity or other securities of Topco, (B) securities of Topco convertible into or exchangeable for equity or other securities of Topco, (C) options, warrant, call, subscription or other rights (including any preemptive right), agreement or commitment to acquire from Topco, or obligations of Topco to issue, sell or transfer, or repurchase, redeem or otherwise acquire any equity or other securities or securities convertible into or exchangeable for equity securities of Topco, (D) voting trusts, proxies or similar arrangements or understandings to which Topco is a party or by which Topco is bound with respect to the voting of any units of, or other equity or voting interest in, Topco, (E) stock or equity appreciation, phantom stock or equity, profit participation, interest in the ownership or earnings of Topco or other equity equivalent or equity-based award or right or (F) bond, debenture or other Indebtedness of Topco having the right to vote or convertible or exchangeable for securities having the right to vote. There are no accrued and unpaid dividends with respect to any outstanding equity securities of Topco.

 

(g)          Topco Financial Statements.

 

(i)           Topco has provided to Investor true, correct and complete copies of the audited financial statements consisting of the balance sheet of Olympus Water Holdings IV, L.P. (“Olympus Water Holdings IV”) as at September 30, 2022 and the related consolidated statements of operations, comprehensive income (loss), partner’s equity and of cash flows for the year then ended (the “Audited Financial Statements”).

 

(ii)          The Audited Financial Statements (i) fairly present, in all material respects, the consolidated financial position of Olympus Water Holdings IV as of the date thereof and its consolidated results of operations, partners’ equity and cash flows for the periods then ended in accordance with GAAP applied on a consistent basis during the period involved, except as may be indicated in the notes thereto, and (ii) were derived from the books and records of Olympus Water Holdings IV, which books and records (A) are accurate, complete and correct, (B) represent actual, bona fide transactions, and (C) have been prepared and maintained in

 

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accordance with sound business and accounting practices, including the maintenance of adequate internal accounting control, in each case of clauses (A), (B) and (C) in all material respects.

 

(h)          No Undisclosed Liabilities. Neither Topco nor any of its Subsidiaries has any liabilities whether or not accrued, contingent, absolute, determined, determinable or otherwise, and whether or not required to be reflected or reserved against on a balance sheet prepared in accordance with GAAP other than liabilities (a) to the extent reflected or otherwise reserved against in the Audited Financial Statements; (b) arising pursuant to this Agreement or the Merger Agreement or incurred in connection with the Merger; (c) incurred in the ordinary course of business since the date of the Audited Financial Statements (none of which relate to breach of Contract, breach of warranty, tort, infringement or violation of or liability or obligation under applicable Law that individually, or in the aggregate, would be material to Topco and its Subsidiaries, taken as a whole), (d) for Taxes, or (e) that have not had, and would not reasonably be expected to have, a Topco Material Adverse Effect.

 

(i)           Tax Matters. Since the Prior Acquisition Date, except as would not reasonably be expected to have, individually or in the aggregate, a Topco Material Adverse Effect or as set forth on Schedule 9(i) of the Topco Disclosure Schedules, (i) Topco and each of its Subsidiaries have (A) filed all material Tax Returns required to be filed by any of them and all such Tax Returns are true, accurate and complete in all material respects, (B) paid in full all material Taxes that are required to be paid by them, (ii) no audits or other investigations, proceedings, claims, demands, actions, suits inquiries, assessments, or examinations by any Taxing Authority with respect to Taxes or any Tax Return of Topco or any of its Subsidiaries have been threatened or proposed in writing which audit is not finally resolved, and (iii) neither Topco nor any of its Subsidiaries has engaged in a “listed transaction” as set forth in Treasury Regulation section 1.6011-4(b)(2).

 

(j)           Compliance with Laws.

 

(i)           Topco and each of its Subsidiaries is, and at all times since November 9, 2021 (the “Prior Acquisition Date”) has been, in compliance with all Laws that are applicable to Topco its Subsidiaries or by which any of their properties or assets are bound or effected, except for such noncompliance that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Topco Material Adverse Effect.

 

(ii)          Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Topco Material Adverse Effect, as of the date of the Original Agreement (A) Topco and its Subsidiaries have all Permits necessary for the lawful conduct of their respective businesses as presently conducted (the “Material Permits”), (B)  each Material Permit is in full force and effect; and (C) Topco and its Subsidiaries are, and since Prior Acquisition Date have been, in compliance with the terms of all Material Permits.

 

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(iii)         Topco makes no representations or warranties in this Section 9(j) with respect to Tax matters, which representations and warranties with respect to Tax matters are exclusively addressed in Section 9(i).

 

(iv)         Without limiting the foregoing, neither Topco nor its Affiliates are relying on Investor or any of its Affiliates for tax advice with respect to the tax consequences of, and related tax considerations involved in, an issuance of the Subscribed Units & Shares. Investor is not guaranteeing and will not have any liability to Topco or its Affiliates in respect of the tax treatment of the transactions contemplated hereby. For the avoidance of doubt, nothing in this Section 9(j)(iv) shall limit the parties’ obligation under Section 18(b).

 

(k)           Legal Proceedings; Orders.

 

(i)          No Legal Proceedings. Since the Prior Acquisition Date and through the date of the Original Agreement (and for the avoidance of doubt, other than any Transaction Litigation brought after the date of the Original Agreement), except as has not had, and would not reasonably be expect to have, individually or in the aggregate, a Topco Material Adverse Effect, there have not been and there are not currently any Legal Proceedings pending or, to the Knowledge of Topco, threatened in writing against Topco or any of its Subsidiaries or any present or former director or officer of Topco or any of its Subsidiaries in such individual’s capacity as such.

 

(ii)          No Orders. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Topco Material Adverse Effect, neither Topco nor any of its Subsidiaries is subject to any order, judgment, injunction, rule, decree or award of any kind or nature that would prevent or delay the consummation of the transactions contemplated hereunder or the ability of Topco to fully perform its covenants and obligations pursuant to this Agreement.

 

(l)           Related Persons Transactions. Except for compensation (including incentive equity arrangements) or other employment arrangements in the ordinary course of business and as set forth on Schedule 9(l) of the Topco Disclosure Schedules, there are no Contracts, transactions, arrangements or understandings between Topco or any of its Subsidiaries, on the one hand, and any Affiliate (including any director or officer) thereof, but not including any direct or indirect wholly-owned Subsidiary of the Topco, on the other hand.

 

(m)          No Brokers’ or Finders’ Fees. Other than as set forth on Schedule 9(m) of the Topco Disclosure Schedules, Topco has not entered into any agreement to pay any brokers’ or finders’ fees to any person with respect to this Agreement or the purchase and sale of the Subscribed Units & Shares contemplated hereby.

 

(n)           R&W Insurance. Topco is an Insured (as defined in the applicable RWI Policies) pursuant to each of the buyer-side representations and warranties insurance policies identified on Schedule 9(n) of the Topco Disclosure Schedules (collectively, the

 

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“RWI Policies”). All applicable premiums and fees required to be paid pursuant to the RWI Policies have been paid in full and all other conditions to the issuance of each RWI Policy were satisfied in full. Neither Topco nor any of its Affiliates has received notice of, nor to Topco’s knowledge is there threatened, any cancellation, termination or reduction of coverage with respect to any of the RWI Policies.

 

(o)           Exclusivity of Representations and Warranties.

 

(i)           Notwithstanding the delivery or disclosure to Investor or any of its Affiliates or Representatives of any documentation or other information (including any financial projections or other supplemental data), except as otherwise expressly set forth in Section 9 of this Agreement, Topco expressly disclaims any representations or warranties of any kind or nature whatsoever, express or implied, including as to the condition, value, quality or prospects of its or its Subsidiaries’ businesses or assets (and that of the Company and its Subsidiaries), and Topco specifically disclaims any representation or warranty of merchantability, usage, suitability or fitness for any particular purpose with respect to its or its Subsidiaries’ assets (or that of the Company or its Subsidiaries), any part thereof, the workmanship thereof, and the absence of any defects therein, whether latent or patent, it being understood that except as otherwise expressly set forth in Section 9 of this Agreement, such subject assets are being acquired “as is, where is” on the Closing Date, and in their present condition, and Investor shall rely solely on its own examination and investigation thereof and on the representations and warranties expressly set forth in Section 9 of this Agreement.

 

(ii)          Topco, on behalf of itself and its Subsidiaries, acknowledges and agrees that, except for the representations and warranties expressly set forth in Section 8: (A) neither Investor nor any other Person makes, or has made, any representation or warranty relating to Investor in connection with this Agreement; (B) no Person has been authorized by Investor, any of its Subsidiaries or any of its or its respective Affiliates or Representatives to make any representation or warranty relating to Investor in connection with this Agreement, and if made, such representation or warranty must not be relied upon by Topco or any of their respective Affiliates or Representatives as having been authorized by Investor or any of its Affiliates or Representatives (or any other Person); and (C) the representations and warranties made by Investor in this Agreement are in lieu of and are exclusive of all other representations and warranties and Topco hereby disclaims any other or implied representations or warranties.

 

(iii)         Topco, on behalf of itself and its Subsidiaries, acknowledges and agrees that, except for the representations and warranties expressly set forth in Section 8, in Article III of the Merger Agreement, and in Section 9(g) of the Tax Indemnity Agreement, it is not acting (including, as applicable, by entering into this Agreement or consummating the Merger) in reliance on and has not relied on: (A) any representation or warranty, express or implied; (B) any estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information provided or addressed to Topco or any of its respective

 

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Affiliates or Representatives; or (C) the accuracy or completeness of any other representation, warranty, estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information.

 

10.           Representations and Warranties of Solenis UK. Solenis UK hereby represents and warrants to Investor as of the date of this Agreement and the Contribution Closing, as follows. For the avoidance doubt, Solenis UK makes no representation or warranty regarding the Company or any or its Subsidiaries, and any representation and warranty made regarding any Subsidiary(ies) of Solenis UK shall not be deemed to include the Company or any of its Subsidiaries.

 

(a)           Organization. Solenis UK is a private limited company incorporated in England and has all requisite business entity power and authority to carry on its business as presently conducted and to own, lease or operate its properties. Solenis UK is duly qualified to transact business and is in good standing in each jurisdiction in which the property and assets owned, leased or operated by it, or the nature of the business conducted by it, make such qualification necessary (with respect to jurisdictions that recognize the concept of good standing), except where the failure to be so qualified or in good standing has not had and would not reasonably be expected to have, individually or in the aggregate, a Topco Material Adverse Effect.

 

(b)          Authority. Solenis UK has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery by Solenis UK of this Agreement, the performance by Solenis UK of its obligations hereunder and the consummation by Solenis UK of the transactions contemplated hereby have been duly and validly authorized by all necessary board of director action on the part of Solenis UK, and no other proceedings on the part of Solenis UK are necessary to authorize this Agreement or to consummate the transactions contemplated hereby (other than approval by the board of directors of Solenis UK and its shareholder of the adoption of the New Articles of Association and approval by the board of directors of Solenis UK of the issuance of the Solenis UK Preferred Shares to Investor, which Solenis UK undertakes to procure that such approvals shall occur prior to the Contribution Closing). This Agreement has been duly and validly executed and delivered by Solenis UK, and constitutes a valid, legal and binding agreement of Solenis UK (assuming that this Agreement has been duly and validly authorized, executed and delivered by Investor and Topco), enforceable against Solenis UK in accordance with its terms, except (i) to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, receivership, moratorium or other Laws affecting the enforcement of creditors’ rights generally and (ii) that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding thereof may be brought.

 

(c)           No Conflicts. None of the execution, delivery or performance by Solenis UK of this Agreement, nor the consummation by Solenis UK of the transactions contemplated hereby, nor compliance by Solenis UK with any of the provisions herein will (i) conflict with or result in any breach of any provision of the constitutional documents of Solenis UK, (ii) require any consent of or other action by any Person, except as specified in this Agreement, (iii) violate any Law or permit applicable to Solenis UK or by which

 

 

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any of its respective properties or assets are bound, or (iv) result in the creation of any Lien on Solenis UK’s assets.

 

(d)           Governmental Authorization; Litigation. No Governmental Authorization is required on the part of Solenis UK (i) in connection with the execution and delivery of this Agreement by Solenis UK; or (ii) the consummation of the transactions contemplated hereby, except (A) the filing of the New Articles of Association with Companies House; (B) such filings and approvals as may be required by any federal or state securities Laws, including compliance with any applicable requirements of the Exchange Act; (C) compliance with any applicable requirements of the HSR Act and any other applicable Antitrust Laws and Foreign Investment Laws; or (D) such other Governmental Authorizations the failure of which to obtain would not reasonably be expected to have, individually or in the aggregate, a Topco Material Adverse Effect or prevent, hinder, modify, delay or challenge the transactions contemplated by this Agreement. There are no Legal Proceedings (and for the avoidance of doubt, other than any Transaction Litigation brought after the date of the Original Agreement), pending or, to Solenis UK’s knowledge, threatened in writing, against Solenis UK at law or in equity before any Governmental Authority which would reasonably be expected to prevent, hinder, modify, delay or challenge the transactions contemplated by this Agreement.

 

(e)           Issuance of and Title to the Subscribed Solenis UK Preferred Shares. Upon issuance, the Subscribed Solenis UK Preferred Shares will be validly allotted and issued to Investor, credited as fully paid. Upon issuance of the Subscribed Solenis UK Preferred Shares to Investor, Investor will acquire good and valid title to such Subscribed Solenis UK Preferred Shares, free and clear of any Lien except as may exist by reason of this Agreement and applicable securities laws, the New Articles of Association or any Liens created by Investor. Other than as contemplated by this Agreement and in Solenis UK’s governing documents, Solenis UK is not a party to any Contract relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or other similar rights with respect to any equity securities of Solenis UK.

 

(f)           Capitalization. As of the date of this Agreement, all issued and outstanding equity securities of Solenis UK are owned by Olympus Water Holdings III, L.P. As of the Contribution Closing, all of the ordinary shares of Solenis UK will be owned by Olympus Water Holdings III, L.P. and all of the Solenis UK Preferred Shares will be owned by Investor. Except as contemplated by this Agreement and with respect to the ordinary shares owned by Olympus Water Holdings III, L.P., Solenis UK has not issued nor agreed to issue, and there are no outstanding (A) equity or other securities of Solenis UK, (B) securities of Solenis UK convertible into or exchangeable for equity or other securities of Solenis UK, (C) options, warrant, call, subscription or other rights (including any preemptive right), agreement or commitment to acquire from Solenis UK, or obligations of Solenis UK to issue, sell or transfer, or repurchase, redeem or otherwise acquire any equity or other securities or securities convertible into or exchangeable for equity securities of Solenis UK, (D) voting trusts, proxies or similar arrangements or understandings to which Solenis UK is a party or by which Solenis UK is bound with respect to the voting of any units of, or other equity or voting interest in, Solenis UK, (E) stock or equity appreciation, phantom stock or equity, profit participation, interest in the ownership or

 

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earnings of Solenis UK or other equity equivalent or equity-based award or right or (F) bond, debenture or other Indebtedness of Solenis UK having the right to vote or convertible or exchangeable for securities having the right to vote. There are no accrued and unpaid dividends with respect to any outstanding equity securities of Solenis UK.

 

(g)          No Prior Activities. Except for obligations incurred in connection with its organization and the transactions contemplated hereby, Solenis UK has neither incurred any obligation or liability nor engaged in any business or activity of any type or kind whatsoever or entered into any agreement or arrangement with any Person.

 

(h)          No Brokers’ or Finders’ Fees. Solenis UK has not entered into any agreement to pay any brokers’ or finders’ fees to any person with respect to this Agreement or the purchase and sale of the Solenis UK Preferred Shares contemplated hereby.

 

(i)           Exclusivity of Representations and Warranties.

 

(i)           Notwithstanding the delivery or disclosure to Investor or any of its Affiliates or Representatives of any documentation or other information (including any financial projections or other supplemental data), except as otherwise expressly set forth in Section 10 of this Agreement, Solenis UK expressly disclaims any representations or warranties of any kind or nature whatsoever, express or implied, including as to the condition, value, quality or prospects of its or its Subsidiaries’ businesses or assets (and that of the Company and its Subsidiaries), and Solenis UK specifically disclaims any representation or warranty of merchantability, usage, suitability or fitness for any particular purpose with respect to its or its Subsidiaries’ assets (or that of the Company or its Subsidiaries), any part thereof, the workmanship thereof, and the absence of any defects therein, whether latent or patent, it being understood that except as otherwise expressly set forth in Section 10 of this Agreement, such subject assets are being acquired “as is, where is” on the Closing Date, and in their present condition, and Investor shall rely solely on its own examination and investigation thereof and on the representations and warranties expressly set forth in Section 10 of this Agreement.

 

(ii)          Solenis UK, on behalf of itself and its Subsidiaries, acknowledges and agrees that, except for the representations and warranties expressly set forth in Section 8: (A) neither Investor nor any other Person makes, or has made, any representation or warranty relating to Investor in connection with this Agreement; (B) no Person has been authorized by Investor, any of its Subsidiaries or any of its or its respective Affiliates or Representatives to make any representation or warranty relating to Investor in connection with this Agreement, and if made, such representation or warranty must not be relied upon by Solenis UK or any of their respective Affiliates or Representatives as having been authorized by Investor or any of its Affiliates or Representatives (or any other Person); and (C) the representations and warranties made by Investor in this Agreement are in lieu of and are exclusive of all other representations and warranties and Topco hereby disclaims any other or implied representations or warranties.

 

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(iii)         Solenis UK, on behalf of itself and its Subsidiaries, acknowledges and agrees that, except for the representations and warranties expressly set forth in Section 8, in Article III of the Merger Agreement, and in Section 9(g) of the Tax Indemnity Agreement, it is not acting (including, as applicable, by entering into this Agreement or consummating the Merger) in reliance on and has not relied on: (A) any representation or warranty, express or implied; (B) any estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information provided or addressed to Topco or any of its respective Affiliates or Representatives; or (C) the accuracy or completeness of any other representation, warranty, estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information.

 

11.          Transferability. Investor has not, and hereby covenants and agrees not to, prior to the Exchange (a) transfer or assign this Agreement or any of Investor’s interest in this Agreement (or the right to receive the Subscribed Units & Shares or any interest therein), (b) sell, transfer, pledge, encumber or otherwise dispose of any Maximum Company Rollover Shares, any interests therein, or enter into any other agreement to do the foregoing (except any agreement Topco and Solenis UK reasonably request that Investor execute in connection herewith) or (c) other than pursuant to the Voting Agreement, grant any proxies, deposit any Company Shares into a voting trust or enter into any other voting agreement with respect to the Maximum Company Rollover Shares.

 

12.          Preferred Increase Option.

 

(a)           In connection with financing the transactions contemplated by the Merger Agreement, Parent intends to obtain common equity financing from third parties through a customary equity co-investment (the “Co-Investment”). To the extent the amount of the Co-Investment as of the Closing, as determined by Topco (acting reasonably), is reasonably expected to be less than $450,000,000 (the “Funding Target”), then Topco, at its election, and in its sole discretion, shall have the right (the “Preferred Increase Option”), upon written notice (the “Preferred Option Notice”) to Investor at least five Business Days prior to the Closing Date, to increase the number of Company Shares that must be contributed by Investor in the Preferred Exchange, subject to the following:

 

(i)           Any increase in the number of Company Shares that must be contributed by Investor in the Preferred Exchange shall be accompanied by a corresponding increase in the number of Solenis UK Preferred Shares to be issued by Solenis UK to Investor in the Preferred Exchange (to be issued to Investor upon the same terms and conditions otherwise set forth herein; provided, however, for the avoidance of doubt, any Additional Solenis UK Preferred Shares shall be issued at a price per Solenis UK Preferred Shares of $1,000 per share).

 

(ii)          For purposes of determining the number of additional Company Shares that Topco can elect to have Investor contribute in the Preferred Exchange pursuant to the Preferred Increase Option, Topco may only elect to cause Investor to receive from the Preferred Increase Option up to a number of additional Solenis UK Preferred Shares having an Aggregate Initial Stated Value that is equal to the

 

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difference between the Funding Target and the amount of the Co-Investment reasonably expected to be raised as of the Closing, as determined by Topco (acting reasonably) (the “Additional Solenis UK Preferred Shares”); provided that, in no event shall the Additional Solenis UK Preferred Shares exceed 100,000 (or $100,000,000 in Aggregate Initial Stated Value) (the “Preferred Increase Option Max”).

 

(iii)         The Preferred Option Notice shall identify (A) the additional number of Company Shares to be contributed by the Investor in the Preferred Exchange, and (B) the number of Additional Solenis UK Preferred Shares to be received by Investor in the Preferred Exchange.

 

(b)           In the event that Topco exercises the Preferred Increase Option, Schedule II of this Agreement shall automatically be amended (without any further action by Investor or Solenis UK) to give effect to Topco’s exercise of the Preferred Increase Option, including by updating (a) the column therein titled Subscribed Solenis UK Preferred Shares to be the sum of (i) 437,750 plus (ii) the number of Additional Solenis UK Preferred Shares set forth in the Preferred Option Notice, subject to the Preferred Increase Option Max (as updated subject to the terms herein, the “Updated Subscribed Solenis UK Preferred Shares”); and (b) the column therein titled “Company Preferred Rollover Shares” to be the sum of (i) the number of Company Preferred Rollover Shares set forth on Schedule II as of the date of this Agreement, plus (ii) a number of Company Shares equal to (A) the number of Additional Solenis UK Preferred Shares set forth in the Preferred Option Notice, multiplied by $1,000.00, divided by (B) the Bain Per Share Price.

 

(c)           For the avoidance of doubt, if Topco exercises the Preferred Increase Option, then all references in this Agreement (unless the context otherwise requires) to the “Company Preferred Rollover Shares,” “Company Rollover Shares,” “Subscribed Solenis UK Preferred Units,” and “Subscribed Units” shall be deemed to reflect the number of Company Preferred Rollover Shares and Subscribed Solenis UK Preferred Units contemplated by Section 12 (b).

 

13.          No Survival or Representations and Warranties; Survival of Covenants. Each representation and warranty contained in this Agreement shall expire as of, and shall not survive, the consummation of the Exchange and none of Investor, Topco, Solenis UK, or any of their respective affiliates, representatives, stockholders, partners or members shall have any liability whatsoever (whether based on contract, tort or any other theory of law) with respect to any such representation or warranty following the Exchange, except to the extent arising from Fraud. All covenants of each of the parties to this Agreement shall survive the consummation of the Exchange and the consummation of the Closing pursuant to the Merger Agreement.

 

14.          Merger Agreement. The parties hereto acknowledge and agree that neither party nor any of its officers, directors, employees, agents, representatives or affiliates will have any liability or obligation to the other party solely in such capacity resulting from or arising out of any termination of the Merger Agreement or any failure to complete the Merger or any breach of the Merger Agreement by any party thereto.

 

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15.          Disclosure. Investor hereby (a) consents to and authorizes the publication and disclosure by Topco, Solenis UK, Parent, Merger Sub and the Company (including in the Proxy Statement and Schedule 13e-3 or any other publicly filed document relating to the Merger or the transactions contemplated by the Merger Agreement) of (i) Investor’s identity, (ii) Investor’s beneficial ownership of the Company Rollover Shares (including the number of Company Rollover Shares beneficially owned by Investor), and (iii) the nature of Investor’s commitments, arrangements and understandings under this Agreement, and any other information that Topco, Solenis UK, Parent, Merger Sub or the Company reasonably determines to be required in any publicly filed document in connection with the Merger or otherwise with respect to the transactions contemplated by the Merger Agreement (provided that Topco and Solenis UK will provide, or cause to be provided, to Investor a draft of any document containing such disclosure a reasonable time prior to the publication, disclosure or filing thereof and will consider in good faith any comments provided by Investor or its counsel), and (b) agrees to notify Topco, Solenis UK, Parent, Merger Sub and the Company of any required corrections with respect to any written information supplied by Investor specifically for use in any such disclosure document as promptly as practicable following Investor’s knowledge of the necessity of any such required correction. During the term of this Agreement, Investor agrees that it will consult with Topco and Solenis UK before issuing any press releases or otherwise making any public statements with respect to the transactions contemplated herein, except as may be required in connection with the Merger in any Form 4, Schedule 13D, Schedule 13G (including any amendments to the foregoing forms and schedules) or other disclosure required by the SEC or other Governmental Authority to be made by Investor in connection with the Merger, provided that to the extent reasonably possible, Investor shall deliver to Topco and Solenis UK a copy of each such Form 4, Schedule 13D, Schedule 13G (including any amendments to the foregoing forms and schedules) or other disclosure so required prior to filing the same.

 

16.          Further Assurances; Other Agreements.

 

(a)           Investor hereby acknowledges and agrees that, in exchange for the contribution of the Company Rollover Shares, Investor is entitled to receive the Subscribed Units & Shares, subject to the terms and conditions described herein. The issuance of the Subscribed Units & Shares to Investor in accordance with this Agreement will completely discharge any obligations of Topco, Solenis UK, and their respective Affiliates to pay the Merger Consideration otherwise owed with respect to the Company Rollover Shares, other than obligations under the Partnership Agreement and New Articles of Association, as applicable.

 

(b)           Investor hereby covenants that, from time to time after the delivery of this Agreement, upon reasonable request from Topco or Solenis UK, Investor will do, execute, acknowledge and deliver, or will cause to be done, executed, acknowledged and delivered such further acts, conveyances, transfers, assignments, powers of attorney and assurances reasonably necessary to effect Topco or Solenis UK’s receipt of Company Rollover Shares in accordance with Section 1 hereof. Topco and Solenis UK hereby covenant that, from time to time after the delivery of this Agreement, upon reasonable request from Investor, Topco and Solenis UK, as applicable, will do, execute, acknowledge and deliver, or will cause to be done, executed, acknowledged and delivered such further acts, conveyances, transfers, assignments, powers of attorney and assurances reasonably necessary to convey,

 

20

 

 

transfer to and vest in Investor, and to put Investor in possession of, any of Subscribed Units & Shares in accordance with Section 1 hereof.

 

17.          Reserved.

 

18.          Certain Tax Matters.

 

(a)           The parties hereto intend for U.S. federal and applicable state and local income tax reporting purposes that:

 

(i)           the Common Exchange be governed by Section 721(a) of the Code;

 

(ii)          the Solenis UK Preferred Shares received by the Investor in the Preferred Exchange be treated as “nonqualified preferred stock” as defined in Section 351(g) of the Code and the receipt by the Investor of such Solenis UK Preferred Shares in the Preferred Exchange be treated as a taxable transaction for the Investor for U.S. federal income tax purposes; and

 

(iii)         the contribution of Company Common Rollover Shares by Topco directly or indirectly to a Subsidiary of Topco that is classified as a corporation for United States federal income tax purposes (including as a result of an election to treat an entity as a corporation for United States federal income tax purposes) be treated as (x) a direct contribution of such Company Common Rollover Shares by the Investor (and solely by the Investor) to such Subsidiary of Topco that is classified as a corporation for United States federal income tax purposes for purposes of Temp. Treas. Reg. § 1.367(a)-1T(c)(3)(i)(A) and Treas. Reg. §§ 1.367(b)-2(k), and (y) an exchange described in Section 351 of the Code in which no gain or loss is recognized (other than with respect to any “5 percent shareholder” of such Subsidiary (within the meaning of United States Treasury Regulation Section 1.367(a)-3(c)(5)(ii))) that does not file a “gain recognition agreement” as described in Treas. Reg. § 1.367(a)-8)) (clauses (i), (ii), and (iii), collectively, the “Intended Tax Treatment”).

 

               (b)           The parties will prepare and file all Tax Returns consistent with the Intended Tax Treatment and will not take any inconsistent position on any Tax Return, or in connection with any Tax audit or examination, except as otherwise required by a determination within the meaning of Section 1313(a) of the Code (or any similar or corresponding provision of state or local Law with respect to state or local Law) or other binding settlement on audit, unless otherwise required by a change in law. Each party shall use commercially reasonable efforts to promptly notify the other parties in writing if such party receives written notice from a Taxing Authority to the effect that one or more of the transactions referenced in the Intended Tax Treatment may not qualify for its respective part of the Intended Tax Treatment.

 

               (c)            The Investor shall cooperate with Topco by providing information requested by Topco (including information relating to direct or indirect investors of Investor) in determining the tax treatment of a transfer of interests in Subsidiaries of Topco to a corporation (or deemed transfer as a result of an election to treat an entity as a

 

21

 

 

corporation for United States federal income tax purposes), including a corporation organized under the laws of a jurisdiction outside of the United States, provided that the Investor’s obligation referenced herein shall be limited to readily available information in the case of any such request that is not made in connection with an audit or examination by any Tax authority or in connection with any other Tax proceeding.

 

19.          Termination. This Agreement shall terminate automatically and shall be of no further force and effect in the event the Merger Agreement is validly terminated in accordance with Article VIII thereof; provided that (i) the parties hereto shall give effect to the provisions of Section 3 hereof, and (ii) the parties hereto shall continue to have liability for breaches of this Agreement occurring prior to the termination of this Agreement.

 

20.          Miscellaneous.

 

(a)        All notices and other communications hereunder must be in writing and will be deemed to have been duly delivered and received hereunder (i) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service; (ii) immediately upon delivery by hand or (iii) by e-mail transmission, upon written or electronic confirmation of receipt, in each case to the intended recipient as set forth below:

 

If to Investor, then to the address set forth beneath Investor’s name on Schedule I attached hereto, with a copy (which shall not constitute notice) to:

 

BCPE Diamond Investor, LP

c/o Bain Capital Private Equity, L.P.

200 Clarendon Street

Boston, MA 02116
Attention: Ken Hanau, Ajay Kumar, Bryan Curran
Email: [***]

 

with a copy (which shall not constitute notice) to:

 

Kirkland & Ellis LLP

601 Lexington Avenue 

New York, NY 10022

Attn: Sarkis Jebejian, P.C., Christopher M. Thomas, P.C., Andrew Struckmeyer

Email: [***]

 

If to Topco or Solenis UK, then to:

c/o Platinum Equity Advisors, LLC
360 North Crescent Drive, South Building
Beverly Hills, CA 90210

 

22

 

 

Attn: John Holland, General Counsel
E-mail: [***]

 

with a copy (which shall not constitute notice) to:

 

c/o Solenis LLC
2475 Pinnacle Drive
Wilmington, DE 19803
Attn:  Royce Warrick; Mark M. Dugan
E-mail: [***]

 

and

 

Gibson, Dunn & Crutcher LLP
2029 Century Park East Suite 4000
Los Angeles, CA 90067-3026
Attn: Ari B. Lanin
E-mail: [***]

 

and

 

Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Attn: Evan M. D’Amico
E-mail: [***]

 

Any notice received by e-mail or otherwise at the addressee’s location on any Business Day after 5:00 p.m., addressee’s local time, or on any day that is not a Business Day will be deemed to have been received at 9:00 a.m., addressee’s local time, on the next Business Day. From time to time, any party may provide notice to the other party of a change in its address or e-mail address through a notice given in accordance with this Section ‎20(a), except that that notice of any change to the address or any of the other details specified in or pursuant to this Section ‎20(a) will not be deemed to have been received until, and will be deemed to have been received upon, the later of the date (A) specified in such notice; or (B) that is two (2) Business Days after such notice would otherwise be deemed to have been received pursuant to this Section ‎20(a).

 

(b)          This Agreement and all actions, proceedings or counterclaims (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of Investor, Topco, or Solenis UK in the negotiation, administration, performance and enforcement thereof, shall be governed by, and construed in accordance with the Laws of the State of Delaware, including its statute of limitations, without giving effect to any choice or conflict of Laws (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

 

23

 

 

(c)           Each of the parties hereto (a) irrevocably consents to the service of the summons and complaint and any other process (whether inside or outside the territorial jurisdiction of the Chosen Courts) in any Legal Proceeding relating to the Agreement, for and on behalf of itself or any of its properties or assets, in accordance with Section ‎20 or in such other manner as may be permitted by applicable Law, and nothing in this Section ‎20 will affect the right of any party hereto to serve legal process in any other manner permitted by applicable Law; (b) irrevocably and unconditionally consents and submits itself and its properties and assets in any Legal Proceeding to the exclusive general jurisdiction of the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) (the “Chosen Courts”) in the event that any dispute or controversy arises out of this Agreement or the transactions contemplated hereby; (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (d) agrees that any Legal Proceeding arising in connection with this Agreement, or the transactions contemplated hereby shall be brought, tried and determined only in the Chosen Courts; (e) waives any objection that it may now or hereafter have to the venue of any such Legal Proceeding in the Chosen Courts or that such Legal Proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and (f) agrees that it shall not bring any Legal Proceeding relating to this Agreement or the transactions contemplated hereby in any court other than the Chosen Courts. Each of Investor, Topco and Solenis UK agrees that a final judgment in any Legal Proceeding in the Chosen Courts will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.

 

(d)           EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING (WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (iii) IT MAKES THIS WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

(e)           This Agreement (together with the Exhibits and Schedules hereto) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Except as contemplated by Section 12, no

 

24

 

 

amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by each of the parties hereto.

 

(f)           Whenever required by the context hereof, the singular shall include the plural, and vice versa. When used in this Agreement, references to “$” or “Dollars” are references to U.S. dollars.

 

(g)           For purposes of this Agreement:

 

(i)           “Aggregate Initial Stated Value” means the product of (A) the number of Solenis UK Preferred Units, and (B) $1,000.

 

(ii)          “Existing Partnership Agreement” means that certain Amended and Restated Agreement of Exempted Limited Partnership of Topco dated November 5, 2021 .

 

(iii)         “Fraud” means actual and intentional fraud by a Person with respect to the making of the representations and warranties in this Agreement, provided that at the time such representation or warranty was made (a) such representation or warranty was materially inaccurate, (b) such Person had actual knowledge (and not imputed or constructive knowledge), without any duty of inquiry or investigation, of the material inaccuracy of such representation or warranty, and (c) the other requirements for common law fraud under Delaware Law are satisfied. For the avoidance of doubt, “Fraud” shall not include any claim for equitable fraud, promissory fraud, unfair dealings fraud or any torts (including a claim for fraud) based on negligence or recklessness.

 

(iv)         “Permits” means any license, ordinance, authorization, permit, certificate, right, easement, variance, exemption, consent, registration, franchise or approval from any Governmental Authority.

 

(v)          a “Topco Material Adverse Effect” means any Effect that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the business, assets, liabilities, financial condition or results of operations of Topco and its Subsidiaries, taken as a whole; provided, however, that none of the following, and no Effects to the extent arising out of or resulting from the following (in each case, by itself or when aggregated) will be deemed to be or constitute a Topco Material Adverse Effect or will be taken into account when determining whether a Topco Material Adverse Effect has occurred or may, would or could occur (subject to the limitations set forth below): (A) changes in general economic conditions, or changes in conditions in the global, international or regional economy generally; (B) changes in conditions in the financial markets, credit markets, or capital markets, including (x) changes in interest rates or credit ratings; (y) changes in exchange rates for the currencies of any country; or (z) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-

 

25

 

 

 

 

counter market; (C) changes in conditions in the industries in which Topco and its Subsidiaries conduct business, including, changes in conditions in the hygiene, infection prevention or cleaning solutions industries generally; (D) changes in regulatory, legislative or political conditions, including any anti-dumping actions, trade policies or disputes, trade wars, tariffs or similar actions; (E) any geopolitical conditions, outbreak of hostilities, acts of war (whether or not declared), sabotage, rebellion or insurrection, acts of espionage, nuclear incidents, cyberterrorism (including by means of cyber-attack by or sponsored by a Governmental Authority), terrorism or military actions (including, in each case of clauses (E) and (G), any escalation or general worsening of any such events or occurrences); (F) the geopolitical dispute between the Russian Federation and Ukraine and any evolution or worsening thereof; (G) earthquakes, volcanic activity, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural or man-made disasters, weather conditions, and other force majeure events; (H) epidemics, pandemics or disease outbreaks (including COVID-19) or worsening thereof, or applicable Laws adopted in response thereto, including any COVID-19 Measures; (I) the execution and delivery of this Agreement, the Merger Agreement and other Transaction Documents or the public announcement of any of the foregoing, including, in each case of clauses (I), (J) and (N), the impact thereof on the relationships, contractual or otherwise, of Topco and its Subsidiaries with employees, suppliers, lessors, customers, partners, vendors, regulators, Governmental Authorities, or any other third Person; provided, however, that this clause (I) shall not apply to any representation or warranty contained in this Agreement to the extent that such representation and warranty expressly relates to such Effect; (J) the taking of any action specifically required by, or the failure to take any action specifically prohibited by, this Agreement, the Merger Agreement or other Transaction Documents or any action taken or refrained from being taken, in each case to which the Company or Investor has expressly approved, consented to or requested in writing; (K) changes in GAAP or other accounting standards or in any Laws (or the enforcement or interpretation of any of the foregoing); (L) a change in the price of Topco Common Units, in and of itself (it being understood that the underlying cause of such change may be taken into consideration when determining whether a Topco Material Adverse Effect has occurred), (M) any failure, in and of itself, by Topco and its Subsidiaries to meet (x) any public estimates or expectations of the Topco’s revenue, earnings or other financial performance or results of operations for any period; or (y) any internal budgets, plans, projections or forecasts of its revenues, earnings or other financial performance or results of operations (it being understood that the underlying cause of any such failure, in and of themselves, may be taken into consideration when determining whether a Topco Material Adverse Effect has occurred unless such underlying cause is otherwise excluded hereby); (N) the identity of, or any facts or circumstances relating to, the Company, Investor or any Affiliates of any of the foregoing; (O) any Transaction Litigation; and (P) any breach by the Company of the Merger Agreement or Investor of this Agreement or any action taken by the Company, Investor or any of their Affiliates,

 

except, in each case of clauses (A), (B), (C), (D), (E), (F), (G), (H) and (K), to the extent that such Effect has had a disproportionate adverse effect on Topco and its

 

26

 

 

Subsidiaries, taken as a whole, relative to other companies of a similar size operating in the industries in which Topco and its Subsidiaries conduct business, in which case only the incremental disproportionate adverse impact may be taken into account in determining whether a Topco Material Adverse Effect has occurred (and then only to the extent such incremental disproportionate adverse effect is not excluded by the other exceptions in this definition);

 

(vi)            “knowledge,” with respect to Investor, means the actual knowledge of Ken Hanau, Robert Farkas and Ajay Kumar; and

 

(vii)           “knowledge,” with respect to Topco, means the actual knowledge of Royce Warrick and David Nocek.

 

(viii)          “Maximum Company Rollover Shares” means 145,725,672 Company Shares, representing the sum of (i) the Company Common Rollover Shares set forth on Schedule I as of the date of this Agreement, plus (ii) the Company Preferred Rollover Shares set forth on Schedule II as of the date of this Agreement, plus (iii) the Maximum Upsize Company Preferred Rollover Shares.

 

(ix)             “Maximum Upsize Company Preferred Rollover Shares” means 12,755,102 Company Shares, representing the maximum number of additional Company Shares that Topco can elect to have Investor contribute and assign to Solenis UK in the Investor Solenis UK Preferred Contribution pursuant to Section 12.

 

(x)              “Platinum” means Platinum Equity Advisors, LLC and/or its Affiliates.

 

(xi)            “Tax Indemnity Agreement” means that certain Tax Indemnity Agreement, dated as March 8, 2023, entered into by and among Parent, Merger Sub, the Company, Diversey Holdings I (UK) Limited, a private limited company organized in England and Wales and a wholly owned Subsidiary of the Company, Topco, those shareholders of the Company set forth on the signature page hereto and BCPE Diamond Cayman Holding Limited, a Cayman Islands exempted corporation.

 

(h)            This Agreement and any amendments hereto may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. Any such counterpart, to the extent delivered by fax or .pdf, .tif, ..gif, .jpg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”), will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto may raise the use of an Electronic Delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of an Electronic Delivery, as a defense to the

 

27

 

 

formation of a contract, and each party hereto forever waives any such defense, except to the extent such defense relates to lack of authenticity.

 

(i)            Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement; provided, that, the parties expressly agree that the Company shall be, and is intended to be, a third party beneficiary of the covenants and agreements of the parties set forth in this Agreement, which covenants and agreements shall not be amended, modified or waived in any manner which would, individually or in the aggregate, prevent or materially impair or delay, or would reasonably be expected to prevent or materially impair or delay, the Closing on the terms contemplated by the Merger Agreement without the written consent of the Company (which consent shall have been approved by the Special Committee). For the avoidance of doubt, the parties shall be permitted (and Company consent shall not be required) to amend, restate or otherwise modify this Agreement to amend Schedule II pursuant to Section 12(b) of this Agreement, in each case so long as such amendment, restatement or other modification of this Agreement would not, individually or in the aggregate, prevent or materially impair or delay, or would not reasonably be expected to prevent or materially impair or delay, the Closing on the terms contemplated by the Merger Agreement.

 

(j)            No party to this Agreement may assign either this Agreement or any of its rights, interests, or obligations hereunder, by operation of Law or otherwise, without the prior written approval of the other parties hereto.

 

(k)           Each of Topco, Solenis UK and Investor agree that the remedies at law for a breach of this Agreement would be inadequate and that Topco, Solenis UK, or Investor, as applicable, shall be entitled to specific performance and injunctive relief to enforce this Agreement and prevent any violation hereof (and shall have all other rights and remedies at law or equity as may be available). Each of Investor, Topco, and Solenis UK hereby waive any objection to the imposition of such relief and remedies.

 

(l)            Each of Topco, Solenis UK, and Investor acknowledges that each party to this Agreement has been represented by legal counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.

 

[Remainder of page intentionally left blank]

 

28

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above-written.

 

	TOPCO:
	Olympus Water Holdings I, L.P.
	By: Olympus Water Holdings Limited, its general partner
	By:	/s/ Mary Ann Sigler
	Name:	Mary Ann Sigler
	Its:	Director
	SOLENIS UK:
	Solenis Holding Limited
	By:	/s/ Mary Ann Sigler
	Name:	Mary Ann Sigler
	Its:	Director
	INVESTOR:
	BCPE Diamond Investor, LP

 

 

	By: BCPE Diamond GP, LLC
	Its: General Partner
	By: Bain Capital Fund XI, L.P.
	Its: Managing Member
	By: Bain Capital Partners XI, L.P.
	Its: General Partner
	By: Bain Capital Investors, LLC
	Its: General Partner

 

 

	By:	/s/ Kenneth Hanau
	Name:	Kenneth Hanau
	Its:	Partner

 

 

 

SCHEDULE I

 

INVESTOR TOPCO COMMON CONTRIBUTION

 

Investor		Company Common Rollover Shares				Subscribed Topco Common Units				Agreed Upon Value Per Subscribed Topco Common Units
BCPE Diamond Investor, LP 200 Clarendon Street Boston, MA 02116			78,761,387				30,761,913			$	20.07

 

 

 

SCHEDULE II

 

INVESTOR PREFERRED CONTRIBUTION

 

Investor		Company Preferred Rollover Shares				Subscribed Solenis UK Preferred Shares				Per Subscribed Solenis UK Preferred Share Purchase Price
BCPE Diamond Investor, LP   200 Clarendon Street Boston, MA 02116			54,209,184	1			437,750	2		$	970.87	3

 

 

¹ Subject to adjustment pursuant to the terms of Section 12 of this Agreement.

² Subject to adjustment pursuant to the terms of Section 12 of this Agreement.

³ Subject to adjustment pursuant to the terms of Section 12 of this Agreement.

 

 

 

Exhibit 99.1

 

 

 

News Release

 

	July 5, 2023
	FOR IMMEDIATE RELEASE

 

Solenis Completes Acquisition of Diversey for $4.6 Billion

 

Deal combines two industry leaders in adjacent but highly complementary markets

 

WILMINGTON, Del. (USA) — Solenis, a leading manufacturer of specialty chemicals used in water-intensive industries, has completed its previously announced acquisition of Diversey Holdings, Ltd., effective July 5, in an all-cash transaction valued at an enterprise value of approximately $4.6 billion. Diversey is a leading provider of hygiene, infection prevention and cleaning products and technology.

 

With the acquisition, Solenis has grown to an enterprise operating in over 130 countries with 71 manufacturing facilities and more than 15,000 employees. Headquartered in Wilmington, Delaware, Solenis was acquired by Platinum Equity in 2021. Bain Capital, the majority shareholder of Diversey, will hold a minority stake in Solenis as a result of this transaction.

 

“This merger makes Solenis a more diversified company with significantly increased scale, broader global reach and the ability to offer a ‘one-stop shop’ suite of solutions that meet customer demand and address water management, cleaning and hygiene issues on a global basis,” said John Panichella, CEO, Solenis. “Together, we have a foundation from which we can continue to leverage our strong customer partnerships, leading-edge innovation and value-added services to propel Solenis’ aggressive growth trajectory. With continued support from Platinum Equity, we are confident that we will maximize the promising opportunities ahead.”

 

Panichella stated that the addition of the Diversey line of cleaning and hygiene products and technologies helps create cross-selling opportunities that will make Solenis an even more valuable partner for its customers. “We now have greatly enhanced capabilities to help our customers tackle critical sustainability challenges, reduce their environmental impact and help create a cleaner, safer world,” he said.

 

"This is a transformational opportunity to bring together two innovative companies that have each been developing solutions for many of the world’s most pressing challenges for more than 100 years,” said Platinum Equity Co-President Jacob Kotzubei. “By joining forces, they're better positioned to accelerate the pace of progress across a wider range of high-growth end markets.”

 

“We are excited to create a larger, more expansive platform that will enable Solenis with even more opportunities to grow both organically and through additional acquisitions in core and adjacent markets going forward,” added Platinum Equity Managing Director Nathan Eldridge.

 

 

 

 

 

Advisors

 

BofA Securities, Goldman Sachs and Piper Sandler served as financial advisors to Solenis on the transaction. Gibson, Dunn & Crutcher LLP provided legal counsel and Willkie Farr & Gallagher LLP provided debt financing counsel to Platinum Equity and Solenis. BofA Securities and Goldman Sachs led the debt financing for the acquisition.

 

###

 

About Solenis

 

Solenis is a leading global producer of specialty chemicals focused on delivering sustainable solutions for water-intensive industries, including consumer, industrial, institutional, food and beverage, and pool and spa water markets. Owned by Platinum Equity, the company’s product portfolio includes a broad array of water treatment chemistries, process aids, functional additives, and cleaners and disinfectants, as well as state-of-the-art monitoring and control systems. These technologies are used by customers to improve operational efficiencies, enhance product quality, protect plant assets, minimize environmental impact and create cleaner and safer environments. Headquartered in Wilmington, Delaware, the company has 71 manufacturing facilities strategically located around the globe and employs a team of over 15,000 professionals in 130 countries across six continents. Solenis is a 2023 US Best Managed Company.

 

For additional information about Solenis, please visit www.Solenis.com or follow us on social media.

 

About Platinum Equity

 

Founded in 1995 by Tom Gores, Platinum Equity is a global investment firm with approximately $36 billion of assets under management and a portfolio of approximately 50 operating companies that serve customers around the world. Platinum Equity specializes in mergers, acquisitions and operations — a trademarked strategy it calls M&A&O® — acquiring and operating companies in a broad range of business markets, including manufacturing, distribution, transportation and logistics, equipment rental, metals services, media and entertainment, technology, telecommunications and other industries. Over the past 27 years Platinum Equity has completed more than 350 acquisitions.

 

FOR FURTHER INFORMATION:

 

Solenis

Catherine Abernathy

[phone]

[e-mail]

 

Platinum Equity

Dan Whelan

[phone]

[e-mail]

 

 

Cover	Jul. 05, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jul. 05, 2023
Current Fiscal Year End Date	--12-31
Entity File Number	001-40293
Entity Registrant Name	Diversey Holdings, Ltd.
Entity Central Index Key	0001831617
Entity Tax Identification Number	00-0000000
Entity Incorporation, State or Country Code	E9
Entity Address, Address Line One	1300 Altura Road, Suite 125
Entity Address, City or Town	Fort Mill,
Entity Address, State or Province	SC
Entity Address, Postal Zip Code	29708
City Area Code	803
Local Phone Number	746-2200
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Ordinary Shares, $0.0001 par value
Trading Symbol	DSEY
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false

---