0001104659-15-049324.txt : 20150701 0001104659-15-049324.hdr.sgml : 20150701 20150701165956 ACCESSION NUMBER: 0001104659-15-049324 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20150701 DATE AS OF CHANGE: 20150701 GROUP MEMBERS: CVC EUROPEAN EQUITY IV (AB) LTD GROUP MEMBERS: CVC EUROPEAN EQUITY IV (CDE) LTD GROUP MEMBERS: CVC EUROPEAN EQUITY PARTNERS IV (A) L.P. GROUP MEMBERS: CVC EUROPEAN EQUITY PARTNERS IV (B) L.P. GROUP MEMBERS: CVC EUROPEAN EQUITY PARTNERS IV (C) L.P. GROUP MEMBERS: CVC EUROPEAN EQUITY PARTNERS IV (D) L.P GROUP MEMBERS: CVC EUROPEAN EQUITY PARTNERS IV (E) L.P. GROUP MEMBERS: CVC EUROPEAN EQUITY PARTNERS TANDEM FUND (A) L.P GROUP MEMBERS: CVC EUROPEAN EQUITY PARTNERS TANDEM FUND (B) L.P. GROUP MEMBERS: CVC EUROPEAN EQUITY PARTNERS TANDEM FUND (C) L.P. GROUP MEMBERS: CVC EUROPEAN EQUITY TANDEM GP LTD GROUP MEMBERS: ULYSSES FINANCE S.A R.L. GROUP MEMBERS: ULYSSES LUXEMBOURG S.A R.L. GROUP MEMBERS: ULYSSES PARTICIPATION S.A R.L. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Univar Inc. CENTRAL INDEX KEY: 0001494319 STANDARD INDUSTRIAL CLASSIFICATION: PREFABRICATED WOOD BLDGS & COMPONENTS [2452] IRS NUMBER: 261251958 STATE OF INCORPORATION: DE FISCAL YEAR END: 1210 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-88904 FILM NUMBER: 15965872 BUSINESS ADDRESS: STREET 1: 3075 HIGHLAND PARKWAY STREET 2: SUITE 200 CITY: DOWNERS GROVE STATE: IL ZIP: 60515 BUSINESS PHONE: 331-777-6000 MAIL ADDRESS: STREET 1: 3075 HIGHLAND PARKWAY STREET 2: SUITE 200 CITY: DOWNERS GROVE STATE: IL ZIP: 60515 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: UNIVAR NV CENTRAL INDEX KEY: 0001295756 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: SCHOUWBURGPLEIN 30-34 STREET 2: 3012 CL CITY: ROTTERDAM STATE: P7 ZIP: 00000 BUSINESS PHONE: 31102757840 MAIL ADDRESS: STREET 1: SCHOUWBURGPLEIN 30-34 STREET 2: 3012 CL CITY: ROTTERDAM STATE: P7 ZIP: 00000 SC 13D 1 a15-15033_1sc13d.htm SC 13D

 

 

UNITED STATES

 

 

SECURITIES AND EXCHANGE COMMISSION

 

 

Washington, D.C. 20549

 

 

 

 

 

SCHEDULE 13D

 

 

Under the Securities Exchange Act of 1934
(Amendment No.     )*

 

UNIVAR INC.

(Name of Issuer)

 

Common Stock

(Title of Class of Securities)

 

91336L107

(CUSIP Number)

 

Univar N.V.

Attn: Henk Schop

Schouwburgplein 30-34

3012 CL

Rotterdam, The Netherlands

+31 10 275 78 40

 

With a copy to:

 

Sean P. Griffiths, Esq.

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, New York 10166

(212) 351-3872

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

June 23, 2015

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
Univar N.V.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
The Netherlands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
CO

 

2



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
Ulysses Finance S.a r.l.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Luxembourg

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
CO; HC

 

3



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
Ulysses Luxembourg S.a r.l.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Luxembourg

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
CO; HC

 

4



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
Ulysses Participation S.a r.l.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Luxembourg

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
CO; HC

 

5



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
CVC European Equity IV (AB) Limited

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Jersey

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

6



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
CVC European Equity IV (CDE) Limited

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Jersey

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

7



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
CVC European Equity Tandem GP Limited

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Jersey

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

8



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
CVC European Equity Partners IV (A) L.P.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Cayman Islands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

9



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
CVC European Equity Partners IV (B) L.P.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Cayman Islands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

10



 

CUSIP No.   91336L107

 

 

1

Name of Reporting Persons
CVC European Equity Partners IV (C) L.P.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Cayman Islands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

11



 

CUSIP No. 91336L107

 

 

1

Name of Reporting Persons
CVC European Equity Partners IV (D) L.P.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Cayman Islands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

12



 

CUSIP No. 91336L107

 

 

1

Name of Reporting Persons
CVC European Equity Partners IV (E) L.P.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Cayman Islands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares   o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

13



 

CUSIP No. 91336L107

 

 

1

Name of Reporting Persons
CVC European Equity Partners Tandem Fund (A) L.P.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Cayman Islands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares    o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

14



 

CUSIP No. 91336L107

 

 

1

Name of Reporting Persons
CVC European Equity Partners Tandem Fund (B) L.P.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Cayman Islands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares    o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

15



 

CUSIP No. 91336L107

 

 

1

Name of Reporting Persons
CVC European Equity Partners Tandem Fund (C) L.P.

 

 

2

Check the Appropriate Box if a Member of a Group

 

 

(a)

 o

 

 

(b)

 x

 

 

3

SEC Use Only

 

 

4

Source of Funds
Not applicable

 

 

5

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Cayman Islands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
0

 

8

Shared Voting Power
28,813,213

 

9

Sole Dispositive Power
0

 

10

Shared Dispositive Power
28,813,213

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,813,213

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares    o

 

 

13

Percent of Class Represented by Amount in Row (11)
20.9%

 

 

14

Type of Reporting Person
PN; HC

 

16



 

Item 1.         Security and Issuer

 

This Statement on Schedule 13D (this “Schedule 13D”) relates to the shares of common stock, par value $0.01 (the “Common Stock”), of Univar Inc., a Delaware corporation (the “Issuer”). The Issuer’s principal executive offices are located at 3075 Highland Parkway, Suite 200, Downers Grove, IL 60515.

 

Item 2.         Identity and Background

 

(a)                                 This Schedule 13D is being filed pursuant to Rule 13d-1(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), by:

 

(1)                                 Univar N.V.

(2)                                 Ulysses Finance S.a r.l. (“Ulyssess Finance”)

(3)                                 Ulysses Luxembourg S.a r.l. (“Ulyssess Luxembourg”)

(4)                                 Ulysses Participation S.a r.l. (“Ulyssess Participation”)

(5)                                 CVC European Equity Partners IV (A) L.P. (“Fund IV A”)

(6)                                 CVC European Equity Partners IV (B) L.P. (“Fund IV B”)

(7)                                 CVC European Equity Partners IV (C) L.P. (“Fund IV C”)

(8)                                 CVC European Equity Partners IV (D) L.P. (“Fund IV D”)

(9)                                 CVC European Equity Partners IV (E) L.P. (“Fund IV E”)

(10)                          CVC European Equity Partners Tandem Fund (A) L.P. (“Tandem A”)

(11)                          CVC European Equity Partners Tandem Fund (B) L.P. (“Tandem B”)

(12)                          CVC European Equity Partners Tandem Fund (C) L.P. (“Tandem C”)

(13)                          CVC European Equity IV (AB) Limited (“General Partner AB”)

(14)                          CVC European Equity IV (CDE) Limited (“General Partner CDE”)

(15)                          CVC European Equity Tandem GP Limited (“General Partner Tandem” and, together with General Partner AB and General Partner CDE, the “General Partners”)

(together, the “Reporting Persons”)

 

Univar N.V. directly owns shares of the Issuer.  Ulysses Finance and Ulysses Luxembourg collectively own indirectly all of the equity interests of Univar N.V.  Ulysses Participation owns a majority of the equity interests of each of Ulysses Luxembourg and Ulysses Finance.

 

Fund IV A, Fund IV B, Fund IV C, Fund IV D, Fund IV E, Tandem A, Tandem B and Tandem C (the “Fund Partnerships”) collectively own all of the equity interests of Ulysses Participation.

 

General Partner AB is the general partner of Fund IV A and Fund IV B.

General Partner CDE is the general partner of Fund IV C, Fund IV D and Fund IV E.

General Partner Tandem is the general partner of Tandem A, Tandem B and Tandem C.

 

(b)                                 The address of the principal office of Univar N.V. is Schouwburgplein 30-34, 3012 CL, Rotterdam, The Netherlands.  The address of the principal offices of Ulysses Finance, Ulysses Luxembourg and Ulysses Participation is 20, avenue Monterey, Luxembourg L-2163, Luxembourg.  The address of the principal offices of General Partner AB, General Partner CDE, General Partner Tandem, Fund IV A, Fund IV B, Fund IV C, Fund IV D, Fund IV E, Tandem A, Tandem B and Tandem C is Lime Grove House, Green Street, St. Helier, Jersey, JE1 2ST, Channel Islands.

 

(c)                                  The principal business of the Fund Partnerships is to generate significant long-term capital appreciation primarily by investing in equity or equity-related investments in management buyouts, buyins, acquisitions, recapitalisations, growth equity investments and related transactions.  The principal business of the General Partners is advising the Fund Partnerships.  Univar N.V., Ulysses Finance, Ulysses Luxembourg and Ulysses Participation are passive holding companies and conduct no operations.

 

(d)                                 During the last five years, none of the Reporting Persons or, to the best knowledge of the Reporting Persons, any of the other persons identified in this Item 2, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

 

17



 

(e)                                  During the last five years, none of the Reporting Persons or, to the best knowledge of the Reporting Persons, any of the other persons identified in this Item 2, has been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding were or are subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

(f)                                   Univar N.V. is a naamloze vennootschap organized under the laws of The Netherlands. Each of Ulysses Finance, Ulysses Luxembourg and Ulysses Participation is a societe a responsabilite limitee organized under the laws of Luxembourg. Each of General Partner AB, General Partner CDE and General Partner Tandem is a private company organized under the laws of Jersey. Each of Fund IV A, Fund IV B, Fund IV C, Fund IV D, Fund IV E, Tandem A, Tandem B and Tandem C is an exempted limited partnership organized under the laws of the Cayman Islands.

 

To the knowledge of the Reporting Persons, the name, business address, citizenship, and principal occupation or employment of each director and officer of each of the Reporting Persons, and any other information concerning the Reporting Persons and other persons and entities as to which such information is required to be disclosed in response to General Instruction C to Schedule 13D are set forth in Annex A to this Statement and incorporated herein by this reference.  The Fund Partnerships are managed by their respective General Partners and have no separate directors or executive officers.

 

Item 3.         Source and Amount of Funds or Other Consideration

 

The information set forth in Items 4, 5 and 6 hereof is hereby incorporated by reference into this Item 3.

 

In October 2007, Ulysses Finance S.a r.l. and Ulysses Luxembourg S.a r.l. (the “Ulysses Acquirers”) acquired indirectly 100% of Univar N.V. for cash consideration of approximately $1.2 billion.  The source of the cash consideration was contributions from the Fund Partnerships and other owners of the Ulyssess Acquirers.  In November 2010, the Univar N.V. business was contributed to the Issuer in exchange for shares of the Issuer’s common stock, which shares were subsequently exchanged for 52,304,481 shares of Common Stock as a result of a reverse stock split.  After the closing of Univar N.V.’s sales of Common Stock in the Initial Public Offering (as defined in Item 4) and the Temasek Stock Purchase (as defined in Item 4), Univar N.V. retained ownership of 28,813,213 shares of Common Stock.

 

The Reporting Persons did not acquire shares of Common Stock with any of the funds received by the Reporting Persons from the Initial Public Offering or the Temasek Stock Purchase (each as defined in Item 4 hereof).

 

Item 4.         Purpose of Transaction

 

The information set forth in Items 3 and 6 hereof is hereby incorporated by reference into this Item 4.

 

On June 23, 2015, the Issuer completed an initial public offering of 40,250,000 shares of Common Stock (the “Initial Public Offering”).  In the Initial Public Offering, the Issuer issued 20,000,000 new shares of Common Stock to the public and the Reporting Persons and certain other equity investors (collectively, the “IPO Selling Stockholders”) sold 20, 250,000 shares of Common Stock to the public.

 

In connection with the Initial Public Offering, the Issuer, Univar N.V. and Dahlia Investments Pte. Ltd. (the “Temasek Investor”) entered into a Stock Purchase Agreement, dated as of June 1, 2015, as amended by the First Amendment to the Stock Purchase Agreement, dated as of June 19, 2015 (the “Temasek Stock Purchase Agreement”).  Pursuant to the Temasek Stock Purchase Agreement, the Temasek Investor agreed to purchase $350 million worth of newly-issued Common Stock at a price per share equal to $21.00 per share less the underwriting discounts and commission (not to exceed 5.5% per share) in a private placement transaction that was expected to close concurrently with the Initial Public Offering.  In addition, pursuant to the Temasek Stock Purchase Agreement, the Temasek Investor agreed to purchase 5,000,000 shares of Common Stock from Univar N.V. and certain other equity investors at a price per share equal to $20.79 in a private placement transaction that closed concurrently with

 

18



 

the Initial Public Offering (both private placements together, the “Temasek Stock Purchase”).  The Temasek Stock Purchase Agreement contains customary representations and warranties and operating covenants and was subject to customary closing conditions.  The consummation of the Initial Public Offering was not conditioned upon the consummation of the Temasek Stock Purchase.  The consummation of the Temasek Stock Purchase was conditioned upon the consummation of the Initial Public Offering. None of the shares of Common Stock sold in the Temasek Stock Purchase were registered and sold in the Initial Public Offering.

 

The Temasek Stock Purchase closed on June 23, 2015, concurrently with the closing of the Initial Public Offering.  The Temasek Investor purchased 22,636,684 shares in the Temasek Stock Purchase, which represents approximately 16.4% of the outstanding Common Stock.  The description herein of the terms and conditions of the Temasek Stock Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Temasek Stock Purchase Agreement, included as Exhibits B and C, which is incorporated herein by reference.

 

Following the consummation of the Initial Public Offering and the Temasek Stock Purchase, the Reporting Persons beneficially own an aggregate of 28,813,213 shares of Common Stock. The shares of Common Stock beneficially owned by Reporting Persons represent, in the aggregate, approximately 20.9% of the outstanding Shares of Common Stock (as described more fully in Item 5 hereof).

 

The Reporting Persons have acquired beneficial ownership of the shares of Common Stock as described in this Schedule 13D for investment purposes.  Subject to the terms and conditions of the Stockholders Agreement, depending on various factors, including but not limited to the Issuer’s financial position and strategic direction, price levels of the Common Stock, conditions in the securities markets, and general economic and industry conditions, the Reporting Persons may in the future take actions with respect to the investment in the Issuer as they deem appropriate, including changing their current intentions, with respect to any or all matters required to be disclosed in this Schedule 13D.

 

Without limiting the foregoing, and subject to the terms and conditions of the Stockholders Agreement, the Reporting Persons may, from time to time acquire or cause affiliates to acquire additional shares of Common Stock or other securities of the Issuer, dispose, or cause affiliates to dispose, of some or all of the Common Stock or continue to hold, or cause affiliates to hold, Common Stock (or any combination or derivative thereof).  In addition, without limitation, and subject to the terms and conditions of the Stockholders Agreement, the Reporting Persons may engage in discussions with management, the board of directors, stockholders of the Issuer and other relevant parties or take other actions concerning any extraordinary corporate transaction (including but not limited to a merger, reorganization or liquidation) or the business, operations, assets, strategy, future plans, prospects, corporate structure, board composition, management, capitalization, dividend policy, charter, bylaws, corporate documents, agreements, de-listing or de-registration of the Issuer.

 

Except as set forth in this Schedule 13D, or as would occur upon completion of any of the matters discussed herein, the Reporting Persons and, to the best knowledge of the Reporting Persons, any of the other individuals identified in Item 2 above, have no other present plans, proposals or intentions that would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Although the foregoing reflects activities presently contemplated by the Reporting Persons and any other person identified in Item 2 with respect to the Issuer, subject to the terms and conditions of the Stockholders Agreement, the foregoing is subject to change at any time.

 

Item 5.         Interest in Securities of the Issuer

 

(a), (b)            The Reporting Persons may be deemed to beneficially own in the aggregate 28,813,213 shares of Common Stock.  Based upon a total of 137,934,515 outstanding shares of Common Stock as of June 23, 2015, as reflected in the Issuer’s 424 filing filed on June 19, 2015, the Reporting Persons’ shares represent approximately 20.9% of the outstanding shares of Common Stock.

 

All 28,813,213 shares of Common Stock reported are directly owned by Univar N.V.

 

19



 

Ulysses Luxembourg and Ulysses Finance collectively own indirectly all of the equity interests of Univar N.V. and therefore may be deemed to beneficially own shares held by Univar N.V.

 

Ulysses Participation owns a majority of the equity interests of each of Ulysses Luxembourg and Ulysses Finance and therefore may be deemed to beneficially own shares held by each of them.

 

The Fund Partnerships collectively own all of the equity interests of Ulysses Participation.  As a result, the Fund Partnerships could be deemed to beneficially own all of the shares owned by Univar N.V.

 

The Fund Partnerships each have a general partner, which general partners are one of the General Partners.  By virtue of their relationship to the Limited Partnerships, the General Partners may be deemed to beneficially own shares held by Univar N.V.

 

Each of the Reporting Persons (other than to the extent it directly holds securities reported herein) disclaims beneficial ownership of the securities held by the other Reporting Persons, except to the extent of such Reporting Person’s pecuniary interest therein.

 

(c)                                  Except as set forth in Item 3 and Item 4 hereof, none of the Reporting Persons nor, to the best knowledge of the Reporting Persons, any other person identified in Item 2 has engaged in any transaction during the past 60 days in any shares of Common Stock.

 

(d)                                 To the best knowledge of the Reporting Persons, no one other than the Reporting Persons, or the partners, members, affiliates or shareholders of the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock that are subject to this Schedule 13D.

 

(e)                                  Not applicable.

 

Item 6.         Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

Concurrently with the consummation of the Initial Public Offering, the Issuer entered into the Stockholders Agreement, with CD&R Univar Holdings, L.P., Univar N.V., the Temasek Investor and the other stockholders party thereto.

 

Pursuant to the Stockholders Agreement, Univar N.V. and CD&R Univar Holdings, L.P. each will each be entitled to designate (i) three sponsor directors and three independent directors for so long asUnivar N.V. or CD&R Univar Holdings, L.P., as applicable, owns at least 50% of the Shares of Common Stock held by it or its affiliated funds on November 30, 2010, or any shares or other securities into which or for which such Shares may have been converted or exchanged in connection with any exchange, reclassification, dividend, distribution, stock split, combination, subdivision, merger, spin-off, recapitalization, reorganization or similar transaction (the “Original Shares”), (ii) two sponsor directors and one independent director for so long asUnivar N.V. or CD&R Univar Holdings, L.P., as applicable, owns at least 25%, but less than 50%, of its Original Shares and (iii) one sponsor director for so long asUnivar N.V. or CD&R Univar Holdings, L.P., as applicable, owns at least 5%, but less than 25%, of its Original Shares.  CD&R Univar Holdings, L.P. will also have the right to nominate the chairman of the board of directors for so long as it owns at least 25% of its Original Shares.  The Temasek Investor will have the right to nominate one director for so long as the Temasek Investor owns at least 10% of the outstanding Shares of Common Stock.  With respect to any vacancy of a director nominated by Univar N.V., CD&R Univar Holdings, L.P. or the Temasek Investor, the applicable entity will have the right to nominate his replacement.  For as long as Univar N.V., CD&R Univar Holdings, L.P. and the Temasek Investor have the right to designate a director, Univar N.V., CD&R Univar Holdings, L.P. and the Temasek Investor will be required to vote their Shares of Common Stock in favor of all those persons nominated to serve as a director pursuant to the Stockholders Agreement.  The initial sponsor directors appointed by Univar N.V. are Christopher Stadler and Lars Haegg.

 

20



 

Univar N.V., CD&R Univar Holdings, L.P., the Temasek Investor and certain other stockholders are subject to certain restrictions on transfers of the Issuer’s Shares under the Stockholders Agreement.  The Stockholders Agreement also contains customary registration rights for the Shares of Common Stock held by Univar N.V., CD&R Univar Holdings, Inc., the Temasek Investor and certain other investors, as well as customary information and access rights.

 

The description herein of the terms and conditions of the Stockholders Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Stockholders Agreement, included as Exhibit D, which is incorporated herein by reference.

 

The information set forth in Items 3 and 4 of this Schedule 13D is hereby incorporated herein by reference.

 

Item 7.         Material to be Filed as Exhibits

 

Exhibit A                                             Joint Filing Agreement, dated July 1, 2015, by and among the Reporting Persons.

 

Exhibit B                                             Stock Purchase Agreement, dated June 1, 2015, among Univar Inc., Dahlia Investments Pte. Ltd., and Univar N.V.

 

Exhibit C                                             First Amendment to the Stock Purchase Agreement, dated June 19, 2015, among Univar Inc., Dahlia Investments Pte. Ltd., and Univar N.V.

 

Exhibit D                                             Fourth Amended and Stockholders Agreement, dated June 23, 2015, among the Issuer, CD&R Univar Holdings L.P., Univar N.V., Dahlia Investments Pte. Ltd. and the other stockholders party thereto.

 

21



 

SIGNATURES

 

After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned, severally and not jointly, certified that the information set forth in this statement is true, complete and correct.

 

Dated: July 1, 2015

 

 

UNIVAR N.V.

 

 

 

 

 

 

 

 

 

By:

/s/ Henk Schop

 

 

Name:

Henk Schop

 

 

Title:

Director

 

 

 

 

 

ULYSSES LUXEMBOURG S.A R.L.

 

 

 

 

 

 

 

 

 

By:

/s/ Emanuela Brero

 

 

Name:

Emanuela Brero

 

 

Title:

Director

 

 

 

 

 

ULYSSES FINANCE S.A R.L.

 

 

 

 

 

 

 

 

 

By:

/s/ Emanuela Brero

 

 

Name:

Emanuela Brero

 

 

Title:

Director

 

 

 

 

 

ULYSSES PARTICIPATION S.A R.L.

 

 

 

 

 

 

 

 

 

By:

/s/ Emanuela Brero

 

 

Name:

Emanuela Brero

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY IV (AB) LIMITED

 

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY IV (CDE) LIMITED

 

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY TANDEM GP LIMITED

 

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

22



 

 

CVC EUROPEAN EQUITY PARTNERS IV (A) L.P.

 

 

 

 

 

By:

CVC European Equity IV (AB) Limited, its general partner

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS IV (B) L.P.

 

 

 

 

 

By:

CVC European Equity IV (AB) Limited, its general partner

 

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS IV (C) L.P.

 

 

 

 

By:

CVC European Equity IV (CDE) Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS IV (D) L.P.

 

 

 

 

 

By:

CVC European Equity IV (CDE) Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS IV (E) L.P.

 

 

 

 

 

By:

CVC European Equity IV (CDE) Limited, its general partner

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

23



 

 

CVC EUROPEAN EQUITY PARTNERS TANDEM FUND (A) L.P.

 

 

 

 

 

By:

CVC European Equity Tandem GP Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

 

 

CVC EUROPEAN EQUITY PARTNERS TANDEM FUND (B) L.P.

 

 

 

 

 

By:

CVC European Equity Tandem GP Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS TANDEM FUND (C) L.P.

 

 

 

 

 

By:

CVC European Equity Tandem GP Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

24



 

Annex A

 

DIRECTORS OF UNIVAR N.V.

 

List below are the name and principal occupation of the each of the directors of Univar N.V.  The principal business address of Bastiaan J. Becks is WTC Schiphol Airport, Tower D, 6th floor, Schiphol Boulevard 285, 1118 BH Luchthaven Schiphol, The Netherlands and Henk Schop  is Schouwburgplein 30-34, 3012 CL, Rotterdam, The Netherlands.

 

Name

 

Principal Occupation

 

Citizenship

Bastiaan J. Becks

 

Managing Director

 

Netherlands

Hendrik W. Schop

 

Managing Director

 

Netherlands

 

DIRECTORS OF ULYSSES ENTITIES

 

List below are the name and principal occupation of the each of the directors of Ulysses Finance S.a r.l., Ulysses Luxembourg S.a r.l. and Ulysses Participation S.a r.l.  The principal business address of:  (1) Laurent Schummer and Jean-Marc Ueberecken is 14, rue Erasme  L- 2082 Luxembourg, Emanuela Brero, (2) Stella Le Cras is 20, avenue Monterey, Luxembourg L-2163, Luxembourg and (3) Ivo Lurvink is WTC Schiphol Airport, Tower D, 6th floor, Schiphol Boulevard 285, 1118 BH Luchthaven Schiphol, The Netherlands.

 

Entity

 

Name

 

Principal Occupation

 

Citizenship

Ulysses Finance

 

Laurent Schummer

 

Lawyer

 

Luxembourg

 

 

Jean-Marc Ueberecken

 

Lawyer

 

Luxembourg

 

 

Emanuela Brero

 

Employee

 

Italian

Ulysses Luxembourg

 

Laurent Schummer

 

Lawyer

 

Luxembourg

 

 

Jean-Marc Ueberecken

 

Lawyer

 

Luxembourg

 

 

Emanuela Brero

 

Employee

 

Italian

Ulysses Participation

 

Laurent Schummer

 

Lawyer

 

Luxembourg

 

 

Jean-Marc Ueberecken

 

Lawyer

 

Luxembourg

 

 

Ivo Lurvink

 

Private Equity professional

 

Netherlands

 

 

Stella Le Cras

 

Employee

 

British

 

 

Emanuela Brero

 

Employee

 

Italian

 

DIRECTORS OF THE GENERAL PARTNERS

 

List below are the name and principal occupation of the each of the directors of CVC European Equity IV (AB) Limited (“General Partner AB”), CVC European Equity IV (CDE) Limited (“General Partner CDE”) and CVC European Equity Tandem GP Limited (“General Partner Tandem”).  The principal business address of:  (1) Mark Alain Ross Grizzelle is c/o CVC Capital Partners Limited, 111 The Strand, London, WC2R 0AG, (2) Steven Frederic Koltes is c/o CVC Capital Partners (Luxembourg) Sarl,, 20 Avenue Monterey, Luxembourg, L-2163, Luxembourg, (3) William Brian Scholfield is CVC Capital Partners Jersey Limited, 3rd Floor, Sir Walter Raleigh House, 48-50 The Esplanade, St Helier, Jersey, JE2 3QB, and (4) Carl John Hansen is CVC Capital Partners Jersey Limited, Sir Walter Raleigh House, 3rd Floor, 48-50 The Esplanade, St Helier, Jersey, JE2 3QB.

 

Entity

 

Name

 

Principal Occupation

 

Citizenship

General Partner AB

 

Mark Alain Ross Grizzelle

 

Finance Director

 

British

 

 

Steven Frederic Koltes

 

Managing Director

 

American

 

 

William Brian Scholfield

 

Lawyer

 

Canadian and British

 

 

Carl John Hansen

 

Managing Director

 

New Zealand and British

General Partner CDE

 

Mark Alain Ross Grizzelle

 

Finance Director

 

British

 

 

Steven Frederic Koltes

 

Managing Director

 

American

 

 

William Brian Scholfield

 

Lawyer

 

Canadian and British

 

 

Carl John Hansen

 

Managing Director

 

New Zealand and British

 

25



 

Entity

 

Name

 

Principal Occupation

 

Citizenship

General Partner Tandem

 

Mark Alain Ross Grizzelle

 

Finance Director

 

British

 

 

Steven Frederic Koltes

 

Managing Director

 

American

 

 

William Brian Scholfield

 

Lawyer

 

Canadian and British

 

 

Carl John Hansen

 

Managing Director

 

New Zealand and British

 

26



 

EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

Exhibit A

 

Joint Filing Agreement, dated July 1, 2015, by and among the Reporting Persons.

 

 

 

Exhibit B

 

Stock Purchase Agreement, dated June 1, 2015, among Univar Inc., Dahlia Investments Pte. Ltd., and Univar N.V.

 

 

 

Exhibit C

 

First Amendment to the Stock Purchase Agreement, dated June 19, 2015, among Univar Inc., Dahlia Investments Pte. Ltd., and Univar N.V.

 

 

 

Exhibit D

 

Fourth Amended and Stockholders Agreement, dated June 23, 2015, among the Issuer, CD&R Univar Holdings L.P., Univar N.V., Dahlia Investments Pte. Ltd. and the other stockholders party thereto.

 

27


EX-99.A 2 a15-15033_1ex99da.htm EX-99.A

EXHIBIT A

 

JOINT FILING AGREEMENT

 

This will confirm the agreement by and among the undersigned that the Schedule 13D filed with the Securities and Exchange Commission on or about the date hereof with respect to the beneficial ownership by the undersigned of Shares of Common Stock, $0.01 par value (the “Common Stock”), of Univar Inc., a Delaware corporation, is being filed, and all amendments thereto will be filed, on behalf of each of the persons and entities named below that is named as a reporting person in such filing in accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

Dated:  July 1, 2015

 

 

UNIVAR N.V.

 

 

 

 

 

 

 

 

 

By:

/s/ Henk Schop

 

 

Name:

Henk Schop

 

 

Title:

Director

 

 

 

 

 

ULYSSES LUXEMBOURG S.A R.L.

 

 

 

 

 

 

 

 

 

By:

/s/ Emanuela Brero

 

 

Name:

Emanuela Brero

 

 

Title:

Director

 

 

 

 

 

ULYSSES FINANCE S.A R.L.

 

 

 

 

 

 

 

 

 

By:

/s/ Emanuela Brero

 

 

Name:

Emanuela Brero

 

 

Title:

Director

 

 

 

 

 

ULYSSES PARTICIPATION S.A R.L.

 

 

 

 

 

 

 

 

 

By:

/s/ Emanuela Brero

 

 

Name:

Emanuela Brero

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY IV (AB) LIMITED

 

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY IV (CDE) LIMITED

 

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 



 

 

CVC EUROPEAN EQUITY TANDEM GP LIMITED

 

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS IV (A) L.P.

 

 

 

 

 

By:

CVC European Equity IV (AB) Limited, its general partner

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS IV (B) L.P.

 

 

 

 

 

By:

CVC European Equity IV (AB) Limited, its general partner

 

 

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS IV (C) L.P.

 

 

 

 

By:

CVC European Equity IV (CDE) Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS IV (D) L.P.

 

 

 

 

 

By:

CVC European Equity IV (CDE) Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS IV (E) L.P.

 

 

 

 

 

By:

CVC European Equity IV (CDE) Limited, its general partner

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 



 

 

CVC EUROPEAN EQUITY PARTNERS TANDEM FUND (A) L.P.

 

 

 

 

 

By:

CVC European Equity Tandem GP Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

 

 

CVC EUROPEAN EQUITY PARTNERS TANDEM FUND (B) L.P.

 

 

 

 

 

By:

CVC European Equity Tandem GP Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 

 

 

CVC EUROPEAN EQUITY PARTNERS TANDEM FUND (C) L.P.

 

 

 

 

 

By:

CVC European Equity Tandem GP Limited, its general partner

 

 

 

 

 

 

 

By:

/s/ Carl John Hansen

 

 

Name:

Carl John Hansen

 

 

Title:

Director

 


EX-99.B 3 a15-15033_1ex99db.htm EX-99.B

Exhibit B

 

EXECUTION VERSION

 

STOCK PURCHASE AGREEMENT

 

by and among

 

UNIVAR INC.,

 

THE SELLING STOCKHOLDERS

 

and

 

DAHLIA INVESTMENTS PTE. LTD.

 

Dated as of June 1, 2015

 



 

Table of Contents

 

 

 

Page

 

ARTICLE I

 

Definitions and Terms

 

Section 1.1

Certain Definitions

1

Section 1.2

Interpretation

10

 

ARTICLE II

 

Closing

 

Section 2.1

Sale and Purchase of Purchased Shares

11

Section 2.2

Closing

12

Section 2.3

Payment of Purchase Price and Execution of Stockholders Agreement

12

 

ARTICLE III

 

Representations and Warranties of the Company

 

Section 3.1

Organization, Due Authorization and Enforceability

12

Section 3.2

Consents and Approvals

13

Section 3.3

Non-Contravention

13

Section 3.4

Capitalization

13

Section 3.5

Issuance of the Issued Shares

14

Section 3.6

Private Offering

14

Section 3.7

Disclosure Document

14

Section 3.8

Subsidiaries

15

Section 3.9

Intellectual Property

15

Section 3.10

Contracts

15

Section 3.11

Insurance

16

Section 3.12

Financial Statements; No Undisclosed Liabilities

16

Section 3.13

Absence of Changes

17

Section 3.14

Litigation

17

Section 3.15

Compliance with Laws; Licenses and Permits

17

Section 3.16

Environmental Matters

18

Section 3.17

Employees, Labor Matters, etc.

18

Section 3.18

Employee Benefit Plans and Related Matters; ERISA

18

Section 3.19

Tax Matters

19

 

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Section 3.20

Real Property

19

Section 3.21

No Other Representations or Warranties

20

 

ARTICLE IV

 

Representations and Warranties of the Selling Stockholders

 

Section 4.1

Due Authorization and Enforceability

20

Section 4.2

Consents and Approvals

20

Section 4.3

Non-Contravention

21

Section 4.4

Title to Shares

21

Section 4.5

No Other Representations or Warranties

21

 

ARTICLE V

 

Representations and Warranties of Buyer

 

Section 5.1

Organization, Due Authorization and Enforceability

21

Section 5.2

Consents and Approvals

22

Section 5.3

Non-Contravention

22

Section 5.4

Sufficient Funds

22

Section 5.5

Accredited Investor; Acquisition for Investment

22

 

ARTICLE VI

 

Covenants

 

Section 6.1

Conduct of Business

23

Section 6.2

Regulatory Approvals and Third Party Consents

23

Section 6.3

Further Assurances

24

Section 6.4

Notification of Certain Matters

24

Section 6.5

Fees and Expenses

24

Section 6.6

Use of Proceeds

25

 

ARTICLE VII

 

Conditions to Closing

 

Section 7.1

Conditions to the Obligations of the Parties

25

Section 7.2

Conditions to the Obligations of Buyer

25

Section 7.3

Conditions to the Obligations of the Company and the Selling Stockholders

27

 

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ARTICLE VIII

 

Termination

 

Section 8.1

Termination

27

Section 8.2

Effect of Termination

28

 

ARTICLE IX

 

Miscellaneous

 

 

 

Section 9.1

No Survival of Representations and Warranties

28

Section 9.2

Notices

28

Section 9.3

Amendment; Waiver

29

Section 9.4

No Assignment or Benefit to Third Parties; Restrictions on Certain Transactions

30

Section 9.5

Entire Agreement

30

Section 9.6

Public Disclosure

30

Section 9.7

Schedules

31

Section 9.8

Governing Law; Jurisdiction

31

Section 9.9

Waiver of Trial by Jury

32

Section 9.10

Counterparts

32

Section 9.11

Headings

32

Section 9.12

Severability

32

Section 9.13

Specific Performance

33

Section 9.14

Certain Acknowledgment and Agreement by Buyer

33

 

Schedule 1

Selling Stockholders

Exhibit A

Form of Stockholders Agreement

Exhibit B

Company Disclosure Letter

Exhibit C

Disclosure Document

 

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This STOCK PURCHASE AGREEMENT, dated as of June 1, 2015 (this “Agreement”), is entered into by and among Univar Inc., a Delaware corporation (the “Company”), the stockholders of the Company listed on Schedule 1 hereto (the “Selling Stockholders”) and Dahlia Investments Pte. Ltd., a Singapore Corporation (“Buyer”).  Capitalized terms used herein shall have the meanings assigned to such terms in the text of this Agreement or in Section 1.1.

 

W I T N E S S E T H:

 

WHEREAS, Buyer desires to purchase from the Company, and the Company desires to issue to Buyer, the number of Common Shares determined by dividing $350 million by the IPO Price, rounded to the nearest whole number, (the “Issued Shares”), concurrently with the consummation of an initial public offering (the “IPO”) of Common Shares and on the terms and subject to the conditions set forth in this Agreement;

 

WHEREAS, Buyer desires to purchase from the Selling Stockholders, and the Selling Stockholders desire to sell to Buyer, up to $150 million of Secondary Shares, concurrently with the consummation of the IPO, at a price per share equal to the IPO Price and on the terms and subject to the conditions set forth in this Agreement;

 

WHEREAS, in connection with the IPO, the Company intends to effect a reverse stock split in respect of its Common Shares (the “Stock Split”); and

 

WHEREAS, in connection with the consummation of the sale by the Company and the Selling Stockholders and the purchase by Buyer of the Purchased Shares (the “Closing”) and the IPO, the Company, Buyer, the Selling Stockholders and certain other shareholders of the Company will enter into a Stockholders Agreement substantially in the form attached hereto as Exhibit A (the “Stockholders Agreement”).

 

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:

 

ARTICLE I

 

Definitions and Terms

 

Section 1.1            Certain Definitions.  As used in this Agreement, the following terms have the meanings set forth below:

 

Affiliate” means, with respect to any Person, any Person directly or indirectly controlling, controlled by, or under common control with, such other

 

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Person.  For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise.  For the purpose of this Agreement, unless otherwise expressly indicated, the Company and the Subsidiaries shall not be deemed Affiliates of any stockholder of the Company.

 

Aggregate Purchase Price” means the sum of the Company Purchase Price and the Secondary Purchase Price.

 

Agreement” has the meaning set forth in the Preamble.

 

Antitrust Laws” means all Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization, distortion of competition or restraint of trade.

 

Assets” means the properties and assets of the Company or a Subsidiary material to the business of the Company and the Subsidiaries, taken as a whole.

 

Audited Financial Statements” means the Financial Statements described in clause (ii) of the definition thereof.

 

Balance Sheet Date” means March 31, 2015.

 

Bankruptcy and Equity Exception” has the meaning set forth in Section 3.1.

 

Benefit Plan” means all material employee benefit plans (as defined in Section 3(3) of ERISA), whether or not subject to ERISA, and all material bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all material retention, bonus, employment, termination, severance or other contracts or agreements to which the Company or any Subsidiary is a party and with respect to which the Company or any Subsidiary has any current or future obligation or that are maintained, contributed to or sponsored by the Company or any Subsidiary for the benefit of any current or former employee, officer, director or independent contractor of the Company or any Subsidiary.

 

Business Day” means any day that is not (i) a Saturday, (ii) a Sunday or (iii) any other day on which commercial banks are authorized or required by law to be closed in the City of New York or Singapore.

 

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Buyer” has the meaning set forth in the Preamble.

 

Closing” has the meaning set forth in the Recitals.

 

Closing Date” has the meaning set forth in Section 2.2.

 

Code” means the Internal Revenue Code of 1986, as amended.

 

Common Shares” means shares of common stock of the Company.

 

Company” has the meaning set forth in the Preamble.

 

Company Disclosure Letter” means that Company Disclosure Letter attached hereto as Exhibit B.

 

Company Insurance Policy” means each material policy of fire, liability, workmen’s compensation and other forms of insurance maintained by or for the benefit of the Company or a Subsidiary, the Assets or the employees, officers and directors of the Company and the Subsidiaries.

 

Company Material Adverse Effect” means (a) a materially adverse change in or material adverse effect on, or any change or effect that would reasonably be expected to materially adversely affect, the business, assets, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole; provided that in determining whether a Company Material Adverse Effect has occurred, any change or effect, to the extent resulting from the following, shall be excluded:

 

(i)            any change in applicable Law, generally accepted accounting principles or international financial reporting standards or interpretations thereof applicable to the Company and the Subsidiaries;

 

(ii)           any change in economic, credit or capital market, regulatory or political conditions (including any change in interest or foreign exchange rates) or acts of war (declared or undeclared), armed hostilities, military actions, sabotage and/or terrorism (or the escalation of any of the foregoing);

 

(iii)          any change in the chemical distribution industry;

 

(iv)          any failure of the Company or the Subsidiaries to achieve any earnings or other financial projections or forecasts (provided that the underlying causes of such failure may be considered in determining whether there is a Company Material Adverse Effect);

 

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(v)           any action or omission of the Company, the Subsidiaries or their Affiliates, agents or representatives (x) required by the terms of this Agreement or the Existing Stockholders Agreement, (y) taken with the consent or knowledge of Buyer, or (z) resulting from a failure by Buyer to provide its consent to the extent such consent is required by the terms of this Agreement;

 

(vi)          any items disclosed in the Company Disclosure Letter or in the Disclosure Document;

 

(vii)         any action taken by Buyer and any of its Affiliates, agents or representatives;

 

(viii)        any hurricane, flood, tornado, earthquake or other natural disaster or any other force majeure event; or

 

(ix)          except with respect to the representations and warranties contained in Section 3.3 or, to the extent related to such representations and warranties, the condition specified in Section 7.2(a), any change resulting from the negotiation, execution, delivery or performance of this Agreement or the Existing Stockholders Agreement, the consummation of the transactions contemplated hereby and/or the announcement of any of the foregoing including any such change relating to the identity of, or facts and circumstances relating to, Buyer or its Affiliates and including any change resulting from any action or commercial decision taken by the Company’s or any of the Subsidiaries’ customers, suppliers or personnel;

 

(in each of the foregoing clauses (i), (ii) and (iii), to the extent not disproportionately affecting the Company and the Subsidiaries relative to the other business entities in the chemical distribution industry); or

 

(b)           any change, effect, event, development or occurrence materially adversely affecting the ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.

 

Company Option” means any option to purchase Common Shares granted pursuant to the Stock Incentive Plan.

 

Company Purchase Price” means an amount equal to the IPO Price multiplied by the number of Issued Shares.

 

Company Restricted Shares” means any Common Shares granted under the Stock Incentive Plan and subject to vesting restrictions immediately prior to the Closing.

 

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Company Securities” has the meaning set forth in Section 3.4(a).

 

Confidentiality Agreement” means the confidentiality agreement between Temasek Capital Management Pte Ltd and the Company, dated February 6, 2015.

 

Contracts” means all agreements, contracts, leases and subleases, purchase orders, arrangements, understandings, commitments, guarantees, notes, bonds, mortgages, indentures and licenses, to which a Person is a party or bound.

 

Disclosure Document” means the document attached hereto as Exhibit C, which document shall be updated by the Company as of the Closing to reflect any amendments to the Registration Statement filed by the Company with the SEC after the date hereof through the Closing.

 

Employee Stock Subscription Agreements” shall mean, collectively, all agreements between the Company, on the one hand, and a past or present employee or director of the Company or any of the Subsidiaries, on the other hand, governing the purchase of Common Shares under the Stock Incentive Plan.

 

Encumbrance” means any lien, pledge, charge, claim, encumbrance, security interest, lease, right of first offer or refusal, option, mortgage, easement, or similar restriction.

 

Environmental Law” means any law regulating or relating to the protection of natural resources or the environment, including laws relating to the use, generation, management, handling, transport, treatment, disposal, storage, release or threatened release of, or exposure to, hazardous substances.

 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.

 

Existing Credit Facilities” means, in each case as amended, (i) the Fourth Amended and Restated Credit Agreement, dated as of February 22, 2013, among the Company, Bank of America, N.A. as administrative agent, Bank of America, N.A., Deutsche Bank Securities Inc., Goldman Sachs Lending Partners LLC, HSBC Securities (USA) Inc., J.P. Morgan Securities LLC, Morgan Stanley Senior Funding, Inc. and Wells Fargo Securities, LLC, as joint lead arrangers and joint bookrunners and the lenders from time to time party thereto; (ii) the Second Amended and Restated Senior ABL Credit Agreement, dated as of March 25, 2013, among the Company, the borrowers party thereto, Univar Canada, Ltd., the

 

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facility guarantors party thereto, Bank of America, N.A. as U.S. administrative agent, U.S. swingline lender and collateral agent, Bank of America, N.A. (acting through its Canadian branch) as Canadian administrative agent, Canadian swingline lender and Canadian letter of credit issuer, the lenders from time to time party thereto, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Capital Finance LLC as joint lead arrangers, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Capital Finance LLC, Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC as joint bookrunners, Wells Fargo Capital Finance LLC, J.P. Morgan Securities LLC and Deutsche Bank Securities Inc. as co-syndication agents and HSBC Bank USA, N.A., Union Bank, N.A., Morgan Stanley Senior Funding, Inc. and SunTrust Bank, as co-documentation agents; (iii) the European ABL Facility Agreement, dated as of March 24, 2014, among Univar B.V., the other borrowers from time to time party thereto, the Company, as guarantor, J.P. Morgan Securities LLC, as sole lead arranger and joint bookrunner, Bank of America, N.A., as joint bookrunner and syndication agent, the several lenders from time to time party thereto and J.P. Morgan Europe Limited, as administrative agent and collateral agent; (iv) the Company’s senior subordinated notes due September 30, 2017 and the indenture related thereto; and (v) the Company’s senior subordinated notes due June 30, 2018 and the indenture related thereto.

 

Existing Stockholders Agreement” means the Third Amended and Restated Stockholders Agreement, dated as of June 27, 2012, by and among the Company, CD&R Holdings, L.P., Univar N.V. and the stockholders listed on Annex A therein.

 

Financial Statements” means (i) the unaudited consolidated financial statements (balance sheets, statements of operations, cash flows and retained earnings or shareholders’ equity) of the Company and the Subsidiaries as of March 31, 2015 in the form regularly prepared by the Company and (ii) the audited consolidated financial statements (balance sheets, statements of operations, cash flows and retained earnings or shareholders’ equity) of the Company and the Subsidiaries as of December 31, 2014 and December 31, 2013.

 

Fundamental Representations” has the meaning set forth in Section 7.2(a).

 

GAAP” means United States generally accepted accounting principles.

 

Governmental Authority” means any supranational, national, federal, state, provincial, local, governmental, quasi-governmental or other political subdivision thereof or entity, court, agency, administrative body or other body exercising executive, legislative, judicial, regulatory or administrative functions

 

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of or pertaining to government, any court, tribunal or arbitrator or any self-regulatory organization.

 

Hazardous Substance” means any substance that (i) is or contains asbestos, urea formaldehyde insulation, polychlorinated biphenyls, petroleum or petroleum products or (ii) is defined, listed or identified as a “hazardous waste,” “hazardous substance,” “toxic substance” or words of similar meaning or effect under any Environmental Law.

 

Intellectual Property” means all of the patents and patent applications, trademarks, trade names, service marks, domain names and copyrights that are registered or subject to an application for registration.

 

IPO” has the meaning set forth in the Recitals.

 

IPO Price” means the price for one Common Share offered in the IPO, with the same discount, excluding any incentive fees, that is offered to the Underwriters, which price shall be adjusted as appropriate to give effect to the Stock Split; provided that, if the price for one Common Share, with the same discount, excluding any incentive fees, that is offered to the Underwriters offered in the IPO exceeds $10.00, the IPO Price shall be $10.00, which price shall be adjusted as appropriate to give effect to the Stock Split.

 

IPO Shares” means the Common Shares sold in the IPO following the Stock Split.

 

IRS” means the Internal Revenue Service.

 

Issued Shares” has the meaning set forth in the Recitals.

 

Knowledge of the Company” or any similar phrase means the actual knowledge of the chief executive officer, chief financial officer or general counsel of the Company.

 

Law” means any law, statute, ordinance, rule, regulation, code, order, judgment, injunction or decree enacted, issued, promulgated, enforced or entered by or otherwise of a Governmental Authority.

 

Liabilities” means any and all debts, liabilities, commitments and obligations of any kind, whether known or unknown, accrued or not accrued, absolute, contingent or otherwise, whenever or however arising (including, whether arising out of any contract or tort based on negligence or strict liability), and whether due or to become due.

 

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License” means any license of Intellectual Property to the Company or any of the Subsidiaries by any other Person.

 

Litigation” means any action, cease and desist letter, demand, suit, arbitration proceeding, administrative or regulatory proceeding, citation, summons or subpoena of any nature, civil, criminal, regulatory or otherwise, in law or in equity.

 

Material Contracts” has the meaning set forth in Section 3.10.

 

Organizational Documents” means the articles of incorporation, certificate of incorporation, charter, by-laws, articles of formation, certificate of formation, regulations, operating agreement, certificate of limited partnership, partnership agreement and all other similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation or organization of a Person, including any amendments thereto.

 

Permits” means licenses, franchises, permits, certificates, orders, approvals or other similar authorizations issued by Government Authorities.

 

Permitted Encumbrances” means, collectively, (i) mechanics’, materialmen’s, warehousemen’s, carriers’, workers’, or repairmen’s liens or other similar common law or statutory Encumbrances arising or incurred in the ordinary course of business or by operation of Law, (ii) liens for Taxes, assessments and other governmental charges not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (iii) with respect to real property, (x) easements, quasi-easements, licenses, covenants, rights-of-way, rights of re-entry or other similar restrictions, including any other agreements, conditions or restrictions that would be shown by a current title report or other similar report or listing, (y) any conditions that may be shown by a current survey or physical inspection and (z) zoning, building, subdivision or other similar requirements or restrictions, which, in each case, do not materially impair the present use or occupancy of, or materially detract from the value of, such real property, (iv) any Encumbrance that would not reasonably be expected to materially adversely affect the ownership or use of the Assets by the Company or the Subsidiaries, and (v) any Encumbrance securing the obligation of the Company or the Subsidiaries under the Existing Credit Facilities (as of the date hereof) and the facilities to be entered into in connection with the consummation of the transactions contemplated hereby (as of the Closing Date).

 

Person” means an individual, a corporation, a partnership, an association, a limited liability company, a Governmental Authority, a trust or other entity or organization.

 

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Purchased Shares” means, collectively, the Issued Shares and Secondary Shares.

 

Reference Balance Sheet” means the audited consolidated balance sheet of the Company and the Subsidiaries dated as of the Balance Sheet Date and included in the Financial Statements.

 

Registration Statement” means the registration statement on Form S-1 (File No. 333-197085), publicly filed by the Company with the SEC on June 27, 2014, as subsequently amended, including any prospectus filed pursuant to Rule 424 under the Securities Act, and any free writing prospectuses, relating to the IPO.

 

Required Regulatory Approvals” means all approvals, waivers, consents, authorizations, notifications, reports or other filings required under the Antitrust Laws in the United States.

 

SEC” means the United States Securities and Exchange Commission.

 

Secondary Purchase Price” means an amount equal to the IPO Price multiplied by the number of Secondary Shares, which amount shall not exceed $150 million.

 

Secondary Shares” means the Common Shares, if any and in aggregate, set forth on Schedule 1 (as such Schedule may be amended from time to time).

 

Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.

 

Selling Stockholder Fundamental Representations” has the meaning set forth in Section 7.2(e).

 

Selling Stockholder’s Purchase Price” means, in the case of each of the Selling Stockholders, an amount equal to the IPO Price multiplied by the number of Secondary Shares set forth opposite such Selling Stockholder’s name on Schedule 1.

 

Selling Stockholders” has the meaning set forth in the Preamble.

 

Significant Subsidiary” has the meaning set forth in Rule 1-02 under Regulation S-X promulgated under the Securities Act.

 

Stock Incentive Plan” means the Univar Inc. 2011 Stock Incentive Plan.

 

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Stock Split” has the meaning set forth in the Recitals.

 

Stockholders Agreement” has the meaning set forth in the Recitals.

 

Subsidiary” means any Person of which the Company and/or one or more of the Subsidiaries directly or indirectly (i) owns in excess of fifty percent of the outstanding capital stock or (ii) possesses the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

 

Tax Return” means any federal, state, local or foreign tax return, declaration, statement, report, schedule, form or information return or any amendment to any of the foregoing relating to Taxes.

 

Taxes” means all federal, state, local or foreign income, alternative, capital stock, transfer, environmental, gross receipts, windfall profits, value added, severance, property, production, sales, use, duty, license, excise, franchise, employment, withholding, estimated or similar taxes, duties, fees, assessments or other governmental charges, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.

 

Taxing Authority” shall mean any Governmental Authority responsible for the administration or the imposition of any Tax.

 

Termination Date” means September 30, 2015.

 

Third Party” shall mean any Person other than Buyer, the Selling Stockholders, the Company, the Subsidiaries or any of their respective Affiliates.

 

Underwriters” means the several underwriters named in the Underwriting Agreement.

 

Underwriting Agreement” means the underwriting agreement the Company shall enter into in order to effect the IPO.

 

Section 1.2            Interpretation.

 

(a)           Unless the express context otherwise requires:

 

(i)          the words “party” or “parties” shall refer to the parties to this Agreement;

 

(ii)         the words “hereof”, “herein”, and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

 

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(iii)        any capitalized term used in any Exhibit but not otherwise defined therein shall have the meaning given to such term in this Agreement.

 

(iv)        the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

 

(v)         the terms “dollars” and “$” mean the currency of the United States of America;

 

(vi)        references herein to a specific Section, Subsection, Schedule or Exhibit shall refer, respectively, to Sections, Subsections, Schedules or Exhibit of this Agreement;

 

(vii)       wherever the word “include,” “includes,” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;

 

(viii)      “writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form;

 

(ix)        references to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms thereof;

 

(x)         references herein to any gender include each other gender;

 

(xi)        references to any Person include the successors and permitted assigns of that Person; and

 

(xii)       references from or through any date mean, unless otherwise specified, from and including or through and including, respectively.

 

(b)           This Agreement shall be construed as being drafted by all of the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 

ARTICLE II

 

Closing

 

Section 2.1            Sale and Purchase of Purchased Shares.  At the Closing and on the terms and subject to conditions set forth in this Agreement, (a) the Company shall issue and sell to Buyer, and Buyer shall purchase from the Company, the Issued Shares for the Company Purchase Price and (b) the Selling Stockholders shall sell to Buyer, and Buyer

 

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shall purchase from the Selling Stockholders, the Secondary Shares for the Secondary Purchase Price, which Issued Shares and Secondary Shares shall be in book entry form and registered in the name of Buyer on the books of the Company by the Company’s transfer agent.

 

Section 2.2            Closing.  The Closing will take place remotely via the exchange of documents and signatures after the satisfaction or waiver of each of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions) concurrently with the closing of the IPO.  The date on which the Closing actually occurs in accordance with the preceding sentence is referred to in this Agreement as the “Closing Date”.

 

Section 2.3            Payment of Purchase Price and Execution of Stockholders Agreement.  At the Closing, (aBuyer shall pay to the Company, by wire transfer of immediately available funds to an account designated by the Company at least five Business Days prior to the Closing Date, an amount equal to the Company Purchase Price; (b) Buyer shall pay to each Selling Stockholder, by wire transfer of immediately available funds to an account designated by such Selling Stockholder at least five Business Days prior to the Closing Date, an amount equal to such Selling Stockholder’s Purchase Price; and (c) each party hereto shall deliver to each other party the Stockholders Agreement, duly executed by such party.

 

ARTICLE III

 

Representations and Warranties of the Company

 

Except as set forth in the Disclosure Document and the Company Disclosure Letter, the Company hereby represents and warrants to Buyer as of the date hereof as follows:

 

Section 3.1            Organization, Due Authorization and Enforceability.  The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite corporate power and authority to carry on its business.  The Company is duly qualified to do business and is in good standing (where such concept is recognized) in each of the jurisdictions in which the nature of its business or the properties owned, leased or operated by it makes such qualification necessary, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.  The execution, delivery and performance by the Company of this Agreement and the consummation of the applicable transactions contemplated hereby have been duly and validly approved by the board of directors of the Company, and no additional organizational or shareholder authorization or consent on the part of the Company is required in connection with the execution, delivery or performance of this Agreement and the transactions contemplated hereby.  This Agreement, when validly

 

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executed and delivered by the other parties hereto, constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”).  The Company is not in violation of any provision of its Organizational Documents in any material respect.

 

Section 3.2            Consents and Approvals.  Assuming the truth and accuracy of the representations and warranties of the Selling Stockholders and Buyer set forth in Section 4.2 and Section 5.2, respectively, no notices to, filings with, or authorizations, consents or approvals of, any Governmental Authority are necessary for the execution, delivery or performance by the Company of this Agreement or the consummation by the Company of the transactions contemplated hereby, except for (i) the Required Regulatory Approvals, (ii) those that may be required solely by reason of Buyer’s or the Selling Stockholders’ (as opposed to any other Third Party’s) participation in the transactions contemplated hereby and (iii) those the absence of which would not, individually or in the aggregate, reasonably be likely to result in a Company Material Adverse Effect.

 

Section 3.3            Non-Contravention.  The execution, delivery and performance by the Company of this Agreement, and the consummation of the transactions contemplated hereby, does not and will not (i) violate any provision of the Organizational Documents of the Company or any of its Significant Subsidiaries, (ii) except pursuant to the Existing Stockholders Agreement, require any consent or approval of any Person under, result in or permit the termination of or a right of termination or cancellation under, the acceleration of the performance required by, or other adverse change of any right or obligation under any provision of any Material Contract or any material Permit affecting, or relating in any way to, the assets or businesses of the Company, (iii) result in the creation or imposition of any Encumbrance (other than Permitted Encumbrances) on the Assets, or (iv) assuming compliance with the matters referenced in Section 3.2, violate any Law, except, in the cases of clause (ii), (iii) and (iv), as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

Section 3.4            Capitalization.

 

(a)           As of the date hereof and without giving effect to the issuance of Common Shares under the IPO or the Stock Split, the authorized capital stock of the Company consists of 734,625,648 Common Shares, of which 198,940,997 Common Shares are issued and outstanding and of which 612,500 are Company Restricted Shares.  As of the date hereof, 1,959,421 Common Shares were reserved for issuance under the Stock Incentive Plan.  All of the issued and outstanding Common Shares are duly authorized, validly issued, fully paid and nonassessable.  Each of the outstanding Company Options and Company Restricted Shares was granted under and in accordance with the terms of the Stock Incentive Plan.

 

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(b)           Except for the Company Options and as set forth in Section 3.4(a), there are no outstanding (i) shares of capital stock of or other voting or equity interests in the Company, (ii) securities of the Company convertible into or exercisable or exchangeable for shares of capital stock of or other voting or equity interests in the Company, (iii) options or other rights or agreements, commitments or understandings of any kind to acquire from the Company, or other obligation of the Company or any of the Subsidiaries to issue, transfer or sell, any shares of capital stock of or other voting or equity interests in the Company or securities convertible into or exercisable or exchangeable for shares of capital stock of or other voting or equity interests in the Company, (iv) except for the Existing Stockholders Agreement and the Employee Stock Subscription Agreements, voting trusts, proxies or other similar agreements or understandings to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound with respect to the voting of any shares of capital stock of or other voting or equity interests in the Company or any of the Subsidiaries and (v) except for the Existing Stockholders Agreement and the Employee Stock Subscription Agreements, contractual obligations or commitments of any character to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of or other voting or equity interests in the Company or any of the Subsidiaries (the items in clauses (i), (ii) and (iii) being referred to collectively as the “Company Securities”).  There are no outstanding obligations of the Company or any of the Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.

 

Section 3.5            Issuance of the Issued Shares.  The issuance, sale and delivery of the Issued Shares in accordance with this Agreement, has been, or will be on or prior to the Closing, duly authorized by all necessary corporate action on the part of the Company, and the Issued Shares have been duly reserved for issuance. The Issued Shares, when so issued, sold and delivered against payment therefor in accordance with the provisions of this Agreement, will be duly and validly issued, fully paid and nonassessable, and free of Encumbrances other than restrictions imposed or created under this Agreement or the Stockholders Agreement, by applicable Law, or by Buyer.

 

Section 3.6            Private Offering.  No registration of the Purchased Shares, pursuant to the provisions of the Securities Act or any state securities or “blue sky” laws, will be required by the offer and sale of the Purchased Shares in the manner contemplated in Section 2.1. The Company agrees that neither it, nor anyone acting on its behalf, shall offer to sell the Purchased Shares or any other securities of the Company so as to require the registration of the Purchased Shares pursuant to the provisions of the Securities Act or any state securities or “blue sky” laws.

 

Section 3.7            Disclosure Document.  The Disclosure Document does not contain an untrue statement of a material fact or omit to state a material fact necessary to make

 

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the statements therein, in light of the circumstances under which they were made, not misleading.

 

Section 3.8            Subsidiaries.  Each material Subsidiary is duly organized, validly existing and in good standing (where such concept is recognized) under the laws of its jurisdiction of organization and has all requisite corporate or other organizational power and authority required to carry on its business.  Each material Subsidiary is duly qualified to do business and is in good standing (where such concept is recognized) in each of the jurisdictions in which the nature of its business or the properties owned, leased or operated by it makes such qualification or licensing necessary, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.  No material Subsidiary is in violation of any provision of its Organizational Documents except as would not, individually or in the aggregate, be expected to have a Company Material Adverse Effect.

 

Section 3.9            Intellectual Property.

 

(a)           Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect: (i) to the Knowledge of the Company, in the past twelve months, the Company and the Subsidiaries have not infringed on the Intellectual Property rights of any person and (ii) there are no claims, proceedings or litigation pending or, to the Knowledge of the Company, threatened alleging infringement or misappropriation by the Company or any Subsidiary of any third-party Intellectual Property rights.

 

(b)           Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the Company and the Subsidiaries own all right, title and interest in and to, or have the right to use pursuant to a valid and enforceable written License, all Intellectual Property used in and necessary for the operation of their businesses as conducted as of the date of this Agreement, free and clear of all Encumbrances other than Permitted Encumbrances.

 

Section 3.10          Contracts.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, each contract or agreement to which the Company or any Subsidiary is a party that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K to be performed in whole or in part after the date hereof (each, a “Material Contract”) is a valid and binding agreement of the Company or one of the Subsidiaries and is in full force and effect, and none of the Company, any of the Subsidiaries or, to the Knowledge of the Company, any other party thereto is in default or breach in any material respect under (or is alleged to be in default or breach in any material respect under) the terms of, or has provided or received any notice of any intention to terminate, any such Material Contract, and, to the Knowledge of the Company, no event or circumstance has occurred that, with

 

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notice or lapse of time or both, would constitute an event of default thereunder or result in an early termination thereof.

 

Section 3.11          Insurance.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) all Company Insurance Policies are in full force and effect, (ii) all premiums payable under the Company Insurance Policies have been timely paid and (iii) the Company and the Subsidiaries have otherwise materially complied with the terms and conditions of the Company Insurance Policies.  To the Knowledge of the Company, since the time any Company Insurance Policy was last renewed or issued, there has not been any threatened termination of, premium increase with respect to or alteration of coverage under any Company Insurance Policy.

 

Section 3.12          Financial Statements; No Undisclosed Liabilities.

 

(a)           The Company has made available to Buyer complete and correct copies of the Financial Statements, together with the report of the Company’s independent auditors thereon with respect to the Audited Financial Statements.  The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis (except as may be indicated in the notes thereto) and present fairly in all material respects the financial position, results of operations and cash flows of the Company and the Subsidiaries at and for the respective periods indicated (subject, in the case of the unaudited Financial Statements, to normal year-end adjustments).

 

(b)           Neither the Company nor any of the Subsidiaries has any Liabilities that would be required to be set forth on or reserved against in a consolidated balance sheet of the Company and the Subsidiaries prepared in accordance with GAAP, except (i) Liabilities disclosed or reserved against in the Reference Balance Sheet or specifically disclosed in the notes thereto, (ii) Liabilities that were incurred after the Balance Sheet Date in the ordinary course of business, (iii) Liabilities that have not had and would not, individually and in the aggregate, reasonably be expected to have a Company Material Adverse Effect and (iv) Liabilities incurred in connection with this Agreement and the transactions contemplated hereby.

 

(c)           The Company and the Subsidiaries have devised and maintained systems of internal accounting controls with respect to their businesses sufficient to provide reasonable assurances that (i) all transactions are executed in accordance with management’s general or specific authorization, (ii) all transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain proper accountability for items, (iii) access to their property and assets is permitted only in accordance with management’s general or specific authorization and (iv) recorded accountability for items is compared with actual levels at reasonable intervals and appropriate action is taken with respect to any differences.

 

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(d)           The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s disclosure practices committee by others within those entities; and such disclosure controls and procedures are effective at a reasonable assurance level.

 

Section 3.13          Absence of Changes.  Since the Balance Sheet Date and prior to the date hereof, the businesses of the Company and the Subsidiaries have been conducted in the ordinary course of business consistent with past practice and there has not been any change, event, effect or occurrence (or with respect to any change, event, development, effect or occurrence existing prior to the date of the Balance Sheet Date, any worsening thereof) that has had or would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

Section 3.14          Litigation.

 

(a)           As of the date hereof, there is no Litigation pending or, to the Knowledge of the Company, threatened against, or affecting, the Company, any of the Subsidiaries or any of the Assets that has had or would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

(b)           As of the date hereof, there are no settlement agreements or similar written agreements with any Governmental Authority, and no outstanding orders, judgments, stipulations, decrees, injunctions, determinations or awards issued by any Governmental Authority, against or affecting the Company, any of the Subsidiaries or any of the Assets, except those that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

Section 3.15          Compliance with Laws; Licenses and Permits.

 

(a)           Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the Company and the Subsidiaries are operated in compliance with all applicable Laws and, to the Knowledge of the Company, are not under investigation with respect to any violation of any applicable Laws.

 

(b)           To the Knowledge of the Company, except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) the Company and the Subsidiaries hold all Permits necessary for the lawful conduct of their respective businesses as presently conducted, (ii) the Permits are valid and in full force and effect, and (iii) neither the Company nor any of the Subsidiaries is in default under the Permits.

 

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(c)           The Company makes no representation or warranty in this Section 3.15 with respect to intellectual property, litigation, environmental matters, employee benefit matters or Tax matters, which matters are exclusively addressed in Section 3.9, Section 3.14, Section 3.16, Section 3.17, Section 3.18 and Section 3.19, respectively.

 

Section 3.16          Environmental Matters.  Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:

 

(a)           (i) Each of the Company and the Subsidiaries is, and since January 1, 2013, has been, in compliance with all Environmental Laws and has obtained, and is in compliance with, all applicable Permits required under Environmental Laws for the Company’s business as currently operated and (ii) no notice of violation or notification of liability or potential liability under Environmental Laws has been received by the Company; and

 

(b)           Since January 1, 2013, the Company and the Subsidiaries have not released any Hazardous Substances at, on, above, under or from any properties currently or formerly owned, operated or used by the Company or any of the Subsidiaries that has resulted in or would reasonably be expected to result in any investigation, remediation or Litigation.

 

Section 3.17          Employees, Labor Matters, etc.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, there is no pending or, to the knowledge of the Company, threatened strike, slowdown, picketing or work stoppage by, or lockout of, or other similar labor activity or organizing campaign with respect to, any employees of the Company or any of the Subsidiaries as of the date hereof.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the Company and each of the Subsidiaries are in compliance with all applicable Laws respecting labor, employment, fair employment practices, terms and conditions of employment, employee classification and wages and hours.

 

Section 3.18          Employee Benefit Plans and Related Matters; ERISA.

 

(a)           Qualification.  Each Benefit Plan intended to be qualified under section 401(a) of the Code, and the trust (if any) forming a part thereof, has received a favorable determination letter from the IRS and, to the Knowledge of the Company, there are no existing circumstances or events that would reasonably be expected to result in any revocation of, or a change to, such determination letter.

 

(b)           Compliance with Law.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, each Benefit Plan has been operated in accordance with its terms and applicable Law.

 

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(c)           Contributions.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) all contributions required to be made by the Company or any of its Affiliates to any Benefit Plan have been made prior to the due date thereof, and (ii) each Benefit Plan that is subject to the minimum funding standards of the Code or ERISA satisfies such standards under sections 412 and 302 of the Code and ERISA, respectively, and no waiver of such funding has been sought or obtained.

 

(d)           Title IV Liability.  Neither the Company nor any of the Subsidiaries could reasonably be expected to incur any material liability by reason of being treated as a single employer with any Person other than the Company and the Subsidiaries under Section 414(b), (c) or (m) of the Code.

 

(e)           Claims; Audits or Investigations.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) other than routine claims for benefits, there are no pending or, to the Knowledge of the Company, threatened claims by or on behalf of any participant in any of the Benefit Plans, or otherwise involving any Benefit Plan or the assets of any Benefit Plan; and (ii) none of the Benefit Plans is presently under audit or examination (nor has notice been received of a potential audit or examination) by the IRS, the Department of Labor, or any other Governmental Authority, domestic or foreign.

 

Section 3.19          Tax Matters.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect:

 

(a)           All Tax Returns required to be filed by, on behalf of, or with respect to the Company or any of the Subsidiaries have been duly and timely filed (taking into account valid extensions) and are complete and correct in all material respects;

 

(b)           All Taxes required to be paid by the Company or any of the Subsidiaries have been duly and timely paid; and

 

(c)           All Taxes required to be withheld by the Company or any of the Subsidiaries have been duly and timely withheld, and such withheld Taxes have been either duly and timely paid to the proper Governmental Authority or properly set aside in accounts for such purpose.

 

Section 3.20          Real Property.

 

(a)           Owned Real Property.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the Company or a Subsidiary has good, valid and marketable fee simple title to all of the real property owned by the Company or a Subsidiary as of the date of this Agreement, free and clear of any Encumbrance other than Permitted Encumbrances.

 

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(b)           Leased Real Property.  Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the Company and the Subsidiaries, as applicable, have good and valid title to the leasehold estate under all leases to which either the Company or any Subsidiary is a party, free and clear of any Encumbrances other than Permitted Encumbrances.

 

Section 3.21          No Other Representations or Warranties.  Except for the representations and warranties contained in this Article III, neither the Company nor any other Person makes any other express or implied representation or warranty on behalf of the Company in connection with the transactions contemplated by this Agreement, and the Company hereby disclaims any such representation or warranty, whether made by the Company or any other Person on behalf of the Company, notwithstanding the delivery or disclosure to Buyer or any other Person of any documentation or other information by the Company or any other Person in connection with the transactions contemplated by this Agreement.

 

ARTICLE IV

 

Representations and Warranties of the Selling Stockholders

 

Each Selling Stockholder severally, and not jointly, represents and warrants to Buyer as follows:

 

Section 4.1            Due Authorization and Enforceability.

 

(a)           Such Selling Stockholder has all requisite organizational power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.

 

(b)           The execution, delivery and performance by such Selling Stockholder of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action of such Selling Stockholder and no additional organizational or shareholder authorization or consent on the part of such Selling Stockholder is required in connection with the execution, delivery and performance by such Selling Stockholder of this Agreement.

 

(c)           This Agreement, when executed and delivered by the other parties hereto, constitutes a valid and legally binding obligation of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms, except to the extent that such enforceability may be subject to the Bankruptcy and Equity Exception.

 

Section 4.2            Consents and Approvals.  Assuming the truth and accuracy of the representations and warranties of the Company, Buyer and the other Selling Stockholders, if any, set forth in Section 3.2, Section 5.2 and this Section 4.2,

 

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respectively, no notices to, filings with, or authorizations, consents or approvals of, any Governmental Authority are necessary for the execution, delivery or performance by such Selling Stockholder of this Agreement or the consummation of the transactions contemplated hereby, except for (i) the Required Regulatory Approvals, (ii) those that may be required solely by reason of the Company’s, Buyer’s or the other Selling Stockholders’ (as opposed to any other Third Party’s) participation in the transactions contemplated hereby and (iii) those the absence of which would not, individually or in the aggregate, reasonably be likely to impair in any material respect the consummation of such Selling Stockholder’s obligations hereunder.

 

Section 4.3            Non-Contravention.  The execution, delivery and performance by such Selling Stockholder of this Agreement and the consummation of the transactions contemplated hereby does not and will not (i) violate any provision of the Organizational Documents of such Selling Stockholder or (ii) assuming compliance with the matters referenced in Section 4.2, violate any Law, except, in the case of clause (ii), as would not reasonably be expected to impair in any material respect the consummation of such Selling Stockholder’s obligations hereunder.

 

Section 4.4            Title to Shares.  Immediately prior to the Closing, such Selling Stockholder will be the beneficial or record holder of the Common Shares to be sold by such Selling Stockholder hereunder with full dispositive power thereover, and holds, and will hold, such Common Shares free and clear of all Encumbrances.

 

Section 4.5            No Other Representations or Warranties.  Except for the representations and warranties contained in this Article IV, neither such Selling Stockholder nor any other Person makes any other express or implied representation or warranty on behalf of such Selling Stockholder.

 

ARTICLE V

 

Representations and Warranties of Buyer

 

Buyer represents and warrants to the Company and the Selling Stockholders as follows:

 

Section 5.1            Organization, Due Authorization and Enforceability.

 

(a)           Buyer is a corporation duly organized, validly existing and in good standing (where and if applicable) under the laws of Singapore, with all requisite organizational power and authority to own and operate and to carry on its business.

 

(b)           Buyer has all requisite organizational power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.

 

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(c)           The execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action of Buyer and no additional organizational or shareholder authorization or consent on the part of Buyer is required in connection with the execution, delivery and performance by Buyer of this Agreement.

 

(d)           This Agreement, when executed and delivered by the other parties hereto, constitutes a valid and legally binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except to the extent that such enforceability may be subject to the Bankruptcy and Equity Exception.

 

Section 5.2            Consents and Approvals.  Assuming the truth and accuracy of the representations and warranties of the Company and the Selling Stockholders set forth in Section 3.2 and Section 4.2, respectively, no notices to, filings with, or authorizations, consents or approvals of, any Governmental Authority are necessary for the execution, delivery or performance by Buyer of this Agreement or the consummation of the transactions contemplated hereby, except for (i) the Required Regulatory Approvals, (ii) those that may be required solely by reason of the Company’s or the Selling Stockholders’ (as opposed to any other Third Party’s) participation in the transactions contemplated hereby and (iii) those the absence of which would not, individually or in the aggregate, reasonably be likely to impair in any material respect the consummation of Buyer’s obligations hereunder.

 

Section 5.3            Non-Contravention.  The execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby does not and will not (i) violate any provision of the Organizational Documents of Buyer or (ii) assuming compliance with the matters referenced in Section 5.2, violate any Law, except, in the case of clause (ii), as would not reasonably be expected to impair in any material respect the consummation of Buyer’s obligations hereunder.

 

Section 5.4            Sufficient Funds.  Buyer has, and at the Closing will have, sufficient funds to pay the Aggregate Purchase Price, to make the payments required under Section 2.3 and to effect all other transactions contemplated by this Agreement.

 

Section 5.5            Accredited Investor; Acquisition for Investment.  Buyer is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act.  The Common Shares acquired by Buyer pursuant to this Agreement are being acquired for investment only for its own account and not with a view to, or for sale in connection with, any distribution thereof in violation of any Federal, state or foreign securities laws, in each case to the extent applicable.  Buyer (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Common Shares and is capable of bearing the economic risks of such investment.

 

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ARTICLE VI

 

Covenants

 

Section 6.1            Conduct of Business.  During the period from the date hereof to the Closing, except as (i) expressly permitted or required by this Agreement, (ii) Buyer otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or (iii) as required by applicable Law, the Company shall, and shall cause each of the Subsidiaries to, operate in the ordinary course of business.

 

Section 6.2            Regulatory Approvals and Third Party Consents.

 

(a)           Each party hereto shall (and the Company shall cause the Subsidiaries to) cooperate and (i) use their respective best efforts to obtain all approvals, consents, waivers and authorizations (including the Required Regulatory Approvals) required to be obtained from any Governmental Authority in order to consummate the transactions contemplated hereby (including the Closing), and (ii) otherwise act in good faith in connection with the performance of their obligations under this Agreement, use their respective best efforts to take or cause to be taken all actions, and to do or cause to be done all other things, that are necessary, proper or advisable in order for the Company, Buyer or the Selling Stockholders, as the case may be, to fulfill and perform its obligations in respect of this Agreement, to cause the conditions to its obligations set forth in this Article VI to be satisfied and otherwise to consummate the transactions contemplated hereby.

 

(b)           The parties hereto shall make or cause to be made, as promptly as practicable, all filings and submissions required to obtain all Required Regulatory Approvals or otherwise required by any other applicable Laws that, as of the date of this Agreement, have not yet been filed in connection with this Agreement or the transactions contemplated hereby and shall file any additional certification, information and document requested as soon as practicable after receipt of such request therefor and in any event, consistent with any deadline imposed under all applicable Laws.  Each of the parties shall pay or cause to be paid its own filing fees incurred in connection with obtaining the Required Regulatory Approvals.

 

(c)           The parties hereto and their respective Affiliates shall not extend any waiting period or comparable period under any Antitrust Laws or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto.

 

(d)           In the event any claim, action, suit, investigation or other proceeding by any Governmental Authority or other Person is commenced that questions the validity or legality of the transactions contemplated hereby or seeks damages in connection therewith, the parties hereto agree to cooperate and use reasonable best efforts to defend

 

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against such claim, action, suit, investigation or other proceeding and, if an injunction or other order is issued in any such action, suit or other proceeding, to use reasonable best efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the transactions contemplated hereby.

 

(e)           Buyer and the Selling Stockholders shall, and the Company shall (and the Company shall cause the Subsidiaries to, if applicable), cooperate with each other and, subject to the Confidentiality Agreement and except where prohibited by applicable Law, shall furnish to each other all information necessary or desirable in connection with obtaining any approvals, consents, waivers or authorizations from any Governmental Authority or other Persons or making any filings or submissions with any Governmental Authority required in order to consummate the transactions contemplated hereby, and in connection with resolving any investigation or other inquiry by any Governmental Authority under any Laws with respect to this Agreement or the transactions contemplated hereby.  Subject to the Confidentiality Agreement and except where prohibited by applicable Law, each party shall promptly inform each other party of any communication with, and any proposed understanding, undertaking or agreement with, any Governmental Authority regarding any such approvals, consents, waivers, authorizations or filings.

 

Section 6.3            Further Assurances.  From time to time after the Closing Date, each party hereto shall promptly execute, acknowledge and deliver any other assurances or documents or instruments of transfer as may be necessary or otherwise reasonably requested by the other parties hereto to confirm and assure the rights and obligations provided for in this Agreement and render effective the consummation of the transactions contemplated hereby, or otherwise to carry out the intent and purposes of this Agreement. None of the parties hereto shall knowingly take or cause to be taken any action which would reasonably be expected to materially delay or prevent consummation of the transactions contemplated by this Agreement.

 

Section 6.4            Notification of Certain Matters.  Subject to applicable Law, during the period from the date hereof to the Closing, (i) the Company shall notify Buyer of any change, effect, event, development or occurrence arising after the date of this Agreement that, to the Knowledge of the Company, would reasonably be expected to result in the failure of any of the conditions set forth in Article VII to be satisfied and (ii) Buyer shall notify the Company of any change, effect, event, development or occurrence arising after the date of this Agreement that, to the knowledge of Buyer, would reasonably be expected to result in the failure of any of the conditions set forth in Article VII to be satisfied.

 

Section 6.5            Fees and Expenses.  Except as otherwise expressly provided in this Agreement, each party hereto shall pay or cause to be paid its own costs, fees and

 

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expenses incurred in connection with this Agreement and the transactions contemplated hereby.

 

Section 6.6            Use of Proceeds.  The Company shall use the combined proceeds of the sale of the Issued Shares and the sale of Common Shares in the IPO and other readily available funds, if necessary, to repay, no later than 5 Business Days after the Closing, the Company’s senior subordinated notes due September 30, 2017 and the Company’s senior subordinated notes due June 30, 2018.

 

ARTICLE VII

 

Conditions to Closing

 

Section 7.1            Conditions to the Obligations of the Parties.  The obligations of the parties hereto to effect the Closing are subject to the satisfaction (or written waiver) prior to or at the Closing of the following conditions:

 

(a)           No Injunction or Order.  No court or other Government Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law, determination, injunction or other order (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits the consummation of the transactions contemplated hereby.

 

(b)           Required Regulatory Approvals.  All Required Regulatory Approvals shall been obtained.

 

(c)           IPO.  The Registration Statement shall have been declared effective by the SEC. The IPO shall have been consummated and at least 20 million IPO Shares shall have been sold, exclusive of any IPO Shares sold to the Underwriters who have elected to exercise their “greenshoe” option to purchase additional Common Shares.

 

Section 7.2            Conditions to the Obligations of Buyer.  The obligation of Buyer to effect the Closing is subject to the satisfaction (or written waiver) prior to or at the Closing of the following conditions:

 

(a)           Representations and Warranties of the Company.  Other than the representations and warranties of the Company set forth in Section 3.1, Section 3.4(a), Section 3.4(b), Section 3.5 and Section 3.13 (collectively, the “Fundamental Representations”), each of the representations and warranties of the Company contained in this Agreement shall be true and correct in all respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date

 

25



 

(except to the extent such representations and warranties speak as of an earlier date in which case as of such earlier date), except in all cases where the failure of such representations and warranties to be so true and correct has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect.  Each of the Fundamental Representations shall be true and correct in all respects (except, in the case of Section 3.4(a), for de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties speak as of an earlier date in which case as of such earlier date).

 

(b)           Covenants.  Each of the covenants and agreements of the Company to be performed on or prior to the Closing shall have been duly performed in all material respects.

 

(c)           No Company Material Adverse Effect.  No change, effect, event, development or occurrence shall have occurred since the date hereof that has had a Company Material Adverse Effect.

 

(d)           CertificateBuyer shall have received a certificate signed by a senior executive officer of the Company to the effect that the conditions set forth in Section 7.2(a), Section 7.2(b) and Section 7.2(c) have been satisfied.

 

(e)           Representations, Warranties and Covenants of the Selling Stockholders.  Other than the representations and warranties of the Selling Stockholders set forth in Section 4.1 and Section 4.4 (the “Selling Stockholder Fundamental Representations”), each of the representations and warranties of the Selling Stockholders contained in this Agreement shall be true and correct in all respects (without giving effect to any limitation as to “materiality” or any similar limitation set forth therein) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties speak as of an earlier date in which case as of such earlier date) except in all cases where the failure of such representations and warranties to be so true and correct has not and would not reasonably be expected to impair in any material respect the consummation of the Selling Stockholders’ obligations hereunder.  Each of the Selling Stockholder Fundamental Representations shall be true and correct as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties speak as of an earlier date in which case as of such earlier date).  Each of the covenants and agreements of the Selling Stockholders to be performed on or prior to the Closing shall have been duly performed in all material respects.

 

(f)            IPO.  The Company shall have confirmed in writing that, based on information received from the Underwriters as of the Closing Date, at least 17

 

26



 

million IPO Shares, exclusive of any IPO Shares purchased by the Underwriters who have elected to exercise their “greenshoe” option to purchase additional Common Shares, have been sold by the Underwriters to “institutional book” investors, including Qualified Institutional Buyers, as such term is defined in Rule 144A under the Securities Act.

 

Section 7.3            Conditions to the Obligations of the Company and the Selling Stockholders.  The obligations of the Company and the Selling Stockholders to effect the Closing is subject to the satisfaction (or written waiver) prior to or at the Closing of the following conditions:

 

(a)           Representations and Warranties.  The representations and warranties of Buyer contained in this Agreement shall be true and correct in all respects (without giving effect to any limitation as to “materiality” or any similar limitation set forth therein) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties speak as of an earlier date in which case as of such earlier date), except in all cases where the failure of such representations and warranties to be so true and correct has not and would not reasonably be expected to impair in any material respect the consummation of Buyer’s obligations hereunder.

 

(b)           Covenants.  Each of the covenants and agreements of Buyer to be performed on or prior to the Closing shall have been duly performed in all material respects.

 

(c)           Certificate.  The Company and the Selling Stockholders shall have received a certificate, signed by a duly authorized officer of Buyer and dated as of the Closing Date, to the effect that the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied.

 

ARTICLE VIII

 

Termination

 

Section 8.1            Termination.  This Agreement may be terminated at any time prior to the Closing:

 

(a)           by written agreement of the parties hereto; or

 

(b)           by any party hereto, if the Closing shall not have occurred on or prior to the Termination Date.

 

27



 

Section 8.2            Effect of Termination.  In the event of the termination of this Agreement in accordance with Section 8.1, this Agreement shall thereafter become void and have no effect, and no party hereto shall have any liability to the other parties hereto or their respective Affiliates, or their respective directors, officers or employees, except for the obligations of such party (if applicable) contained in Section 9.2, Section 9.3, Section 9.5, Section 9.6, Section 9.7, Section 9.8, Section 9.9, Section 9.10, Section 9.11, Section 9.12 and Section 9.14 (and any related definitional provisions set forth in Article I)); provided that no such termination shall relieve any party hereto from liability for any material breach of this Agreement or bad faith conduct that occurred prior to, or in connection with, such termination.

 

ARTICLE IX

 

Miscellaneous

 

Section 9.1            No Survival of Representations and Warranties.  Neither the representations and warranties set forth in Article III, including, for the avoidance of doubt, any disclosures in respect thereof in the Company Disclosure Letter or the Disclosure Document, Article IV or Article V nor any rights arising out of any breach of any such representations and warranties shall survive the Closing, and no Person shall have any liability or other obligation in connection with any such representation or warranty following the Closing.

 

Section 9.2            Notices.  All notices and communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the party for whom it is intended or delivered by registered or certified mail, return receipt requested, or if sent by a national courier service (with signed confirmation of receipt), or if sent by facsimile or electronic mail, provided that a confirmation of the effective transmission of the facsimile or electronic mail by personal delivery, by registered or certified mail or by a national courier service is promptly received, to the Person at the applicable address or facsimile number set forth below:

 

To the Company:

 

Univar Inc.

3075 Highland Parkway, Suite 200

Downers Grove, IL 60515

Attn:

 

General Counsel

Facsimile:

 

331-777-6293

Email:

 

steve.landsman@univar.com

 

With a copy to (which shall not constitute notice to the Company):

 

28



 

Debevoise & Plimpton LLP

919 Third Avenue

New York, NY 10022

Attn:

 

Paul S. Bird

Facsimile:

 

(212) 909-6435

Email:

 

psbird@debevoise.com

 

To Buyer:

 

Dahlia Investments Pte. Ltd.

60B Orchard Road

#06-18 Tower 2

The Atrium@Orchard

Singapore 238891

Attn:

 

Juliet Teo

Email:

 

juliett@temasek.com.sg

 

With a copy to (which shall not constitute notice to Buyer):

 

Cleary Gottlieb Steen & Hamilton LLP

One Liberty Plaza

New York, NY 10006

Attn:

 

Robert P. Davis

Facsimile:

 

212-225-3999

Email:

 

rdavis@cgsh.com

 

To a Selling Stockholder, to such address as is set forth on Schedule 1.

 

With a copy to (which shall not constitute notice to such Selling Stockholder):

 

Debevoise & Plimpton LLP

919 Third Avenue

New York, NY 10022

Attn:

 

Paul S. Bird

Facsimile:

 

(212) 909-6435

Email:

 

psbird@debevoise.com

 

Any party hereto may change the address or the persons to whom notices or copies hereunder shall be directed by providing written notice to the other parties hereto of such change in accordance with this Section 9.1.

 

Section 9.3            Amendment; Waiver.   Subject to the last sentence of this Section 9.3 and except as otherwise provided in Section 9.13, any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and

 

29



 

signed, in the case of an amendment, by the parties hereto, or in the case of a waiver, by the party against whom the waiver is to be effective.  No failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any waiver or single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  The rights and remedies herein proved shall be cumulative and not exclusive of any rights or remedies herein, except to the extent otherwise provided herein.  Schedule 1 may be amended by the Company and the Selling Stockholders from time to time prior to the Closing to reflect the addition of any Selling Stockholder and the number of Secondary Shares to be sold by such Selling Stockholder or any change to the number of Secondary Shares to be sold by any Seller Stockholder, it being understood that the aggregate amount of Secondary Shares to be sold under this Agreement shall not exceed $150 million divided by the IPO Price, rounded to the nearest whole number.  In the case of an addition of a Selling Stockholder, such Selling Stockholder shall execute a joinder to this Agreement.  Any such amendment to Schedule 1 or joinder of a Selling Stockholder shall be effective once notice of the same is delivered to Buyer.

 

Section 9.4            No Assignment or Benefit to Third Parties; Restrictions on Certain Transactions.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns.  No party hereto may assign any of its rights or delegate any of its obligations under this Agreement by operation of Law or otherwise, without the prior written consent of the other parties hereto.  Nothing in this Agreement, express or implied, is intended to confer upon any Person other than the parties hereto and their respective successors, legal representatives and permitted assigns, any rights or remedies under or by reason of this Agreement.  Any purported assignment in contravention of this Section 9.4 shall be null and void.

 

Section 9.5            Entire Agreement.  This Agreement (including all Exhibits hereto) together with the Stockholders Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, except that the Confidentiality Agreement shall remain in effect until the Closing without regard to the execution of this Agreement.

 

Section 9.6            Public Disclosure.  Notwithstanding anything to the contrary contained herein, except as may be required (a) to comply with the requirements of any applicable Law, (b) to comply with the requirements of any material Contracts of the Company or the Subsidiaries (including requirements under the Existing Credit Facilities), (c) to obtain consents and approvals, and to provide such notices, necessary to consummate the transactions contemplated by this Agreement, (d) in connection with the Selling Stockholders’, or any of their Affiliates’, respective fund raising, marketing, reporting or compliance activities, from and after the date hereof, and (e) to disclose the

 

30



 

existence of the material terms of this Agreement and the Stockholders Agreement in an amendment to the Company’s Form S-1 registration statement, no press release or similar public announcement or communication shall be made or caused to be made relating to this Agreement or any of the terms hereof, unless specifically approved in advance by the parties hereto.  For the avoidance of doubt, the Confidentiality Agreement shall remain in effect until the Closing without regard to the execution of this Agreement.

 

Section 9.7            Schedules.  The Company Disclosure Letter and all Exhibits or other documents expressly incorporated into this Agreement are hereby incorporated into this Agreement and are hereby made a part hereof as set out in full in this Agreement.  Any item disclosed in the Company Disclosure Letter shall be deemed to have been disclosed with respect to the indicated section in this Agreement as well as every other section in this Agreement if the relevance of such disclosure to such other section is reasonably apparent. The inclusion of information in the Company Disclosure Letter shall not be construed as an admission that such information is material or adverse to any of the Company or the Subsidiaries.  In addition, matters reflected in the Company Disclosure Letter are not necessarily limited to matters required by this Agreement to be reflected in the Company Disclosure Letter.  Such additional matters are set forth for informational purposes only and do not necessarily include other matters of a similar nature.  Neither the specification of any dollar amount in any representation, warranty or covenant contained in this Agreement nor the inclusion of any specific item or matter in the Company Disclosure Letter is intended to imply that such amount, or higher or lower amounts, or the item or matter so included or other items or matters, are or are not material or in the ordinary course of business (except where expressly stated in the relevant representation, warranty or covenant), nor shall such information be deemed to establish a standard of materiality or a basis for interpreting terms such as “material,” “materially,” “materiality,” “Company Material Adverse Effect,” or any similar qualification in the Agreement, and such information shall not be construed as an admission of liability or responsibility under any Law or in any dispute or controversy.

 

Section 9.8            Governing Law; Jurisdiction.   THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.  Each party hereto irrevocably submits to the exclusive jurisdiction of (a) any court of the State of New York located in New York County, New York and (b) the United States District Court for the Southern District of New York, and any appellate court from any thereof, for the purposes of any proceeding arising out of or relating to this Agreement or the consummation of the transactions contemplated hereby, or for recognition or enforcement of any judgment, and each party irrevocably and unconditionally agrees that all claims in respect of such proceeding may be heard in such state court or, to the extent permitted by applicable Law, in such federal court.  Each

 

31



 

party agrees to commence any such proceeding either in the United States District Court for the Southern District of New York (and appellate courts thereof) or, if such proceeding may not be brought in such court for jurisdictional reasons, in any court of the State of New York located in New York County, New York (and appellate courts thereof).  Each party further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or proceeding in New York with respect to any matters to which such party has submitted to jurisdiction in this Section 9.8.  Each party irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement or the consummation of the transactions contemplated hereby, in any court referred to in the first sentence of this Section 9.8 and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

Section 9.9            Waiver of Trial by Jury.  EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.  EACH PARTY (A) CERTIFIES THAT 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 AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 9.9.

 

Section 9.10          Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement.

 

Section 9.11          Headings.  The heading references herein and the table of contents hereof are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions hereof.

 

Section 9.12          Severability.  The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.  If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) the parties hereto shall negotiate in good faith to agree upon a suitable and equitable provision to be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other

 

32



 

Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

 

Section 9.13          Specific Performance.  Each of the parties hereto acknowledges and agrees that a violation of any of the terms of this Agreement will cause the other parties hereto irreparable injury for which adequate remedy at Law is not available.  Accordingly, it is agreed that each of the parties hereto will be entitled to specific performance, injunction, restraining order or other equitable relief, without the posting of any bond, to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction, in addition to any other remedy to which they may be entitled at Law or equity.  Each of the parties hereto hereby waives, in any action for specific performance, the defense of adequacy of a remedy at law and the posting of any bond or other security in connection therewith.

 

Section 9.14          Certain Acknowledgment and Agreement by Buyer.

 

(a)           Buyer acknowledges and agrees that it (i) has made its own inquiry and investigations into and, based thereon, has formed an independent judgment concerning the Company, the Subsidiaries and their respective businesses and assets, (ii) has been provided with adequate access to such information, documents and other materials relating to the Company, the Subsidiaries and their respective businesses and assets as it has deemed necessary to enable it to form such independent judgment, (iii) has had such time as it deems necessary and appropriate to fully and completely review and analyze such information, documents and other materials and (iv) has been provided an opportunity to ask questions of the Company with respect to such information, documents and other materials and has received satisfactory answers to such questions.

 

(b)           In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis and the representations and warranties of the Company and the Selling Shareholders set forth in Article III and Article IV, respectively, and Buyer acknowledges that, except for the representations and warranties set forth in Article III and Article IV, (i) neither the Company nor any of the Subsidiaries nor any of their respective directors, officers, employees, Affiliates, stockholders, agents or representatives or any Person acting on its behalf, makes or has made any representation or warranty, either express or implied, (A) as to the accuracy or completeness of any of the information heretofore or hereafter provided or made available to Buyer or any of its respective agents, representatives, lenders or Affiliates or (B) with respect to any projections, forecasts, estimates, plans or budgets of future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows (or any component thereof) or future financial condition (or any component thereof) of the Company and any of the Subsidiaries heretofore or hereafter delivered to or made available to Buyer or any of its respective agents, representatives, lenders or Affiliates

 

33



 

and (ii) it has not been induced by or relied upon any representation, warranty or other statement, express or implied, made by the Company or any of the Subsidiaries, or any of their respective directors, officers, employees, Affiliates, stockholders, agents or representatives or any other Person.

 

(c)           The Purchased Shares have not been registered under the Securities Act or any state securities Laws, and may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act (except pursuant to an exemption from such registration available under the Securities Act) and without compliance with foreign securities Laws, in each case, to the extent applicable.

 

[Signature page follows.]

 

34



 

IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be executed as of the date first written above.

 

 

 

UNIVAR INC.

 

 

 

 

 

By:

/s/ J. Erik Fyrwald

 

 

Name: J. Erik Fyrwald

 

 

Title: Chief Executive Officer

 

[Signature Page to Stock Purchase Agreement]

 



 

 

DAHLIA INVESTMENTS PTE. LTD.

 

 

 

 

 

By:

/s/ Seah Seow Ling

 

 

Name: Seah Seow Ling

 

 

Title: Director

 

[Signature Page to Stock Purchase Agreement]

 



 

 

UNIVAR N.V.

 

 

 

 

 

By:

/s/ Henk Schop

 

 

Name: Henk Schop

 

 

Title: Director

 

[Signature Page to Stock Purchase Agreement]

 



 

Schedule 1

 

Selling Stockholders

 

Selling Stockholder

 

Number of Secondary Shares to be sold(1)

Univar N.V.
712 Fifth Avenue
43rd Floor
New York NY 10019
Attn: Lars Haegg
Facsimile:1-212-265-6375
Email: LHaegg@cvc.com

 

 

 


(1)              The number, if any, of Secondary Shares to be sold by Univar N.V. and any other Selling Stockholders shall be determined no later than the second Business Day prior to the Closing Date.

 



 

Exhibit A

 

Form of Stockholders Agreement

 



 

Exhibit B

 

Company Disclosure Letter

 



 

Exhibit C

 

Disclosure Document

 


EX-99.C 4 a15-15033_1ex99dc.htm EX-99.C

Exhibit C

 

FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT

 

This First Amendment (the “Amendment”) to the Stock Purchase Agreement, dated as of June 1, 2015 (the “Agreement”), by and among Univar Inc. (the “Company”), Univar N.V. (the “Selling Stockholder”) and Dahlia Investments Pte. Ltd. (“Buyer”) is made and entered into as of June 19, 2015.

 

W I T N E S S E T H:

 

WHEREAS, the Company, the Selling Stockholder and Buyer desire to amend the Agreement in accordance with Section 9.3 of the Agreement by modifying the amount of Secondary Shares to be sold and the price therefor and replacing Schedule 1 and Exhibit A of the Agreement.

 

NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

Section 1.                                           Sale of Secondary Shares

 

a)             The second recital of the Agreement is hereby deleted and replaced with the following:

 

“WHEREAS, Buyer desires to purchase from the Selling Stockholders, and the Selling Stockholders desire to sell to Buyer, five million Secondary Shares, concurrently with the consummation of the IPO, at a price per share equal to the Secondary Share Price and on the terms and subject to the conditions set forth in this Agreement;”

 

b)             The definition of “Secondary Purchase Price” is hereby deleted and replaced with the following:

 

“ “Secondary Purchase Price” means $103,950,000.”

 

c)              The definition of “Selling Stockholder’s Purchase Price” is hereby deleted and replaced with the following:

 

“ “Selling Stockholder’s Purchase Price” means, in the case of each of the Selling Stockholders, an amount equal to the Secondary Share Price multiplied by the

 



 

number of Secondary Shares set forth opposite such Selling Stockholder’s name on Schedule 1.”

 

d)             The following definition is hereby added to Section 1.1 of the Agreement:

 

“ “Secondary Share Price” means $20.79.”

 

e)              The fourth sentence of Section 9.3 of the Agreement is hereby deleted and replaced with the following:

 

“Schedule 1 may be amended by the Company and the Selling Stockholders from time to time prior to the Closing to reflect the addition of any Selling Stockholder and the number of Secondary Shares to be sold by such Selling Stockholder or any change to the number of Secondary Shares to be sold by any Seller Stockholder, it being understood that the aggregate amount of Secondary Shares to be sold under this Agreement must be equal to five million.”

 

Section 2.                                           Stockholders Agreement.

 

a)             The fourth recital of the Agreement is hereby deleted and replaced with the following:

 

“WHEREAS, in connection with the consummation of the sale by the Company and the Selling Stockholders and the purchase by Buyer of the Purchased Shares (the “Closing”) and the IPO, the Company, Buyer, and certain Selling Stockholders will enter into a Stockholders Agreement substantially in the form attached hereto as Exhibit A (the “Stockholders Agreement”), which Stockholders Agreement will also be binding on the other “Stockholders” (as defined in the Stockholders Agreement) named therein.”

 

b)             Clause (c) of Section 2.3 of the Agreement is hereby deleted and replaced with the following:

 

“each party hereto that is a contemplated signatory to the Stockholders Agreement shall deliver to each other party the Stockholders Agreement, duly executed by such party.”

 

c)              Exhibit A of the Agreement is hereby amended by replacing it with the exhibit attached hereto as Annex A.

 

Section 3.                                           Schedule 1. Schedule 1 of the Agreement is hereby amended by replacing it with the schedule attached hereto as Annex B.

 

2



 

ARTICLE II

 

MISCELLANEOUS

 

Section 1.                                           Defined Terms. Capitalized terms used, but not otherwise defined, herein shall have the meanings ascribed to them in the Agreement.

 

Section 2.                                           Effect on the Agreement.  Except as expressly amended or modified by this Amendment, all terms, conditions and covenants contained in the Agreement remain in full force and effect.

 

Section 3.                                           Counterparts.  This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.  Each counterpart may consist of a number of copies hereof each signed by less than all, but together signed by all, of the parties hereto.

 

Section 4.                                           Governing Law.  This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles or rules of conflict of laws.

 

[Signature Page Follows]

 

3



 

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

 

 

 

UNIVAR INC.

 

 

 

 

 

 

By:

/s/ Stephen Landsman

 

Name:

Stephen N. Landsman

 

Title:

Executive Vice President, General Counsel

 

 

and Secretary

 

 

 

 

 

 

 

UNIVAR N.V.

 

 

 

 

 

 

By:

/s/ Henk Schop

 

Name:

Henk Schop

 

Title:

Director

 

[Signature Page to SPA Amendment]

 



 

 

DAHLIA INVESTMENTS PTE. LTD.

 

 

 

 

 

 

By:

/s/ Poy Weng Chuen

 

Name:

Poy Weng Chuen

 

Title:

Director

 

[Signature Page to SPA Amendment]

 



 

ANNEX A

 



 

 

FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT

 

of

 

UNIVAR INC.

 

Dated as of June [·], 2015

 

 



 

TABLE OF CONTENTS

 

 

 

Page

ARTICLE I

 

DEFINITIONS AND INTERPRETATION

Section 1.01.

Definitions

2

Section 1.02.

Interpretation

10

 

ARTICLE II

 

BOARD OF DIRECTORS

 

Section 2.01.

Management Under Direction of the Board

10

Section 2.02.

Composition of the Board; Observers

11

Section 2.03.

Chairman

15

Section 2.04.

Committees of the Board

15

 

ARTICLE III

 

OFFICERS; INFORMATION RIGHTS

 

 

 

Section 3.01.

Officers

16

Section 3.02.

Annual Business Plan

17

Section 3.03.

Periodic Reports

17

Section 3.04.

Access

18

 

ARTICLE IV

 

TRANSFERS

 

 

 

Section 4.01.

Restriction on Transfers

18

 

ARTICLE V

 

REGISTRATION RIGHTS

 

Section 5.01.

Coordination Committee

20

Section 5.02.

Demand Registration

21

Section 5.03.

Piggyback Registrations

25

Section 5.04.

S-3 Shelf Registration

26

Section 5.05.

Suspension Periods

29

Section 5.06.

Holdback Agreements

30

 

i



 

TABLE OF CONTENTS

(Cont’d)

 

 

 

Page

Section 5.07.

Registration Procedures

31

Section 5.08.

Registration Expenses

36

Section 5.09.

Indemnification

37

 

ARTICLE VI

 

LIMITATION ON LIABILITY; EXCULPATION

 

 

 

Section 6.01.

Liabilities of the Company

40

Section 6.02.

Waiver of Fiduciary Duties

40

Section 6.03.

Duties and Liabilities of Covered Persons; Exculpation

41

Section 6.04.

Indemnification

41

Section 6.05.

Advancement of Expense

42

Section 6.06.

Notice of Proceedings

43

Section 6.07.

Insurance

43

 

ARTICLE VII

 

CONFIDENTIALITY; PUBLICITY; NON-SOLICITATION

 

Section 7.01.

Confidential Information

44

Section 7.02.

Publicity

45

Section 7.03.

Non-Solicit

45

ARTICLE VIII

 

TERMINATION

 

 

 

Section 8.01.

Termination

45

 

ARTICLE IX

 

GOVERNING LAW AND CONFLICT RESOLUTION

 

 

 

Section 9.01.

Governing Law

46

Section 9.02.

Specific Performance

46

 

 

 

ARTICLE X

 

REPRESENTATIONS AND WARRANTIES

 

 

 

Section 10.01.

Organization, Standing and Power

47

Section 10.02.

Consents and Approvals

47

Section 10.03.

Non-Contravention

47

 

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TABLE OF CONTENTS

(Cont’d)

 

 

 

Page

 

 

 

Section 10.04.

No Litigation

47

 

ARTICLE XI

 

MISCELLANEOUS

 

 

 

Section 11.01.

Successors and Assigns

48

Section 11.02.

Amendments; Waiver

48

Section 11.03.

Notices

49

Section 11.04.

Integration; Interpretation

52

Section 11.05.

Severability

52

Section 11.06.

Counterparts

52

Section 11.07.

No Third Party Beneficiaries

53

 

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THIS FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (as amended and restated from time to time according to its terms, this “Agreement”), dated as of [•], 2015, relating to Univar Inc., a Delaware corporation (the “Company”), is entered into by and among the Company, CD&R Univar Holdings, L.P., a Cayman Islands exempted limited partnership (“CD&R Investor”), Univar N.V., a limited liability company (naamloze vennootschap) organized under the laws of the Netherlands and with corporate seat in Rotterdam, the Netherlands (“Univar NV”), Dahlia Investments Pte. Ltd. (“Temasek Investor”), and each of the stockholders of the Company whose name appears on Annex A hereto (together with and each Person that subsequently executes an Accession Agreement, the “Stockholders” and each, individually, a “Stockholder”).

 

W I T N E S S E T H

 

WHEREAS, the Company entered into a Stockholders Agreement, dated as of November 30, 2010, with CD&R Investor, the other CD&R Investor Parties and Univar NV, as further amended and restated on December 20, 2010, in connection with the admission of the Mezzanine Investors as stockholders of the Company and their becoming parties to this Agreement, as further amended and restated on March 10, 2011 in connection with the admission of the Goldman Sachs Investors and their becoming parties to this Agreement, as further amended and restated on June 27, 2012 in connection with the admission of the Management Stockholder and it becoming party to this Agreement (the “Original Agreement”);

 

WHEREAS, in connection with the initial public offering of the shares of the Company’s common stock, par value $0.01 per share (the “Shares”), CD&R Investor, Univar NV, Temasek Investor, the Stockholders and the Company desire to amend and restate the Original Agreement as provided herein to set forth their respective rights and obligations; and

 

WHEREAS, pursuant to Section 13.02 of the Original Agreement, this amendment and restatement of the Original Agreement has been approved by Stockholders holding a majority of the Shares and has been unanimously approved by CD&R Investor and Univar NV.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 



 

ARTICLE I

 

DEFINITIONS AND INTERPRETATION

 

Section 1.01.                                    Definitions.  The following terms shall, for the purposes of this Agreement, have the following meanings:

 

Accession Agreement” means an agreement with a prospective additional Stockholder accepting all of the terms and conditions of this Agreement.

 

Affiliate” means, with respect to any Person, any Person directly or indirectly controlling, controlled by, or under common control with, such other Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made.  For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise.  For the purpose of this Agreement, the Company and each other member of the Group shall not be deemed an Affiliate of any of the Stockholders.  For the purposes of this Agreement, CD&R Manager shall be deemed an Affiliate of each CD&R Investor Party and each of the CVC GPs shall be deemed an Affiliate of Univar NV.  For the purposes of this Agreement, each of CVC Ulysses and Parcom and their respective Affiliates (other than the Company and its Subsidiaries) shall be deemed Affiliates of Univar NV.  For the purposes of Article VII, any reference to Temasek Investor’s Affiliates shall mean its ultimate holding company, Temasek Holdings, and Temasek Holdings’ direct and indirect wholly owned companies whose boards of directors or equivalent governing bodies are comprised solely of nominees or employees of (A) Temasek Holdings; (B) Temasek Pte. Ltd; and/or (C) wholly owned direct or indirect subsidiaries of Temasek Pte. Ltd.

 

Agreement” has the meaning given such term in the Preamble.

 

Annual Business Plan” has the meaning set forth in Section 3.01.

 

Auditor” means Ernst & Young LLP or another independent certified public accounting firm of recognized international standing and reputation appointed as the auditor of the Company.

 

Automatic Shelf Registration Statement” has the meaning given such term in Section 5.04(g).

 

Board” means, as of any date, the board of directors of the Company as of such date.

 

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Business” means the global chemical distribution business of the Group.

 

Business Day” means any day (other than a Saturday or Sunday) on which banks in New York City and Singapore are permitted under applicable Law to be open and transact business.

 

Capital Stock” means, with respect to any entity, all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) in the equity of such entity.

 

CD&R Fund VIII” means Clayton, Dubilier & Rice Fund VIII, L.P.

 

CD&R Investor” has the meaning given such term in the Preamble.

 

CD&R Investor Directors” has the meaning given such term in Section 2.02(a)(vii).

 

CD&R Investor Parties” means CD&R Investor, CD&R Advisor Univar Co-Investor, LLC, a Delaware limited liability company, CD&R Friends & Family Fund VIII, L.P., a Delaware limited partnership, Clayton, Dubilier & Rice Fund VIII, L.P., a Delaware limited partnership, CD&R Univar Co-Investor, L.P., a Delaware limited partnership, CD&R Advisor Co-Investor II, L.P., a Delaware limited partnership, CD&R Univar NEP VIII Co-Investor, LLC, a Delaware limited liability company, CD&R Univar NEP IX Co-Investor, LLC, a Delaware limited liability company.

 

CD&R Manager” means Clayton, Dubilier & Rice, LLC.

 

CEO” means the chief executive officer of the Company.

 

CFO” means the chief financial officer of the Company.

 

Chairman” has the meaning given such term in Section 2.03.

 

Claims and Expenses” has the meaning given such term in Section 6.04(a).

 

Code” means the U.S. Internal Revenue Code of 1986, as amended.

 

Committee” has the meaning given such term in Section 2.04(a).

 

Company” has the meaning given such term in the Preamble.

 

Confidential Information” has the meaning given such term in Section 7.01(a).

 

Coordination Committee” has the meaning given such term in Section 5.01.

 

3



 

Covered Person” means (i) Univar NV, the CD&R Investor Parties, Temasek Investor and their respective Permitted Transferees, (ii) solely for purposes of Section 6.01 and 6.02(a) and solely in their capacity as Stockholders, the Mezzanine Investors, the Goldman Sachs Investors, the Management Stockholder and their respective Permitted Transferees, (iii) any officer, director, shareholder, partner, member, manager, employee, representative, agent or trustee of the Persons referred to in the foregoing clauses (i) and (ii) and (iv) any director, officer, executive officer or authorized agent of the Company or any other member of the Group.

 

CVC GPs” means CVC European Equity Tandem GP Limited, CVC European Equity IV (AB) Limited and CVC European Equity IV (CDE) Limited.

 

CVC Ulysses” means Ulysses Participation, S.à r.l.

 

Demand Registration” has the meaning given such term in Section 5.02(a).

 

Demand Registration Statement” has the meaning given such term in Section 5.02(a).

 

DGCL” means the General Corporation Law of the State of Delaware, as amended from time to time.

 

Directors” has the meaning given such term in Section 2.02(a).

 

EBITDA” means earnings before interest, taxes, depreciation and amortization, determined in accordance with GAAP.

 

Encumbrance” means any claim, lien, pledge, option, charge, easement, security interest, deed of trust, mortgage, conditional sales agreement, encumbrance or other right of third parties, voluntarily incurred or arising by operation of law, and includes any agreement to give any of the foregoing in the future, and any contingent sale or other title retention agreement or lease in the nature thereof.

 

Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, or any similar federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time.

 

GAAP” means U.S. generally accepted accounting principles, consistently applied.

 

Goldman Sachs Investors” means GSMP V Onshore US, Ltd. an exempted company incorporated in the Cayman Islands with limited liability, GSMP V Offshore US, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, GSMP V Institutional US, Ltd., an exempted company incorporated in the

 

4



 

Cayman Islands with limited liability and Broad Street Principal Investments, L.L.C, a Delaware limited liability company.

 

Government Entity” means any supranational, national, federal, state, provincial, local or other political subdivision thereof or entity, court, agency, administrative body or other Government Entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

Group” means, collectively, the Company and its Subsidiaries.

 

GSO Fund” means GSO COF Facility LLC.

 

Holdback Period” has the meaning given such term in Section 5.06.

 

Independent CD&R Investor Directors” has the meaning given such term in Section 2.02(a)(vi)(B).

 

Independent Directors” has the meaning given such term in Section 2.02(a)(vi)(B).

 

Independent Univar NV Directors” has the meaning given such term in Section 2.02(a)(ii)(B).

 

Initiating Stockholder” has the meaning given such term in Section 5.02(a).

 

IPO” means the initial underwritten public offering of the Company’s common stock, consummated on June [•], 2015.

 

Law” means any law, statute, ordinance, rule, regulation, code, order, judgment, injunction or decree enacted, issued, promulgated, enforced or entered by a Government Entity.

 

Management Director” has the meaning given such term in Section 2.02(a)(x).

 

Management Stockholder” means J. Erik Fyrwald Revocable Trust.

 

Management Subscription Agreements” means (i) the Subscription Agreement, dated as of June 11, 2012, between the Management Stockholder and the Company and (ii) the Subscription Agreement, dated as of June 27, 2012, between the Management Stockholder and the Company.

 

Mezzanine Investors” means Apollo Investment Corporation, AIE EuroLux S.à r.l., GSO COF Facility LLC, Highbridge Principal Strategies - Mezzanine Partners Delaware Subsidiary LLC, Highbridge Principal Strategies - Offshore Mezzanine

 

5



 

Partners Master Fund LP, Highbridge Principal Strategies - Institutional Mezzanine Partners Subsidiary LP, and Minot Light Debt Mezz Ltd.

 

Mezzanine Subscription Agreements” means the Subscription Agreements entered into, as of December 20, 2010, by the Company and the Mezzanine Investors, in connection with closing of the transactions contemplated by the Purchase Agreement, dated as of October 10, 2010, among the Company, Basic Chemical Solutions, L.L.C. and the other parties thereto, pursuant to which the Mezzanine Investors purchased Shares on the terms and conditions set forth therein and the Mezzanine Investors became parties to this Agreement.

 

Minimum Amount” means the lowest of (i) $100 million, (ii) if at any time after the IPO, the aggregate value of the Shares that are publicly traded is less than $400,000,000, the result of multiplying (x) 0.25 and (y) the value of the Shares that are publicly traded as of the close of business on the most recent Business Day or (iii) such lesser amount as agreed by Univar NV, CD&R Investor and Temasek Investor.

 

Organizational Documents” means, with respect to any Person, the articles or certificate of incorporation and the by-laws, certificate of formation and operating agreement or other similar organizational documents of such Person.

 

Original Agreement” has the meaning given such term in the Recitals.

 

Original Shares” means, when used in reference to any one or more Stockholders, the Shares held by such Stockholder on November 30, 2010, or any shares or other securities into which or for which such Shares may have been converted or exchanged in connection with any exchange, reclassification, dividend, distribution, stock split, combination, subdivision, merger, spin-off, recapitalization, reorganization or similar transaction.

 

Parcom” means, collectively, Parcom Ulysses 2 S.à r.l., a société à responsabilité limitée organized under the laws of the Grand Duchy of Luxembourg and Parcom Buy Out Fund II B.V., a company incorporated under the laws of the Netherlands recorded with the Register of the Chamber of Commerce of Gooi en Eemland under the number 32123585.

 

Permitted Transfer” means a Transfer to a Permitted Transferee (i) in which such Permitted Transferee agrees by an Accession Agreement to be bound to the same extent as the Transferring Stockholder (which in the case of the Management Stockholder shall include the Management Subscription Agreements) and any other documentation that the Company may reasonably require and (ii) which would not require the Company to effect any registration pursuant to the Securities Act or the Exchange Act.

 

Permitted Transferees” means:

 

6



 

(i)                                     with respect to Univar NV and its Permitted Transferees, any Affiliate of CVC Ulysses or any other entity that is controlled by a CVC GP;

 

(ii)                                  with respect to any CD&R Investor Party and its Permitted Transferees, any Affiliate of CD&R Fund VIII or any other entity that is managed by CD&R Manager;

 

(iii)                               with respect to any Mezzanine Investor and its Permitted Transferees, any Affiliate of such Mezzanine Investor;

 

(iv)                              with respect to any Goldman Sachs Investor and its Permitted Transferees, any Affiliate of a Goldman Sachs Investor;

 

(v)                                 with respect to the Management Stockholder and its Permitted Transferees, any of (x) J. Erik Fyrwald, (y) a trust, of which J. Erik Fyrwald or another person reasonably acceptable to the Company is the trustee, under which the distribution of the Shares may be made only to beneficiaries who are J. Erik Fyrwald, his spouse, his immediate family, his lineal descendents or in the event that none of the foregoing beneficiaries is alive at the time of distribution to other Persons reasonably acceptable to the Company, the constituent documents of which have been made available to the Company, or (z) by the laws of descent; and

 

(vi)                              with respect to Temasek Investor and its Permitted Transferees, any Affiliate of Temasek Investor.

 

Person” means any individual, partnership, corporation, limited liability company, trust, joint venture, Government Entity or other entity or organization.

 

Piggyback Registration” has the meaning given such term in Section 5.03(a).

 

Proceeding” means any litigation, arbitration, mediation, regulatory investigation or other proceeding brought before any Government Entity, arbitrator or mediator.

 

Prospectus” means the prospectus or prospectuses (whether preliminary or final) included in any Registration Statement and relating to Registrable Shares, as amended or supplemented and including all material incorporated therein by reference.

 

Providing Party” has the meaning given such term in Section 7.01(a).

 

Receiving Party” has the meaning given such term in Section 7.01(a).

 

Registrable Shares” means, at any time, (i) the Shares held by the Stockholders and (ii) any securities issued by the Company after the date hereof in respect of clause (i) by way of a share dividend or share split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization; provided that Registrable

 

7



 

Shares shall not include any and all Shares and other securities referred to in clauses (i) and (ii)  that at any time after the date hereof (a) have been sold pursuant to an effective registration statement or Rule 144 under the Securities Act, (b) have been sold in a transaction where a subsequent public distribution of such securities would not require registration under the Securities Act or (c) have been purported to be Transferred in violation of Section 4.01 hereof or to a Person that does not become a Stockholder pursuant to the preamble hereof (or any combination of clauses (a), (b) or (c)).

 

Registration Expenses” has the meaning given such term in Section 5.08.

 

Registration Statement” means any registration statement of the Company which covers any of the Registrable Shares pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all documents incorporated by reference in such Registration Statement.

 

Registration Termination Date” has the meaning given such term in Section 5.02(a).

 

Relevant Party” or “Relevant Parties”  means each of Univar NV, CD&R Investor or Temasek Investor or all of them collectively.

 

Representatives” means, with respect to any Person, such Person’s Affiliates, and its and their directors, officers, employees, partners, members, managers, agents, advisors and other representatives.

 

Rule 144” means Rule 144 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.

 

Rule 405” means Rule 405 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.

 

S-3 Shelf Registration” has the meaning given such term in Section 5.04(a).

 

S-3 Shelf Registration Statement” has the meaning given such term in Section 5.04(a).

 

SEC” means the U.S. Securities and Exchange Commission or any successor agency.

 

Securities Act” means the U.S. Securities Act of 1933, as amended.

 

8



 

Shares” has the meaning given such term in the Recitals.

 

Shelf Takedown” has the meaning given such term in Section 5.04(b).

 

Short-Form Registration” has the meaning given such term in Section 5.04(a).

 

Stockholder Appointed Directors” has the meaning given such term in Section 2.02(a)(ix).

 

Stockholders” has the meaning given such term in the Preamble.

 

Subsidiary” means, with respect to any entity, any other entity (i) whose Capital Stock, having by its terms the power to elect a majority of the board of directors or any other Person performing similar functions, is owned or controlled, directly or indirectly, by such entity, (ii) whose business and policies such entity has the power, directly or indirectly, to direct, or (iii) of which 50% or more of the Capital Stock, partnership or other ownership interests are owned, directly or indirectly, by such entity.

 

Suspension Period” has the meaning given such term in Section 5.05.

 

Temasek Holdings” means Temasek Holdings (Private) Limited.

 

Temasek Investor” has the meaning given such term in the Preamble.

 

Temasek Investor Director” has the meaning given such term in Section 2.02(a)(ix)

 

Transfer” means, in one transaction or a series of related transactions, directly or indirectly to transfer, sell, assign, license, convey, donate, dispose of, hypothecate, pledge or otherwise encumber or permit or suffer to exist any Encumbrance, whether voluntarily, involuntary or by operation of Law (including by way of merger, amalgamation, consolidation, spin-off or other business combination or any transfer of assets).

 

Transferee” means any Person to whom any Stockholder or any Transferee thereof Transfers Capital Stock of the Company in accordance with the terms hereof.

 

Underwritten Offering” means an offering registered under the Securities Act in which securities of the Company are sold to one or more underwriters on a firm-commitment basis for reoffering to the public.

 

Underwritten Shelf Takedown” means an Underwritten Offering effected pursuant to an S-3 Shelf Registration.

 

Univar NV” has the meaning given such term in the Preamble.

 

9



 

Univar NV Directors” has the meaning given such term in Section 2.02(a)(iii).

 

WKSI” has the meaning given such term in Section 5.04(g).

 

Section 1.02.                                    Interpretation.  Except as the express context otherwise requires:  (i) the meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms as well as to the uses of such terms as different parts of speech; (ii) the heading references herein and the table of contents hereof are for convenience only, and shall not be deemed to limit or affect any of the provisions hereof; (iii) the words “hereof,” “herein,” “hereto,” “hereby” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (iv) the words “or” and “any” are not exclusive and the words “include” and “including” shall be deemed to be followed by the phrase “without limitation”; (v) any reference to Preamble, Recital, Article or a Section shall mean a reference to the Preamble, the Recital, an Article or a Section of this Agreement; (vi) a reference to a Person includes its successors and assigns as permitted by this Agreement; (vii) a reference to days means calendar days unless otherwise noted; (viii) a reference to any contract includes permitted supplements, amendments and modifications thereof; (ix) a reference to a Law includes any amendment, modification, supplement or replacement of such Law and any rules or regulations issued thereunder; (x) the terms “dollars” and “$” mean the currency of the United States of America; (xi) references herein to any gender include each other gender and (xii) this Agreement shall be construed as being drafted by all of the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 

ARTICLE II

 

BOARD OF DIRECTORS

 

Section 2.01.                                    Management Under Direction of the Board.

 

(a)                                 The Board shall be constituted as provided in this Article II and in the Organizational Documents of the Company.  Except as otherwise expressly provided in this Agreement, the management and control of the business and affairs of the Company shall, to the maximum extent permitted by applicable Law, be vested in the Board.

 

(b)                                 The Board may, in its sole discretion but subject to the terms of this Agreement, delegate rights and responsibilities regarding management of the Company to officers or employees of the Company and subcontract such rights and responsibilities to third parties.

 

10



 

Section 2.02.                                    Composition of the Board; Observers.

 

(a)                                 The number of directors of the Company (the “Directors”) constituting the Board shall be fixed from time to time by the Board in accordance with, and subject to, the Organizational Documents of the Company and this Agreement, but in no event shall the Board consist of fewer than six or more than fourteen Directors.  As of the date hereof, the number of Directors of the Company shall be fourteen.  The terms of office of members of the Board shall be divided into three classes: Class I Directors, whose initial terms will expire at the annual meeting of stockholders to be held in 2016; Class II Directors, whose initial terms will expire at the annual meeting of stockholders to be held in 2017; and Class III Directors, whose initial terms will expire at the annual meeting of stockholders to be held in 2018.  Thereafter, each member will serve three-year terms expiring in successive years.  The Company will nominate for election to the Board the Directors designated by Univar NV, the CD&R Investor, Temasek Investor and the Company, as the case may be, as set forth below:

 

(i)                                     For so long as Univar NV (together with its Permitted Transferees) owns 50% or more of its Original Shares:

 

(A)                               Three Directors, who may be employees of Univar NV or its Affiliates, may be designated for nomination by Univar NV;

 

(B)                               Three independent Directors, who may not be employees of Univar NV or its Affiliates, may be designated for nomination by Univar NV;

 

(ii)                                  If Univar NV (together with its Permitted Transferees) owns less than 50% but not less than 25% of its Original Shares:

 

(A)                               Two Directors, who may be employees of Univar NV or its Affiliates, may be designated for nomination by Univar NV;

 

(B)                               One independent Director, who may not be an employee of Univar NV or its Affiliates, may be designated for nomination by Univar NV (the Directors designated for nomination in accordance with clause (a)(i)(B) or this clause (a)(ii)(B), the “Independent Univar NV Directors”);

 

(iii)                               If Univar NV (together with its Permitted Transferees) owns less than 25% but not less than 5% of its Original Shares, one Director, who may be an employee of Univar NV or its Affiliates, may be designated for nomination by Univar NV (the Directors designated for nomination in accordance with clauses (a)(i)(A), (a)(ii)(A) or this clause (a)(iii), the “Univar NV Directors”);

 

(iv)                              If Univar NV (together with its Permitted Transferees) owns less than 5% of the percentage of its Original Shares, Univar NV shall cease to have the right to designate any Directors for nomination (including Independent

 

11



 

Directors) and any other rights provided under this Article II, Article III or Section 4.01;

 

(v)                                 For so long as CD&R Investor (together with its Permitted Transferees) owns 50% or more of its Original Shares:

 

(A)                               Three Directors (including the Chairman), who may be employees of CD&R Investor or its Affiliates, may be designated for nomination by CD&R Investor;

 

(B)                               Three independent Directors, who may not be employees of CD&R Investor or its Affiliates, may be designated for nomination by CD&R Investor;

 

(vi)                              If CD&R Investor (together with its Permitted Transferees) owns less than 50% but not less than 25% of its Original Shares:

 

(A)                               Two Directors, who may be employees of CD&R Investor or its Affiliates, may be designated for nomination by CD&R Investor;

 

(B)                               One independent Director, who may not be an employee of CD&R Investor or its Affiliates, may be designated for nomination by CD&R Investor (the Directors designated for nomination in accordance with clause (a)(v)(B) or this clause (a)(vi)(B), the “Independent CD&R Investor Directors” and, together with the Independent Univar NV Directors, the “Independent Directors”);

 

(vii)                           If CD&R Investor (together with its Permitted Transferees) owns less than 25% but not less than 5% of its Original Shares, one Director, who may be an employee of CD&R Investor or its Affiliates, may be designated for nomination by CD&R Investor (the Directors designated for nomination in accordance with clauses (a)(v)(A), (a)(vi)(A) or this clause (a)(vii), the “CD&R Investor Directors”);

 

(viii)                        If CD&R Investor (together with its Permitted Transferees) owns less than 5% of its Original Shares, CD&R Investor shall cease to have the right to designate any Directors for nomination (including Independent Directors) and any other rights provided under this Article II, Article III or Section 4.01;

 

(ix)                              For so long as Temasek Investor (together with its Permitted Transferees) owns 10% or more of the outstanding Shares, one Director, who may be an employee of Temasek Investor or its Affiliates, may be designated for nomination by Temasek Investor (the “Temasek Investor Director” and, together

 

12



 

with the Univar NV Directors and the CD&R Investor Directors, the “Stockholder Appointed Directors”); and

 

(x)                                 One management Director who shall be the CEO (the “Management Director”).

 

(xi)                              Notwithstanding the limitations set forth in this Section 2.02(a) with respect to “Independent Directors”, each of Univar NV and CD&R Investor may designate for nomination as an Independent Director persons who are currently or have previously served as an independent director of a portfolio company of its Affiliates and or any person who was or is an executive of a former portfolio company of its Affiliates; provided that such person meets any applicable independence requirements of a national securities exchange upon which the Shares are listed to which it is then subject.

 

(b)                                 The names, categories and classes of the Directors (including the Chairman) as of the date hereof are set forth on Schedule 2.02(b).

 

(c)                                  In designating Directors, Univar NV, CD&R Investor and Temasek Investor shall endeavor to select individuals who are capable of serving actively on the Board and are reasonably knowledgeable, or capable of becoming reasonably knowledgeable promptly after becoming a Director, of the Company’s business and its plans.

 

(d)                                 In the event that a Stockholder loses its right to designate for nomination one or more Stockholder Appointed Directors or Independent Directors pursuant to this Section 2.02, it shall cause such Stockholder Appointed Directors or Independent Directors, as applicable, to offer to resign immediately, and a successor shall be nominated to the Board in the manner prescribed in the Organizational Documents.

 

(e)                                  Subject to the other provisions of this Section 2.02, (i) any Univar NV Director may be removed (with or without cause) at any time only by Univar NV, upon written notice to the Board; (ii) any CD&R Investor Director may be removed (with or without cause) at any time only by CD&R Investor, upon written notice to the Board; (iii) any Temasek Investor Director may be removed (with or without cause) at any time only by Temasek Investor, upon written notice to the Board; (iv) any Independent Univar NV Director, Independent CD&R Investor Director and Management Director may be removed only by mutual consent of Univar NV and CD&R Investor, which consent (in each case) shall not be unreasonably withheld; (v) any person designated as the Management Director may not continue to serve on the Board as the Management Director from such time as he or she ceases to be employed as CEO; and (vi)  Directors shall serve until removed and their respective successors shall have been designated and shall have been qualified and elected.

 

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(f)                                   Each Stockholder agrees that, at any time it is entitled to vote on the election of Directors to the Board and for so long as it has the right to nominate a Director to the Board pursuant to this Section 2.02, it shall vote all of its Capital Stock in the Company that is entitled to vote or execute proxies or written consents, as the case may be, and take all other necessary action (including, if permitted under the Organizational Documents, causing the Company to call a special meeting of Stockholders) in order to ensure that the composition of the Board is as set forth in this Section 2.02.  The Company shall cause each individual designated for nomination pursuant to this Section 2.02 to be nominated to serve as a Director on the Board and to take all other necessary actions (including, if permitted under the Organizational Documents, calling a special meeting of the Board and/or Stockholders) to ensure that the composition of the Board is as set forth in this Section 2.02.

 

(g)                                  Each Stockholder agrees for so long as it has the right to nominate a Director to the Board pursuant to this Section 2.02 to vote all of its Capital Stock in the Company entitled to vote, or execute written consents and take all other actions reasonably necessary and permitted by applicable Law to (i) to the extent that the Company’s Organizational Documents conflict with any provision of this Agreement, amend such Organizational Documents to eliminate such conflict and (ii) mitigate the effects of any such conflict on the parties hereto in a manner that implements the provisions of this Agreement as closely as possible to their intent.

 

(h)                                 The Company shall reimburse each Stockholder Appointed Director for their reasonable out-of-pocket expenses incurred by them for the purpose of attending meetings of the Board or committees thereof.

 

(i)                                     The Company agrees to include in the slate of nominees recommended by the Board the Stockholder Appointed Directors and Independent Directors designated for nomination in accordance with clause (a) of this Section 2.02 and to use its best efforts to cause the election of each such designee to the Board, including nominating such individuals to be elected as Directors as provided herein.

 

(j)                                    Except as otherwise agreed by the CD&R Investor, Univar NV and Temasek Investor, the Board shall not be expanded to add an additional Director or Directors unless such increase in the size of the Board is necessary to comply with the independence requirements of a national securities exchange upon which the Company’s Shares are listed, provided that the agreement of CD&R Investor, Univar NV or Temasek Investor shall no longer be required when such Stockholder or Stockholders cease to have a right to nominate a Director to the Board pursuant to this Section 2.02.

 

(k)                                 If at any time CD&R Manager, CD&R Fund VIII or their Permitted Transferees cease to control CD&R Investor (or its Permitted Transferee to whom the rights of CD&R Investor were Transferred in accordance with this Agreement), CD&R Investor and its Permitted Transferees shall cease to have any rights to which CD&R

 

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Investor is specifically entitled under this Agreement (and which rights are not held generally by all other Stockholders).  If at any time the CVC GPs or their Permitted Transferees cease to control Univar NV (or its Permitted Transferee to whom the rights of Univar NV were Transferred in accordance with this Agreement), Univar NV (or its Permitted Transferee to whom the rights of Univar NV were Transferred in accordance with this Agreement) shall cease to have any rights to which Univar NV is specifically entitled under this Agreement (and which rights are not held generally by all other Stockholders).  If at any time Temasek Holdings or its Permitted Transferees cease to control Temasek Investor (or its Permitted Transferee to whom the rights of Temasek Investor were Transferred in accordance with this Agreement), Temasek Investor (or its Permitted Transferee to whom the rights of Temasek Investor were Transferred in accordance with this Agreement) shall cease to have any rights to which Temasek Investor is specifically entitled under this Agreement (and which rights are not held generally by all other Stockholders).

 

Section 2.03.                                    Chairman.  Unless otherwise agreed by CD&R Investor, the chairman of the Board (the “Chairman”) shall be designated for nomination by CD&R Investor.  As of the date hereof, CD&R Investor has designated the individual so named on Schedule 2.02(b) to serve as Chairman until the earlier of his death, resignation or removal by the Board.  The Chairman shall be responsible for the preparation of the agenda for each Board meeting (which shall include issues presented by other Directors), determination of the location for such Board meeting and conducting each Board meeting.  If CD&R Investor (together with its Permitted Transferees) owns less than 25% of its Original Shares, CD&R Investor shall cease to have the right to designate the Chairman.

 

Section 2.04.                                    Committees of the Board.

 

(a)                                 The Board shall have an Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee, and may form additional committees upon the approval of the Board (each, a “Committee”).  The authority of each Committee shall be determined from time to time by the Board.  Committee membership shall be as determined by the Board, provided that, (i) the Directors comprising each Committee shall be proportionate to, and shall reflect, the relative number of Stockholder Appointed Directors of, and Independent Directors designated for nomination by, Univar NV, on the one hand, and CD&R Investor, on the other hand; (ii) for so long as Univar NV and CD&R Investor are entitled to any Director (including Independent Univar NV Directors or Independent CD&R Investor Directors), at least one Univar NV Director or Independent Univar NV Director and one CD&R Investor Director or Independent CD&R Director shall serve on each Committee; (iii) for so long as Temasek Investor is entitled to any Director, the Temasek Investor Director shall be entitled to serve on each of the various Committees; (iv) in the case of (i), (ii) and (iii) above, the right of any Director to serve on a Committee shall be subject to applicable law and the Company’s

 

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obligation to comply with any applicable independence requirements of a national securities exchange upon which the Shares are listed to which it is then subject; and (v) in the case of (iii) above, the right of the Temasek Investor Director to serve on each of the various Committees shall be subject to scheduling and logistical constraints regarding the operation of such Committees.

 

(b)                                 The Chairman of each Committee shall be designated by a majority of the Directors serving on such Committee.

 

ARTICLE III

 

OFFICERS; INFORMATION RIGHTS

 

Section 3.01.                                    Chief Executive Officer.

 

(a)                                 For so long as it (together with its Permitted Transferees) owns no less than 25% of its Original Shares, either Univar NV or CD&R Investor may terminate the CEO upon 45 days’ written notice to the Board, if, (x) in one fiscal year (beginning with the fiscal year ending December 31, 2015), the Company’s EBITDA is more than 20% less or (y) for two consecutive fiscal years (beginning with the fiscal year ending December 31, 2015), the Company’s EBITDA is more than 10% less, in either case, than the projected EBITDA as set forth in the Annual Business Plans to which such fiscal years relate.

 

(b)                                 In the event that the CEO is dismissed pursuant to Section 3.01(a), an operating partner of CD&R Manager designated by CD&R Investor who is then serving (or nominated to serve) as a CD&R Investor Director shall be entitled to serve as CEO on an interim basis (but for a period of no more than one year, unless Univar NV otherwise consents) until a replacement CEO is hired (during which time the Board seat to which the CEO as a Management Director is entitled pursuant to Section 2.02(a)(x) shall remain vacant).  CD&R Investor and Univar NV shall cooperate in good faith and use commercially reasonable efforts to jointly agree on a new permanent CEO.  Notwithstanding the foregoing provisions of this Section 3.01(b), if no replacement CEO has been hired with the approval of Univar NV and CD&R Investor prior to the first anniversary of the former CEO’s termination or resignation, then the Independent Directors shall (i) consult with each of Univar NV and CD&R Investor as to their view of the appropriate candidate or candidates for the CEO position and consider in good faith such views and (ii) select and hire a replacement CEO by vote of a majority of the Independent Directors (and without the need for the approval of Univar NV or CD&R Investor) within fifteen months after the former CEO’s termination or resignation, and until such fifteen month anniversary, the CD&R Investor Director serving as the interim CEO as contemplated by this Section 3.01(b) shall continue to so serve.

 

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Section 3.02.                                    Annual Business Plan.  The Company shall develop a detailed proposed annual business plan and budget for each upcoming fiscal year, beginning with January 1, 2016 (“Annual Business Plan”).  The CEO shall submit such proposal for the consideration of the Board and the Board shall cooperate to set a schedule with management to approve such proposal.  After the Board approves the Annual Business Plan for a given fiscal year, the Company and other members of the Group shall conduct their respective business, including its capital and other expenditure programs, in accordance therewith.  After the Board’s approval, for so long as Univar NV or the CD&R Investor (together with its Permitted Transferees), as applicable, owns at least 5% of its Original Shares and for so long as Temasek Investor (together with its Permitted Transferees) owns 10% or more of the outstanding Shares, the Company shall make available to Univar NV, CD&R Investor and Temasek Investor the Annual Business Plan, no later than thirty days before the beginning of the Company’s next fiscal year, in such manner and form as approved by the Board, which shall include at least a projection of income and a projected cash flow statement for each fiscal quarter in such fiscal year and a projected balance sheet as of the end of each fiscal quarter in such fiscal year, in each case prepared in reasonable detail, with appropriate presentation and discussion of the principal assumptions upon which such budgets and projections are based, which shall be accompanied by the statement of the CEO or CFO or equivalent officer of the Company to the effect that such budget and projections are based on reasonable and good faith estimates and assumptions made by the management of the Company for the respective periods covered thereby; it being recognized that such budgets and projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by them may differ from the projected results.

 

Section 3.03.                                    Periodic Reports.

 

(a)                                 For so long as Univar NV or the CD&R Investor (together with its Permitted Transferees), as applicable, owns at least 5% of its Original Shares and for so long as or Temasek Investor (together with its Permitted Transferees) owns 10% or more of the outstanding Shares, as promptly as practicable and in any event within 60 days after the end of each fiscal year, the Company shall prepare and make available to each of Univar NV, the CD&R Investor and Temasek Investor, the following financial statements with respect to the Group audited by the Auditor and prepared in accordance with GAAP applied on a consistent basis throughout the periods involved:  (i) a consolidated balance sheet as of the end of such fiscal year; (ii) a consolidated statement of income for such fiscal year; (iii) a consolidated statement of cash flows for such fiscal year; and (iv) notes to the foregoing, setting forth in each case (other than the notes described in clause (iv)) in comparative form the figures for the previous fiscal year, all in reasonable detail and accompanied by the opinion of independent public accountants of recognized national standing selected by the Company, and a Company-prepared comparison to the Annual Business Plan for such year as approved by the Board.

 

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(b)                                 The members of the Group shall close the books of account after the end of each month in each fiscal year and management of the Company shall provide information in reasonable detail to each Stockholder with respect to the results of operations of the Group during such month.  Such information shall include an unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end of such monthly period and consolidated statements of operations, income, cash flows, retained earnings and stockholders’ equity of the Company and its Subsidiaries, for each month and for the current fiscal year of the Company to date, prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of notes thereto), together with a comparison of actual year-to-date, remainder of the year as budgeted and the full year as budgeted information for the Group and a budget reforecast of profits and losses.  Such information shall be delivered to each Stockholder no later than 20 days after the end of each month and no later than 60 days after the end of each fiscal year in respect of such fiscal year.

 

(c)                                  The Company shall provide to each of Univar NV, the CD&R Investor Parties, Temasek Investor and their respective Permitted Transferees such additional reports as may be reasonably requested as and when required to comply with such Stockholder’s financial reporting practices as in effect from time to time.

 

Section 3.04.                                    Access.  Subject to the provisions of Article VII, the Company shall, and shall cause its Subsidiaries, officers, directors, employees, auditors and other agents to, so long as Univar NV and CD&R Investor (in each case, together with its Permitted Transferees) owns at least 5% of its Original Shares and so long as Temasek Investor (together with its Permitted Transferees) owns at least 10% of the outstanding Shares, (a) afford the officers, employees, auditors and other agents of Univar NV, CD&R Investor and Temasek Investor, during normal business hours and upon reasonable notice reasonable access at all reasonable times to its officers, employees, auditors, legal counsel, properties, offices, plants and other facilities and to all books and records, and (b) afford Univar NV, CD&R Investor and Temasek Investor the opportunity to discuss the affairs, finances and accounts of the Company and its Subsidiaries with their respective officers from time to time as each may reasonably request.

 

ARTICLE IV

 

TRANSFERS

 

Section 4.01.                                    Restriction on Transfers.

 

(a)                                 Notwithstanding anything else to the contrary in this Agreement, no Stockholders may, directly or indirectly, Transfer any Company Capital Stock legally or beneficially owned by them other than:

 

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(i)                                     in a Permitted Transfer to such Stockholder’s Permitted Transferees;

 

(ii)                                  pursuant to the IPO;

 

(iii)                               de minimis Transfers by Univar NV, a CD&R Investor Party, Temasek Investor, a Goldman Sachs Investor, a Mezzanine Investor or their respective Permitted Transferees constituting (together with any other de minimis Transfers previously made by any such Stockholder (for purposes of this Section 4.01(a)(iii), the CD&R Investor Parties shall be regarded as one Stockholder and the Goldman Sachs Investors shall be regarded as one Stockholder) and its Permitted Transferees pursuant to this clause, and taking into account any stock split, combination, reclassification or similar transaction) no more than 1% of the outstanding Shares per calendar year;

 

(iv)                              solely with respect to GSO Fund, a pledge of Company Capital Stock solely in connection with a fund level financing of GSO Fund where assets of GSO Fund are pledged; provided that the pledgee shall have delivered an executed Accession Agreement to the Company which shall become effective immediately upon the foreclosure of any amount of pledged Company Capital Stock;

 

(v)                                 with the prior written consent of the Coordination Committee and subject to compliance with applicable securities laws and Section 5.01;

 

(vi)                              with respect to Temasek Investor, when it ceases to own at least 7.5%(1) of the outstanding Shares, without limitation, subject to compliance with applicable securities laws;

 

(vii)                           with respect to the Mezzanine Investors, at such time as the Coordination Committee is dissolved in accordance with Section 5.01, without limitation, subject to compliance with applicable securities laws; or

 

(vii)                           at such time as the Coordination Committee is dissolved in accordance with Section 5.01, pursuant to the exercise of any registration rights or other rights granted by this Agreement.

 


(1)              Note: If Temasek Investor makes a $500 million investment, threshold will be 10% or more of the outstanding Shares.

 

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ARTICLE V

 

REGISTRATION RIGHTS

 

Section 5.01.                                    Coordination Committee.  Univar NV, CD&R Investor and Temasek Investor shall form a committee (the “Coordination Committee”) responsible for facilitating coordination among the Stockholders with respect to all Transfer activities by the Stockholders.  The Coordination Committee shall be comprised of three members, which will initially be one representative designated by each of Univar NV, CD&R Investor and Temasek Investor, provided that Temasek Investor shall no longer have the right to designate a member of the Coordination Committee at such time as Temasek Investor and its Permitted Transferees collectively own less than 10%(2) of the outstanding Shares.  In the event that a Temasek Investor can no longer designate a member of the Coordination Committee, the third member of the Coordination Committee shall be agreed upon by Univar NV and CD&R Investor.  Following the IPO, the Coordination Committee shall coordinate all Transfers, sales and other dispositions of Shares, including, without limitation, Rule 144 sales, distributions to limited partners, shelf takedowns and block trades, such that each of Univar NV, the CD&R Investor Parties, Temasek Investor, the Goldman Sachs Investors, the Mezzanine Investors and the Management Stockholder and their respective Permitted Transferees shall have the opportunity to participate on a pro rata basis.  Any action of, or matter to be approved by, the Coordination Committee shall require the approval of a majority of its total membership and such approval shall be required for all Transfers described in this Section 5.01 by any Stockholder or its Affiliates except as set forth in Section 4.01 and provided that Transfers by Temasek Investor and its Permitted Transferees shall no longer require the approval of the Coordination Committee at such time as Temasek Investor and its Permitted Transferees collectively own less than 7.5%(3) of the outstanding Shares.  Notwithstanding the foregoing, the Coordination Committee shall be dissolved and shall have no further authority with respect to Transfers at such time as at least 65% of the outstanding Shares are publicly traded.  So long as a Stockholder maintains a representative appointed as a member of the Coordination Committee, each such Stockholder hereby agrees to (1) promptly inform each other Stockholder with a Stockholder representative appointed as a member of the Coordination Committee at

 


(2)              Note: If Temasek Investor makes a small investment such that its transfer restrictions are set at 7.5% of the outstanding Shares, it shall have a right to designate a member of the Coordination Committee so long as it owns 7.5% or more of the outstanding Shares.</