DIVERSEY HOLDINGS, LTD. Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On
Merger Consideration. As a result of the Merger, each ordinary share, par value
Treatment of Company Equity Awards. The Merger Agreement provides that, at the Effective Time, each option to purchase Shares (each, a "Company Option") outstanding immediately prior to the Effective Time will automatically be cancelled without any cash payment or other consideration being made in respect thereof to the holders of such Company Options.
In addition, at the Effective Time, each Company restricted share unit subject
to performance-based vesting conditions (each, a "Company PSU") that is
outstanding and vested as of immediately prior to the Effective Time (each, a
"Vested Company PSU") will automatically be cancelled and converted into the
right to receive an amount in cash, without interest thereon, equal to (i) the
Per Share Price, multiplied by (ii) the total number of Shares subject to such
Vested Company PSU. Each Company PSU that is outstanding as of immediately prior
to the Effective Time that is not a Vested Company PSU at the Effective Time
(each, an "Unvested Company PSU") will automatically be cancelled and converted
into the right to receive an amount in cash, without interest thereon, equal to
the product of (i) the Per Share Price, multiplied by (ii) the total target
number of Shares subject to such Unvested Company PSU (the "Unvested PSU
Consideration"). Subject to the holder's continued employment with Parent and
its affiliates through the vesting date, the Unvested PSU Consideration will
vest and become payable on
Further, at the Effective Time, each Share (other than any Excluded Company Share, any Rollover Share or any BCPE Share) subject to vesting or certain specified restrictions on transfer will automatically vest and be cancelled and converted into the right to receive an amount in cash, without interest thereon, equal to the Per Share Price.
In addition, Company RSUs that are not Vested Company RSUs and are outstanding as of immediately prior to the Effective Time are identified in the Merger Agreement for varying treatment and, as of the Effective Time, will be treated as follows:
? each Company RSU identified as an "Unvested IPO RSU" (each, an "Unvested IPO
RSU") will automatically be cancelled and converted into the right to receive
an amount in cash, without interest thereon, equal to the product of (i) the
Per Share Price, multiplied by (ii) the total number of Shares subject to such
Unvested IPO RSU (the "Unvested IPO RSU Consideration"). Subject to the
holder's continued employment with Parent and its affiliates through the
vesting date, the Unvested IPO RSU Consideration will vest and become payable
on
and its affiliates is terminated without Cause or by the holder for Good
Reason;
? each Company RSU identified as an "Unvested Non-IPO RSU" (each, an "Unvested
Non-IPO RSU") will automatically be cancelled and converted into the right to
receive an amount in cash, without interest thereon, equal to the product of
(i) the Per Share Price, multiplied by (ii) the total number of Shares subject
to such Unvested Non-IPO RSU (the "Unvested Non-IPO RSU Consideration").
Subject to the holder's continued employment with Parent and its affiliates
through the applicable vesting dates, one half of the Unvested Non-IPO RSU
Consideration will vest and become payable on
remaining half of the Unvested Non-IPO RSU Consideration will vest and become
payable on
Consideration will vest and become payable on the date that such holder's
employment with Parent and its affiliates is terminated without Cause or by the
holder for Good Reason;
? each Company RSU identified as an "Unvested Closing RSU" (each, an "Unvested
Closing RSU") will automatically be cancelled and converted into the right to
receive an amount in cash, without interest thereon, equal to the product of
(i) the Per Share Price, multiplied by (ii) the total number of Shares subject
to such Unvested Closing RSU (the "Unvested Closing RSU Consideration").
Subject to the holder's continued employment with Parent and its affiliates
through the vesting date, the Unvested Closing RSU Consideration will vest and
become payable on
holder's Unvested Closing RSU Consideration shall vest and become payable on
the date that such holder's employment with Parent and its affiliates is
terminated without Cause or by the holder for Good Reason;
? each Company RSU identified as a "2022 Bonus RSU" (each, a "2022 Bonus RSU")
will automatically be cancelled and converted into the right to receive an
amount in cash, without interest thereon, equal to the Per Share Price;
? each Company RSU identified as a "Retention RSU" (each, a "Retention RSU") will
automatically be cancelled and converted into the right to receive an amount in
cash, without interest thereon, equal to the product of (i) the Per Share
Price, multiplied by (ii) the total number of Shares subject to such Retention
RSU (the "Retention RSU Consideration"). Subject to the holder's continued
employment with Parent and its affiliates through the vesting date, the
Retention RSU Consideration will vest and become payable on
? each Company RSU identified as a "Transaction Bonus RSU" (each, a "Transaction
Bonus RSU") will automatically be cancelled and converted into the right to
receive an amount in cash, without interest thereon, equal to the product of
(i) the Per Share Price, multiplied by (ii) the total number of Company Shares
subject to such Transaction Bonus RSU (the "Transaction Bonus RSU
Consideration"). Subject to the holder's continued employment with Parent and
its affiliates through the vesting date, the Transaction Bonus RSU
Consideration will vest and become payable on
that such holder's employment with Parent and its affiliates is terminated
without Cause or by the holder for Good Reason;
? each Company RSU identified as a "TRA RSU" (each, a "TRA RSU") will
automatically be cancelled and converted into the right to receive an amount in
cash, without interest thereon, equal to the product of (i) the Per Share
Price, multiplied by (ii) the total number of Company Shares subject to such
TRA RSU (the "TRA RSU Consideration"). Subject to the holder's continued
employment with Parent and its affiliates through the vesting date, the TRA RSU
Consideration will vest and become payable on
that such holder's employment with Parent and its affiliates is terminated . . .
Item 1.02 Termination of a Material Definitive Agreement.
TRA Termination Agreement
On
The foregoing summary of the TRA Termination Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the TRA Termination Agreement, which will be filed by amendment on Form 8-K/A to this Current Report within four business days of the date hereof as Exhibit 10.4.
8.01 Other Events.
On
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended, which include all statements that do not
relate solely to historical or current facts, such as statements regarding the
Company's expectations, intentions or strategies regarding the future, including
strategies or plans as they relate to the proposed transaction. In some cases,
you can identify forward-looking statements by the following words: "may,"
"will," "could," "would," "should," "expect," "intend," "plan," "anticipate,"
"believe," "estimate," "predict," "project," "aim," "potential," "continue,"
"ongoing," "goal," "can," "seek," "target" or the negative of these terms or
other similar expressions, although not all forward-looking statements contain
these words. These forward-looking statements are based on management's beliefs,
as well as assumptions made by, and information currently available to, the
Company. Because such statements are based on expectations as to future
financial and operating results and are not statements of fact, actual results
may differ materially from those projected and are subject to a number of known
and unknown risks and uncertainties, including: (i) uncertainties as to the
timing of the proposed transaction; (ii) the risk that the Merger may not be
completed in a timely manner or at all, which may adversely affect the Company's
business and the price of the Shares; (iii) the possibility that competing
offers or acquisition proposals for the Company will be made; (iv) the failure
to satisfy any of the conditions to the consummation of the proposed
transaction, including the adoption of the Merger Agreement by the Company's
shareholders and the receipt of certain regulatory approvals; (v) the occurrence
of any event, change or other circumstance or condition that could give rise to
the termination of the Merger Agreement, including in certain circumstances
requiring the Company to pay a termination fee; (vi) the effect of the
announcement or pendency of the proposed transaction on the Company's stock
price, business relationships, operating results and business generally;
(vii) risks that the proposed transaction may disrupt the Company's current
business plans and operations; (viii) the Company's ability to retain and hire
key personnel in light of the proposed transaction; (ix) risks related to
diverting management's attention from the Company's ongoing business operations;
(x) unexpected costs, charges or expenses resulting from the proposed
transaction; (xi) the ability of the buyer to obtain the necessary financing
arrangements set forth in the commitment letters received in connection with the
Merger; (xii) potential litigation relating to the Merger that could be
instituted against parties to the Merger Agreement or other transaction
agreements or their respective directors, managers or officers, including the
effects of any outcomes of such litigation; (xiii) certain restrictions during
the pendency of the Merger that may impact the Company's ability to pursue
certain business opportunities or strategic transactions; (xiv) uncertain global
economic conditions which have had and could continue to have an adverse effect
on our consolidated financial condition and results of operations; (xv) the
continuation of the COVID-19 pandemic may cause disruptions to the Company's
operations, customer demand, and its suppliers' ability to support the Company;
(xvi) the risks associated with the global nature of the Company's operations;
(xvii) fluctuations between non-
The forward-looking statements speak only as of the date they are made. The Company undertakes no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law. Readers are cautioned not to place undue reliance on these forward-looking statements.
Additional Information and Where to Find It
In connection with the proposed transaction, the Company intends to file with
the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are furnished as part of this report:
2.1^ Agreement and Plan of Merger, dated as ofMarch 8, 2023 , by and amongOlympus Water Holdings IV, L.P. , acting by its general partner,Olympus Water Holdings Limited ,Diamond Merger Limited andDiversey Holdings, Ltd. 10.1^ Rollover Contribution Agreement, dated as ofMarch 8, 2023 , by and amongBCPE Diamond Investor, LP andOlympus Water Holding I, L.P. 10.2^ Voting Agreement, dated as ofMarch 8, 2023 , by and among BCPE DiamondInvestor, LP andOlympus Water Holdings IV, L.P. 10.3^ Tax Indemnity Agreement, dated as ofMarch 8, 2023 , by and among OlympusWater Holdings IV, L.P. , acting by its general partner,Olympus Water Holdings Limited , Diamond Merger Sub,Diversey Holdings, Ltd. ,Diversey Holdings I (UK) Limited ,Olympus Water Holdings I, L.P. ,BCPE Diamond Investor, LP andBCPE Diamond Cayman Holding Limited . 10.4^ Tax Receivable Termination Agreement, dated as ofMarch 8, 2023 , by and amongDiversey Holdings, Ltd. ,Diversey Holdings I (UK) Limited andBCPE Diamond Cayman Holding Limited . 99.1* Press Release, datedMarch 8, 2023 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document). * Filed herewith ^ To be filed by amendment
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