Item 8.01 Other Events.
Diversey Holdings, Ltd., a Cayman Islands exempted company (the "Company"),
previously announced its entry into the Agreement and Plan of Merger, dated as
of March 8, 2023, by and among Olympus Water Holdings IV, L.P., a Cayman Islands
exempted limited partnership ("Parent"), acting by its general partner, Olympus
Water Holdings Limited, a Cayman Islands exempted company incorporated with
limited liability, Diamond Merger Limited, a Cayman Islands exempted company and
wholly owned subsidiary of Parent ("Merger Sub"), and the Company, providing for
the merger of Merger Sub with and into the Company (the "Merger"), with the
Company surviving the Merger as a wholly owned subsidiary of Parent. Parent and
Merger Sub are affiliates of Platinum Equity, LLC.
In connection with the Merger, the Company filed with the U.S. Securities and
Exchange Commission (the "SEC") a preliminary proxy statement (the "Preliminary
Proxy Statement") on April 11, 2023, an amendment to the Preliminary Proxy
Statement on May 5, 2023 (the "Amended Proxy Statement"), a definitive proxy
statement on May 15, 2023 (as supplemented, the "Definitive Proxy Statement")
and a proxy statement supplement on May 16, 2023. As disclosed in the Amended
Proxy Statement and Definitive Proxy Statement, the Company received four demand
letters relating to the Merger on April 20, 2023, April 24, 2023, May 3, 2023,
and May 4, 2023. Following the filing of the Definitive Proxy Statement and
prior to the filing of this Current Report on Form 8-K, two lawsuits relating to
the Merger were filed: Stephen Bushansky v. Diversey Holdings, Ltd., et al.,
Civil Action No. 1:23-cv-04135 (S.D.N.Y. May 18, 2023) and Brian Levy v.
Diversey Holdings, Ltd., et al. Index 61399/2023 (S. Ct. N.Y., May 20, 2023)
(together, the "Actions"). The Company also received nine additional demand
letters relating to the Merger between May 19, 2023, and May 30, 2023, each from
a purported individual shareholder of the Company (cumulatively with the demand
letters disclosed in the Amended Proxy Statement and Definitive Proxy Statement
dated April 20, 2023, April 24, 2023, May 3, 2023, and May 4, 2023, the "Demand
Letters" and together with the Actions, the "Matters"). The Matters allege,
among other things, that the defendants named therein violated Sections 14(a)
and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 14a-9
promulgated thereunder because the Preliminary Proxy Statement or Definitive
Proxy Statement allegedly omit or misstate certain material information, and/or
were in breach of their obligations under state law, New York common law, and/or
Cayman Islands common law. The Actions each seek, among other things, injunctive
relief preventing the consummation of the Merger, rescission of the Merger if it
is consummated, damages and attorneys' fees.
The Company believes that the claims asserted in the Matters are without merit
and that no supplemental disclosure is required under applicable law. However,
in order to moot unmeritorious disclosure claims, to avoid the risk of the
Matters delaying or adversely affecting the Merger and to minimize the costs,
risks and uncertainties inherent in litigation, without admitting any liability
or wrongdoing, the Company has determined to voluntarily supplement the
Definitive Proxy Statement as described in this Current Report on Form 8-K.
Nothing in this Current Report on Form 8-K shall be deemed an admission of the
legal necessity or materiality under applicable laws of any of the disclosures
set forth herein. To the contrary, the Company specifically denies all
allegations in the Matters, including allegations that any additional disclosure
was or is required, and believes that the supplemental disclosures contained
herein are immaterial.
The Actions are not expected to affect the timing of the Company's extraordinary
general meeting of shareholders to be held for the purpose of voting upon, among
other things, the Merger, which is scheduled to be held on June 8, 2023, or the
amount of the consideration to be paid to the Company's shareholders in
connection with the Merger.
AMENDED AND SUPPLEMENTAL DISCLOSURES
The following disclosures in this Current Report on Form 8-K supplement the
disclosures contained in the Definitive Proxy Statement and should be read in
conjunction with the disclosures contained in the Definitive Proxy Statement,
which in turn should be read in its entirety. All page references are to the
Definitive Proxy Statement and terms used below, unless otherwise defined, shall
have the meanings ascribed to such terms in the Definitive Proxy Statement. For
clarity, new text added to the Definitive Proxy Statement is shown in bold,
underlined text, and text deleted from the Definitive Proxy Statement is shown
in stricken-through text.
The section of the Definitive Proxy Statement entitled "Special
Factors-Background of the Merger" is hereby amended and supplemented as follows:
The last full paragraph on page 18 of the Definitive Proxy Statement is amended
and supplemented as follows:
On August 3, 2022, the Company received a letter from Platinum and Solenis (the
"August 3 Letter") setting forth, on a non-binding basis, Platinum's and
Solenis' interest in pursuing a take-private acquisition of the Company and a
subsequent combination of the Company with Solenis at a price of $11.00 per
Ordinary Share, in cash, subject to a number of terms and conditions. The August
3 Letter contemplated that one or more of the Company's largest shareholders
would invest in the transaction. The August 3 Letter did not contemplate any
post-transaction employment for, nor any investment in the transaction (in their
individual capacities) by, any directors or officers of the Company.
The third paragraph on page 20 of the Definitive Proxy Statement is amended and
supplemented as follows:
On January 11, 2023, the Company received an updated proposal from Platinum and
Solenis (the "January 11 Letter") setting forth, on a non-binding basis,
Platinum's and Solenis' interest in pursuing a revised take-private acquisition
of the Company and subsequent combination of the Company and Solenis at a price
of $7.50 per Ordinary Share, in cash. The January 11 Letter contemplated that
the Bain Shareholder would rollover a portion of the Ordinary Shares owned by it
into the combined entity, and indicated that the Bain Shareholder would be
expected to execute a voting agreement in connection with the proposed
transaction. The January 11 Letter did not contemplate any post-transaction
employment for, nor any investment in the transaction (in their individual
capacities) by, any directors or officers of the Company.
The section of the Definitive Proxy Statement entitled "Special Factors-Opinion
of the Special Committee's Financial Advisor" is hereby amended and supplemented
as follows:
The last full paragraph on page 36 of the Definitive Proxy Statement is amended
and supplemented as follows:
Evercore calculated terminal values for the Company by applying terminal
multiples of 10.0x to 12.0x, which range was selected based on Evercore's
professional judgment and experience, to the Company's estimated earnings before
interest, taxes, depreciation and amortization ("EBITDA") in fiscal year 2027
based on the Management Projections. The cash flows and terminal values in each
case were then discounted to present value as of January 1, 2023, which was
based upon Evercore's professional judgment and experience, using discount rates
ranging from 9.0% to 10.0%, which were based on an estimate of the Company's
weighted average cost of capital, and the mid-year cash flow discounting
convention. Evercore estimated the Company's weighted average cost of capital
based on the application of the capital asset pricing model and its professional
judgment given the nature of the Company's business and its industry.Based on
this range of implied enterprise values, the estimated Company Net Debt as of
January 1, 2023 of approximately $1.841 billion, and the number of fully diluted
Ordinary Shares of approximately 327.5 million shares as of January 1, 2023, in
each case as provided by the Company's management, this analysis indicated a
range of implied equity values per Ordinary Share of $6.95 to $9.68, compared to
the Merger Consideration of $8.40 per Ordinary Share. For purposes of Evercore's
analysis, "Company Net Debt" was calculated as (1) total debt of the Company,
plus (2) tax-effected pension liability, plus (3) asset retirement obligations,
less (4) cash and cash equivalents.
The paragraph spanning pages 36 and 37 of the Definitive Proxy Statement is
amended and supplemented as follows:
Evercore calculated terminal values for the Company by applying perpetuity
growth rates of 3.25% to 3.75%, which range was selected based on Evercore's
professional judgment and experience, to a terminal year estimate of the
unlevered, after-tax free cash flows that the Company was forecasted to generate
based on the Management Projections. The cash flows and terminal values in each
case were then discounted to present value as of January 1, 2023, which was
based upon Evercore's professional judgment and experience, using discount rates
ranging from 9.0% to 10.0%, which were based on an estimate of the Company's
weighted average cost of capital, and the mid-year cash flow discounting
convention. Evercore estimated the Company's weighted average cost of capital
based on the application of the capital asset pricing model and its professional
judgment given the nature of the Company's business and its industry. Based on
this range of implied enterprise values, the estimated Company Net Debt as of
January 1, 2023 of approximately $1.841 billion, and the number of fully diluted
Ordinary Shares of approximately 327.5 million shares as of January 1, 2023, in
each case as provided by the Company's management, this analysis indicated a
range of implied equity values per Ordinary Share of $5.72 to $9.03, compared to
the Merger Consideration of $8.40 per Ordinary Share.
The first paragraph on page 38 of the Definitive Proxy Statement is amended and
supplemented as follows:
Based on the multiples it derived for the Selected Companies and based on its
professional judgment and experience, Evercore applied a total enterprise value
/ EBITDA multiple reference range of 10.5x- 12.0x to the Company's 2023E EBITDA
based on the Management Projections. Based on this range of implied enterprise
values, the Company's estimated Company Net Debt as of January 1, 2023 of
approximately $1.841 billion, and the number of fully diluted Ordinary Shares of
approximately 327.5 million shares as of January 1, 2023, in each case as
provided by the Company's management, this analysis indicated a range of implied
equity values per Ordinary Share of $6.25 to $7.95, compared to the Merger
Consideration of $8.40 per Ordinary Share.
The fifth paragraph on page 40 of the Definitive Proxy Statement is amended and
supplemented as follows:
In calculating the implied present value of the future price per Ordinary Share,
Evercore first calculated the implied future enterprise value of the Company by
multiplying the Company's estimated NTM EBITDA for the 2026 fiscal year, based
on the Management Projections, by an illustrative enterprise value to NTM EBITDA
multiple range of 8.8x to 10.8x, which was selected based on Evercore's
professional judgment and experience, to derive an implied future enterprise
value reference range for the Company as of December 31, 2025. Based on this
range of implied enterprise values, and the Company Net Debt as of December 31,
2025 of approximately $1.578 billion, as based on the Management Projections,
Evercore calculated a reference range of implied future equity values for the
Company. Evercore then discounted the implied future equity values to back to
January 1, 2023 using a discount rate of 12.2%, which was based on an estimate
of the Company's cost of equity, based on Evercore's professional judgment and
experience. This analysis indicated a range of implied equity values per
Ordinary Share of $5.93 to $8.09, compared to the Merger Consideration of $8.40
per Ordinary Share.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements, 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 Company's
ordinary 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 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) the Merger Litigation and
Shareholder Letters and other 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-U.S. currencies and the U.S. dollar; (xviii)
political and economic instability and risk of government actions affecting the
Company's business and its customers or suppliers; (xix) increases in the
pricing of raw materials, availability and allocation by suppliers as well as
increases in energy-related costs; (xx) the Company's ability to develop new and
innovative products and the acceptance of such products by the Company's
customers; (xxi) cyber risks and the failure to maintain the integrity of the
Company's operational or security systems or infrastructure; (xxii) the
introduction of the Organization for Economic Cooperation and Development's Base
Erosion and Profit Shifting; (xxiii) the consolidation of the Company's
customers; (xxiv) competition in the markets for the Company's products and
services and in the geographic areas in which it operates; (xxv) instability and
uncertainty in the credit and financial markets and the availability of credit
that the Company and its customers need to operate the Company's business;
(xxvi) new and stricter regulations applicable to our business; (xxvii)
continued availability of capital and financing and rating agency actions; and
(xxviii) other risks described in the Company's filings with the SEC, including
its Annual Report on Form 10-K for the fiscal year ended December 31, 2022, as
may be updated or supplemented by any subsequent Quarterly Reports on Form 10-Q
or other filings with the SEC. All such factors are difficult to predict and are
beyond the Company's control. While the list of risks and uncertainties
presented here is, and the discussion of risks and uncertainties presented in
the Definitive Proxy Statement is, considered representative, no such list or
discussion should be considered a complete statement of all potential risks and
uncertainties. Unlisted factors may present significant additional obstacles to
the realization of forward-looking statements. Consequences of material
differences in results as compared with those anticipated in the forward-looking
statements could include, among other things, business disruption, operational
problems, financial loss, and legal liability to third parties and similar
risks, any of which could have a material adverse effect on the completion of
the Merger and/or the Company's consolidated financial condition, results of
operations, credit rating or liquidity. In light of the significant
uncertainties in these forward-looking statements, the Company cannot assure you
that the forward-looking statements in this Current Report on Form 8-K will
prove to be accurate, and you should not regard these statements as a
representation or warranty by the Company, its directors, officers or employees
or any other person that the Company will achieve its objectives and plans in
any specified time frame, or at all.
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 filed with the SEC the
Definitive Proxy Statement on Schedule 14A, a copy of which has been mailed or
otherwise provided to the Company's shareholders. The Company, Parent and
certain affiliates of Parent, Merger Sub, and certain affiliates of Bain Capital
Private Equity, LP jointly filed an amended transaction statement on Schedule
13E-3 (the "Schedule 13E-3") with the SEC. This Current Report on Form 8-K is
not a substitute for the Definitive Proxy Statement or any other document that
the Company may file with the SEC or send to its shareholders in connection with
the proposed transaction. INVESTORS AND SHAREHOLDERS OF THE COMPANY ARE URGED TO
READ THE DEFINTIVE PROXY STATEMENT, THE SCHEDULE 13E-3, AS AMENDED, AND OTHER
RELEVANT MATERIALS BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT
TO THE PROPOSED TRANSACTION BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE
COMPANY AND THE PROPOSED TRANSACTION, THE RISKS RELATED THERETO AND RELATED
MATTERS. The materials filed by the Company are available to the Company's
investors and shareholders at no expense to them and copies may be obtained free
of charge on the Company's website at www.diversey.com/. In addition, all of
those materials will be available at no charge on the SEC's website at
www.sec.gov.
Participants in the Solicitation
The Company and its directors, executive officers, other members of its
management and employees may be deemed to be participants in the solicitation of
proxies of the Company's shareholders in connection with the proposed
transaction under SEC rules. Investors and shareholders may obtain more detailed
information regarding the names, affiliations and interests of the Company's
executive officers and directors in the solicitation by reading the Company's
Definitive Proxy Statement, Annual Report on Form 10-K for the fiscal year ended
December 31, 2022 filed with the SEC on March 17, 2023, Annual Report on Form
10-K/A for the fiscal year ended December 31, 2022 filed with the SEC on April
27, 2023 and other relevant materials that are filed or will be filed with the
SEC in connection with the proposed transaction. Information concerning the
interests of the Company's participants in the solicitation, which may, in some
cases, be different than those of the Company's shareholders generally, is set
forth in the Definitive Proxy Statement.
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