underwriteragreement_v2.htm - Generated by SEC Publisher for SEC Filing
Univar Inc.
20,943,741 Shares of Common Stock
Underwriting Agreement
August 15, 2016
Goldman, Sachs & Co.
200 West Street
New York, New York 10282
Ladies and Gentlemen:
The holders named in Schedule I hereto (the “Selling
Stockholders”) of Univar Inc., a Delaware corporation (the “Company”),
propose, subject to the terms and conditions stated herein, to sell to Goldman,
Sachs & Co. (the “Underwriter”) an aggregate of 20,943,741 shares
(the “Shares”) $0.01 par value (the “Stock”) of the Company.
1.
(a) The Company represents and warrants to, and agrees with, the
Underwriter that:
(i)
An “automatic shelf registration statement” as defined under Rule 405
under the Securities Act of 1933, as amended (the “Act”) on Form S-3
(File No. 333-213131) in respect of the Shares has been filed with the
Securities and Exchange Commission (the “Commission”) not earlier than
three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission, and no notice of objection of the Commission to
the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company (the
base prospectus filed as part of such registration statement, in the form in
which it has most recently been filed with the Commission on or prior to the
date of this Agreement, is hereinafter called the “Basic Prospectus”;
any preliminary prospectus (including any preliminary prospectus supplement)
relating to the Shares filed with the Commission pursuant to Rule 424(b) under
the Act is hereinafter called a “Preliminary Prospectus”; the various
parts of such registration statement, including all exhibits thereto and
including any prospectus supplement relating to the Shares that is filed with
the Commission and deemed by virtue of Rule 430B to be part of such
registration statement, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively called
the “Registration Statement”; the Basic Prospectus, as amended and
supplemented immediately prior to the Applicable Time (as defined in Section
1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Shares filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof
is hereinafter called the “Prospectus”; any reference herein to the Basic
Prospectus, the Pricing
Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such prospectus; any reference to any
amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating to
the Shares filed with the Commission pursuant to Rule 424(b) under the Act and
any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement; and any “issuer free writing prospectus” as defined in Rule 433
under the Act relating to the Shares is hereinafter called an “Issuer Free
Writing Prospectus”);
(ii)
No order preventing or suspending the use of any Preliminary Prospectus
or any Issuer Free Writing Prospectus has been issued by the Commission, and
each Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by the Underwriter expressly for use therein;
(iii)
For the purposes of this Agreement, the “Applicable Time” is 7.00 p.m.
(New York City time) on the date of this Agreement; the Pricing Prospectus, as
supplemented by any Issuer Free Writing Prospectuses and the other information
listed on Schedule II hereto, taken together (collectively, the “Pricing
Disclosure Package”), as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus
listed on Schedule II(a) or Schedule II(b) hereto does not conflict with the
information contained in the Registration Statement, the Pricing Prospectus or
the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by
and taken together with the Pricing Disclosure Package as of the Applicable
Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to
statements or omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity
with information furnished in
writing to the Company by the Underwriter expressly for use therein;
(iv)
The documents incorporated by reference in the Pricing Prospectus and
the Prospectus, when they became effective or were filed with the Commission,
as the case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein; and no such documents were filed with
the Commission since the Commission’s close of business on the business day immediately
prior to the date of this Agreement and prior to the execution of this
Agreement, except as set forth on Schedule II(b) hereto;
(v)
The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of the Prospectus, in light of
the circumstances under which they were made); provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by the Underwriter expressly for use therein;
(vi)
Neither the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus any material loss or material interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in or contemplated by the
Pricing Disclosure Package; and, since the respective dates as of which
information is given in the Registration Statement and the Pricing Prospectus,
there has not been any change
in (i) the capital stock
of the Company or its subsidiaries or (ii) long term debt of the Company and
its subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity or results of operations
of the Company and its subsidiaries, taken together as a whole, otherwise than
as set forth or contemplated in the Pricing Disclosure Package (any such change
pursuant to clauses (i) or (ii) a “Material Adverse Change”);
(vii)
The Company and its subsidiaries, taken together as a whole, have good
title in fee simple to, or have valid rights to lease or otherwise use, all
items of real property and title to, or valid rights to lease or otherwise use,
all personal property, which are material to the business of the Company and
its subsidiaries, taken as a whole (collectively, the “Business”), free
and clear of all liens, encumbrances, claims and title defects (collectively, “Liens”)
(other than the Liens granted under or otherwise permitted by agreements and
instruments governing the Company’s existing indebtedness described in the
Pricing Disclosure Package) that would reasonably be expected to have a
material adverse effect on the financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”), other than agreements and instruments
governing the Company’s existing indebtedness described in the Pricing
Disclosure Package, as the same may be amended, supplemented, waived or
otherwise modified from time to time, or refunded, refinanced, restructured,
replaced, renewed, repaid, increased or extended from time to time (whether in
whole or in part) and except as do not materially interfere with the use of
such properties;
(viii)
Each of the Company and its “significant subsidiaries” as defined in
Article I, Rule 1-02 of Regulation S-X promulgated pursuant to the Act (each, a
“Significant Subsidiary”) (i) has been duly incorporated or organized
and is validly existing in good standing under the laws of the jurisdiction of
its incorporation or organization (to the extent the concept of good standing
is applicable in the relevant jurisdiction), with power and authority to own
its properties and conduct its business as described in the Pricing Prospectus,
and (ii) has been duly qualified as a foreign corporation, partnership or
limited liability company for the transaction of business and is in good
standing (if applicable) under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, except, in the case of clauses (i) and (ii), where the failure
to be in good standing or to be so qualified or to have such power or authority
would not reasonably be expected to have a Material Adverse Effect;
(ix)
The Company has an authorized capitalization as set forth in the Pricing
Prospectus and all of the issued shares of capital stock of the Company,
including the Shares to be sold by the Selling Stockholders, have been duly and
validly authorized and issued and are fully paid and non-assessable and conform
in all material respects to the description of the Stock contained in the
Pricing Disclosure Package and the Prospectus; and all of the issued shares of
capital
stock of each Significant Subsidiary of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors’ qualifying shares and, in each case,
except as otherwise set forth in the Pricing Disclosure Package), are owned
directly or indirectly by the Company, free and clear of all Liens other than
the Liens granted under or otherwise permitted by agreements and instruments
governing the Company’s existing indebtedness described in the Pricing
Disclosure Package, as the same may be amended, supplemented, waived or
otherwise modified from time to time, or refunded, refinanced, restructured,
replaced, renewed, repaid, increased or extended from time to time (whether in
whole or in part);
(x)
The Shares to be sold by the Selling Stockholders have been duly and
validly authorized and, when delivered by the Selling Stockholders against
payment therefor as provided herein, will be duly and validly issued and fully
paid and non-assessable and will conform in all material respects to the
description of the Stock contained in the Pricing Disclosure Package and the
Prospectus;
(xi)
The sale of the Shares to be sold by the Selling Stockholders and the
compliance by the Company with this Agreement and the consummation of the
transactions herein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Significant Subsidiaries is subject, (ii) violate any provision
of the certificate of incorporation or by-laws, or other organizational
document, of the Company, or any of its Significant Subsidiaries, or (iii)
violate any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its Significant
Subsidiaries, except, in the case of clauses (i) and (iii), as would not
reasonably be expected to have a Material Adverse Effect, in the case of each
such clause, after giving effect to any consents, approvals, authorizations,
orders, registrations, qualifications, waivers and amendments as will have been
obtained or made as of the Time of Delivery; and no consent, approval,
authorization, order, registration or qualification of or with any such court
or governmental agency or body is required for the sale of the Shares by the
Selling Stockholders or the consummation by the Company and the Selling
Stockholders of the transactions contemplated by this Agreement, except (A) for
the registration under the Act of the Shares, (B) the approval by the Financial
Industry Regulatory Authority (“FINRA”) of the underwriting terms and
arrangements, (C) such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriter, (D) as disclosed in the Pricing Disclosure Package, (E) such
consents, approvals, authorizations, orders, registrations, qualifications,
waivers, amendments or terminations as will have been obtained or made as of
the Time of Delivery, and
(F) where the failure to
obtain or make any such consent, approval, authorization, order, registration
or qualification would not reasonably be expected to have a Material Adverse
Effect or would not reasonably be expected to materially adversely impact
consummation of the transactions contemplated by this Agreement;
(xii)
Neither the Company nor any of its Significant Subsidiaries is (i) in
violation of its certificate of incorporation or by-laws, or other
organizational document (which, for the avoidance of doubt, does not include
the Fourth Amended and Restated Stockholders Agreement, dated as of June 23,
2015, by and among the Company, CD&R Holdings, L.P., Univar N.V. and the
Stockholders party thereto from time to time, as such may be amended or
restated from time to time), as applicable, or (ii) in default in the
performance or observance of any obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except, in the case of clause (ii) above, for any such
violation or default that would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect;
(xiii)
The statements set forth in the Pricing Prospectus and the Prospectus
under the caption “Description of Capital Stock”, insofar as they purport to constitute
a summary of the terms of the Stock, and under the caption “U.S. Federal Tax
Considerations for Non-U.S. Holders”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate in all
material respects;
(xiv)
Other than as set forth in the Pricing Disclosure Package, there are no
legal or governmental proceedings pending to which the Company or, to the
knowledge of the Company, any of its subsidiaries is a party or of which any
property of the Company or, to the knowledge of the Company, any of its
subsidiaries is subject that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and, to the knowledge
of the Company, no such proceedings are threatened by governmental authorities
or by others;
(xv)
The Company is not and, after giving effect to the sale of the Shares by
the Selling Stockholders, will not be an “investment company”, as such term is
defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(xvi)
(A) (i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), and (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause only, of Rule
163(c) under the Act) made any offer relating to the
Shares in reliance on the exemption of Rule 163 under the Act, the Company was
a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at
the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Shares, the Company was not an
“ineligible issuer” as defined in Rule 405 under the Act;
(xvii)
Ernst & Young, LLP (“E & Y”), who have certified certain
financial statements of the Company and its subsidiaries and who have audited
certain consolidated financial statements of the Company included in the
Pricing Disclosure Package, have advised the Company that it is an independent
registered public accounting firm with respect to the Company as required by
the Act and the rules and regulations of the Commission thereunder;
(xviii) The
Company maintains a system of internal accounting controls that is sufficient
to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles in the
United States (“GAAP”) and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(xix)
Since the date of the latest audited financial statements included or
incorporated by reference in the Pricing Disclosure Package, to the knowledge
of the Company, there has been no change in the Company’s internal accounting
controls that has materially adversely affected, or would reasonably be
expected to materially adversely affect, the Company’s internal accounting
controls;
(xx)
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 principal executive officer and
principal financial officer by others within those entities; and such
disclosure controls and procedures are effective at a reasonable assurance
level;
(xxi)
This Agreement has been duly authorized, executed and delivered by the
Company;
(xxii)
Neither the Company nor, to the knowledge of the Company, any of the
Company’s subsidiaries or any director, officer or employee acting on behalf of
the Company or any of its subsidiaries (which, for the avoidance of doubt, does
not include any third party representative, agent, distributor or other
intermediary who is not acting on the Company’s behalf)
has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity, (ii)
made any direct or indirect unlawful payment to any government official or
employee from corporate funds, (iii) violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or
(iv) made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment;
(xxiii) The
operations of the Company and, to the knowledge of the Company, the operations
of the Company’s subsidiaries are and have been conducted at all times in all
material respects in compliance with applicable financial record-keeping and
reporting requirements of the anti-money laundering laws and regulations of the
United States and any related or similar statutes (including, without limitation,
the USA PATRIOT Act of 2001), rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws
is, to the knowledge of the Company, pending or threatened;
(xxiv) Neither
the Company nor to the knowledge of the Company, the Company’s subsidiaries, or
any of their respective directors, officers or employees, is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Department of the Treasury (“OFAC”); and the Company will not
knowingly directly or indirectly use the proceeds of the offering of the Shares
hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC;
(xxv)
The Company and each of its subsidiaries collectively own, or have the
legal right to use, all United States patents, patent applications, trademarks,
trademark applications, trade names, copyrights, technology, know-how and
processes necessary for them to conduct the Business as currently conducted
(the “Intellectual Property”), except for those the failure to own or
have such legal right to use would not be reasonably expected to have a
Material Adverse Effect. Except as disclosed in the Pricing Disclosure Package,
no claim has been asserted and is pending by any person against the Company or
any of its subsidiaries challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does the Company know of any such claim, and, to the knowledge of
the Company, the use of such Intellectual Property by the Company and its
subsidiaries does not infringe on the rights of any person, except for such
claims and infringements which, in the aggregate, would not be reasonably
expected to have a Material Adverse Effect;
(xxvi)
The Company has filed or caused to be filed all United States federal
income tax returns and all other material tax returns which are required to be
filed and has paid (a) all taxes shown to be due and payable on such returns
and (b) all taxes shown to be due and payable on any assessments of which it
has received notice made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any governmental
authority (other than any (i) taxes, fees or other charges with respect to
which the failure to pay, in the aggregate, would not reasonably be expected to
have a Material Adverse Effect or (ii) taxes, fees or other charges the amount
or validity of which are currently being contested in good faith by appropriate
proceedings diligently conducted and with respect to which reserves in
conformity with GAAP have been provided on the books of the Company, as the
case may be). No tax lien has been filed, and no claim is being asserted, with
respect to any such tax, fee or other charge, against the Company or any of its
Significant Subsidiaries, except for liens or charges that would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect;
(xxvii) The
Company and its subsidiaries collectively possess all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and
have made all declarations and filings with, all federal, state and other
governmental authorities, presently required or necessary to own or lease, as
the case may be, and to operate their properties and to carry on the Business
as set forth in the Pricing Disclosure Package (“Permits”), except as
disclosed in the Pricing Disclosure Package or where the failure to possess,
make or obtain such Permits (by possession, declaration or filing) would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(xxviii) Except as
disclosed in the Pricing Disclosure Package, there is no claim or environmental
remediation project pending or, to the knowledge of the Company, threatened
under any Environmental Law (as defined below) against the Company or its
subsidiaries that would reasonably be expected to have a Material Adverse
Effect. The term “Environmental Law” means any federal, state, local or
foreign law, statute, regulation, binding ordinance, order, judgment, decree or
rule (including rule of common law) now in effect concerning or governing
pollution, or actual or alleged exposure to, hazardous or toxic materials,
substances or wastes, including but not limited to, asbestos or
asbestos-containing materials;
(xxix) There
is no strike or labor dispute, slowdown or work stoppage with the employees of
the Company or any of its subsidiaries that is pending or, to the knowledge of
the Company, threatened, except as would not reasonably be expected to have a
Material Adverse Effect; and
(xxx)
The Company and its subsidiaries collectively carry insurance (including
self-insurance, if any) in such amounts and covering such risks as in the
Company’s reasonable determination is adequate for the conduct of the
Business and the value of its properties, except where the
failure to carry such insurance would not reasonably be expected to have a
Material Adverse Effect.
(b) Each of the Selling Stockholders severally, and
not jointly, if applicable, represents and warrants to, and agrees with, each
Underwriter and the Company that:
(i)
All consents, approvals, authorizations and orders necessary for the
execution and delivery by such Selling Stockholder of this Agreement and for
the sale and delivery of the Shares to be sold by such Selling Stockholder
hereunder, have been obtained, or will be obtained prior to the Time of
Delivery; and such Selling Stockholder has full right, power and authority to
enter into this Agreement and to sell, assign, transfer and deliver the Shares
to be sold by such Selling Stockholder hereunder, except for such consents,
approvals, authorizations and orders as would not impair in any material
respect the consummation of such Selling Stockholder’s obligations hereunder;
(ii)
The sale of the Shares to be sold by such Selling Stockholder hereunder
and the compliance by such Selling Stockholder with this Agreement and the
consummation of the transactions herein contemplated will not (A) conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling Stockholder is
a party or by which such Selling Stockholder is bound or to which any of the
property or assets of such Selling Stockholder is subject, (B) violate the
provisions of any organizational or similar documents pursuant to which such
Selling Stockholder was formed or (C) violate any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
such Selling Stockholder or the property of such Selling Stockholder, except in
the case of clause (A) or clause (C), for such conflicts, breaches, violations
or defaults as would not impair in any material respect the consummation of
such Selling Stockholder’s obligations hereunder and thereunder;
(iii)
Immediately prior to the Time of Delivery (as defined in Section 4
hereof) such Selling Stockholder will be the beneficial or record holder of the
Shares to be sold by such Selling Stockholder hereunder with full dispositive
power thereover, and holds, and will hold, such Shares free and clear of all
liens, encumbrances, equities or claims; and, upon delivery of such Shares and
payment therefor pursuant hereto, assuming that the Underwriter has no notice
of any adverse claims (within the meaning of Section 8-105 of the New York
Uniform Commercial Code as in effect in the State of New York from time to time
(the “UCC”)) to such Shares, each Underwriter will acquire a valid security
entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such
Shares purchased by such Underwriter, and no action (whether framed in
conversion, replevin, constructive trust, equitable lien or other theory) based
on an adverse claim (within the meaning of Section 8-105 of the UCC) to such
security entitlement may be asserted against such Underwriter;
(iv)
[Reserved]
(v)
Such Selling Stockholder has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
would reasonably be expected to cause or result in stabilization or
manipulation of the price of any equity security, or any securities convertible
into, or exchangeable for, or that represent a right to receive an equity
security or any equity-linked securities of the Company to facilitate the sale
or resale of the Shares;
(vi)
To the extent, but only to the extent, that any statements or omissions
made in the Registration Statement, the Pricing Prospectus, the Prospectus, any
Issuer Free Writing Prospectus or any amendment or supplement thereto are made
in reliance upon and in conformity with written information relating to such
Selling Stockholder furnished to the Company by such Selling Stockholder
expressly for use therein, such Registration Statement, Pricing Prospectus, and
Prospectus did, and the Prospectus and any further amendments or supplements to
the Registration Statement and any Issuer Free Writing Prospectus will, when
they become effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; (in
the case of the Pricing Prospectus, the Prospectus, or any amendment or
supplement thereto, and any Issuer Free Writing Prospectus, in light of the
circumstances under which they were made);
(vii)
In order to document the Underwriter’s compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated, such Selling Stockholder
will deliver to you prior to or at the Time of Delivery a properly completed
and executed United States Treasury Department Form W-9, W-8BEN, W-8BENE or
W-8IMY (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
2.
Subject to the terms and conditions herein set forth, each
Selling Stockholder agrees, severally and not jointly, to sell to the
Underwriter, and the Underwriter agrees, to purchase from each Selling
Stockholder, at a purchase price per share of $18.79, the number of Shares set
forth opposite each Selling Stockholder’s respective name in Schedule I hereto.
3.
The Underwriter proposes to offer the Shares for sale upon the
terms and conditions set forth in the Prospectus upon release of the Shares.
4.
(a) The Shares to be purchased by Underwriter hereunder, in
book-entry form, and in such authorized denominations and registered in such
names as the Underwriter may request upon prior notice to the Company and the Selling
Stockholders shall be delivered by or on behalf of the Selling Stockholders to
the Underwriter, through the facilities of The Depository
Trust
Company (“DTC”), for the account of the Underwriter, against payment by
or on behalf of the Underwriter of the purchase price therefor by wire transfer
of Federal (same-day) funds to the account specified by the applicable Selling
Stockholder to the Underwriter. The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on August 18, 2016 or such other time
and date as the Underwriter, the Company and the Selling Shareholders may agree
upon in writing. Such time and date are herein called the “Time of
Delivery”.
(b)
The documents to be delivered at the Time of Delivery by or on behalf of
the parties hereto pursuant to Section 8 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriter
pursuant to Section 8(m) and Section 8(n) hereof will be delivered at the
offices of Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York
10022 (the “Closing Location”), and the Shares will be book-entry
delivery at such Time of Delivery. A meeting will be held at the Closing
Location at 2:00 p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, “New
York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5.
The Company agrees with the Underwriter:
(a)
To prepare the Prospectus in a form approved by the Underwriter and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day following the
execution and delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement, the Basic Prospectus or the
Prospectus prior to the Time of Delivery without the Underwriter’s consent
which shall not be unreasonably withheld; to advise the Underwriter, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any amendment or
supplement to the Prospectus has been filed and to furnish the Underwriter with
copies thereof; to file promptly all material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required in connection
with the offering or sale of the Shares; to advise the Underwriter, promptly
after it receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus in respect of the Shares of any notice of
objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of
the suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose or pursuant to Section 8A of the Act, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
the
Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use its best efforts to obtain
the withdrawal of such order; and in the event of any such issuance of a notice
of objection, promptly to take such steps including, without limitation,
amending the Registration Statement or filing a new registration statement, at
its own expense, as may be necessary to permit offers and sales of the Shares
by the Underwriter (references herein to the Registration Statement shall
include any such amendment or new registration statement);
(b)
If required by Rule 430B(h) under the Act, to prepare a form of
prospectus in a form approved by the Underwriter and to file such form of
prospectus pursuant to Rule 424(b) under the Act not later than may be required
by Rule 424(b) under the Act; and to make no further amendment or supplement to
such form of prospectus which shall be disapproved by the Underwriter promptly
after reasonable notice therereof;
(c)
If by the third anniversary (the “Renewal Deadline”) of the
initial effective date of the Registration Statement, any of the Shares remain
unsold by the Underwriter, the Company will file, if it has not already done so
and is eligible to do so, a new automatic shelf registration statement relating
to the Shares, in a form satisfactory to the Underwriter. If at the Renewal
Deadline the Company is no longer eligible to file an automatic shelf
registration statement, the Company will, if it has not already done so, file a
new shelf registration statement relating to the Shares, in a form satisfactory
to the Underwriter and will use its best efforts to cause such registration
statement to be declared effective within 180 days after the Renewal Deadline.
The Company will take all other action necessary or appropriate to permit the
public offering and sale of the Shares to continue as contemplated in the
expired registration statement relating to the Shares. References herein to
the Registration Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may be;
(d)
Promptly from time to time to take such action as the Underwriter may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as the Underwriter may reasonably request
and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Shares, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(e)
Prior to 10:00 a.m., New York City time, on the second New York Business
Day following the date of this Agreement and from time to time, to furnish the
Underwriter with written and electronic copies of the Prospectus (and to the
extent the Prospectus is not available, the Pricing Disclosure Package) in New
York City in such quantities as the Underwriter may reasonably request, and, if
the delivery of a prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the Act) is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus (or the Pricing
Disclosure Package, as applicable) in connection with the offering or sale of
the
Shares and if at such time any event shall have
occurred as a result of which the Prospectus (or the Pricing Disclosure
Package, as applicable) as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made when such Prospectus (or in lieu thereof, the notice referred to
in Rule 173(a) under the Act or, as applicable, the Pricing Disclosure Package)
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference therein (or Pricing
Disclosure Package, as applicable) in order to comply with the Act or the
Exchange Act, to notify the Underwriter and upon the Underwriter’s request to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and electronic
copies as the Underwriter may from time to time reasonably request of an
amended Prospectus (or Pricing Disclosure Package, as applicable) or a
supplement to the Prospectus (or Pricing Disclosure Package, as applicable)
which will correct such statement or omission or effect such compliance; and in
case any Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales
of any of the Shares at any time nine months or more after the time of issue of
the Prospectus, upon the Underwriter’s request but at the expense of the
Underwriter, to prepare and deliver to the Underwriter as many written and
electronic copies as the Underwriter may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(f)
To make generally available to its security holders as soon as
practicable, but in any event not later than sixteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act),
an earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(g)
During the period beginning from the date hereof and continuing to and
including the date 30 days after the date of the Prospectus (the “Lock-Up
Period”), not to (i) offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise transfer or dispose of,
directly or indirectly, or file with the Commission a registration statement
under the Act relating to, any securities of the Company that are substantially
similar to the Shares, including but not limited to any options or warrants to
purchase shares of Stock or any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities or publicly disclose the intention to make any
offer, sale, pledge, disposition or filing, or (ii) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Stock or any such other securities, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Stock or such other securities, in cash or otherwise (other than
(A) the Shares to be sold hereunder, (B) any shares of Stock issued by the
Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Registration
Statement, Pricing Disclosure Package or the Prospectus, (C) any shares of
Stock issued or options to purchase Stock granted pursuant to existing
employee benefit plans of the Company and referred to in
the Registration Statement, Pricing Disclosure Package or the Prospectus, (D)
any shares of Stock issued pursuant to any employee stock purchase plan,
non-employee director stock plan or dividend reinvestment plan and referred to
in the Registration Statement, Pricing Disclosure Package or the Prospectus,
(E) the filing of any registration statement on Form S-8, or (F) the entry into
an agreement providing for the issuance of Stock or any securities convertible
into or exercisable for Stock, and the issuance of any such securities pursuant
to such an agreement, in connection with (i) the acquisition by the Company or
any of its subsidiaries of the securities, business, property or other assets
of another person or entity, including pursuant to an employee benefit plan
assumed by the Company in connection with such acquisition, or (ii) joint
ventures, commercial relationships or other strategic transactions, and the
issuance of any such securities pursuant to any such agreement, provided that
the aggregate number of shares issued or issuable pursuant to this clause (F)
does not exceed 10% of the outstanding shares of Stock and prior to any such
issuance each recipient of any such securities shall have executed and
delivered to the Underwriter an agreement substantially in the form of Annex I
hereto), without having received a prior written waiver from the Underwriter;
and
(h)
To pay the required Commission filing fees relating to the Shares within
the time required by Rule 456(b)(1) under the Act without regard to the proviso
therein and otherwise in accordance with Rules 456(a) and 457(c) under the Act.
6.
(a) The Company represents and agrees that, without the
prior consent of the Underwriter, it has not made and will not make any offer
relating to the Shares that would constitute a “free writing prospectus”
as defined in Rule 405 under the Act; and the Underwriter, represents and
agrees that, without the prior consent of the Company, it has not made and will
not make any offer relating to the Shares that would constitute a free writing
prospectus that would require a filing under the Act; any such free writing
prospectus the use of which has been consented to by the Company and the
Underwriter is listed on Schedule II(a) and Schedule II(b) hereto;
(b)
The Company has complied and will comply with the requirements of Rule
433 under the Act applicable to any Issuer Free Writing Prospectus, including
timely filing with the Commission or retention where required and legending;
(c)
The Company agrees that if at any time following issuance of an Issuer
Free Writing Prospectus any event occurred or occurs as a result of which such
Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will give notice
thereof as soon as reasonably practicable to the Underwriter and, if requested
by the Underwriter, will prepare and furnish without charge to each Underwriter
an Issuer Free Writing Prospectus or other document which will correct such
conflict, statement or omission; provided, however, that this
representation and warranty shall not apply to any statements or omissions in
an Issuer Free Writing Prospectus made
in reliance
upon and in conformity with information furnished in writing to the Company by
the Underwriter expressly for use therein.
7.
The Company covenants and agrees with the Underwriter that (a)
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing
of the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriter and dealers; (ii) the cost of printing or producing
this Agreement, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) up to $15,000 in connection
with the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(d) hereof, including the fees and disbursements
of counsel for the Underwriter in connection with such qualification and in
connection with the Blue Sky survey; (iv) all fees and expenses in connection
with listing the Shares on the New York Stock Exchange; (v) the costs, fees and
expenses incurred by the Underwriter in connection with, any required
review by FINRA of the terms of the sale of the Shares, including any related
filing fees and the legal fees of, and disbursements by, counsel to the
Underwriter in an amount not to exceed $30,000; (vi) the cost of preparing
stock certificates; if applicable; (vii) the cost and charges of any transfer
agent or registrar; (viii) the travel expenses incurred by or on behalf of
representatives of the Company in connection with attending or hosting meetings
with prospective purchasers of the Stock, and expenses associated with any
electronic road show (it being understood that the Underwriters, collectively,
shall bear one-half of the costs associated with any chartered aircraft); (ix)
the fees and expenses of counsel for Univar N.V.; and (x) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. Each of the Selling
Stockholders, severally and not jointly, covenants that such Selling
Stockholder will pay or cause to be paid all costs and expenses incident to the
performance of such Selling Stockholder’s obligations hereunder which are not otherwise
specifically provided for in this Section, including (i) any fees and expenses
of any counsel (and any other advisers) representing such Selling Stockholder
(other than as otherwise set forth in clause (ix) of the immediately preceding
sentence) and (ii) all taxes incident to the sale and delivery of the Shares to
be sold by such Selling Stockholder to the Underwriter hereunder, provided,
that, the Underwriter agrees to pay New York State stock transfer tax,
and the Selling Stockholder agrees to reimburse the Underwriter for associated
carrying costs if such tax payment is not rebated on the day of payment and for
any portion of such tax payment not rebated. The provisions of this Section
shall not affect any agreement that the Company and the Selling Stockholders
may make or have for the sharing of such costs and expenses. It is understood,
however, that the Company shall bear, and the Selling Stockholders shall not be
required to pay or to reimburse the Company for, the cost of any other matters
not directly relating to the sale and purchase of the Shares pursuant to this
Agreement, and that, except as provided in this Section, and Sections 9 and 11
hereof, the Underwriter will pay all of their own costs and expenses, including
the fees of their counsel, stock transfer taxes on resale of any of the Shares
by them, and any advertising expenses connected with any offers they may make.
8.
The obligations of the Underwriter hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company and the Selling Stockholders herein are, as of
the date of this agreement and at and as of the Time of Delivery, true and
correct, the condition that the Company and the Selling Stockholders shall have
performed all of its and their obligations hereunder theretofore to be
performed, and the following additional conditions:
(a)
The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; all material required to be filed by the Company pursuant
to Rule 433(d) under the Act shall have been filed with the Commission within
the applicable time period prescribed for such filing by Rule 433; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission and no notice of objection of
the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been
received; no stop order suspending or preventing the use of the Prospectus or
any Issuer Free Writing Prospectus shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Underwriter’s reasonable satisfaction;
(b)
Latham & Watkins LLP, counsel for the Underwriter, shall have
furnished to the Underwriter such written opinion or opinions, dated such Time
of Delivery, in form and substance satisfactory to the Underwriter;
(c)
Debevoise & Plimpton LLP, counsel for the Company, shall have
furnished to the Underwriter its written opinion and negative assurance letter,
each in a form to be reasonably agreed, dated the Time of Delivery;
(d)
Baker & McKenzie Amsterdam N.V., counsel for Univar N.V., shall have
furnished to the Underwriter its written opinion, in a form to be reasonably
agreed, dated such Time of Delivery;
(e)
Gibson, Dunn & Crutcher LLP, counsel for Univar N.V., shall have
furnished to the Underwriter its written opinion, in a form to be reasonably
agreed, dated such Time of Delivery;
(f)
Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for GSO COF
Facility, LLC, shall have furnished to the Representatives its written opinion,
in a form to be reasonably agreed, dated such Time of Delivery;
(g)
On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at the Time of Delivery, Ernst & Young LLP
shall have furnished to the
Underwriter a letter or
letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to the Underwriter;
(h)
(i) Neither the Company nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in or contemplated by the
Pricing Disclosure Package, and (ii) since the respective dates as of which
information is given in the Pricing Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company and its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company and its
subsidiaries, taken together as a whole, otherwise than as set forth or
contemplated in the Pricing Disclosure Package, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Underwriter so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares on the terms
and in the manner contemplated in the Prospectus;
(i)
On or after the Applicable Time (i) no downgrading shall have occurred
in the rating accorded the Company’s debt securities by any “nationally
recognized statistical rating organization”, as defined in Section 3(a)(62) of
the Exchange Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any of the Company’s debt securities;
(j)
On or after the Applicable Time there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the Exchange; (ii) a suspension or material limitation in trading
in the Company’s securities on the Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war; or (v) the occurrence of any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the Underwriter’s judgment makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Prospectus;
(k)
The Shares to be sold at the Time of Delivery shall have been duly
listed on the Exchange;
(l)
The Company shall have obtained and delivered to the Underwriter
executed copies of an agreement from each executive officer, director and
stockholder of the Company listed on Schedule III hereto, substantially to the
effect set forth in Annex I hereto in form and substance satisfactory to the
Underwriter;
(m)
The Company shall have complied with the provisions of Section 5(e)
hereof with respect to the furnishing of prospectuses on the second New York
Business Day following the date of this Agreement;
(n)
The Company shall have furnished or caused to be furnished to the
Underwriter at the Time of Delivery certificates of officers of the Company
satisfactory to the Underwriter as to the accuracy of the representations and
warranties of the Company herein at and as of the Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to the Time of Delivery, as to such other matters as the
Underwriter may reasonably request, and the Company shall have furnished or
caused to be furnished certificates as to the matters set forth in subsections
(a) and (h) of this Section 8; and
(o)
The Selling Stockholders shall have furnished or caused to be furnished
to the Underwriter at the Time of Delivery certificates of officers of the
Selling Stockholders satisfactory to the Underwriter as to the accuracy of the
representations and warranties of the Selling Stockholders herein at and as of
the Time of Delivery, as to the performance by the Selling Stockholders of all
of their obligations hereunder to be performed at or prior to the Time of
Delivery, as to such other matters as the Underwriter may reasonably request.
9.
(a) The Company will indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and their
respective officers, directors, employees and selling agents against any
losses, claims, damages or liabilities, joint or several, to which the
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any
amendment or supplement thereto, any Issuer Free Writing Prospectus or any
“issuer information” (in the case of either an Issuer Free Writing Prospectus
or such “issuer information,” taken together with the Pricing Prospectus) filed
or required to be filed pursuant to Rule 433(d) under the Act, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading (in the case of the Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, or any amendment or supplement thereto, and any
Issuer Free Writing Prospectus, in the light of the circumstances under which
they were made), and will reimburse the Underwriter for any legal or other
expenses reasonably incurred by the Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable
to the Underwriter in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto,
or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for
use therein.
(b)
Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless the Underwriter against any losses, claims, damages
or liabilities, to which the Underwriter may become subject, under the Act or
otherwise, in-so-far as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus (taken together with the Pricing Disclosure
Package), or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading (in the case of the Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in the light of the
circumstances under which they were made), in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information relating to such Selling Stockholder
furnished to the Company by such Selling Stockholder expressly for use therein;
and will reimburse the Underwriter for any legal or other expenses reasonably
incurred by the Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however,
that such Selling Stockholder shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use
therein, provided, further, that the liability of a Selling
Stockholder pursuant to this subsection (b) and the indemnity and contribution
clauses in Section 9(e) shall not exceed the net proceeds (after deducting
underwriting discounts and commissions, but before deducting expenses) received
by such Selling Stockholder from the sale of Shares by such Selling Stockholder
pursuant to the transactions contemplated hereby (the “Selling Stockholder
Proceeds”).
(c)
The Underwriter will indemnify and hold harmless the Company, each Selling
Stockholder and each person, if any, who controls the Company or such Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and their respective officers, directors and employees against any
losses, claims, damages or liabilities to which the Company or such Selling
Stockholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, (taken
together with the Pricing Disclosure Package), or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein
or necessary to make the
statements therein not misleading (in the case of the Preliminary Prospectus,
the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto,
and any Issuer Free Writing Prospectus, in the light of the circumstances under
which they were made), in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use therein; and will reimburse the
Company and each Selling Stockholder for any legal or other expenses reasonably
incurred by the Company or such Selling Stockholder in connection with
investigating or defending any such action or claim as such expenses are
incurred. The Company and the Selling Stockholders each acknowledge that the following
statements constitute the only information furnished in writing by or on behalf
of the Underwriter for inclusion in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus: the statements in the fifth, eleventh, twelfth, thirteenth and
twenty-first paragraphs under the heading “Underwriting” contained in the
prospectus.
(d)
Promptly after receipt by an indemnified party under subsection (a), (b)
or (c) of this Section 9 of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. It is
understood that the indemnifying party or parties shall not, in connection with
any one action or proceeding or separate but substantially similar actions or
proceedings arising out of the same general allegations, be liable for the fees
and expenses of more than one separate firm of attorneys at any time for all
indemnified parties (except to the extent that local counsel (in addition to
any regular counsel) is required to effectively defend against any such action
or proceeding). No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party.
(e)
If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriter on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Stockholders on the one hand and the
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and Selling Stockholders on the one hand and
the Underwriter on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriter, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Selling Stockholders on the one hand or the Underwriter on the other and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, each of the
Selling Stockholders and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriter were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), (i) no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and (ii) the contribution by any Selling Stockholder
pursuant to this subsection (e) shall not exceed, for each such Selling
Stockholder, the Selling Stockholder Proceeds (reduced by
any
amounts such Selling Stockholder is obligated to pay under subsection (b)
above). No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriter’s
obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f)
The obligations of the Company and the Selling Stockholders under this
Section 9 shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the Act and
each broker-dealer affiliate of any Underwriter; and the obligations of the
Underwriter under this Section 9 shall be in addition to any liability which
the Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about
to become a director of the Company) and to each person, if any, who controls
the Company or any Selling Stockholder within the meaning of the Act.
10.
The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and
the Underwriter, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Underwriter or any controlling person of
the Underwriter, or the Company, or any of the Selling Stockholders, or any
officer or director or controlling person of the Company, or any controlling
person of any Selling Stockholder and shall survive delivery of and payment for
the Shares.
11.
If this Agreement shall be terminated pursuant to a default by
the Underwriter of its obligations to purchase the Shares that it has agreed
purchase at a Time of Delivery, the Company and the Selling Stockholders shall
not then be under any liability to the Underwriter except as provided in
Sections 7 and 9 hereof; but, if for any other reason the Shares are not
delivered by or on behalf of the Selling Stockholders as provided herein, the
Company and the Selling Stockholders will reimburse the Underwriter for all out
of pocket expenses approved in writing by the Underwriter, including fees and
disbursements of counsel, reasonably incurred by the Underwriter in making
preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and the Selling Stockholders shall then be under no
further liability to the Underwriter except as provided in Sections 7 and 9
hereof.
12.
In accordance with the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriter is
required to obtain, verify and record information that identifies their
respective clients, including the Company and the Selling Stockholders, which
information may include the name and address of their respective clients, as
well as other information that will allow the Underwriter to properly identify
their respective clients.
All statements, requests, notices
and agreements hereunder shall be in writing, and if to the Underwriter shall
be delivered or sent by mail, telex or facsimile transmission to Goldman, Sachs
& Co., 200 West Street, New York, New York 10282, Attention: Registration
Department and if to any Selling Stockholder shall be delivered or sent by
mail, telex or facsimile transmission to counsel for such Selling Stockholder
at its address set forth in Schedule I hereto; if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of
the Company set forth on the cover of the Registration Statement, Attention:
Secretary; and if to any stockholder that has delivered a lock-up letter
described in Section 8(k) hereof shall be delivered or sent by mail to his or
her respective address provided in writing to the Company. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13.
This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriter, the Selling Stockholders and the Company and, to
the extent provided in Sections 9 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Stockholders
or any Underwriter and their respective officers, directors, employees, selling
agents, heirs, executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14.
Time shall be of the essence of this Agreement. As used herein,
the term “business day” shall mean any day when the Commission’s office
in Washington, D.C. is open for business.
15.
Each of the Company and the Selling Stockholders acknowledges and
agrees that (i) the purchase and sale of the Shares pursuant to this Agreement
is an arm’s-length commercial transaction between the Company and the Selling
Stockholders, on the one hand, and the Underwriter, on the other, (ii) in
connection therewith and with the process leading to such transaction, the
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company or any Selling Stockholder, (iii) the Underwriter has not assumed an
advisory or fiduciary responsibility in favor of the Company or any Selling
Stockholder with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether the Underwriter has advised or is
currently advising the Company or any Selling Stockholder on other matters) or
any other obligation to the Company or any Selling Stockholder except the
obligations expressly set forth in this Agreement and (iv) the Company and each
Selling Stockholder has consulted its own legal and financial advisors to the
extent it deemed appropriate. The Company and each Selling Stockholder agrees
that it will not claim that the Underwriter has rendered advisory services of
any nature or respect, or owes a fiduciary or similar duty to the Company or
any Selling Stockholder, in connection with such transaction or the process
leading thereto.
16.
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company, the Selling Stockholders and the
Underwriter, with respect to the subject matter hereof.
17.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
18.
The Company, each Selling Stockholder and the Underwriter hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby.
19.
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with the Underwriter’s
understanding, please sign and return to the Company one copy for the Company and
each Selling Stockholder plus one copy for each counsel, and upon the
acceptance hereof by the Underwriter, this letter and such acceptance hereof
shall constitute a binding agreement among the Underwriter, the Company and
each of the Selling Stockholders.
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Very truly yours,
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Univar Inc.
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By:
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/s/ Stephen Landsman
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Name: Stephen Landsman
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Title: General Counsel
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Signature Page to Underwriting Agreement
Accepted as of the date hereof
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Univar N.V., Selling Stockholder
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By:
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/s/ Henk Schop
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Name: Henk Schop
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Title: Director
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Signature Page to Underwriting Agreement
Accepted as of the date hereof
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GSO COF Facility, LLC, Selling Stockholder
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By: GSO Capital Opportunities Fund LP, its sole member
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By: GSO Capital Opportunities Fund LLC, its general
partner
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By:
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/s/ Marisa Beeney
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Name: Marisa Beeney
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Title: Authorized person
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Signature Page to Underwriting Agreement
Accepted as of the date hereof
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Goldman, Sachs & Co.
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By:
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/s/ Adam Greene
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Name: Adam Greene
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Title: Vice President
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Signature Page to Underwriting Agreement
Schedule
I
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Total
Number of Shares to be Sold
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A.
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Univar N.V.
c/o Gibson, Dunn & Crutcher LLP
200 Park Ave., 47th Floor
New York, NY 10166
Attention: Sean Griffiths
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20,527,358
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B.
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GSO COF Facility, LLC
c/o Fried, Frank, Harris, Shriver
& Jacobson LLP
One New York Plaza
New York, New York 10004
Attention: William Reindel
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416,383
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Total.......................................................................
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Schedule
II
(a)
Issuer Free Writing Prospectuses not included in the Pricing
Disclosure Package
·
Press
release issued by Univar Inc. and filed with the Securities Exchange Commission
as a free writing prospectus on August 15, 2016 announcing the sale by
the Selling Stockholders of 20,943,741 Shares of Univar Inc. Common Stock.
(b)
Additional documents incorporated by reference
[None]
(c)
Price per share paid by the Underwriter: $18.79
Price per share to the public:
$19.00
Number of Shares sold by the
Selling Stockholders: 20,943,741
Schedule
III
Directors, Officers, and Stockholders Subject
to Lock-Up
Directors:
Stephen Newlin
William Stavropoulos
Stephen Shapiro
Richard Fox
Christopher Stadler
Lars Haegg
David Wasserman
Mark Byrne
Christopher Pappas
Juliet Teo
Daniel Doheny
Executive Officers:
Stephen Newlin
Carl Lukach
George Fuller
Michael Hildebrand
David Jukes
Stephen Landsman
Christopher Oversby
Manian Ramesh
Erik Viens
Kelly O’Hanlon
Stockholders:
CD&R Univar Holdings, L.P.
ANNEX I
[FORM OF LOCK-UP AGREEMENT]
Goldman, Sachs & Co.,
200 West Street
New York, New York 10282
Re: Univar Inc. — Public Offering
Ladies and Gentlemen:
The undersigned understands that you propose to enter into
an Underwriting Agreement (the “Underwriting Agreement”) with Univar
Inc., a Delaware corporation (the “Company”) and the Selling
Shareholders named in Schedule I to such agreement providing for a public
offering (the “Public Offering”) of common stock, $0.01 par value (the “Stock”)
of the Company (the “Shares”), pursuant to a Registration Statement on
Form S-3 to be filed with the Securities and Exchange Commission (the “SEC”).
In consideration of the agreement by you to offer and sell
the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that,
during the period specified in the following paragraph (the “Lock-Up Period”),
the undersigned will not, without your prior written consent, offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of any shares of Stock of the Company, or any options or
warrants to purchase any shares of Stock of the Company, or any securities
convertible into, exchangeable for or that represent the right to receive
shares of Stock of the Company, whether now owned or hereinafter acquired,
owned directly by the undersigned (including holding as a custodian) or with
respect to which the undersigned has beneficial ownership within the rules and
regulations of the SEC (collectively the "Undersigned’s Shares")
(other than the sale of any shares of Stock acquired after the Public Offering
that is not required to be reported in any public report or filing with the SEC
and regarding which the undersigned does not otherwise voluntarily effect any
public filing or report). The foregoing restriction is expressly agreed to
preclude the undersigned from engaging in any hedging or other transaction
which is designed to or which reasonably could be expected to lead to or result
in a sale or disposition of the Undersigned’s Shares even if such Shares would
be disposed of by someone other than the undersigned. Such prohibited hedging
or other transactions would include without limitation any short sale or any
purchase, sale or grant of any right (including without limitation any put or
call option) with respect to any of the Undersigned’s Shares or with respect to
any security that includes, relates to, or derives any significant part of its
value from such Shares.
The Lock-Up Period will commence on the date hereof (the “Public
Offering Date”) and continue for 30 days thereafter.
Notwithstanding the foregoing, and subject to the conditions
below, the undersigned may transfer the Undersigned’s Shares without your prior
written consent:
(i)
to the Underwriter pursuant to the Underwriting Agreement;
(ii) pursuant to a bona
fide third party tender offer, merger, consolidation or other similar
transaction made to all holders of the Stock involving a Change of Control (as
defined below) of the Company, provided that in the event that the
tender offer, merger, consolidation or other such transaction is abandoned, the
Undersigned’s Shares shall remain subject to the restrictions hereunder; or
(iii) as a bona fide
gift or gifts; or
(iv) to any trust for the
direct or indirect benefit of the undersigned or the immediate family of the
undersigned (for purposes of this Lock-Up Agreement, “immediate family” shall
mean any relationship by blood, marriage or adoption, not more remote than
first cousin); or
(v) as a distribution to
partners, members or stockholders of the undersigned; or
(vi) to the undersigned’s
subsidiaries, affiliates or to any investment fund or other entity controlled
or managed by, or under common control or management with, the undersigned; or
(vii) to the Company to
satisfy tax withholding obligations in connection with the exercise of options
to purchase Stock; or
(viii) as transfers of
shares of Stock by the undersigned in connection with bona fide gifts of such
shares of Stock to charitable organizations by certain partners and employees
of the undersigned, its affiliates or any investment fund or other entity
controlled or managed by, or under common control or management with, the
undersigned;
provided, however, that (1) in the case of
clauses (iii)-(vi) and (viii) above, you shall have received a signed lock-up
agreement for the balance of the Lock-Up Period from each donee, trustee,
distributee, or transferee, as the case may be, prior to such transfer; (2)
such transfers (other than those described above in (i), (ii) and (vii)) shall
not involve a disposition for value; and (3) the undersigned does not otherwise
voluntarily effect any public filing or report regarding a transfer made
pursuant to clauses (i) to (viii) above. For purposes of clause (ii) above, “Change
of Control” shall mean the consummation of any bona fide third party tender
offer, merger, consolidation or other similar transaction the result of which
is that any “person” (as defined in Section 13(d)(3) of the 1934 Act), or group
of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5
of the 1934 Act) of a majority of total voting power of the voting stock of the
Company.
Nothing in this agreement shall prevent the establishment of
a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer
of shares of Stock, provided that such plan (1) does not provide for the
transfer of Stock during the Lock-up Period, (2) is not required to be reported
and is not voluntarily reported in any public report or filing with the SEC
during the first 95 days following the Public Offering Date.
The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company’s transfer
agent and registrar against the transfer of the Undersigned’s Shares except in
compliance with the foregoing restrictions.
The undersigned understands that you and the Company are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned’s heirs, legal
representatives, successors, and assigns.
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Very truly yours,
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Exact Name of Shareholder
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Authorized Signature
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Title
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