UTIW (MM)

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

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FORM 8-K

 

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CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): October 9, 2015

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UTi Worldwide Inc.
(Exact name of registrant as specified in its charter)

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Registrant’s telephone number, including area code: 562.552.9400

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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☒	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d‑2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e‑4(c))

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Item 1.01.     Entry into a Material Definitive Agreement.

Merger Agreement

On October 9, 2015, UTi Worldwide Inc., a company incorporated under the laws of the British Virgin Islands (the “Company”), entered into a Merger Agreement (the “Merger Agreement”) with DSV A/S, a Danish corporation (“DSV”) and Louvre Acquisitionco, Inc., a company incorporated under the laws of the British Virgin Islands and an indirect wholly-owned subsidiary of DSV (“Merger Sub”).

Pursuant to the Merger Agreement, Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned subsidiary of DSV.  After the Merger, the Company will cease to be publicly traded.

At the effective time of the Merger, each ordinary share, no par value, of the Company (the “Ordinary Shares”) issued and outstanding immediately prior to the effective time (other than Ordinary Shares owned by (1) DSV, Merger Sub, the Company’s subsidiaries or held by the Company as treasury shares or (2) shareholders who have properly exercised dissenter’s rights under the law of the British Virgin Islands) will be converted into the right to receive U.S.$7.10 in cash, without interest (the “Ordinary Share Merger Consideration”).  At the effective time of the Merger, each Class A Preference Share of the Company, no par value (the “Convertible Preference Shares”) issued and outstanding immediately prior to the effective time will be converted into the right to receive U.S.$1,125.71  in cash, without interest (the “Convertible Preference Share Merger Consideration”).

Each stock option outstanding immediately prior to the effective time of the Merger, whether or not vested, will be converted into the right to receive an amount in cash, if any, equal to (1) the number of Ordinary Shares subject to such stock option multiplied by (2) the excess, if any, of the Ordinary Share Merger Consideration over the exercise price per share of the stock option.  Each other stock based award outstanding immediately prior to the effective time of the Merger will be canceled and converted into the right to receive an amount in cash equal to (1) the number of Ordinary Shares underlying such award (in the case of stock based awards subject to performance conditions, with performance determined based on “target” level achievement) multiplied by (2) the Ordinary Share Merger Consideration.

The completion of the Merger is subject to certain customary conditions, including (a) the absence of any law or order preventing the consummation of the Merger and (b) the receipt of certain required antitrust and other regulatory approvals.  The Merger Agreement requires that the Merger be approved by each of (1) the affirmative vote of at least a majority of the Ordinary Shares and Convertible Preference Shares voting on an as-converted basis, (2) the affirmative vote of at least two-thirds of the Convertible Preference Shares outstanding voting together as a single class and (3) the affirmative vote of at least a majority of the Ordinary Shares, excluding any Ordinary Shares and Convertible Preference Shares owned by P2 Capital Partners, LLC (“P2”) and certain of its affiliates (collectively, the “Shareholders”) (the approvals described in (1), (2) and (3), collectively, the “Company Shareholder Approval”). These approvals are non-waivable conditions to the Merger. Pursuant to the Voting Agreement (as defined and further described below), the Shareholders have agreed to vote their Ordinary Shares and Convertible Preference Shares in favor of the consummation of the Merger in respect of the approvals described in clauses (1) and (2) above.  Each of the Company’s and DSV’s obligation to complete the Merger is also subject to certain additional customary conditions, including (x) subject to specified standards, the accuracy of the representations and warranties of the other party and (y) performance in all material respects by the other party of its obligations under the Merger Agreement.
 

The Merger Agreement contains customary representations and warranties from both the Company and DSV, and also contains customary pre-closing covenants, including covenants requiring each of them to use their respective reasonable best efforts to cause the Merger to be consummated, and covenants requiring the Company, subject to certain exceptions, to carry on its business in the ordinary course of business consistent with past practice during the period between the execution of the Merger Agreement and the closing of the Merger.  The Merger Agreement generally requires the Company and DSV to use their reasonable best efforts to resolve objections under any applicable law.

The Merger Agreement also contains a “no shop” provision that, in general, restricts the Company’s ability to solicit third-party acquisition proposals or provide information to or engage in discussions or negotiations with third parties that have made or that might make an acquisition proposal.  The no shop provision is subject to certain exceptions that allow the  Company, under certain circumstances and in compliance with certain obligations, to provide information and participate in discussions and negotiations with respect to unsolicited third-party acquisition proposals that could reasonably be expected to result in a Company Superior Proposal (as defined in the Merger Agreement).  In addition the Merger Agreement requires that the Company covenant to, subject to certain exceptions, recommend that the Company’s shareholders approve the Merger and the Merger Agreement (the “Company Recommendation”).

 

 

 

Prior to obtaining the Company Shareholder Approval, the Company’s board of directors may, among other things, (1) change, withhold or withdraw the Company Recommendation in response to a Company Superior Proposal or (2) terminate the Merger Agreement to enter into an agreement providing for a Company Superior Proposal, subject to complying with notice and other specified conditions, including giving DSV the opportunity to propose revisions to the terms of the transactions contemplated by the Merger Agreement during a period following notice and the payment of the Termination Fee (as defined below) prior to or concurrently with such termination.

The Merger Agreement contains certain termination rights and provides that, upon termination of the Merger Agreement under specified circumstances, including, if DSV terminates the Merger Agreement because the Company’s board of directors changes, withholds or withdraws the Company Recommendation or the Company terminates the Merger to enter into an agreement providing for a Company Superior Proposal, the Company will pay DSV a termination fee of U.S.$34 million (the “Termination Fee”).

The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and incorporated by reference.

The Merger Agreement has been included solely to provide investors and security holders with information regarding its terms.  It is not intended to be a source of financial, business or operational information about the Company, DSV or their respective subsidiaries or affiliates.  The representations, warranties and covenants contained in the Merger Agreement are made only for purposes of the Merger Agreement and are made as of specific dates; are solely for the benefit of the parties thereto; may be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of the Merger Agreement, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties instead of establishing matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors or security holders.  Investors and security holders should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of the Company, DSV or their respective subsidiaries or affiliates.  Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures.

Item 8.01.  Other Events

Voting Agreement

On October 9, 2015, and in connection with the execution of the Merger Agreement, the Shareholders, which collectively hold 11,273,214 Ordinary Shares (representing approximately 10.63% of the outstanding Ordinary Shares) and 175,000 Convertible Preference Shares (representing 100% of the outstanding Convertible Preference Shares and, together with the Ordinary Shares held by the Shareholders, representing approximately 21.11% of the outstanding voting equity of the Company), entered into a Irrevocable Voting Undertaking with DSV and Merger Sub (the “Voting Agreement”), pursuant to which the Shareholders have agreed, among other things, to vote (a) all their Convertible Preference Shares in favor of any resolution presented to the holders of such Convertible Preference Shares as a separate class to approve all matters reasonably necessary for the consummation of the Merger in accordance with the Merger Agreement (or to provide written consent thereto) and (b) all their Ordinary Shares and their Convertible Preference Shares (voting on an as-converted basis with the Ordinary Shares in accordance with the Amended and Restated Memorandum of Association of the Company (the “Memorandum of Association”)) (i) representing up to a maximum of 19.99% of the total voting power of all voting securities in favor of any resolutions presented to the holders of the Ordinary Shares and Convertible Preference Shares to approve all matters reasonably necessary for the consummation of the Merger in accordance with the Merger Agreement and (ii) representing in excess of 19.99% of the total voting power of all voting securities (in respect of all matters reasonably necessary for the consummation of the Merger in accordance with the Merger Agreement) in manner identical (on a proportionate basis) to the shareholders of the Company other than the Shareholders, in accordance with Section 12.6(a)(ii) of the Memorandum of Association.  The Shareholders’ obligation to vote pursuant to the Voting Agreement is subject to certain conditions, including the Company’s board of directors having not changed, withheld or withdrawn the Company Recommendation and the Merger Agreement having not been amended to reduce, change the timing or manner of payment of, or change the form of consideration constituting, the Ordinary Share Merger Consideration or the Convertible Preference Share Merger Consideration, or, without the prior written consent of P2, to amend, modify or waive any provision of the Merger Agreement that is disproportionately and materially adverse to P2 or any Shareholder or any manager or employee thereof who is an Indemnified Party (as defined in the Merger Agreement).  The Voting Agreement can be terminated by either DSV or P2 upon termination of the Merger Agreement, and certain other specified events.

 

 

 

The foregoing description of the Voting Agreement does not purport to be complete and is qualified in its entirety by reference to the Voting Agreement, a copy of which is attached hereto as Exhibit 99.1 and incorporated by reference.

Item 9.01.  Financial Statements and Exhibits.

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Cautionary Statement Regarding Forward-Looking Statements

This document includes forward-looking statements made in reliance upon the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.  Among other things, these forward-looking statements may include statements regarding the proposed merger between the Company and DSV.  The Company’s actual results may differ materially from those described in forward-looking statements.  Such statements are based on current expectations of the Company’s performance and are subject to a variety of factors, some of which are not under the control of the Company, which can affect the Company’s results of operations, liquidity or financial condition.   Factors that might cause or contribute to a material difference include, but are not limited to, the risks in the Company’s filings with the Securities and Exchange Commission (“SEC”), including those listed in Item 1A “Risk Factors” in its annual report on Form 10-K relating to the fiscal year ended January 31, 2015 filed with the SEC, and the following: the Company has incurred losses for each of the last three fiscal years and during the three and six months ended July 31, 2015 and such losses are expected to continue; the Company’s ability to achieve its adjusted EBITDA target for the 2016 fiscal year and for the 12 month period beginning August 1, 2015 is dependent on incremental net revenue growth in its freight forwarding business, which growth may not occur; the Company’s ability to maintain sufficient liquidity and capital resources to fund its business and to generate sufficient cash to service its debts and other obligations; the Company’s ability to refinance its indebtedness when it comes due, including near term maturities; the Company’s ability to accurately predict its future business results and liquidity; risks associated with the Company’s clients, including delays or the inability by such clients to pay the Company; the risk that the Company may not be able to achieve its expected working capital improvements; volatility with respect to global trade; global economic, political and market conditions and unrest, including those in Africa, Asia Pacific and Europe; volatile fuel costs; transportation capacity, pricing dynamics and the Company’s ability to secure space on third party aircraft, ocean vessels and other modes of transportation; changes in interest and foreign exchange rates, particularly with respect to the South African rand and the Euro; material interruptions in transportation services; risks of international operations; risks that the carrying values of the Company’s assets might be impaired; risks associated with, and the potential for penalties, fines, costs and expenses the Company may incur as a result of an investigation by the government of Brazil into the international air freight and air cargo transportation industry; risks of adverse legal judgments or other liabilities not limited by contract or covered by insurance; risks associated with the pending securities class action lawsuit and pending investigation by the SEC; the Company’s ability to retain clients while facing increased competition; disruptions caused by epidemics, natural disasters, conflicts, strikes, wars and terrorism; the impact of changes in the Company’s effective tax rates; the Company’s ability to maintain effective disclosure controls and procedures and effective internal control over financial reporting; the other risks and uncertainties described herein and in the Company’s other filings with the SEC; and other factors outside the Company’s control.  Other risks and uncertainties include the timing and likelihood of completion of the proposed merger between the Company and DSV, including the timing, receipt and terms and conditions of any required governmental and regulatory approvals for the proposed merger that could cause the parties to abandon the transaction; the Company will not receive the required shareholder approvals; disruption from the proposed merger making it more difficult to maintain business and operational relationships; the risk that unexpected costs will be incurred; the possibility that the proposed merger does not close, including due to the failure to satisfy the closing conditions; as well as more specific risks and uncertainties.  You should not place undue reliance on forward-looking statements, which speak only as of the date they are made, are not guarantees of future performance or results, and are subject to risks, uncertainties and assumptions that are difficult to predict or quantify.  Because the information herein is based solely on data currently available, it is subject to change as a result of changes in conditions over which the Company has no control or influence, and should not therefore be viewed as assurance regarding the Company’s future performance.  The Company undertakes no obligation to update or revise any forward-looking statement, whether as a result of new information, future events or otherwise, except as may be required by law.

 

Additional Information and Where to Find It

 

The proposed transaction involving DSV and the Company will be submitted to the Company’s shareholders for their consideration.  In connection with the proposed transaction, the Company intends to file relevant materials with the SEC, including the Company’s proxy statement in preliminary and definitive form, and the Company will mail the definitive proxy statement to its shareholders.  This communication is not intended to be, and is not, a substitute for such filings or for any other document that DSV or the Company may file with the SEC in connection with the proposed transaction.  SECURITY HOLDERS ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC, INCLUDING THE COMPANY’S DEFINITIVE PROXY STATEMENT, CAREFULLY WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION.  The proxy statement and other relevant materials (when they become available) and any other documents filed or furnished by DSV or the Company with the SEC may be obtained free of charge at the SEC’s web site at www.sec.gov.  In addition, security holders will be able to obtain free copies of the proxy statement from the Company by going to its investor relations page on its corporate web site at www.go2uti.com.

 

Participants in the Solicitation

 

DSV, the Company, their respective directors and certain of their respective executive officers and employees may be deemed to be participants in the solicitation of proxies in connection with the proposed transaction.  Information about the Company’s directors and executive officers is set forth in its definitive proxy statement filed with the SEC on May 13, 2015.  This document is available free of charge from the SEC and by going to the Company’s investor relations page on its corporate web site at www.go2uti.com.  Additional information regarding the interests of participants in the solicitation of proxies in connection with the proposed transaction will be included in the proxy statement and other relevant materials DSV and the Company file with the SEC.

 

 

 

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	UTI Worldwide Inc.
Date:  October 9, 2015	By:	/s/ Lance E. D'Amico
		Name: Lance E. D’Amico
		Title:   Executive Vice President and Chief Administrative Officer

 

 

EXHIBIT INDEX

 

 

 

MERGER AGREEMENT

 

 

 

among

 

 

 

DSV A/S,

 

 

 

LOUVRE ACQUISITIONCO, INC.

 

 

 

and

 

 

 

UTI WORLDWIDE INC.

 

 

 

Dated as of October 9, 2015

 

 

 

 

 

 

 

 

 

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Table of Contents

 

	ARTICLE I
	DEFINITIONS	1
Section 1.1	Definitions	1
	ARTICLE II
	THE MERGER	13
Section 2.1	The Merger	13
Section 2.2	Closing	13
Section 2.3	Effective Time	13
Section 2.4	Effects of the Merger	13
Section 2.5	Memorandum and Articles of Association of the Surviving Corporation	14
Section 2.6	Directors	14
Section 2.7	Officers	14
Section 2.8	Registered Agent	14
	ARTICLE III
	CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES	14
Section 3.1	Effect on Shares	14
Section 3.2	Settlement	16
Section 3.3	Stock Options and Other Stock Based Awards	18
Section 3.4	Register of Members	19
	ARTICLE IV
	REPRESENTATIONS AND WARRANTIES OF THE COMPANY	19
Section 4.1	Qualification, Organization, Subsidiaries, etc.	20
Section 4.2	Capital Stock	20
Section 4.3	Corporate Authority Relative to this Agreement; No Violation	22
Section 4.4	Reports and Financial Statements	23
Section 4.5	Internal Controls and Procedures	24
Section 4.6	No Undisclosed Liabilities	25
Section 4.7	Compliance with Law; Permits	25
Section 4.8	Employee Benefit Plans	26
Section 4.9	Absence of Certain Changes or Events	28
Section 4.10	Investigations; Litigation	28

Section 4.11	Tax Matters	29
Section 4.12	Labor Matters	30
Section 4.13	Intellectual Property; Information Technology	31
Section 4.14	Opinion of Financial Advisor	32
Section 4.15	Material Contracts	33
Section 4.16	Finders or Brokers	35
Section 4.17	Properties and Leases	35
Section 4.18	Environmental Matters	36
Section 4.19	Proxy Statement	36
Section 4.20	Affiliate Transactions	37
Section 4.21	Insurance	37
Section 4.22	Customers and Suppliers	37
Section 4.23	Relations with Governments	37
Section 4.24	Compliance with Customs & International Trade Laws	38
	ARTICLE V
	REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB	39
Section 5.1	Qualification; Organization, Subsidiaries, etc.	39
Section 5.2	Corporate Authority Relative to this Agreement; No Violation	39
Section 5.3	Capitalization of Merger Sub	40
Section 5.4	No Vote of Parent Shareholders	40
Section 5.5	Financing	41
Section 5.6	Finders or Brokers	41
Section 5.7	Ownership of Company Shares	41
	ARTICLE VI
	COVENANTS AND AGREEMENTS	41
Section 6.1	Conduct of Business by the Company	41
Section 6.2	Investigation	45
Section 6.3	No Solicitation	46
Section 6.4	Filings, Other Actions	48
Section 6.5	Employee Matters	49
Section 6.6	Reasonable Best Efforts	50
Section 6.7	Publicity	53
Section 6.8	Indemnification and Insurance	53
Section 6.9	Section 16 Matters	54
Section 6.10	Merger Sub	54
Section 6.11	Third Party Consents	54
Section 6.12	Notification	54
Section 6.13	Tax Matters	55
Section 6.14	Stock Exchange Delisting	55
Section 6.15	Shareholder Litigation	55
Section 6.16	Significant Shareholder Matters	56

Section 6.17	Convertible Senior Notes Repurchase	56
	ARTICLE VII
	CONDITIONS TO THE MERGER	56
Section 7.1	Conditions to Each Party’s Obligation to Effect the Merger	56
Section 7.2	Conditions to Obligation of the Company to Effect the Merger	56
Section 7.3	Conditions to Obligation of Parent to Effect the Merger	57
	ARTICLE VIII
	TERMINATION	58
Section 8.1	Termination or Abandonment	58
Section 8.2	Effect of Termination	59
Section 8.3	Termination Fees	59
Section 8.4	Amendment or Supplement	61
Section 8.5	Extension of Time, Waiver, etc.	61
	ARTICLE IX
	MISCELLANEOUS	61
Section 9.1	No Survival of Representations and Warranties	61
Section 9.2	Expenses	61
Section 9.3	Counterparts; Effectiveness	61
Section 9.4	Governing Law	62
Section 9.5	Jurisdiction; Enforcement	62
Section 9.6	Notices	63
Section 9.7	Assignment; Binding Effect	65
Section 9.8	Severability	65
Section 9.9	Entire Agreement; No Third-Party Beneficiaries	65
Section 9.10	Remedies Cumulative	65
Section 9.11	Headings	65
Section 9.12	Interpretation	66

 

 

 

MERGER AGREEMENT, dated as of October 9, 2015 (this “Agreement”), among DSV A/S, a Danish corporation (“Parent”), Louvre Acquisitionco, Inc., a company incorporated under the laws of the British Virgin Islands and an indirect wholly-owned subsidiary of Parent (“Merger Sub”), and UTi Worldwide Inc., a company incorporated under the laws of the British Virgin Islands (the “Company”).

W I T N E S S E T H :

WHEREAS, the Board of Directors of the Company deems it advisable and in the best interests of the Company and its shareholders that the Company engage in the Merger and has approved the Merger and the Plan of Merger by Supermajority Vote (in each case as defined below);

WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the Company have approved this Agreement and the merger (the “Merger”) of Merger Sub with and into the Company upon the terms and subject to the conditions set forth in this Agreement, the Plan of Merger and pursuant to Section 170 of the BVI Business Companies Act (the “BVI Act”) of the British Virgin Islands; and

WHEREAS, Parent and the Significant Shareholder (as defined below) have entered into the Voting Agreement (as defined below), pursuant to which the Significant Shareholder has agreed to support and vote in favor of the Merger and the other transactions contemplated by this Agreement.

NOW THEREFORE, the parties agree as follows:

ARTICLE I

DEFINITIONS

“Actions” has the meaning ascribed to it in Section 6.13.

“Affected Employee” has the meaning ascribed to it in Section 6.5(a).

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, directly or indirectly controlled by, or under direct or indirect common control with, such Person; or if such Person is a partnership, any general partner of such Person or a Person controlling any such general partner.  For purposes of this definition, “control” (including “controlled by” and “under common control with”) means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or partnership or other ownership interests, by Contract or otherwise.

“Agreement” has the meaning ascribed to it in the preamble.

 

 

“Anti Corruption Law” means each of (i) the United States Foreign Corrupt Practices Act of 1977, as amended; (ii) the United Kingdom Bribery Act of 2010 and precursor anti-bribery laws; and (iii) any similar laws, rules or regulations (regarding illegal payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity, or any private third party in order to obtain, retain or direct business or obtain any improper advantage) issued, administered or enforced by any relevant Governmental Entity.

“Anti Money Laundering Law” means each of (i) the Sarbanes-Oxley Act; (ii) the United Kingdom Proceeds of Crime Act 2002; and (iii) any similar laws, rules or regulations regarding money laundering, drug trafficking, terrorist related activities or other money laundering predicate crimes issued, administered or enforced by any relevant Governmental Entity.

“Articles of Association” means the amended and restated articles of association of the Company.

“Articles of Merger” means the articles of merger, substantially the form set out in Schedule A to this Agreement, to be approved and executed by the Company and Merger Sub and filed with the Registrar, in each case in accordance with the terms of this Agreement and the BVI Act.

“Book-Entry Shares” means Shares that have been issued and recorded on the register of members of the Company but in respect of which no Certificate has been issued.

“Business Day” means each day which is neither a Saturday, a Sunday nor any other day on which the SEC or banking institutions in New York, New York, the British Virgin Islands or Copenhagen, Denmark are authorized or obligated by Law or required by executive order to be closed.

“BVI Act” has the meaning ascribed to it in the recitals.

“Cancelled Shares” has the meaning ascribed to it in Section 3.1(c).

“Certificate” means any certificate that immediately prior to the Effective Time represents or evidences any Shares in issue.

“CFIUS” means the Committee on Foreign Investment in the United States.

“CFIUS Approval” means (i) a written notice issued by CFIUS stating that the Merger does not constitute a “covered transaction” pursuant to Section 721 of the DPA or that following its review or investigation of the Merger, CFIUS has determined that there are no unresolved national security concerns and concluded all action under the DPA or (ii) if CFIUS has sent a report to the President of the United States requesting the President’s decision, then (x) the President has announced a decision not to take any action to suspend or prohibit the Merger or (y) the President has not taken any action after fifteen (15) days from the date the President received such report from CFIUS.

 

 

 

“Class A Preference Share” means a class A preference share, no par value, of the Company having the rights, privileges, restrictions and conditions set out in the Memorandum (including, for the avoidance of doubt, the Convertible Preference Shares).

“Class B Preference Share” means a class B preference share, no par value, of the Company having the rights, privileges, restrictions and conditions set out in the Memorandum.

“Closing” has the meaning ascribed to it in Section 2.2.

“Closing Date” has the meaning ascribed to it in Section 2.2.

“Code” means the United States Internal Revenue Code of 1986, as amended, and any regulations thereunder.

“Company” has the meaning ascribed to it in the preamble.

“Company Alternative Proposal” means any proposal or offer made by any Person (other than a proposal or offer by Parent or any of its Subsidiaries) for (i) a merger, consolidation, scheme of arrangement, plan of arrangement, business combination or similar transaction with the Company, pursuant to which any Person or group would own fifteen percent (15%) or more of the issued and outstanding Company Ordinary Shares or Convertible Preference Shares or any other Class A Preference Shares, Class B Preference Shares, or other class of shares or equity securities of the Company, (ii) the acquisition (by purchase, tender offer, exchange offer as a result of recapitalization or otherwise) by any Person or group of fifteen percent (15%) or more of the assets of the Company and its Subsidiaries, taken as a whole, (iii) the acquisition by any Person or group (and whether by way of transfer, issuance or any other means) of fifteen percent (15%) or more of the issued and outstanding Company Ordinary Shares or Convertible Preference Shares or any other Class A Preference Shares, Class B Preference Shares or other class of shares or equity securities of the Company, or (iv) any combination of the foregoing.

“Company Benefit Plans” means all employee benefit plans, compensation arrangements and other benefit arrangements, whether or not “employee benefit plans” (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA), providing cash- or equity-based incentives, profit sharing, health, medical, dental, disability, accident, life insurance or other welfare benefits or vacation, paid time off, severance, retirement, pension or savings benefits, that are sponsored, maintained or contributed to by the Company or any of its ERISA Affiliates for the benefit of any current or former employees, directors or consultants of the Company or its Subsidiaries and all individual agreements providing cash- or equity-based compensation, vacation, retention, severance, change of control, savings contribution or other benefits or commitments to any current or former officer, director, employee, or consultant of the Company or its Subsidiaries.

“Company Change of Recommendation” has the meaning ascribed to it in Section 6.3(d).

 

“Company Disclosure Letter” means the disclosure letter delivered by the Company to Parent immediately prior to the execution of this Agreement.

“Company Intellectual Property” has the meaning ascribed to it in Section 4.13(b).

“Company Material Adverse Effect” means such state of facts, circumstances, event or change (any such item, an “Effect”) that, taken by itself or in the aggregate with any or all other Effects, either (a) has had or is reasonably likely to have a material adverse effect on the business, operations, assets, liabilities or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, but shall not include Effects arising out of, or resulting from (i) any changes or conditions in general economic or political conditions or the financial, credit or securities markets, provided that to the extent such changes or conditions disproportionately impact the Company and its Subsidiaries, taken as a whole, relative to other participants in the industry in which the Company and its Subsidiaries operate, then the incremental disproportionate impact may be taken into account in determining whether there has been, or is reasonably likely to be, such material adverse effect; (ii) Effects that affect generally the industry in which the Company  and its Subsidiaries operate, provided that to the extent such Effects disproportionately impact the Company and its Subsidiaries, taken as a whole, relative to other participants in the industry in which the Company and its Subsidiaries operate, then the incremental disproportionate impact may be taken into account in determining whether there has been, or is reasonably likely to be, such material adverse effect; (iii) any changes in Laws, GAAP or other accounting standards applicable to the Company or any of the Company’s Subsidiaries or any of their respective properties or assets, or any changes in the interpretation or enforcement thereof, (iv) any outbreak, continuation or escalation of hostilities, sabotage or war (whether or not declared) or any act of terrorism or any other national or international calamity, (v) the announcement or the existence of this Agreement and the transactions contemplated hereby, or the announcement or the existence of this Agreement and the transactions contemplated hereby, (vi) any litigation of the type described in Section 6.15, (vii) any decline in the market price, or change in trading volume, of the capital stock of the Company, or (viii) any failure to meet any internal or public projections, forecasts, guidance, estimates, milestones, budgets or internal or published financial or operating predications of revenue, earnings, cash flow or cash position (it being understood that the exceptions in clauses (vii) and (viii) shall not prevent or otherwise affect a determination that the underlying cause of any such change, decline or failure referred to therein (if not otherwise falling within any of the exceptions provided in this definition) is a Company Material Adverse Effect) or (b) would prevent or materially impair the ability of the Company to consummate the transactions contemplated hereby, including the Merger.

“Company Material Contracts” has the meaning ascribed to it in Section 4.15(a)(xvi).

“Company Meeting” has the meaning ascribed to it in Section 6.4(d).

“Company Ordinary Share” means an ordinary share, no par value, of the Company having the rights, privileges, restrictions and conditions set out in the Memorandum.

 

 

“Company Ordinary Shareholder Approval” has the meaning ascribed to it in Section 6.4(d).

“Company Permits” has the meaning ascribed to it in Section 4.7(b).

“Company Recommendation” has the meaning ascribed to it in Section 6.4(d).

“Company Required Shareholder Approval” has the meaning ascribed to it in Section 4.3(b).

“Company SEC Documents” has the meaning ascribed to it in Section 4.4(a).

“Company Shareholder Approval” has the meaning ascribed to it in Section 4.3(b).

“Company Stock-Based Award” means any right of any kind, contingent or accrued, to receive Company Ordinary Shares or benefits measured in whole or in part by the value of a number of Company Ordinary Shares and any award of any kind consisting of Company Ordinary Shares, granted under the Existing Company Incentive Plans, including deferred shares, restricted stock or shares, restricted stock or share units, but excluding Company Stock Options.

“Company Stock Option” means any option to purchase one or more Company Ordinary Shares.

“Company Superior Proposal” means a bona fide, written Company Alternative Proposal made prior to the receipt of the Company Shareholder Approval providing for a transaction that is reasonably capable of being consummated for or in respect of (a) all or substantially all of the outstanding Company Ordinary Shares together with all or substantially all of the outstanding Convertible Preference Shares or (b) all or substantially all of the Company’s and its Subsidiaries’ assets, in each case of (a) and (b) made by any Person or group, that (1) the Board of Directors of the Company determines in good faith, after consultation with the Company’s financial and legal advisors, and considering such factors as the Board of Directors considers to be appropriate (including the conditionality and the timing and likelihood of consummation of such proposal and any related financing), is on terms that are more favorable to the Company and its shareholders than the transactions contemplated by this Agreement and (2) (A) with respect to any cash component of such Company Alternative Proposal, is not subject to any financing condition in the definitive acquisition agreement and (B) with respect to any non-cash component of such Company Alternative Proposal, is comprised in its entirety of equity securities of the Person making such Company Alternative Proposal that are listed on a national securities exchange.

“Confidentiality Agreement” has the meaning ascribed to it in Section 6.2.

“Continuing Shares” has the meaning ascribed to it in Section 3.1(c).

“Contract” means any contract, agreement, lease, license, instrument, indenture, collective bargaining agreement, mortgage, purchase and sales order, undertaking, arrangement, evidence of indebtedness, binding commitment or instrument (whether written or oral) (including amendments and supplements, modifications and side letters or agreements).

“Convertible Preference Shares” means the series of Class A Preference Shares, with no par value, of the Company authorized to be issued under the Memorandum and having the rights, privileges, restrictions and conditions set out in the Memorandum (and designated therein as Convertible Preference Shares).

“Convertible Senior Notes” means the 4.50% convertible senior notes of the Company due 2019 issued pursuant to the Convertible Senior Notes Indenture.

“Convertible Senior Notes Indenture” has the meaning ascribed to it in Section 6.1(a).

“Copyrights” means copyrights (registered and unregistered) and copyrightable works of authorship.

“Customs & International Trade Laws” means any applicable export control,  import, or anti-boycott Laws, regulations or other binding decisions of a Governmental Entity, including, the Tariff Act of 1930, as amended, and other Laws, regulations, and programs administered or enforced by the U.S. Department of Commerce, U.S. International Trade Commission, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and their predecessor agencies; the Export Administration Act of 1979, as amended; the EAR, including related restrictions with regard to transactions involving persons and entities on the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List; the Arms Export Control Act, as amended; the ITAR, including related restrictions with regard to transactions involving persons and entities on the Debarred List;  the anti-boycott Laws and regulations administered by the U.S. Department of the Treasury; and all applicable Laws on customs and trade.

“Criminal and Regulatory Laws” has the meaning ascribed to it in Section 4.7(d).

“Customers” has the meaning ascribed to it in Section 4.22.

“Dissenting Shares” means Shares with respect to which holders thereof have duly and validly exercised their right of dissent in relation to the Merger and in accordance with the provisions of Section 179 of the BVI Act.

“Domain Names” means Internet domain names and social media identifiers and handles.

“DPA” means Section 721 of the Defense Production Act of 1950, as amended (codified at 50 U.S.C. App § 2170), including the implementing regulations thereof codified in 31 C.F.R. Part 800.

 

 

“DSS” means the Defense Security Service of the U.S. Department of Defense.

 “DSS Approval” means acknowledgment by DSS that it has accepted a plan to mitigate foreign ownership, control, or influence (FOCI) arising as a result of the Merger.

“EAR” means the Export Administration Regulations.

“EDGAR” means the Electronic Data Gathering, Analysis and Retrieval system of the SEC.

“EUMR” means the European Union Merger Regulation.

“Effective Time” has the meaning ascribed to it in Section 2.3.

“End Date” has the meaning ascribed to it in Section 8.1(b).

“Environmental Law” means any applicable federal, state, local and non-U.S. Law, judicial decisions, injunctions and permits and governmental agreements relating to protection of human health (as it relates to exposure to hazardous or toxic materials) or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including those relating to the Release of hazardous or toxic materials.

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

“ERISA Affiliate” means any trade or business whether or not incorporated, that together with the Company would be deemed a “single employer” within the meaning of Section 400(b) of ERISA.

“ESPP” has the meaning ascribed to it in Section 3.3(c).

“Exchange Act” means the United States Securities Exchange Act of 1934.

“Exchange Fund” has the meaning ascribed to it in Section 3.2(a).

“Existing Company Incentive Plans” means, collectively, the (i) UTi Worldwide Inc. 2000 Employee Share Purchase Plan, as amended; (ii) UTi Worldwide Inc. 2004 Long-Term Incentive Plan, as amended and restated, (iii) UTi Worldwide Inc. 2004 Non-Employee Directors Share Incentive Plan, as amended and restated, (iv) UTi Worldwide Inc. 2009 Long-Term Incentive Plan, as amended, and (v) UTi Worldwide Inc. 2015 Long-Term Incentive Plan.

“Extended End Date” has the meaning ascribed to it in Section 8.1(b).

“GAAP” means the United States generally accepted accounting principles, consistently applied.

“Governmental Entity” means any United States (whether federal, state or local) or non-U.S., provincial or supranational governmental or regulatory agency, securities exchange, commission, court, body, department, board, entity or authority or works council or similar body, including the European Union.

“Hazardous Material” means all substances or materials regulated as hazardous, toxic, explosive, dangerous, flammable or radioactive under any Environmental Law, including (a) petroleum, asbestos or polychlorinated biphenyls and (b) in the United States, all substances defined as Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Section 300.5.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Indebtedness” means, without duplication, (i) all indebtedness, notes payable (including notes payable in connection with acquisitions), accrued interest payable or other obligations of a Person for borrowed money, whether current, short-term, or long-term, secured or unsecured, other than intercompany indebtedness, (ii) all indebtedness of a Person for the deferred purchase price for purchases of property or assets (other than inventory in the ordinary course of business), (iii) all lease obligations of a Person under leases that are capital leases in accordance with GAAP, (iv) any obligations of a Person in respect of banker’s acceptances or letters of credit (other than stand-by letters of credit or documentary letters of credit in support of trade payables, in each case incurred by a Person in the ordinary course of business consistent with past practice), and (v) any indebtedness referred to in clauses (i) through (iv) above of any other Person that is either guaranteed by, or secured by any Lien (other than Permitted Liens) upon any material property or assets owned by such first Person.

“Indemnified Parties” has the meaning ascribed to it in Section 6.8(a).

“Insurance Policies” has the meaning ascribed to it in Section 4.21.

“Intellectual Property” means all U.S. and non-U.S. Trademarks, Copyrights, Domain Names, Patents, Software, Trade Secrets, all rights in the foregoing and all applications and registrations for the foregoing.

“International Trade Approvals” has the meaning ascribed to it in Section 4.24(b)(i).

“ITAR” means the International Traffic in Arms Regulations (22 C.F.R. 120 et seq.), as amended.

“IT Systems” has the meaning ascribed to it in Section 4.13(d).

“Law” means all statutes, laws (including common law and equity), ordinances, decrees, orders, writs, judgments, injunctions, rules, directives and regulations of any Governmental Entity.

“Leased Real Property” has the meaning ascribed to it in Section 4.17(b).

 

“Lien” means any lien, claim, mortgage, encumbrance, pledge, security interest, hypothec (including legal hypothecs), servitude, easement, encroachment, right-of-way, restrictive covenant on real or immovable property, real property license, other real rights in favor of third parties, charge, prior claim, lease, occupancy agreement, leasing agreement, statutory or deemed trust, a conditional sale agreement, equity or charge of any kind or any restriction on transfer or, in the case of securities, voting rights in favor of any third party.

“Maximum Amount” has the meaning ascribed to it in Section 6.8(a).

“Memorandum” means the amended and restated memorandum of association of the Company.

“Merger” has the meaning ascribed to it in the recitals.

“Merger Consideration” has the meaning ascribed to it in Section 3.1(a).

“Merger Sub” has the meaning ascribed to it in the preamble.

“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Option and Stock-Based Consideration” has the meaning ascribed to it in Section 3.3(b).

“Option Consideration” has the meaning ascribed to it in Section 3.3(a).

“Ordinary Class Meeting” has the meaning ascribed to it in Section 6.4(d).

“Owned Real Property” has the meaning ascribed to it in Section 4.17(a).

“Parent” has the meaning ascribed to it in the preamble.

“Parent Material Adverse Effect” has the meaning ascribed to it in Section 5.1.

“Patents” means patents, patent applications, patent disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof.

“Paying Agent” has the meaning ascribed to it in Section 3.2(a).

“Permitted Liens” means any Lien (i) for Taxes not yet due or being contested in good faith and for which adequate accruals or reserves have been established in accordance with GAAP, (ii) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like lien arising in the ordinary course of business which are not yet due and payable or are being contested in good faith, (iii) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation or (iv) easements, rights-of-way, restrictions and other similar encumbrances which do not materially impair the value or use of the property subject thereto.

 

“Person” means an individual, partnership, joint-stock company, corporation, limited liability company, trust or unincorporated organization or other entity or a Governmental Entity.

“Plan of Merger” means the plan of merger, substantially in the form set out in Schedule B to this Agreement, to be approved and executed by the Company and Merger Sub and filed with the Registrar, in each case in accordance with the terms of this Agreement and the BVI Act.

“Preferred Shareholder Approval” has the meaning ascribed to it in Section 4.3(b).

“Preference Merger Consideration” has the meaning ascribed to it in Section 3.1(b).

“Proxy Statement” means collectively the letters to shareholders, notices of meeting, proxy statement and forms of proxies to be distributed to shareholders in connection with the Merger and any schedules required to be filed with the SEC in connection therewith.

“Qualifying Transaction” means (i) any merger, consolidation, plan of arrangement, scheme of arrangement, business combination or similar transaction, including any single or multi-step transaction or series of transactions, with the Company or any of its Subsidiaries, pursuant to which any Person or group would own 35% or more of the issued and outstanding Company Ordinary Shares or Convertible Preference Shares or any other Class A Preference Shares, Class B Preference Shares, or other class of shares or equity securities of the Company, (ii) the acquisition (by purchase, tender offer, exchange offer or otherwise) by any Person or group of 35% or more of the assets of the Company and its Subsidiaries, taken as a whole, (iii) the acquisition by any Person or group of 35% or more of the issued and outstanding Company Ordinary Shares or any other class of shares or capital stock of the Company (or any securities convertible into any of the foregoing), or (iv) any combination of the foregoing.

“Recommendation Change Notice” has the meaning ascribed to it in Section 6.3(d)(ii).

“Recommendation Change Notice Period” has the meaning ascribed to it in Section 6.3(d)(iii).

“Registrar” means the Registrar of Corporate Affairs of the British Virgin Islands.

“Regulatory Law” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, EUMR and all other federal, state or non-U.S. statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws, including any antitrust, competition or trade regulation laws, that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition.

“Release” means any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the indoor or outdoor environment (including ambient air, surface water, groundwater and surface or subsurface strata) or into or out of any property, including the migration of Hazardous Material through or in the air, soil, surface water or groundwater on, to or from a real property.

“Relevant Approvals” means, collectively, all approvals required to be obtained in connection with or in compliance with (i) the provisions of BVI Act, (ii) the Exchange Act, (iii) the HSR Act, (iv) the EUMR, (v) any other antitrust, competition, antimonopoly or similar Regulatory Law, (vi) the CFIUS Approval, (vii) DSS Approval, (viii) the rules and regulations of the NASDAQ Global Market or (ix) any applicable non-U.S. or state securities or blue sky laws, in each case to the extent applicable to the transactions contemplated by this Agreement, including the Merger.

“Representatives” means Person’s officers, directors, employees, accountants, consultants, legal counsel, financial advisors, financing sources and agents and other representatives.

“Sanctions Law” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by relevant Governmental Entities, including, those administered by the U.S. government through the OFAC or the U.S. Department of State, the United Nations Security Council, Her Majesty’s Treasury of the United Kingdom, the European Union or any European Union member states.

“Sanctioned Person” means any Person that is the target of any Sanctions Law, including (i) any Person listed in any Sanctions Law-related list of sanctioned Persons maintained by OFAC or the U.S. Department of State, by the United Nations Security Council, the European Union, or any European Union member state, (ii) any Person operating, organized or resident in a Sanctioned Territory, or (iii) any Person owned or controlled by any such Person or Persons.

“Sanctioned Territory” means, at any time, a country or territory which is itself the subject or target of any Sanctions Law.

“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.

“SEC” means the United States Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933.

“Shares” means collectively the Company Ordinary Shares and the Convertible Preference Shares.

“Significant Shareholder” means P2 Capital Partners, LLC and its controlled Affiliates.

“Software” means computer programs (whether in source code, object code, or other form), databases and compilations of data.

“Specified Non-US Benefit Plan” has the meaning ascribed to it in Section 4.8(f).

“Specified US Benefit Plan” has the meaning ascribed to it in Section 4.8(f).

“Subsidiary” of any Person means any company, corporation, partnership, association, trust or other form of legal entity of which (i) more than 50% or more of the outstanding voting securities are, at the relevant time, directly or indirectly, owned by such Person or any Subsidiary of such Person, (ii) such Person or any Subsidiary of such Person is a general partner, or (iii) a majority of the ownership interests having the power to govern or elect members of the applicable governing body of such entity is at the time owned or controlled, directly or indirectly, by such Person or any Subsidiary of such Person.

“Suppliers” has the meaning ascribed to it in Section 4.22.

“Supermajority Vote” has the meaning ascribed to it in the Memorandum.

“Surviving Corporation” has the meaning ascribed to it in Section 2.1.

“Tax Return” means any return, report or similar filing filed with respect to Taxes, including any information return, claim for refund, amended return, or declaration of estimated Taxes.

“Taxes” means any and all U.S. or non-U.S., federal, state, local or other taxes of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) including taxes on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock or shares, payroll, employment, unemployment, social security, workers’ compensation or net worth, and taxes in the nature of excise, withholding, ad valorem or value added.

“Taxing Authority” means any and all U.S. or non-U.S., federal, national, state, county or municipal or other local government, any subdivision, agency, commission or authority thereof, or any quasi-governmental body, in each case, exercising authority with respect to Taxes.

“Termination Date” has the meaning ascribed to it in Section 6.1(a).

“Termination Fee” means U.S. $34,000,000.

“Trade Secrets” means trade secrets within the meaning of applicable Law and all confidential information, including know-how, financial and marketing plans, research and development information, inventions, processes, formulae, models, and methodologies.

“Trademarks” means trademarks, service marks, trade names, logos, slogans, trade dress, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing.

“Voting Agreement” means the irrevocable voting agreement dated the date hereof between Parent, Merger Sub and Significant Shareholder entered into with respect to the Merger.

ARTICLE II

THE MERGER

 

 

ARTICLE III

CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES

 

 

 

 

 

 

 

 

 

 

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except (a) as disclosed in the corresponding numbered section of the Company Disclosure Letter (it being agreed that disclosure of any item in any section of the Company Disclosure Letter shall be deemed disclosure with respect to any other section of this Article IV to which the relevance of such item is readily apparent on its face that such disclosure pertains to such other representation and warranty (other than Section 4.1, Section 4.2 and Section 4.3, where the disclosure must be exact)) or (b) other than with respect to the representations and warranties set out in Section 4.1, Section 4.2 or Section 4.3, as disclosed in the Company SEC Documents filed or furnished after January 31, 2013 and prior to the date hereof (excluding any risk factors disclosures and forward looking statements, in each case other than statements of historical fact), the Company represents and warrants to Parent and Merger Sub as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Except where the failure of the representations and warranties set forth in clauses (b), (c), (d) or (e) of this Section 4.17 to be true and correct would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole:

 

 

Except where the failure of the representations and warranties set forth in this Section 4.18 to be true and correct would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole:

 

 

 

 

 

 

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Parent and Merger Sub represent and warrant to the Company as follows:

 

 

 

ARTICLE VI

COVENANTS AND AGREEMENTS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE VII

CONDITIONS TO THE MERGER

 

 

 

 

ARTICLE VIII

TERMINATION

 

 

 

 

 

 

Notwithstanding the foregoing, no failure or delay by the Company or Parent in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

ARTICLE IX

MISCELLANEOUS

 

 

To Parent or Merger Sub:

DSV A/S

Hovedgaden 630

DK-2640 Hedehusene

Denmark

Telecopy: +45 43 20 30 98

Attention:  Peter Ring, General Counsel

 

 

with copies to (which do not constitute notice hereunder):

Skadden, Arps, Slate, Meagher & Flom (UK) LLP
Canary Wharf
40 Bank Street
London E14 5DS
United Kingdom
Telecopy:  +44 (0)20 7519 7000
Email:        Michal.Berkner@skadden.com
                       Scott.Simpson@skadden.com

Attention:  Michal Berkner
                            Scott Simpson

 

and

Moalem Weitemeyer Bendtsen Advokatpartnerselskab
Amaliegade 3-5

DK-1256 Copenhagen K

Denmark
Email:        dmo@mwblaw.dk

 

Attention:  Dan Moalem

 

To the Company:

UTi Worldwide Inc.

c/o UTi Services, Inc.

100 Oceangate, Suite 1500

Long Beach, CA 90802

Attention: Lance E. D’Amico, Chief Administrative Officer

with copies to (which do not constitute notice hereunder):

Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Fax:  (212) 474-3700
Email:        rtownsend@cravath.com
                       khallam@cravath.com

 

Attention:  Robert I. Townsend III, Esq.
                              O. Keith Hallam III, Esq.

or to such other address as any party shall specify by written notice so given, and such notice shall be deemed to have been delivered as of the date so telecommunicated, personally delivered or mailed.  Any party may notify any other party of any changes to the address or any of the other details specified in this paragraph; provided that such notification shall only be effective on the date specified in such notice or five (5) Business Days after the notice is given, whichever is later.  Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.

 

 

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

 

	DSV A/S
	By:	/s/ Jens H. Lund
		Name:  Jens H. Lund
		Title:    CFO

 

 

	LOUVRE ACQUISITIONCO, INC.
	By:	/s/ Jens H. Lund
		Name:   Jens H. Lund
		Title:     CFO

	UTI WORLDWIDE INC.
	By:	/s/ Edward G. Feitzinger
		Name:   Edward G. Feitzinger
		Title:     Chief Executive Officer

 

 

 

 

 

Signature Page to the Merger Agreement

 

 

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9 October 2015

BETWEEN:

DSV A/S

LOUVRE ACQUISITIONCO, INC.

P2 CAPITAL PARTNERS, LLC

AND

THE SHAREHOLDERS NAMED HEREIN

---

 

 

---

 

---

 

 

This Deed is executed and delivered on 9 October 2015

Parties:

(1)	DSV A/S, a Danish corporation with an address of Hovedgaden 630, DK-2640 Hedehusene, Denmark (“Parent”);

(2)	Louvre Acquisitionco, Inc., a BVI Business Company whose registered office is at Commerce House, Wickhams Cay 1, Road Town, Tortola, British Virgin Islands (“Merger Sub”);

(3)	P2 Capital Partners, LLC of 590 Madison Avenue, 25th Floor, New York, New York 10022 (“P2”); and

(3)	The persons whose names are set out in Item 1 of Schedule 1 (each, a “Shareholder”).

Introduction:

(A)

On the date hereof, Parent, UTi Worldwide, Inc. (the “Company”) and Merger Sub have entered into the Merger Agreement pursuant to which Parent, Company and Merger Sub have agreed to implement an acquisition of the Company by way of a merger between Merger Sub (a wholly owned Subsidiary of Parent) and the Company under the provisions of the BVI Act (the “Merger”).

(B)	The Shareholders have irrevocably agreed, subject to the terms of the Deed, to vote their Shares in accordance with the provisions of this Deed.

(C)	Under the terms of the Merger, the Shareholders will receive the Merger Consideration for each Company Ordinary Share cancelled and the Preference Merger Consideration for each Convertible Preference Share cancelled.

 

1.	DEFINITIONS AND INTERPRETATION

1.1.	Definitions

Capitalized terms used in this Deed and not otherwise defined shall have the meanings given to them in the Merger Agreement and the following terms shall have the following meanings:

(a)

“As-Converted Basis” has the meaning given to such term in the Memorandum;

(b)

“Confidential Information” means this Deed, the Merger Agreement and the other transaction documents related to the Merger, and information relating to the provisions and the process of their negotiation, and includes written information and information transferred or obtained orally, visually, electronically or by any other means;

 

 

(c)

“Deed” means this document, including any schedule or annexure to it;

(d)

“Dispose” means sell, transfer, assign, exchange, cancel, convert, declare a trust over, Encumber or otherwise dispose of, or agree to accept or do any of those things;

(e)

“Dissent” means the right of dissent in relation to the Merger pursuant to the provisions of Section 179 of the BVI Act;

(f)

“Encumbrance” means a mortgage, charge, pledge, lien, hypothecation, grant of voting rights to a third party, or an agreement or arrangement to create any of them (and/or any agreement or arrangement having equivalent effect) and “Encumber” has a corresponding meaning;

(g)

“General Company Meeting” means a meeting of the shareholders of the Company convened for the purpose of obtaining the Required Shareholder Approval, but excluding for the avoidance of doubt the Ordinary Class Meeting;

(h)

“Governance Agreement” means the amended and restated letter agreement between P2 and the Company dated February 26, 2014 (as amended from time to time in accordance with the terms thereof);

(i)

“Merger” has the meaning ascribed to it in Recital A;

(j)

“Merger Agreement” means the merger agreement entered into among Parent, Merger Sub and the Company on the date of this Deed, as the same may be amended or restated pursuant to the terms thereof (but excluding any Relevant Amendment);

(k)

“Nominee” means a bank, broker or other nominee in whose name the Voting Shares beneficially owned by the Shareholders are registered;

(l)

“Notice of Meeting” means the notice of the General Company Meeting and explanatory statement required to be sent to shareholders of the Company in accordance with Section 170(5)(b) of the BVI Act in relation to the Merger, as the same may be amended from time to time;

(m)

“Permitted Disposal” means one or more transfers or disposals of up to 5,254,185 Company Ordinary Shares in the aggregate by P2 Capital Master Fund VIII, LLC provided that (i) such transfer or disposal is legally required by the terms of the Prior Agreements; and (ii) where the Prior Agreements allow for a period of time to effect such a transfer or disposal, it shall only constitute a Permitted Disposal if the transfer or disposal is effected on the last permissible day for such transfer or disposal under the terms of the Prior Agreements.

 

 

(n)

“Prior Agreements” means those agreements between a certain investor in P2 Capital Master Fund VIII, LLC, a fund managed by P2, which is the legal owner of 5,254,185 Company Ordinary Shares, and P2, and certain of its affiliates, entered into prior to the date hereof and relating, among other things, to the potential disposition of some or all of such Company Ordinary Shares to such investor or otherwise.

(o)

“Relevant Amendment” means any (i) reduction of, change in the timing or manner of payment of, or change in the form of consideration constituting the Merger Consideration or Preference Merger Consideration set out in Article III of the Merger Agreement (as of the date hereof), or (ii) any amendment, modification or waiver of any provision of the Merger Agreement (as of the date hereof) that is disproportionately and materially adverse to P2 or any Shareholder or any manager or employee thereof who is an Indemnified Party (as compared to other shareholders of the Company or other Indemnified Parties, as applicable), in each case without the prior written consent of P2.

(p)

“Voting Shares” means (i) the securities set out in Item 2 of Schedule 1; (ii) any other Company Ordinary Shares or Convertible Preference Shares owned by, or in respect of which voting is directed by, P2, the Shareholders or any of their Affiliates from time to time; and (iii) any securities attaching to or arising out of any of the foregoing securities.

1.2.	Interpretation

(a)

Reference to:

(i)

one gender includes the other;

(ii)

the singular includes the plural and the plural includes the singular;

(iii)

a party includes the party’s executors, administrators, successors and permitted assigns;

(iv)

an enactment (which includes any legislation in any jurisdiction) includes:

(A)

that enactment as amended or re-enacted;

(B)

any enactment which replaces that enactment; and

(C)

another enactment made under that enactment; and

 

 

(v)

an agreement includes that agreement as amended or restated from time to time (except to the extent specified herein);

(vi)

including and similar expressions are not words of limitation.

(b)

Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.

(c)

Headings and any table of contents or index are for convenience only and do not form part of this Deed or affect its interpretation.

(d)

The parties have jointly participated in negotiating and drafting this Deed and no provision of this Deed is intended to be construed to the disadvantage of a party merely because that party was deemed to be responsible for the preparation of the Deed or the inclusion of the provision in the Deed.

(e)

If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.

2.	VOTING AGREEMENT AND UNDERTAKING

2.1.	Except where (a) the Company effects or has effected a Company Change of Recommendation in accordance with the terms of the Merger Agreement; or (b) there has been a Relevant Amendment, each Shareholder irrevocably agrees, undertakes and covenants:

(a)

to provide the Preferred Shareholder Approval and vote all its Convertible Preference Shares in favour of any resolution presented to the holders of the Convertible Preference Shares as a separate class to approve all matters reasonably necessary for the consummation of the Merger in accordance with the Merger Agreement or provide a written consent of the holders of the Convertible Preference Shares with respect thereto in accordance with the Memorandum;

(b)

to vote all its Voting Shares against any resolution presented to shareholders (including to the holders of the Convertible Preference Shares as a separate class) to approve any Company Alternative Proposal;

(c)

to vote (or, where any Voting Shares are held by a Nominee on the Shareholder’s behalf, to procure that the Nominee votes) all its Company Ordinary Shares and its Convertible Preference Shares (voting on an As-Converted Basis with the Company Ordinary Shares as a single class in accordance with clause 12.6(a) of the Memorandum) representing up to a maximum of 19.99% of the total voting power of all Shares in favour of the Company Required Shareholder Approval and the resolutions set out in the Notice of Meeting presented to the holders of the Company Ordinary Shares and Convertible Preference Shares voting as a single class to approve all matters reasonably necessary for the consummation of the Merger in accordance with the Merger Agreement at the General Company Meeting;

 

 

(d)

to vote (or, where any Voting Shares are held by a Nominee on the Shareholder’s behalf, to procure that the Nominee votes) all its Company Ordinary Shares and its Convertible Preference Shares (voting on an As-Converted Basis with the Company Ordinary Shares as a single class in accordance with clause 12.6(a) of the Memorandum) representing voting power which exceeds 19.99% of the total voting power of all Shares in respect of the Company Required Shareholder Approval and all matters reasonably necessary for the consummation of the Merger in accordance with the Merger Agreement in accordance with clause 12.6(a)(ii) of the Memorandum;

(e)

to execute any form or forms of proxy in respect of the Voting Shares reasonably requested by Parent appointing any Person nominated by Parent to take any action required to be taken under clause 2.1(a), 2.1(b), 2.1(c) or 2.1(d);

(f)

not to revoke, or attempt to revoke, the terms of any proxy submitted in accordance with clause 2.1(e), either in writing, by attendance at the relevant meeting or otherwise;

(g)

not to attend (and not permit any Representative to attend) and not to vote at or submit any proxy in respect of the Ordinary Class Meeting (and where any Company Ordinary Shares are held by a Nominee on the Shareholder’s behalf, it shall procure that the Nominee does not vote or submit any proxy in respect of the Ordinary Class Meeting);

(h)

not to enter into any agreement, arrangement or understanding to Dispose of or otherwise Encumber any of the Voting Shares (or, where the Voting Shares are held by a Nominee on the Shareholder’s behalf, to procure that the Nominee does not, and does not enter into any  agreement, arrangement, or understanding to, Dispose of or otherwise Encumber the Voting Shares), other than (i) by way of cancellation pursuant to the Plan of Merger; (ii) pursuant to a Disposition to an Affiliate which executes a deed of adherence agreeing to be bound by the terms of this Deed as a Shareholder; or (iii) a Permitted Disposal;

(i)

not to exercise any rights of Dissent (or, where the Voting Shares are held by a Nominee on the Shareholder’s behalf, to procure that the Nominee does not exercise any rights of Dissent) in respect of the Voting Shares in connection with the Merger;

 

 

(j)

without the prior written consent of Parent, in its capacity as a shareholder of the Company, not to convene, requisition, or join in convening or requisitioning of, any meeting of shareholders of the Company;

(k)

not to enter into any agreement or understanding with any other Person that contravenes any of the foregoing provisions of this clause 2.1;

(l)

not to exercise any voluntary right to convert the Convertible Preference Shares into Company Ordinary Shares (including pursuant to an Early Conversion or a Fundamental Change Conversion, each as defined in the Memorandum) without the prior written consent of Parent; and

(m)

take the actions set forth in Schedule 2;

and P2 shall procure that each Shareholder complies with the agreements, undertakings and covenants above.

3.	REPRESENTATIONS AND WARRANTIES

3.1.	As of the date of this Deed, P2 and each Shareholder represent and warrant to Parent and Merger Sub that:

(a)

the Shareholder is the legal and beneficial holder of all of the Voting Shares listed against its name in Schedule 1 (or, where the Voting Shares are held by a Nominee on the Shareholder’s behalf, that the Shareholder is absolutely and unconditionally entitled to direct that all such Voting Shares be voted by the Nominee on the Shareholder’s behalf);

(b)

all Voting Shares are free from any Encumbrances (other than pursuant to the Governance Agreement, the Prior Agreements or the Memorandum);

(c)

subject to the provisions of the Governance Agreement and the Memorandum, the Shareholder has full power and authority to exercise, or where applicable procure the exercise of, all votes in relation to the Voting Shares in accordance with clause 2.1;

(d)

the Shareholder is not, directly or indirectly, in discussion or negotiations with any other person (other than Parent and its Representatives) with respect to a proposal that constitutes, or would reasonably be expected to lead to, a Company Alternative Proposal;

(e)

the Shareholder has full power and authority to enter into this Deed and to perform the obligations under it;

(f)

the representations and warranties set forth in Schedule 3 are true and correct in all material respects.

 

 

3.2.	As of the date of this Deed, each party represents and warrants to each other party that it each has full power and authority to enter into this Deed.

4.	NO OTHER INTEREST

P2 and each Shareholder hereby represent and warrant that it does not have (and no other Affiliate of P2 has) any legal or beneficial interest in the issued or to be issued shares, or any other securities, of the Company or any of its Subsidiaries, other than its interest in the Voting Shares listed in Schedule 1 and that the information set out in Schedule 1 is complete and accurate in all respects.

5.	DOCUMENTATION

Each Shareholder consents to the inclusion of references to the particulars of this Deed and the Shareholder’s holdings of the Voting Shares being included in the public announcement and any other public document concerning the Merger, provided that (except if already in the public domain or except and only to the extent as explicitly required by law or regulation) no reference to any Shareholder or its Affiliates, managers or employees shall be included in any public announcement or document without the prior written consent of P2, such consent not to be unreasonably withheld, delayed or conditioned (provided further that in respect of the initial announcement of the Merger such consent may be provided by P2’s legal counsel to Parent’s legal counsel by email).

6.	POWER OF ATTORNEY

6.1.

In order to secure the performance of P2’s and the Shareholders’ obligations under this undertaking, P2 and each Shareholder hereby appoint Parent (or any representative Parent may nominate in writing) as its attorney, in its name and on its behalf, to vote (and, if applicable, issue all necessary instructions to any Nominee to vote) all Voting Shares to approve the Plan of Merger, the Merger and all associated matters at the General Company Meeting and obtain the Preferred Shareholder Approval and Company Required Shareholder Approval.  This Section 6.1 shall be automatically terminated without any action by any party if the Company makes a Relevant Amendment or effects a Company Change of Recommendation in accordance with the terms of the Merger Agreement.

6.2.	The Shareholders agrees that this power of attorney is given by way of security, for valuable consideration and except as provided above is irrevocable until this Deed is terminated.

7.	EXCLUSIVITY

7.1.

P2 and the Shareholders shall notify the Company promptly (and in any event within 48 hours) following receipt by it or any of its Representatives of: (a) any approach to discuss any potential Company Alternative Proposal; or (b) any Company Alternative Proposal, in each case communicated to it by a person other than the Company.

 

 

7.2.	P2 and the Shareholders agree to, and shall cause their Representatives to, immediately terminate and cease any discussions or negotiations currently being conducted with respect to any proposal that constitutes, or would reasonably be expected to lead to, a Company Alternative Proposal.

7.3.	Unless the Company effects a Company Change of Recommendation in accordance with the terms of the Merger Agreement, P2, the Shareholders and their respective Affiliates and Representatives shall not make any public statement supporting any Company Alternative Proposal.

8.	TERMINATION

8.1.	This Deed may be terminated by either Parent or P2, if:

(a)

the Merger Agreement is terminated in accordance with Article VIII of the Merger Agreement;

(b)

Parent announces or notifies P2 in writing that it does not intend to proceed with the Merger; or

(c)

if otherwise agreed in writing by Parent and P2.

8.2.	Where a party has a right to terminate this Deed, that right for all purposes will be validly exercised if the party delivers a notice in writing to the other party stating that it terminates this Deed.

8.3.	In the event that a party terminates this Deed, or if this Deed otherwise terminates in accordance with its terms, this Deed will become void and have no effect, other than:

(a)

this clause 8 and clauses 1 and 9 to 18 inclusive, which will survive termination; and

(b)

in respect of any liability for a pre-termination breach of this Deed.

9.	ENTIRE AGREEMENT

9.1.	This Deed constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.

10.	FURTHER ASSURANCE

10.1.

Each party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give full effect to this Deed.

 

 

11.	TIME OF THE ESSENCE

11.1.

Any time, date or period mentioned in this undertaking may be extended by mutual agreement but as regards any time, date or period originally fixed or as extended, time shall be of the essence.

12.

REMEDIES

12.1.

It is acknowledged by the Shareholders that this Deed is entered into to induce Parent and Merger Sub to enter into the Merger Agreement and implement the Merger and is entered into for valuable consideration.

12.2.

Each Shareholder agrees that, if it fails to fulfil, or breaches, any of its obligations under clause 2.1, damages would not be an adequate remedy and accordingly Parent and Merger Sub shall be entitled to specific performance or other equitable relief.

13.

VARIATION

13.1.

An amendment or variation to this Deed is not effective unless it is in writing and signed by each party.

14.	SEVERABILITY

14.1.

If a clause or subclause of this Deed is unenforceable, illegal or void, or makes this Deed or any part of it unenforceable, illegal or void, then that clause or subclause is severed and the rest of this Deed remains in force.

15.

WAIVER

15.1.

A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

15.2.

The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.

15.3.

A waiver is not effective unless it is in writing.

15.4.

Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

16.

NOTICES

16.1.

A notice or other communication connected with this Deed (“Notice”) has no legal effect unless it is in writing.

16.2.

A Notice may be:

 

 

(a)

sent by prepaid post to the address for service of the addressee (or airmail where the addressee is in a different jurisdiction from where the Notice is sent);

(b)

sent by facsimile to the facsimile number of the addressee;

(c)

electronic mail to the electronic mail address of the addressee; or

(d)

delivered at the address for service of the addressee.

16.3.

If the Notice is sent or delivered in a manner provided by clause 16.2, it shall be deemed to be received by the party to which it is addressed as of the date so telecommunicated, personally delivered or mailed.

(a)

Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.

(b)

Any notice received by facsimile transmission or email or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day.

16.4.

Parent’s and Merger Sub’s address for notices is as follows:

16.5.

Any party may notify any other party of any changes to the address or any of the other details specified in this paragraph; provided that such notification shall only be effective on the date specified in such notice or five (5) Business Days after the notice is given, whichever is later.

16.6.

P2’s and the Shareholders’ address for service is set out in Item 1 of Schedule 1 and a copy of any such notice shall be sent to:

 

 

 

17.	CONFIDENTIALITY

17.1.

The Shareholders acknowledge that the Confidential Information constitutes price sensitive information.

17.2.

The Shareholders shall (and shall ensure that each of its Representatives shall) maintain the Confidential Information in confidence and not disclose the Confidential Information to any person except as permitted by clause 17.3 or with the prior written consent of Parent.

17.3.

Clause 17.2 shall not prevent disclosure by the Shareholder or its Representatives (a) to the extent that disclosure is required by Law or by any Governmental Entity having applicable jurisdiction (provided that, if lawful and practicable, the Shareholder shall first inform Parent of its intention to disclose such information and take into account the reasonable comments of Parent); (b) to limited partners of the Shareholders provided they are informed of the confidential and price sensitive nature of such information (if applicable).

18.	GOVERNING LAW AND JURISDICTION

18.1.

This Deed and any non-contractual obligations arising out of or in connection with this it, shall be governed by and interpreted in accordance with, British Virgin Islands law.  Each party irrevocably submits to the exclusive jurisdiction of the courts of the British Virgin Islands in respect of any dispute or claim arising out of or in connection with this Deed or subject of matter (including non-contractual disputes or claims).

19.	COUNTERPARTS

19.1.

This Deed may be executed in any number of counterparts (including by way of facsimile) each of which shall be deemed for all purposes to be an original and all such counterparts taken together shall be deemed to constitute one and the same instrument.

EXECUTED AND DELIVERED AS A DEED on the date first written above.

 

EXECUTED by			) /s/ Jens Lund
Louvre Acquisitinco, Inc.			)
as a Deed in the presence of:-			)
Witness Signature:	/s/ Anders K.D. Pedersen
Witness Name:	Anders K.D. Pedersen
Witness Address:	Jens Otto Krags Gade 8.21
	2300 Koberhavn S, DK
Witness Occupation:	Attorney

 

EXECUTED AND DELIVERED AS A DEED	P2 Capital Master Fund I, L.P.            By: P2 Capital Partners, LLC            as Investment Manager
	By:	/s/ Claus Moller
		Name:   Claus Moller
		Title:     Managing Member

 

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