MERGER AGREEMENT among DSV A/S, LOUVRE ACQUISITIONCO, INC. and UTI WORLDWIDE INC. Dated as of October 9, 2015

 

 

 

 

 

 

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 ▇▇▇▇▇▇▇▇▇▇	▇▇
	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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) the United Kingdom Proceeds of Crime ▇▇▇ ▇▇▇▇; 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.

“▇▇▇▇▇” 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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ 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.

“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act” means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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:

▇▇▇ ▇/▇

▇▇▇▇▇▇▇▇▇▇ ▇▇▇

▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇

▇▇▇▇▇▇▇

Telecopy: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇

Attention:  ▇▇▇▇▇ ▇▇▇▇, General Counsel

 

 

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

Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (UK) LLP
Canary Wharf
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy:  ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
Email:        ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
                       ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

Attention:  ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
                            ▇▇▇▇▇ ▇▇▇▇▇▇▇

 

and

Moalem Weitemeyer Bendtsen ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇-▇

▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ K

Denmark
Email:        ▇▇▇@▇▇▇▇▇▇.▇▇

 

Attention:  ▇▇▇ ▇▇▇▇▇▇

 

To the Company:

UTi Worldwide Inc.

c/o UTi Services, Inc.

▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇▇ ▇. ▇’▇▇▇▇▇, Chief Administrative Officer

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

Cravath, Swaine & ▇▇▇▇▇ LLP
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:  (▇▇▇) ▇▇▇-▇▇▇▇
Email:        ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
                       ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

Attention:  ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III, Esq.
                              O. ▇▇▇▇▇ ▇▇▇▇▇▇ 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/ ▇▇▇▇ ▇. ▇▇▇▇
		Name:  ▇▇▇▇ ▇. ▇▇▇▇
		Title:    CFO

 

 

	LOUVRE ACQUISITIONCO, INC.
	By:	/s/ ▇▇▇▇ ▇. ▇▇▇▇
		Name:   ▇▇▇▇ ▇. ▇▇▇▇
		Title:     CFO

	UTI WORLDWIDE INC.
	By:	/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
		Name:   ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
		Title:     Chief Executive Officer

 

 

 

 

 

Signature Page to the Merger Agreement