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Axalta Coating Systems Ltd. – ‘10-Q’ for 6/30/17 – ‘EX-2.1’

On:  Thursday, 8/3/17, at 4:07pm ET   ·   For:  6/30/17   ·   Accession #:  1616862-17-45   ·   File #:  1-36733

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  As Of               Filer                 Filing    For·On·As Docs:Size

 8/03/17  Axalta Coating Systems Ltd.       10-Q        6/30/17  101:8.1M

Quarterly Report   —   Form 10-Q   —   Sect. 13 / 15(d) – SEA’34
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-Q        Quarterly Report                                    HTML    598K 
 2: EX-2.1      Plan of Acquisition, Reorganization, Arrangement,   HTML     44K 
                Liquidation or Succession                                        
 3: EX-31.1     Certification -- §302 - SOA'02                      HTML     34K 
 4: EX-31.2     Certification -- §302 - SOA'02                      HTML     34K 
 5: EX-32.1     Certification -- §906 - SOA'02                      HTML     30K 
 6: EX-32.2     Certification -- §906 - SOA'02                      HTML     30K 
13: R1          Document and Entity Information                     HTML     48K 
14: R2          Condensed Consolidated Statements of Operations     HTML     86K 
                (Unaudited)                                                      
15: R3          Condensed Consolidated Statements of Comprehensive  HTML     64K 
                Income (Loss) (Unaudited)                                        
16: R4          Condensed Consolidated Balance Sheets (Unaudited)   HTML    118K 
17: R5          Condensed Consolidated Balance Sheets (Unaudited)   HTML     36K 
                (Parenthetical)                                                  
18: R6          Condensed Consolidated Statements of Cash Flows     HTML    125K 
                (Unaudited)                                                      
19: R7          Basis of Presentation of the Condensed              HTML     47K 
                Consolidated Financial Statements                                
20: R8          Recent Accounting Guidance                          HTML     36K 
21: R9          Acquisitions                                        HTML     58K 
22: R10         Goodwill and Identifiable Intangible Assets         HTML     76K 
23: R11         Restructuring                                       HTML     40K 
24: R12         Commitments and Contingencies                       HTML     32K 
25: R13         Long-term Employee Benefits                         HTML     46K 
26: R14         Stock-based Compensation                            HTML     69K 
27: R15         Other Expense, Net                                  HTML     46K 
28: R16         Income Taxes                                        HTML     36K 
29: R17         Earnings (Loss) Per Common Share                    HTML     47K 
30: R18         Accounts and Notes Receivable, Net                  HTML     41K 
31: R19         Inventories                                         HTML     37K 
32: R20         Property, Plant and Equipment, Net                  HTML     37K 
33: R21         Borrowings                                          HTML    103K 
34: R22         Fair Value Accounting                               HTML     37K 
35: R23         Derivative Financial Instruments                    HTML     93K 
36: R24         Segments                                            HTML    133K 
37: R25         Shareholders' Equity                                HTML     63K 
38: R26         Accumulated Other Comprehensive Income (Loss)       HTML     71K 
39: R27         Venezuela                                           HTML     35K 
40: R28         Recent Accounting Guidance (Policies)               HTML     36K 
41: R29         Acquisitions (Tables)                               HTML     50K 
42: R30         Goodwill and Identifiable Intangible Assets         HTML     78K 
                (Tables)                                                         
43: R31         Restructuring (Tables)                              HTML     36K 
44: R32         Long-term Employee Benefits (Tables)                HTML     46K 
45: R33         Stock-based Compensation (Tables)                   HTML     66K 
46: R34         Other Expense, Net (Tables)                         HTML     43K 
47: R35         Income Taxes (Tables)                               HTML     33K 
48: R36         Earnings (Loss) Per Common Share (Tables)           HTML     46K 
49: R37         Accounts and Notes Receivable, Net (Tables)         HTML     36K 
50: R38         Inventories (Tables)                                HTML     37K 
51: R39         Property, Plant and Equipment, Net (Tables)         HTML     35K 
52: R40         Borrowings (Tables)                                 HTML     75K 
53: R41         Derivative Financial Instruments (Tables)           HTML     95K 
54: R42         Segments (Tables)                                   HTML    137K 
55: R43         Shareholders' Equity (Tables)                       HTML     63K 
56: R44         Accumulated Other Comprehensive Income (Loss)       HTML     67K 
                (Tables)                                                         
57: R45         Basis of Presentation of the Condensed              HTML     90K 
                Consolidated Financial Statements (Details)                      
58: R46         Acquisitions - Additional Information (Details)     HTML    105K 
59: R47         Acquisitions - Purchase Price Allocation (Details)  HTML     54K 
60: R48         Acquisitions - Pro Forma Information (Details)      HTML     40K 
61: R49         Goodwill and Identifiable Intangible Assets -       HTML     40K 
                Schedule of Goodwill (Details)                                   
62: R50         Goodwill and Identifiable Intangible Assets -       HTML     56K 
                Gross Carrying Amounts and Accumulated                           
                Amortization of Identifiable Intangible Assets by                
                Major Class (Details)                                            
63: R51         Goodwill and Identifiable Intangible Assets -       HTML     41K 
                Schedule of Expected Amortization Expense                        
                (Details)                                                        
64: R52         Restructuring - Additional Information (Details)    HTML     42K 
65: R53         Restructuring - Restructuring Reserve (Details)     HTML     42K 
66: R54         Commitments and Contingencies (Details)             HTML     32K 
67: R55         Long-term Employee Benefits - Schedule of Net       HTML     39K 
                Benefit Cost (Details)                                           
68: R56         Stock-based Compensation - Additional Information   HTML     56K 
                (Details)                                                        
69: R57         Stock-based Compensation - Schedule of Stock        HTML     75K 
                Option Activity (Details)                                        
70: R58         Stock-based Compensation - Schedule of Restricted   HTML     52K 
                Stock Awards and Restricted Stock Units (Details)                
71: R59         Stock-based Compensation - Schedule of Performance  HTML     52K 
                Shares Award Outstanding Activity (Details)                      
72: R60         Other Expense, Net - Schedule of Other              HTML     41K 
                Non-operating Income (Details)                                   
73: R61         Other Expense, Net - Additional Information         HTML     32K 
                (Details)                                                        
74: R62         Income Taxes (Details)                              HTML     38K 
75: R63         Earnings (Loss) Per Common Share (Details)          HTML     52K 
76: R64         Accounts and Notes Receivable, Net - Schedule of    HTML     39K 
                Accounts, Notes, Loans, and Financing Receivable                 
                (Details)                                                        
77: R65         Accounts and Notes Receivable, Net - Additional     HTML     32K 
                Information (Details)                                            
78: R66         Inventories - Schedule of Inventory (Details)       HTML     38K 
79: R67         Inventories - Additional Information (Details)      HTML     30K 
80: R68         Property, Plant and Equipment, Net - Additional     HTML     30K 
                Information (Details)                                            
81: R69         Property, Plant and Equipment, Net - Schedule of    HTML     36K 
                Property, Plant and Equipment (Details)                          
82: R70         Borrowings - Schedule of Debt (Details)             HTML     65K 
83: R71         Borrowings - Senior Secured Credit Facilities       HTML    166K 
                (Details)                                                        
84: R72         Borrowings - Senior Notes (Details)                 HTML     92K 
85: R73         Borrowings - Debt Instrument Redemption (Details)   HTML     48K 
86: R74         Borrowings - Schedule of Maturities of Long-term    HTML     46K 
                Debt (Details)                                                   
87: R75         Fair Value Accounting (Details)                     HTML     52K 
88: R76         Derivative Financial Instruments - Schedule of      HTML     57K 
                Derivative Instruments in Statement of Financial                 
                Position, Fair Value (Details)                                   
89: R77         Derivative Financial Instruments - Schedule of      HTML     41K 
                Cash Flow Hedging Instruments, Statements of                     
                Financial Performance and Financial Position,                    
                Location (Details)                                               
90: R78         Derivative Financial Instruments - Schedule of      HTML     37K 
                Fair Value Hedging Instruments, Statements of                    
                Financial Performance and Financial Position,                    
                Location (Details)                                               
91: R79         Derivative Financial Instruments - Additional       HTML     58K 
                Information (Details)                                            
92: R80         Segments - Reconciliation of Revenue from Segments  HTML     48K 
                to Consolidated (Details)                                        
93: R81         Segments - Schedule of Segment Reporting            HTML     46K 
                Information, by Segment (Details)                                
94: R82         Segments - Reconciliation of Operating Profit       HTML     92K 
                (Loss) from Segments to Consolidated (Details)                   
95: R83         Shareholders' Equity (Details)                      HTML     67K 
96: R84         Accumulated Other Comprehensive Income (Loss) -     HTML     62K 
                Schedule of Accumulated Other Comprehensive Income               
                (Details)                                                        
97: R85         Accumulated Other Comprehensive Income (Loss) -     HTML     41K 
                Additional Information (Details)                                 
98: R86         Venezuela (Details)                                 HTML     54K 
100: XML         IDEA XML File -- Filing Summary                      XML    184K  
99: EXCEL       IDEA Workbook of Financial Reports                  XLSX    103K 
 7: EX-101.INS  XBRL Instance -- axta-20170630                       XML   2.42M 
 9: EX-101.CAL  XBRL Calculations -- axta-20170630_cal               XML    272K 
10: EX-101.DEF  XBRL Definitions -- axta-20170630_def                XML    785K 
11: EX-101.LAB  XBRL Labels -- axta-20170630_lab                     XML   1.79M 
12: EX-101.PRE  XBRL Presentations -- axta-20170630_pre              XML   1.15M 
 8: EX-101.SCH  XBRL Schema -- axta-20170630                         XSD    195K 
101: ZIP         XBRL Zipped Folder -- 0001616862-17-000045-xbrl      Zip    247K

‘EX-2.1’   —   Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession

This Exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]

 <!   C:   C: 
  Exhibit  



AMENDMENT TO ASSET PURCHASE AGREEMENT
This Amendment to Asset Purchase Agreement is dated as of May 31, 2017 (this “Amendment”), by and between The Valspar Corporation, a Delaware corporation (“Seller”), Axalta Coating Systems Ltd., a Bermuda exempted company (“Purchaser”) and, solely for purposes of Sections 5.1(a) (Efforts), 5.1(b) (Efforts), 5.3 (Confidentiality), 5.8 (Names Following Closing), 5.13 (Non-Solicitation) and 10.13 (Liability of Financing Sources) of the Agreement (as defined below), The Sherwin-Williams Company, an Ohio corporation (“Parent”).

WHEREAS, on April 11, 2017, Seller, Purchaser and Parent entered into that certain Asset Purchase Agreement (the “Agreement”); and
WHEREAS, pursuant to Section 10.3 of the Agreement, Seller, Purchaser and Parent desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, on the terms and subject to the conditions of this Amendment, the parties to this Amendment hereby agree as follows:
Section 1.Amendments to Agreement. The parties hereby agree to amend the Agreement as follows:
a.
Section 1.1(b) of the Seller Disclosure Schedule is hereby amended and restated in the form attached hereto as Exhibit A.
b.
The definition of “Target Working Capital” is hereby amended by replacing “$20,550,000” with “$8,550,000”.
c.
Section 2.4(b)(i) of the Seller Disclosure Schedules is hereby amended and supplemented by adding the following:
4. The Green Board Formula (as defined in the IP License Agreement).
d.
Item 2 of Section 2.5(b) of the Seller Disclosure Schedules is hereby amended and restated as follows:
2. All Intellectual Property owned by, solely used by or created by the business of Seller’s Engineered Polymer Solutions or Color Corporation of America divisions, including all resins and colorants used by the business of Seller’s Engineered Polymer Solutions or Color Corporation of America divisions, except for (i) those colorants listed on Section 2.4(b)(i) of these Seller Disclosure Schedules and (ii) the Green Board Formula.
e.
Section 2.7(d) of the Seller Disclosure Schedules is hereby amended and supplemented by adding a new item 6 as follows:

NAI-1502661407v7


6. All Liabilities to the extent arising out of or relating to the Green Board Formula or the Green Board Product and, in each case, accruing or arising prior to the Closing.
f.
Section 2.9 of the Seller Disclosure Schedules is hereby amended and supplemented by adding the information set forth in Exhibit B at the end of the Sample Closing Statement.
g.
Section 3.5 of the Seller Disclosure Schedules is hereby amended and supplemented by adding the information set forth in Exhibit C.
h.
Section 3.5 is hereby amended and supplemented by adding the following sentence:
Section 3.5 of the Seller Disclosure Schedules sets forth the volume, cost, price, sales and gross margin information with respect to sales of the Green Board Sealer (EPS 2528) by the Seller’s Engineered Polymer Solutions division (the “Green Board Product”) for the fiscal years ended October 31, 2016, October 31, 2015 and October 31, 2014 and the twelve (12)-month period ended March 31, 2017, which are true and correct in all material respects.
i.
The second sentence of Section 3.15(h) is hereby amended by deleting the reference to Section 3.15(k)(ii) and 3.15(k)(iii) of the Seller Disclosure Letter and replacing them with 3.15(h)(ii) and 3.15(h)(iii), respectively.
j.
A new Section 3.23 is hereby added as follows:
Section 3.23    Green Board Formula.
(a)    Green Board Product. To the Knowledge of Seller, (i) neither Seller nor any of its Affiliates has received in the last three years any written notice of any material suit, action, claim, proceeding or investigation by or before any Governmental Entity solely relating to the Green Board Product that is or has been developed, manufactured, marketed, sold or distributed by Seller or any of its Affiliates, including the packaging and advertising related thereto, nor is there any suit, action, claim, proceeding or investigation solely involving the Green Board Product pending or threatened by any Person, (ii) there has not been, nor is there under consideration by Seller or its Affiliates, any recall or post-sale warning of a material nature solely concerning the Green Board Product, (iii) there are no pending or threatened claims solely with respect to any warranty for the Green Board Product, and (iv) there are no pending or threatened product liability claims solely with respect to the Green Board Product.
(b)    Green Board Formula Intellectual Property. The Green Board Formula and the Exploitation of the Green Board Formula within the Territory as currently performed and as currently proposed to be performed by Seller and its

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NAI-1502661407v7


Affiliates has not and does not infringe upon, misappropriate, dilute or otherwise violate any Intellectual Property rights of (x) Parent or its Affiliates, or (y) to the Knowledge of the Seller, any other third party. Seller and its Affiliates have taken all necessary security measures to protect and enforce the secrecy, confidentiality and value of all Trade Secrets and other confidential information owned by Seller or its Affiliates relating to the Green Board Formula.
k.
The first sentence of Section 10.2 is hereby amended and restated as follows:
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated by any of the parties to this Agreement without the prior written consent of the other parties to this Agreement; provided, however, that (i) either party may assign any of its rights under this Agreement to a wholly owned direct or indirect Subsidiary of such party without the prior written consent of the other party, but no such assignment shall relieve such party of any of its obligations under this Agreement and (ii) Purchaser may assign this Agreement to any Person in connection with a merger or consolidation or a sale of all or substantially all of the assets of the Industrial Wood Business without the prior written consent of Parent or Seller.
l.
ARTICLE X is hereby amended and supplemented by adding a new Section 10.14 as follows:
Section 10.14    Modification; Rescission. If at the time the FTC determines to make final and effective the FTC Order concerning the Transaction (a) the FTC notifies Seller that this Agreement is not an acceptable manner of divestiture, Seller and Purchaser shall reasonably seek to modify this Agreement as may be necessary to satisfy the FTC, or (b) the FTC notifies Seller that Purchaser is not an acceptable purchaser of the Purchased Assets, then each of Seller and Purchaser shall have the right immediately to rescind this Agreement, and the provisions of Sections 8.2 and 8.4 shall be applicable as if a termination of this Agreement had occurred pursuant to Section 8.1(f).
Section 2.Effectiveness of Amendment. Upon the execution and delivery of this Amendment, the Agreement will thereupon be deemed to be amended as hereinabove set forth as fully and with the same effect as if the amendments made hereby were originally set forth in the Agreement, and this Amendment and the Agreement will henceforth respectively be read, taken and construed as one and the same instrument.
Section 3.General Provisions.
a.
ARTICLE X of the Agreement is incorporated by reference into this Amendment and will apply to the Seller, Purchaser and Parent mutatis mutandis.
b.
Except as specifically provided for in this Amendment, the Agreement will remain unmodified and in full force and effect.

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[Remainder of page intentionally left blank]


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IN WITNESS WHEREOF, Seller, Parent and Purchaser have duly executed this Amendment as of the date first written above.
THE VALSPAR CORPORATION
By: /s/ Rolf Engh    
Name: Rolf Engh    
Title: Executive Vice President, General Counsel & Secretary    
AXALTA COATING SYSTEMS LTD.
By:/s/ Robert W. Bryant    
Name: Robert W. Bryant    
Title: Executive Vice President & Chief Financial Officer
THE SHERWIN-WILLIAMS COMPANY, solely for purposes of Sections 5.1(a), 5.1(b) (Efforts), 5.3 (Confidentiality), 5.8 (Names Following Closing), 5.13 (Non-Solicitation) and 10.13 (Liability of Financing Sources) of the Agreement
By:/s/ Allen J. Mistysyn    
Name: Allen J. Mistysyn    
Title: Senior Vice President - Finance and Chief Financial Officer    


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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘10-Q’ Filing    Date    Other Filings
Filed on:8/3/178-K
For Period end:6/30/17
5/31/17SD
4/11/178-K
3/31/1710-Q
10/31/16
10/31/15
10/31/14
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Filing Submission 0001616862-17-000045   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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