exv10w2






Exhibit 10.2




DIVERSEY HOLDINGS, INC.




SERIES A PREFERRED STOCK PURCHASE AGREEMENT



     This Series A Preferred Stock Purchase Agreement (this “Agreement”) is made
and entered into as of October 3, 2011, by and among Diversey Holdings, Inc., a Delaware
corporation (the “Company”), Sealed Air Corporation, a Delaware corporation (the
“Purchaser”) and Solution Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Purchaser (“Merger Sub”).



Recitals




     Whereas, the Company, Purchaser and Merger Sub are parties to that certain Agreement
and Plan of Merger, dated as of May 31, 2011 (the “Merger Agreement”);



     Whereas, certain capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Merger Agreement;



     Whereas, Purchaser has requested that the Company facilitate the retirement of the
Existing Notes in a manner not contemplated by the Merger Agreement;



     Whereas, in connection with such retirement of the Existing Notes, Purchaser has
requested that the Company issue and sell one or more shares of preferred stock of the Company to
Purchaser;



     Whereas, the parties wish to amend the Merger Agreement as provided herein in
connection with such issuance and sale of preferred stock;



     Whereas, as a material inducement to the Company’s willingness to enter into this
Agreement, Purchaser has agreed to waive certain rights under the Merger Agreement, as provided in
Section 7.2 hereof;



     Whereas, the Company has authorized the issuance and sale of 26,290 shares of its
Series A Preferred Stock (the “Shares”) to Purchaser on the terms and subject to the
conditions set forth herein;



     Whereas, Purchaser desires to purchase the Shares on the terms and subject to the
conditions set forth herein; and



     Whereas, the Company desires to issue and sell the Shares to Purchaser on the terms
and subject to the conditions set forth herein.



Agreement




     Now, Therefore, in consideration of the foregoing recitals and the mutual promises,
representations, warranties, and covenants hereinafter set forth and for other good and valuable



 









 





     consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



     1. Agreement To Sell And Purchase.



          1.1 Authorization of Shares. The Company has authorized the sale and issuance to Purchaser of
the Shares (the “Preferred Stock Issuance”). The Shares shall have the rights,
preferences, privileges and restrictions set forth in the certificate of designations attached
hereto as Exhibit A (the “Certificate of Designations”).



          1.2 Sale and Purchase. Subject to the terms and conditions hereof, at the Share Purchase
Closing (as hereinafter defined), the Company hereby agrees to issue and sell to Purchaser, and
Purchaser agrees to purchase from the Company, the Shares, at a purchase price of $10,000.00 per
Share.



     2. Share Purchase Closing, Delivery And Payment.



          2.1 Share Purchase Closing. Upon the terms and subject to the conditions set forth in this
Agreement, the closing of the sale and purchase of the Shares under this Agreement (the “Share
Purchase Closing”) shall take place at the offices of Simpson Thacher & Bartlett LLP, 425
Lexington Avenue, New York, New York 10017 or at such other place as the Company and Purchaser
mutually agree in writing, at 8:00 a.m. local time, on the date of the closing of the Merger, or at
such other time or date as the Company and Purchaser may mutually agree in writing (the date on
which the Share Purchase Closing occurs pursuant to this Section 2.1, the “Share
Purchase Closing Date, ” and the date and time at which the Share Purchase Closing occurs
pursuant to this Section 2.1, the “Issuance Time”).



          2.2 Delivery. At the Share Purchase Closing, subject to the terms and conditions hereof, the
Company will deliver to Purchaser a certificate representing the Shares to be purchased at the
Share Purchase Closing by Purchaser, against payment of the purchase price therefor by wire
transfer of immediately available funds to an account or accounts designated by the Company at
least two business days prior to the Share Purchase Closing Date.



     3. Representations And Warranties Of The Company.



          The Company hereby represents and warrants to Purchaser as follows:



          3.1 Authorization, Execution and Enforceability. Subject to the filing by the Company of the
Certificate of Designations with the Secretary of State of the State of Delaware, the Company has
all requisite corporate power and authority to execute and deliver this Agreement and consummate
the transactions contemplated hereby. Subject to the filing of the Certificate of Designations
with the Secretary of State of the State of Delaware, the execution, delivery and performance of
this Agreement have been duly authorized by all requisite corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by Purchaser, this Agreement is a legal, valid and binding
obligation of the Company, enforceable against it in accordance with its terms, except as may be
limited by applicable bankruptcy,



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insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws of general application affecting enforcement of creditors’ rights generally.




          3.2 Shares. The Shares, when issued, sold and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable.



     4. Representations And Warranties Of Purchaser And Merger Sub.



          Purchaser and Merger Sub hereby represent and warrant to the Company as follows:



          4.1 Authorization, Execution and Enforceability. Purchaser and Merger Sub have all requisite
corporate power and authority to execute and deliver this Agreement and consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement have been duly
authorized by all requisite corporate action on the part of Purchaser and Merger Sub. This
Agreement has been duly executed and delivered by Purchaser and Merger Sub and, assuming due
authorization, execution and delivery by the Company, this Agreement is a legal, valid and binding
obligation of Purchaser and Merger Sub, enforceable against each of Purchaser and Merger Sub in
accordance with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws of general application
affecting enforcement of creditors’ rights generally.



          4.2 Investment Representations.



               (a) No Registration. Purchaser understands that the Shares have not been registered under the
Securities Act. Purchaser also understands that the Shares are being offered and sold pursuant to
an exemption from registration contained in the Securities Act based in part upon Purchaser’s
representations contained in the Agreement.



               (b) Purchaser Bears Economic Risk. Purchaser has substantial experience in evaluating and
investing in private placement transactions of securities in companies similar to the Company so
that it is capable of evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Purchaser must bear the economic risk of this investment
indefinitely unless the Shares are registered pursuant to the Securities Act, or an exemption from
registration is available. Purchaser understands that the Company has no present intention of
registering the Shares. Purchaser also understands that there is no assurance that any exemption
from registration under the Securities Act will be available and that, even if available, such
exemption may not allow Purchaser to transfer all or any portion of the Shares, in the amounts or
at the times Purchaser might propose.



               (c) Acquisition for Own Account. Purchaser is acquiring the Shares for Purchaser’s own
account for investment only, and not with a view towards their distribution.



               (d) Purchaser Can Protect Its Interest. Purchaser represents that by reason of its, or of its
management’s, business or financial experience, Purchaser has the capacity to protect its own
interests in connection with the transactions contemplated by this Agreement.



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               (e) Accredited Investor. Purchaser represents that it is an accredited investor within the
meaning of Regulation D under the Securities Act.



               (f) Company Information. Purchaser has had an opportunity to discuss the Company’s business,
management and financial affairs with directors, officers and management of the Company and has had
the opportunity to review the Company’s operations and facilities. Purchaser has also had the
opportunity to ask questions of and receive answers from, the Company and its management regarding
the terms and conditions of this investment.



               (g) Rule 144. Purchaser acknowledges and agrees that the Shares will upon issuance be
“restricted securities” as defined in Rule 144 promulgated under the Securities Act as in effect
from time to time and must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Purchaser has been advised or
is aware of the provisions of Rule 144, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including, among other things:
the availability of certain current public information about the Company, the resale occurring
following the required holding period under Rule 144 and the number of shares being sold during any
three-month period not exceeding specified limitations.



          4.3 Transfer Restrictions. Purchaser acknowledges and agrees that the Shares are subject to
restrictions on transfer as set forth in Section 7.1 of this Agreement.



          4.4 Bank Side Letter. Attached as Exhibit B hereto is an accurate and complete copy
of a letter agreement (the “Bank Side Letter”) between each of the Commitment Parties (as
defined in the Debt Commitment Letters) and Purchaser. The Bank Side Letter has been duly executed
and delivered by, and is a legal, valid and binding obligation of Purchaser, and to the Knowledge
of Purchaser, all other parties thereto. The Bank Side Letter is in full force and effect and has
not been withdrawn or terminated or otherwise amended or modified in any respect.



          4.5 Consent Under Section 5.1 of Merger Agreement. Attached as Exhibit C hereto is
an accurate and complete copy of the written consent executed by Purchaser (the “Purchaser
Consent”), pursuant to which, for all purposes under the Merger Agreement, including, without
limitation, Section 5.1 thereof, Purchaser has consented to, among other things, the consummation
by the Company of the transactions contemplated hereby. The Purchaser Consent has not been
withdrawn or terminated or otherwise amended or modified in any respect.



     5. Conditions To Share Purchase Closing.



          5.1 Conditions to the Obligations of Purchaser. The obligations of Purchaser to consummate
the Share Purchase Closing and purchase the Shares are subject to the fulfillment, at or before the
Share Purchase Closing, of each of the following conditions (all or any of which may be waived in
whole or in part by Purchaser in its sole and absolute discretion):



               (a) Representations and Warranties True; Performance of Obligations. The representations and
warranties made by the Company in Section 3 hereof shall



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be true and correct in all material
respects as of the Issuance Time with the same force and effect as if they had been made as of the
Issuance Time, and the Company shall have performed all obligations and conditions herein required
to be performed or observed by it at or prior to the Issuance Time.




               (b) Legal Investment. At the Issuance Time, the sale and issuance of the Shares shall be
legally permitted by all laws and regulations to which Purchaser and the Company are subject.



               (c) Filing of Certificate of Designations. The Company shall have filed the Certificate of
Designations with the Secretary of State of the State of Delaware, which Certificate of
Designations shall be consistent in all material respects with the rights, preferences, privileges
and restrictions set forth in the Preferred Stock Term Sheet, and such Certificate of Designations
shall continue to be in full force and effect as of the Issuance Time.



               (d) No Injunctions; No Illegality. No injunction or other Order issued by any Governmental
Authority of competent jurisdiction preventing the consummation of the transactions contemplated
hereby shall be in effect. No applicable Law shall have been enacted, entered, enforced, issued or
put in effect that prohibits or makes illegal the consummation of the transactions contemplated
hereby.



          5.2 Conditions to Obligations of the Company. The obligations of the Company to consummate
the Share Purchase Closing and issue and sell the Shares are subject to the fulfillment, at or
before the Share Purchase Closing, of each of the following conditions (all or any of which may be
waived in whole or in part by the Company in its sole and absolute discretion):



               (a) Representations and Warranties True; Performance of Obligations. The representations and
warranties made by Purchaser and Merger Sub in Section 4 hereof shall be true and correct in all
material respects as of the Issuance Time with the same force and effect as if they had been made
as of the Issuance Time, and each of Purchaser and Merger Sub shall have performed all obligations
and conditions herein required to be performed or observed by it at or prior to the Issuance Time.



               (b) Bank Side Letter. The Bank Side Letter shall continue to be in full force and effect, and
none of Purchaser, Merger Sub or any other party thereto shall be in breach or default of any of
its respective obligations or shall have made any untrue representation or warranty thereunder.



               (c) Purchaser Consent. The Purchaser Consent shall continue to be in full force and effect.



               (d) No Injunctions; No Illegality. No injunction or other Order issued by any Governmental
Authority of competent jurisdiction preventing the consummation of the transactions contemplated
hereby shall be in effect. No applicable Law shall have been enacted, entered, enforced, issued or
put in effect that prohibits or makes illegal the consummation of the transactions contemplated
hereby.



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     6. Termination



          6.1 Termination. This Agreement may be terminated, and the transactions contemplated hereby
may be abandoned:



               (a) at any time on or after October 4, 2011 if the Effective Time has not occurred prior
thereto by the Company in its sole and absolute discretion; or



               (b) by Purchaser, upon written notice to the Company, if (i) the Merger Agreement is
terminated or (ii) if (A) there shall be any Law that makes consummation of the transactions
contemplated hereby illegal or otherwise prohibited or (B) any injunction or other Order issued by
any Governmental Authority of competent jurisdiction preventing the consummation of the
transactions contemplated hereby shall have become final and nonappealable.



          6.2 Effect of Termination. In the event of termination of this Agreement as provided in
Section 6.1, this Agreement shall forthwith become null and void and the obligations of the
parties hereunder shall terminate; provided that Purchaser shall indemnify and hold
harmless the Company, the Dish Subsidiaries, the Dish Stockholders, the holder of the Unilever
Warrant, the Affiliates of the foregoing Persons and the respective officers, advisors, partners,
members, stockholders and Representatives of the foregoing Persons (including, without limitation,
the Company, the Dish Subsidiaries, the Dish Stockholders, the holder of the Unilever Warrant and
such Affiliates) from and against any and all Losses suffered or incurred by any of them of any
type in connection with such termination; provided further that no party shall be
relieved from any liability for fraud or for any willful breach of this Agreement occurring prior
to such termination.



     7. Covenants and Agreements.



          7.1 Restriction on Transfer of Shares. Prior to the Effective Time, Purchaser shall not,
directly or indirectly, sell, transfer, encumber, assign, grant any option to purchase, make any
short sale or otherwise dispose of, directly or indirectly, any interest in the Shares.



          7.2 Waiver of Certain Rights Under the Merger Agreement.



               (a) Purchaser and Merger Sub hereby irrevocably and unconditionally waive, effective from and
after the Issuance Time, (a) the conditions to Purchaser’s obligations to consummate the Merger set
forth in Section 6.1 and Section 6.2 of the Merger Agreement, (b) any right of Purchaser to
terminate the Merger Agreement pursuant to Section 7.1 thereof or otherwise and (c) any right of
Purchaser under Section 7.3 of the Merger Agreement to pay the Soap Termination Fee as the sole and
exclusive remedy of the Company and the Dish Stockholders against Purchaser or any of its current,
former or future Affiliates and representatives and the Lenders for any Losses suffered in
connection with the Merger Agreement or the transactions contemplated thereby. Purchaser and
Merger Sub acknowledge and agree that if the Company terminates the Merger Agreement pursuant to
Section 7.1(b) of the Merger Agreement, and in connection with such termination Purchaser pays or
is required to pay the Soap Termination Fee pursuant to Section 7.3 of the Merger Agreement, then,



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notwithstanding the exception referring to Section 7.3 in the proviso in Section 7.2 of the Merger
Agreement, and irrespective of whether the Company receives full, partial or no payment of the Soap
Termination Fee and the other amounts referenced in the second sentence of Section 7.3(a) of the
Merger Agreement, Purchaser and Merger Sub shall not be relieved from any liabilities or damages as
a result of the failure of the Closing to occur (which shall not be limited to reimbursement of
expenses or out-of-pocket costs, and may include to the extent proven the benefit of the bargain
lost by a party’s stockholders (taking into consideration relevant matters, including, without
limitation, other combination opportunities and the time value of money), which shall be deemed in
such event to be damages of such party).




               (b) Notwithstanding anything to the contrary set forth in Section 1.2 of the Merger Agreement,
the Company, Purchaser and Merger Sub agree that, if the Preferred Stock Issuance is consummated,
the closing of the Merger shall take place on the Share Purchase Closing Date, regardless of
whether the Marketing Period has ended as of such date. Purchaser and Merger Sub hereby
irrevocably and unconditionally waive, effective from and after the Issuance Time, any right to
make any written request pursuant to, and any failure by the Company to perform or comply with its
agreements, covenants and obligations under, Section 5.18(b) or Section 5.18(c) of the Merger
Agreement in connection with the Existing Notes or the indentures governing the Existing Notes, and
Purchaser and Merger Sub agree not to make any such request.



               (c) Notwithstanding anything to the contrary in the Merger Agreement, Purchaser shall cause
Simpson Thacher & Bartlett LLP or other outside counsel of Purchaser reasonably acceptable to the
Company (and the Company shall be under no obligation to cause its counsel) to provide such legal
opinions as may be reasonably required by the trustee to be delivered to the trustee under the
indentures governing the Existing Notes in connection with any defeasance and/or satisfaction
and/or discharge and/or redemption (including, without limitation, any notice of redemption) of, or
under the indentures governing the Existing Notes, or otherwise.



          7.3 Bank Side Letter. Purchaser will not amend, replace, supplement or otherwise modify (or
permit the amendment, replacement, supplementation or other modification of), or waive any of its
rights under, the Bank Side Letter.



          7.4 Indemnification. Without limitation as to the obligations of Purchaser and Merger Sub
under the Merger Agreement, including, without limitation, Section 5.18(d) thereof, Purchaser shall
indemnify and hold harmless the Company, the Dish Subsidiaries, the Dish Stockholders, the holder
of the Unilever Warrant, the Affiliates of the foregoing Persons and the respective officers,
advisors, partners, members, stockholders and Representatives of the foregoing Persons (including,
without limitation, the Company, the Dish Subsidiaries, the Dish Stockholders, the holder of the
Unilever Warrant and such Affiliates) from and against any and all Losses suffered or incurred by
any of them of any type in connection with (a) any defeasance and/or satisfaction and/or discharge
and/or redemption (including, without limitation, any notice of redemption) of, or under the
indentures governing, the Existing Notes, (b) the transactions contemplated by this Agreement, (c)
any inaccuracy or breach of any representation or warranty of Purchaser or Merger Sub contained in
this Agreement or (d) any nonfulfillment or failure to perform any covenant or agreement on the
part of Purchaser or Merger Sub contained in this Agreement.



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          7.5 Capital Contribution. If the Preferred Stock Issuance occurs, prior to the Effective
Time, the Company shall make a cash contribution of $156,910,000.00 of the proceeds from the
Preferred Stock Issuance to DI as a contribution to capital in respect of the shares of DI’s common
stock held by the Company.



          7.6 Amendments to Merger Agreement.



               (a) Dish Material Adverse Effect. The parties hereto agree that in determining whether a Dish
Material Adverse Effect has occurred under the Merger Agreement, actions or omissions undertaken in
connection with (I) the Preferred Stock Issuance, (II) any covenant defeasance with respect to the
Existing Notes and the indentures governing the Existing Notes or (III) the redemption of the
Existing Notes will be deemed to be actions or omissions described in clause (v) of the definition
of Dish Material Adverse Effect, and there shall be excluded any effect to the extent resulting
from the following, either alone, or in combination with any matters described in any of clauses
(i) through (ix) of the definition of Dish Material Adverse Effect: (a) any defeasance and/or
satisfaction and/or discharge and/or redemption of or with respect to the Existing Notes or the
indentures governing the Existing Notes, (b) the Preferred Stock Issuance, (c) any other
transaction contemplated hereby or by the Purchaser Consent or (d) any Losses or Litigation or
potential or threatened Losses or Litigation of any type suffered or incurred in connection with
any defeasance and/or satisfaction and/or discharge and/or redemption of or with respect to the
Existing Notes or the indentures governing the Existing Notes, the Preferred Stock Issuance or any
other transaction contemplated hereby, by the Purchaser Consent or by Section 5.18 of the Merger
Agreement.



               (b) Exhibit A-1 to Merger Agreement. Exhibit A-1 to the Merger Agreement is hereby amended
and restated in its entirety to read as set forth on Exhibit D hereto.



               (c) Section 2.1(a) of Merger Agreement. Section 2.1(a) of the Merger Agreement is hereby
amended and restated in its entirety as follows:


“Except as otherwise provided in Section 2.1(b) and Section 2.2, each share of Dish
Common Stock outstanding immediately prior to the Effective Time (including, for the avoidance of
doubt, (i) the 66,395 shares of Dish Common Stock subject to Dish Share Units outstanding under the
Dish Director Stock Incentive Plan that shall be deliverable to the participants therein
immediately prior to the Effective Time and (ii) each share of Dish Common Stock that the holders
of the Unilever Warrant are entitled to receive upon exercise of the Unilever Warrant) shall be
converted into the right to receive the Dish Per Share Merger Consideration. As of the Effective
Time, all such shares of Dish Common Stock shall no longer be outstanding and shall automatically
be cancelled and retired and shall cease to exist, and shall thereafter represent only the right to
receive the Dish Per Share Merger Consideration.”




               (d) Section 2.1(c) of Merger Agreement. Section 2.1(c) of the Merger Agreement is hereby
amended and restated in its entirety as follows:



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“Each share of common stock of Merger Sub outstanding immediately prior to the Effective Time shall
be converted into and become one share of common stock of the Dish Surviving Corporation and
together with the Dish Preferred Stock, shall constitute the only outstanding shares of capital
stock of the Dish Surviving Corporation.”




               (e) New Section 2.1(d) to Merger Agreement. New Section 2.1(d) is added to the Merger
Agreement as follows:


“(d) Each share of Dish Preferred Stock outstanding immediately prior to the Effective Time shall
remain outstanding, and no cash or other consideration shall be delivered in exchange therefor.”




               (f) Section 2.3(a) of Merger Agreement. Section 2.3(a) of the Merger Agreement is hereby
amended by adding the following proviso to the end of such Section:


“; provided, further, that those Dish Share Units granted (i) as of March 17, 2011 to Erasmos
Santos covering 14,706 shares of Dish Class B Stock and (ii) as of May 25, 2011 to Christopher
Slusar covering 7,353 shares of Dish Class B Stock shall, in lieu of the foregoing, in each case
instead be assumed by Soap and converted into deferred share units covering a number of shares of
Soap Common Stock (rounded down to the nearest whole number) equal to the product of (x) the number
of shares of Dish Class B Stock subject to each such grant of Dish Share Unit and (y) the Dish
Exchange Ratio (such converted Dish Share Units, the “Converted DSUs”), which Converted
DSUs shall be settled in cash, and shall otherwise continue to vest and be held, pursuant to the
terms of the corresponding Dish Share Unit agreement under which the corresponding original Dish
Share Units were granted.”




               (g) Section 2.3 of Merger Agreement. Section 2.3 of the Merger Agreement is hereby amended by
adding after Section 2.3(b) thereof and before the final sentence in Section 2.3 of the Merger
Agreement, the following new subsection (c) as follows:


“(c) Phantom Shares. Effective as of the Effective Time, those phantom shares set forth in
Section 2.1(a) of the Dish Disclosure Letter shall be converted into a right to receive an amount
in cash equal to the product of (x) the number of such phantom shares and (y) the Dish Per DSU Cash
Merger Consideration, which cash payment shall be paid at such times, and subject to such
conditions, as such phantom shares are otherwise subject pursuant to the Dish Trading (Shanghai)
Co. Ltd. Phantom Stock Incentive Plan and any related grant agreement.”




               (h) Section 3.3(b) of Merger Agreement. Section 3.3(b) of the Merger Agreement is hereby
amended and restated in its entirety as follows:


“Except as set forth in Section 3.3(a), the Dish Stockholders Agreement, the Dish
Registration Rights Agreement and the Unilever Warrant, and except for any shares of Dish Preferred
Stock issued to Soap or any Soap Subsidiary, there are no outstanding (i) shares of capital stock
of or other voting or equity interests in Dish, (ii) securities of Dish convertible into or
exercisable or exchangeable for shares of capital stock of or other voting or equity interests in
Dish, (iii)




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options or other rights or agreements, commitments or understandings of any kind to
acquire from Dish, or other obligations of Dish or any of the Dish Subsidiaries to issue, transfer
or sell, any shares of capital stock of or other voting or equity interests in Dish or securities
convertible into or exercisable or exchangeable for shares of capital stock of or other voting or
equity interests in Dish, (iv) voting trusts, proxies or other similar agreements or understandings
to which Dish or any Dish Subsidiary is a party or by which Dish or any Dish Subsidiary is bound
with respect to the voting of any shares of capital stock of or other voting or equity interests in
Dish or any Dish Subsidiary or (v) contractual obligations or commitments of any character
restricting the transfer of, or requiring the registration for sale of, any shares of capital stock
of or other voting or equity interests in Dish or any Dish Subsidiary (the items in clauses (i),
(ii) and (iii) being referred to collectively as the “Dish Securities”). Section
3.3(b) of the Dish Disclosure Letter lists, as of the date of this Agreement, each outstanding
Dish Option, Dish SAR, Dish Share Unit and any other equity-based incentive compensation award, the
holder thereof, the number of shares (or phantom shares) of Dish equity issuable or issued
thereunder and, if applicable, the exercise price thereof.”




               (i) Section 9.1(a) of Merger Agreement.



                    (i) The definition for “Dish Share Equivalents” in Section 9.1(a) of the Merger Agreement is
hereby amended and restated in its entirety as follows:


“ “Dish Share Equivalents” means the sum of (A) Dish Shares Outstanding plus (B) the
number of shares (including phantom shares) of Dish Common Stock subject to Dish Share Units
immediately prior to the Effective Time minus (C) the Converted DSUs.”




                    (ii) The definition for “Dish Total Value to Equityholders” in Section 9.1(a) of the Merger
Agreement is hereby amended and restated in its entirety as follows:


“ “Dish Total Value to Equityholders” means the sum of (A) the Dish Equity Consideration
plus (B) the Aggregate Option Exercise Price minus (C) the Dish Unvested Total Option Consideration
minus (D) the Dish Total Converted DSU Consideration minus (E) the Dish Transaction Expenses.”




                    (iii) Section 9.1(a) of the Merger Agreement is hereby amended by adding after the definition
of “Dish Surviving Corporation” a new definition as follows:


“ “Dish Total Converted DSU Consideration” means the product of (x) all Converted
DSUs, multiplied by (y) the Dish Per Share Merger Consideration Value.”




     8. Miscellaneous.



          8.1 Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without regard to the conflicts of laws principles thereof to the
extent the same would require the application of the laws of another jurisdiction.



          8.2 Jurisdiction. The parties agree that any Litigation seeking to enforce any



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provision of,
or based on any matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in any federal court located in the State of Delaware or the
Chancery Court of the State of Delaware, and each of the parties hereby irrevocably consents to the
exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any
such Litigation and irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such Litigation in any such court or
that any such Litigation brought in any such court has been brought in an inconvenient forum.
Process in any such Litigation may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 8.9 hereof shall be deemed
effective service of process on such party.




          8.3 Waiver of Trial by Jury. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.



          8.4 Survival. The representations, warranties, covenants and agreements made herein shall
survive the closing of the transactions contemplated hereby.



          8.5 Successors and Assigns. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned or delegated, in whole or in part, by operation
of Law or otherwise by any of the parties without the prior written consent of the other parties.
Any purported assignment in violation of this Agreement will be void ab initio. Subject to the
preceding two sentences, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and permitted assigns.



          8.6 Entire Agreement. This Agreement, the Merger Agreement and the Purchaser Consent,
including the exhibits and schedules hereto and thereto, constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, among the parties with
respect to the subject matter contained herein or therein.



          8.7 Severability. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions of this Agreement. If any term, provision, covenant or restriction of this
Agreement is determined by a court of competent jurisdiction or other Governmental Authority to be
invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, so long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon this determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect the original intent
of the parties as closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the fullest extent possible.



          8.8 Amendment and Waiver. Subject to the provisions of applicable Law, any provision of this
Agreement may be amended, modified, supplemented or waived by the



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parties only by a written
instrument executed and delivered by, in the case of an amendment, each party to this Agreement or,
in the case of a waiver, by each party against whom the waiver is to be effective. No failure or
delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No waiver by any party of a breach
or a default under any of the provisions of this Agreement shall be construed as a waiver of any
other breach or default. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by applicable laws.




          8.9 Notices. All notices, requests, claims, demands and other communications under this
Agreement shall be in writing and shall be deemed given if delivered in accordance with Section 8.2
of the Merger Agreement.



          8.10 Expenses. Each party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of the Agreement.



          8.11 Titles and Subtitles. The titles of the sections and subsections of the Agreement are
for convenience of reference only and are not to be considered in construing this Agreement.



          8.12 Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one instrument.



          8.13 Broker’s Fees. Each party hereto represents and warrants that no agent, broker,
investment banker, person or firm acting on behalf of or under the authority of such party hereto
is or will be entitled to any broker’s or finder’s fee or any other commission directly or
indirectly in connection with the transactions contemplated herein. Each party hereto further
agrees to indemnify each other party for any claims, losses or expenses incurred by such other
party as a result of the representation in this Section 8.13 being untrue.



          8.14 Pronouns. All pronouns contained herein, and any variations thereof, shall be deemed to
refer to the masculine, feminine or neutral, singular or plural, as to the identity of the parties
hereto may require.



          8.15 Third Party Beneficiaries. Except for the rights conferred by Section 6.2 and
Section 7.4 of this Agreement, with respect to which the Persons referred to in such
sections shall be third party beneficiaries thereof, this Agreement is not intended to and shall
not confer any rights, benefits or remedies upon any Person other than the parties hereto.



          8.16 Specific Performance. The parties hereto agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed by the parties hereto in
accordance with their specific terms or were otherwise breached. It is accordingly agreed that the
Company, on the one hand, and Purchaser, on the other hand, shall be entitled to seek an injunction
or injunctions to prevent breaches of this Agreement by the other (as applicable) and to enforce
specifically the terms and provisions of this Agreement exclusively in the Delaware Court of
Chancery and any state appellate court therefrom within the



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State of Delaware (or, if the Delaware
Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal
court within the State of Delaware). Each of the parties hereto hereby waives (i) any defenses in
any action for specific performance, including the defense that a remedy at Law would be adequate
and (ii) any requirement under any Law to post a bond or other security as a prerequisite to
obtaining equitable relief.




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     In Witness Whereof, the parties hereto have executed this Series A
Preferred Stock Purchase Agreement as of the date set forth in the first paragraph hereof.



	 	 	 	 	 
	 	COMPANY:



Diversey Holdings, Inc.

 	 
	 	Signature:  	/s/ Scott D. Russell
 	 
	 	 	Print Name:  	Scott D. Russell 	 
	 	 	Title:  	Executive Vice President, General Counsel 	 
	 



	 	 	 	 	 
	 	PURCHASER:



Sealed Air Corporation

 	 
	 	By:  	/s/ Tod S. Christie
 	 
	 	 	Name:  	Tod S. Christie 	 
	 	 	Title:  	Interim Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	MERGER SUB:



Solution Acquisition Corp.

 	 
	 	By:  	/s/ H. Katherine White
 	 
	 	 	Name:  	H. Katherine White 	 
	 	 	Title:  	Vice President, General Counsel and Secretary