1.	MUELLER EUROPE LIMITED, a company incorporated in England and Wales (company number 03316088) whose registered office is at Oxford Street, Bilston, West Midlands, WV14 7DS (the “Seller”); and

 

2.	TRAVIS PERKINS PLC, a company incorporated in England and Wales (company number 00824821) whose registered office is at Lodge Way House, Lodge Way, Harleston Road, Northampton, NN5 7UG (the “Buyer”).

 

 

(A)	Mueller Primaflow Limited, (company number 02662075), has at the date of this Agreement a share capital of 20,000 ordinary shares of £1.00 which are fully paid or credited as fully paid and are owned by the Seller.

 

(B)	The Seller has agreed to sell the Shares to the Buyer and the Buyer has agreed to purchase the Shares.

 

 

1	INTERPRETATION

 

1.1	In this Agreement (unless the context otherwise requires) the following definitions apply:

 

“Accounts”		the audited financial statements of each Group Company comprising the balance sheet and profit and loss account of the Company and the balance sheet and profit and loss account of each of the Subsidiaries, together with the notes thereon, directors’ report and (where relevant) auditor’s certificate, as at and for the financial period ended on the Last Accounts Date, a copy of which are included in the Disclosure Documents;
“Anti-Corruption Laws”		any laws, regulations or conventions in any part of the world related to combating bribery and corruption, including the Bribery Act 2010 and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;
“Anti-Terrorism and Anti-Money Laundering Laws”		any laws, regulations or conventions in any part of the world related to terrorism or money laundering, including the Proceeds of Crime Act 2002, the Terrorism Act 2000 and the Money Laundering Regulations 2007;
“Bilston Lease”		the lease in the agreed terms to be entered into on the date of this Agreement between the Company and the Seller relating to the Company’s lease of part of the premises owned by the Seller at Oxford Street, Bilston, West Midlands, WV14 7DS;

“Business”		the business of importing and/or wholesaling and/or distributing of plumbing and heating fittings, valves, taps, boilers, radiators and ancillary plumbing and bathroom equipment and the sale of copper tubes to the merchant market as carried on by the Company as at the Completion Date;
“Business Day”		any day (other than a Saturday or Sunday) on which banks are generally open for business in the City of London for the transaction of normal sterling banking business;
“Buyer’s Group”		the Buyer, a subsidiary or holding company for the time being of the Buyer and any subsidiary for the time being of any such holding company of the Buyer and any reference to “a member of the Buyer’s Group” shall be construed accordingly;
“Buyer's Solicitors”		Shoosmiths LLP of Apex Plaza of Forbury Road, Reading, Berkshire, G1 1SH, ref: 091012.25;
“Claim”		a Warranty Claim or a Tax Claim;
“Company”		Mueller Primaflow Limited, particulars of which are contained in part 1 of Schedule 1;
“Company Intellectual Property”		Intellectual Property owned, used, held or licensed by the Group;
“Competition Law”		the national and directly effective legislation of any jurisdiction which governs the conduct of companies or individuals in relation to restrictive or other anti-competitive agreements or practices and the control of acquisitions and mergers (including, but not limited to, the Chapter I and Chapter II prohibitions under the Competition Act 1998, the Article 101 and Article 102 prohibitions under the Treaty on the Functioning of the European Union and the cartel offence in Part 6 of the Enterprise Act 2002 as amended);
“Completion”		the completion of the sale and purchase of the Shares in accordance with clause 2.5;
“Completion Accounts”		the consolidated balance sheet and profit and loss account of the Group as at the Completion Date and for the period from the Last Accounts Date down to and including the Completion Date, prepared in accordance with the provisions of Schedule 7;
“Completion Date”		the date of this Agreement;
“Confidential Information"		all information not at present in the public domain used in or otherwise relating to the Business or the technology, customers or financial or other affairs of any Group Company (including future plans);

“Consideration”		the consideration payable for the Shares as provided for in clause 2.3;
“Covenant Claim”		has the meaning given in part 1 of Schedule 4;
“CTA 2010”		the Corporation Tax Act 2010;
“Data Room Information”		the documents made available prior to the date of this Agreement to the Buyer by way of an online data room facility and a CD Rom containing such documents is annexed to the Disclosure Letter
“Disclosed”		fairly disclosed in the Disclosure Letter with sufficient detail to enable the Buyer (a) to understand the nature and scope of the fact, matter, event or circumstance; and (b) to make a reasonably informed assessment of the fact, matter, event or circumstance and its significance to the Group;
“Disclosure Documents”		the documents from the Data Room Information which are described in paragraph 2 of the Disclosure Letter and those which are specifically cross referred to in paragraph 3 of the Disclosure Letter together with those additional hard copy documents which are listed in the schedule of documents annexed to the Disclosure Letter and which have been delivered to the Buyer with the Disclosure Letter;
“Disclosure Letter”		the letter in the agreed terms from the Seller to the Buyer executed and delivered to the Buyer immediately prior to the execution of this Agreement and including the Disclosure Documents;
“Employment Laws”		all and any international, European Union or national laws, common law, statutes, directives, bye-laws, orders, regulations or other subordinate legislation, notices, codes of practice, guidance notes, judgments or decrees, relating to or connected with (1) the employment of employees and/or their health and safety at work or (2) the use of or engagement of temporary workers, agency workers or other individual workers where the relationship is not one of employment or their health and safety at work or (3) the relations between the Company and any trade union, staff association, works counsel, information and consultation forum or other body representing employees or workers;
“Encumbrance”		any mortgage, charge (fixed or floating), pledge, lien, hypothecation, option, restriction, right of pre-emption, assignment by way of security, reservation of title, trust, set-off, claim, third party interest or right (legal or equitable) or other encumbrance or security interest of any kind however created or arising and any other agreement or arrangement (including a sale and re-purchase arrangement) having similar effect;

“Environment”		the natural and man-made environment, including all or any of the following media, namely air, water and land (including air within buildings and other material or man-made structures above or below the ground and water in drains and sewers) and any living organisms (including man) or systems supported by those media;
“Environmental Laws”		all and any international, European Union or national laws, common law, statutes, directives, bye-laws, orders, treaties, regulations or other subordinate legislation, notices, codes of practice, circulars, guidance notes, judgments, decrees or instructions or decisions of any competent regulatory body in force from time to time so far as legally binding, relating to the pollution or protection of the Environment (including human health and safety);
“Environmental Permits”		all legally necessary Permits, including any conditions thereof required under any Environmental Laws for the operation of the Business;
“Event”		has the meaning given in part 1 of Schedule 4;
“Group”		the Company and the Subsidiaries and “Group Company” means any one of them;
“Guarantee”		any guarantee, indemnity, suretyship, letter of comfort or other assurance, security or right of set-off given or undertaken by a person to secure or support the obligations (actual or contingent) of any other person and whether given directly or by way of counter-indemnity to any other person who has provided a Guarantee;
“Hazardous Items”		any substance of whatever nature which could cause harm to the Environment;
“Intellectual Property”		patents, supplementary protection certificates, petty patents, utility models and any other rights to inventions; copyright, moral rights and related rights; trade marks and trade names, service marks, rights in domain names, rights in get-up, rights to goodwill or to bring claims for passing off or unfair competition; rights in designs; database rights; rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world;

“Initial Consideration”		the sum of fifteen million, five hundred and nineteen thousand pounds (£15,519,000) which for the avoidance of doubt has been calculated as follows: £15,000,000 less the amount by which the Estimated Working Capital is less than the Target Working Capital; plus the Estimated Net Cash (as each such expression is defined in Schedule 7);
“Inter-Company Debt”		the amount  (if any) owing by the Group to the Seller and its Related Companies (other than the Group Companies) as at Completion but excluding any trading balances arising in the ordinary course of business of the Company;
“IT Contracts”		all arrangements and agreements under which any third party provides any element of, or services relating to, the IT Systems, including without limitation leasing, hire-purchase, licensing (including without limitation content, open source and webwrap licences), support, maintenance, services, development, design and escrow agreements;
“IT Systems”		all computer hardware (including hardware, firmware, peripherals, communication equipment and links, storage media, networking equipment, power supplies and any other components used in conjunction with such) and software (including associated preparatory materials, user manuals and other associated documentation) together with all related object and source codes and databases  owned, used, leased or licensed by or to the Company;
“Last Accounts Date”		31 December 2013;
“Management Accounts”		the unaudited accounts of the Company for the 10 periods ended 25 October 2014, a copy of which is in the Disclosure Documents;
“Material Customers”		those 10 customers whose names are set out in Appendix 4 to the Disclosure Letter, who during the period which commenced on 1 January 2014 and ended on 25 October 2014 were the 10 customers which the Company invoiced the most;
“Material Suppliers”		those 10 suppliers whose names are set out in document 14.7 in the Elbow File Room within the Data Room Information who during the period which commenced on 1 January 2014 and ended on 25 October 2014 were the 10 suppliers which invoiced the Company the most;

“Permit”		a permit, licence, consent, approval, permission, exemption, certificate, qualification, specification, registration and other authorisation and a filing of a notification report or assessment necessary in any jurisdiction for the legal operation of the Business;
“Properties”		the properties owned, leased or occupied by the Company, short particulars of which are set out in part 1 of Schedule 2;
“Property Documents”		all title documents and other documents relating to the Properties, as listed in part 2 of Schedule 2;
“Proprietary Software”		software developed entirely by employees of a Group Company or software where the whole of the Intellectual Property in the Software has been assigned to a Group Company;
“Related Company”		in relation to any party which is a company, its holding companies and the subsidiaries, subsidiary undertakings and associated companies from time to time of that company and its holding companies, all of them and each of them as the context admits and “Related Companies” shall be construed accordingly;
“Relevant Account”		the client account of the Seller’s Solicitors at Nat West, Leeds City Office, 8 Park Row, Leeds, LS1 2QS with account number 00018988 and sort code 60-60-05;
“Seller’s Solicitors”		Eversheds LLP of 115 Colmore Row, Birmingham, B3 3AL;
“Senior Employee”		any employee of the Company likely (in the reasonable opinion of the Buyer) to be: a) in possession of Confidential Information relating to; or   b) able to influence the customer relationships or connections of; or   c) able to influence the technology or inventions of; or   d) occupying a senior management position with,   the Company or any Group Company;
“Shares”		the 20,000 ordinary shares of £1.00 each in the capital of the Company, all of which have been issued and are fully paid and which constitute the entire issued share capital of the Company (each a “Share”);

“Subsidiaries”		all those companies particulars of which are contained in part 2 of Schedule 1;
“Tax” or “tax”		has the meaning given in part 1 of Schedule 4;
“Tax Authority”		has the meaning given in part 1 of Schedule 4;
“Tax Claim”		a Covenant Claim or a claim under the Tax Warranties (as the case may be);
“Tax Covenant”		the covenant in respect of Tax in part 1 of Schedule 4;
“Tax Warranties”		the warranties set out in part 2 of Schedule 4;
“Territory”		the United Kingdom;
“Title Warranties”		the warranties, contained in clause 4.1, and the warranty and representation contained in clause 4.2;
“Transaction Documents”		has the meaning given in clause 12.1.1;
“Transitional Services Agreement”		the agreement in the agreed terms to be entered into on the date of this Agreement between the Company and the Seller;
“TUPE”		the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended);
“Warranty Claim”		a claim for breach of a Warranty other than the Title Warranties; and
“Warranties”		the warranties set out in clause 3, Schedule 3 and part 2 of Schedule 4 and "Warranty" means any of them.

 

1.2	In this Agreement, unless otherwise specified, reference to:

 

1.2.1

a “subsidiary undertaking” is to be construed in accordance with section 1162 of the Companies Act 2006 and a “subsidiary” or “holding company” is to be construed in accordance with section 1159 of that Act and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of:

 

a)	another person (or its nominee), whether by way of security or in connection with the taking of security; or

 

b)	its nominee;

 

1.2.2

a person being “connected” with another shall be determined in accordance with sections 1122 and 1123 of CTA 2010 or sections 993 to 994 of the Income Tax Act 2007, as appropriate (except that in construing sections 1122 and 1123 of CTA 2010 “control” has the meaning given by section 1124 or section 450 of CTA 2010 so that there is control whenever section 1124 or 450 requires, and in construing sections 993 to 994 “control” has the meaning given by section 450 of CTA 2010 or section 995 of the Income Tax Act 2007 so that there is control whenever section 450 of CTA 2010 or section 995 of the Income Tax Act 2007 requires);

 

1.2.3

a document in the “agreed terms” is a reference to that document in the form approved by the Buyer and the Seller and initialled by, or on behalf of, each of them for the purpose of identification;

 

1.2.4

“writing” includes any methods of representing words in a permanent legible form excluding e-mail (other than writing on an electronic or visual display screen or other transitory form);

 

1.2.5

any phrase introduced by the terms “including”, “includes”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms;

 

1.2.6

a “party” means a party to this Agreement and includes its assignees (if any) and/or the successors in title to substantially the whole of its undertaking and, in the case of an individual, to his or her estate and personal representatives;

 

1.2.7

a “person” includes any natural person, individual, company, firm, corporation, partnership, foundation, association, organisation, trust, government, state or agency of a state or any undertaking (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);

 

1.2.8

the singular includes the plural and vice versa and reference to any gender includes the other genders;

 

1.2.9

a statute, statutory provision or subordinate legislation (“legislation”) accounting standard or EC Directive shall be construed as referring to:

 

a)

such legislation accounting standard or EC Directive as amended and in force for the time being and to any legislation, accounting standard or EC Directive which (either with or without modification) re-enacts, consolidates, enacts in rewritten form or supersedes any such legislation, accounting standard or EC directive; and

 

b)	any former legislation, accounting standard or EC Directive which it re-enacts, consolidates or enacts in rewritten form or supersedes,

 

1.3	In this Agreement:

 

1.3.1

(unless otherwise specified) reference to “clauses”, “paragraphs” or “Schedules” are to clauses and paragraphs of and schedules to this Agreement;

 

1.3.2

the Schedules form part of the operative provisions of this Agreement and references to this Agreement shall, unless the context otherwise requires, include references to the Schedules; and

 

1.3.3

the table of contents, and the headings are for information only and shall not affect the interpretation of this Agreement.

 

1.4

In this Agreement, unless otherwise specified any statement qualified by reference to the Seller’s state of knowledge, belief or awareness shall be deemed to include an additional statement that it has been made after reasonable enquiry by the Seller of the following individuals namely Mark Millerchip, Peter Marsh, Joe Hardy (in respect of tax and financial matters only), Patricia Quinn, Jean Magner, Paul Constable, Andrew Goodland, Andrew Surtees and Steve Newey.

 

1.5

The parties have participated jointly in the negotiating and drafting of this Agreement.  In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favouring or disfavouring any party by virtue of the authorship of any of its provisions.

 

1.6

In this Agreement, any English term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any other legal concept is deemed to include the nearest equivalent under Scottish law and/or the law of Northern Ireland (as applicable) to the English legal term, and any English statutory provision is interpreted to include equivalent or analogous statutory provisions of Scottish Law and/or the law of Northern Ireland (as applicable).

 

2	SALE AND PURCHASE OF THE SHARES

 

2.1	Sale of Shares

 

2.1.1

On the terms of this Agreement and with effect from Completion:

 

a)	the Seller shall, as legal and beneficial owner and with full title guarantee, sell; and

 

b)	the Buyer shall, relying on the Title Warranties and the other warranties and undertakings contained in this Agreement, purchase

 

 

2.1.2

The Buyer shall not be obliged to complete the purchase of any of the Shares unless the purchase of all the Shares is completed simultaneously, but completion of the purchase of some of the Shares will not affect the rights of the Buyer in respect of its rights to the other Shares.

 

2.2	Rights of pre-emption

 

 

2.3	The Consideration for the Shares

 

2.3.1

The consideration for the sale and purchase of the Shares shall, subject to adjustment as provided in clause 2.4, be the Initial Consideration which shall be satisfied on Completion by the Buyer by a telegraphic transfer to the Relevant Account.

 

2.3.2

All payments to be made to the Seller under this Agreement shall be made in Sterling by electronic transfer of immediately available funds to the Seller’s Solicitors (who are irrevocably authorised by the Seller to receive the same).  Payment to the Seller’s Solicitors in accordance with this clause shall be good and valid discharge of the obligations of the Buyer to pay the sum in question to the Seller and the Buyer shall not be concerned to see the application of the monies so paid.

 

2.3.3

Notwithstanding any other provision of this Agreement, the aggregate consideration payable by the Buyer for all of the Shares shall not exceed seventeen million, and nineteen thousand pounds (£17,019,000).

 

2.4	Completion Accounts

 

 

2.5	Completion

 

 

2.6	Tax Covenant

 

 

3	WARRANTIES

 

3.1	Incorporation of Schedule 3 and part 2 of Schedule 4

 

3.1.1

On the date of the Agreement, the Seller hereby warrants to the Buyer and each of its successors in title in the terms set out in Schedule 3 and in part 2 of Schedule 4 save as, and to the extent, Disclosed.

 

3.1.2

The Seller acknowledges that the Buyer has entered into this Agreement in reliance upon (inter alia) the Title Warranties, the Warranties and on the undertakings contained in clause 5 (Protection of Goodwill).

 

3.1.3

Save as expressly otherwise provided, the Warranties shall be separate and independent and shall not be limited by reference to any other paragraph of Schedules 3 or 4.

 

3.1.4

The liability of the Seller under the Warranties (other than the Title Warranties) shall be limited in accordance with Schedule 5 but not otherwise (and so that all references in Schedule 5 to the Company shall be also construed as references to each of the Subsidiaries).

 

3.1.5

Subject to the provisions of clause 3.1.4 and Schedule 5, no information of which the Buyer has imputed or constructive knowledge shall prejudice or prevent any claim being made by the Buyer under any of the Warranties nor shall it affect the amount recoverable under any such claim.

 

3.2	Information from the Group

 

 

3.3	Warranties and Tax Covenant

 

 

4	TITLE WARRANTIES

 

4.1	The Seller hereby warrants to the Buyer and each of its successors in title that:

 

4.1.1

the Seller is the only legal and beneficial owner of the Shares;

 

4.1.2

the Shares constitute the whole of the allotted and issued share capital of the Company and are fully paid or credited as fully paid; and

 

4.1.3

there is no Encumbrance in relation to any of the Shares or any unissued shares in the capital of the Company.  No person has claimed to be entitled to an Encumbrance in relation to any of the Shares.

 

4.2

The Seller hereby warrants and represents to the Buyer and each of its successors in title that the Seller has obtained all requisite power and authority to enter into and to perform its obligations under this Agreement in accordance with its terms and under the other documents in the agreed terms referred to in it and so has due capacity to enter into this Agreement and all such other documents.

 

5	PROTECTION OF GOODWILL

 

5.1

To assure the Buyer the full value and benefit of the Shares and (through its ownership of them) the goodwill and Business, the Seller hereby undertakes and covenants with the Buyer and each Group Company that it shall not, and shall procure none of its Related Companies shall, either on its own behalf or on behalf of any other person, firm or company:

 

5.1.1

from the date of this Agreement up to the third anniversary of Completion, carry on or be concerned, engaged or interested (directly or indirectly), in any capacity whatsoever, in any trade or business within the Territory which competes with the Business;

 

5.1.2

from the date of this Agreement up to the third anniversary of Completion, solicit or accept the custom of any person in respect of goods or services competitive with those supplied by the Company or any Group Company during the twelve (12) months immediately prior to the Completion Date, such person having been a customer of the Company or any Group Company in respect of such goods or services during such period;

 

5.1.3

from the date of this Agreement up to the third anniversary of Completion, save as required by law, do or say anything reasonably likely or calculated to lead any person to withdraw from or cease to continue offering to the Company or any Group Company any rights (whether of purchase, sale, import, distribution, agency or otherwise) enjoyed by it as at the Completion Date or in any other way to cease to do business or reduce the amount of business it transacts with the Company or any Group Company;

 

5.1.4

from the date of this Agreement up to the third anniversary of Completion, induce, solicit or endeavour to entice to leave the service or employment of the Company or any Group Company, or offer employment to or employ, any person who during the twelve (12) months immediately prior to the Completion Date was a Senior Employee; or

 

5.1.5

use any trade or domain name or e-mail address which contains the word ‘Primaflow’ or any other name intended or likely to be confused with ‘Primaflow’.

 

5.2	Nothing in clause 5.1 shall prevent the Seller (and where relevant a Related Company) from:

 

5.2.1

performing its duties under the Transitional Services Agreement;

 

5.2.2

being the holder of (either directly or indirectly) shares in a listed company which confer not more than 3% of the votes which can generally be cast at a general meeting of the company;

 

5.2.3

selling Primaflow branded stock in the Middle East and Mexico during the period from Completion up to and including 30 June 2015, provided that none of such stock shall be sold into the Territory via the Middle East, Mexico or elsewhere in the world;

 

5.2.4

manufacturing copper fittings in the Territory, or elsewhere but, to avoid doubt, the provisions of clause 5.1 shall prevent the Seller and its Related Companies from marketing, selling or distributing copper fittings in the Territory without the Buyer’s prior consent;

 

5.2.5

manufacturing, marketing, selling, or distributing copper tube in the Territory or elsewhere; and/or

 

5.2.6

acquiring and accordingly becoming the holder of (either directly or indirectly) an interest in a business which manufactures and distributes  products in the Territory provided that no more than 10% of the turnover of such business as a whole shall be attributable to distribution business which competes directly with the Business.

 

5.3	The Seller agrees that the undertakings contained in this clause 5 are reasonable and are entered into for the purpose of assuring the Buyer the full value of the Shares and protecting the goodwill and business of the Company.

 

5.4

Each undertaking contained in this clause 5 is and shall be construed as separate and severable and if one or more of the undertakings is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Seller.

 

5.5

If any undertaking contained in this clause 5 shall be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may be necessary to make it valid and enforceable.  Without prejudice to the generality of the foregoing, any period of restriction specified in clause 5 (as the same may previously have been reduced by virtue of this clause 5.5) shall take effect as if reduced by six (6) months until the resulting period shall be valid and enforceable.

 

6	GUARANTEES

 

6.1

The Seller will procure that, as soon as reasonably practicable following Completion, each Group Company is released from any guarantee, indemnity, counter-indemnity, letter of comfort or other obligation given by such Group Company to any third party in respect of a liability of any person other than a Group Company.

 

6.2

The Buyer undertakes to the Seller that, as soon as reasonably practicable following Completion, the Buyer will procure that the Seller and any of its Related Companies are released from any guarantee, indemnity, counter-indemnity, letter of comfort or other obligation given by the Seller or any if its Related Companies in connection with the ongoing duty deferment arrangements as between the Group, the Seller and its Related Companies in respect of any liability of any Group Company under such arrangements.

 

6.3

Pending such releases, each party will indemnify the other against any amounts paid by the other party to any third party pursuant to any such obligation (and all costs incurred in connection with such obligation) arising after the date of this Agreement save that this indemnity will not extend to any matter giving rise to a Claim.

 

7	CONFIDENTIAL INFORMATION

 

7.1	The Seller undertakes with the Buyer and each Group Company that it shall not, and will procure that none of its Related Companies or connected persons shall, use or disclose to any person Confidential Information.

 

7.2	Clause 7.1 does not apply to:

 

7.2.1

disclosure of Confidential Information to or at the written request of the Buyer;

 

7.2.2

use or disclosure of Confidential Information required to be disclosed by law, regulation, any Tax Authority, the UK Listing Authority or the London Stock Exchange or any other regulatory or governmental body to which it is subject wherever situated;

 

7.2.3

disclosure of Confidential Information to professional advisers for the purpose of advising the Seller; or

 

7.2.4

Confidential Information which the Seller can prove is in the public domain other than by a breach by it of clause 7.1.

 

8	ANNOUNCEMENTS

 

8.1

No party shall disclose the making of this Agreement or its terms nor any other agreement in the agreed terms referred to in this Agreement (except those matters set out in the press release in the agreed terms) and each party shall procure that each of its Related Companies and connected persons and its professional advisers shall not make any such disclosure without the prior consent of the other party unless disclosure is:

 

8.1.1

to its professional advisers (including, but not limited to, the relevant party’s auditors for the purposes of preparing the relevant party’s statutory accounts); or

 

8.1.2

required by law or the rules of the UK Listing Authority or the London Stock Exchange or other regulatory body (save that where such disclosure is so required, the party required to make the disclosure shall to the extent reasonably practicable consult with the other party prior to making such disclosure).

 

8.2	Clause 8.1 does not apply to any announcements, communications or circulars:

 

8.2.1

made or sent by the Buyer after Completion to customers, clients or suppliers of the Company to the extent that they inform them of the Buyer’s acquisition of the Shares but do not disclose details of the Consideration; or

 

8.2.2

containing only information which has become generally available.

 

8.3	The restrictions contained in clause 8.1 shall apply without limit of time and whether or not this Agreement is terminated.

 

9

COSTS

 

 

10	EFFECT OF COMPLETION

 

10.1	The terms of this Agreement (insofar as not performed at Completion and subject as specifically otherwise provided in this Agreement) shall continue in force after and notwithstanding Completion.

 

10.2	The remedies of the Buyer in respect of any breach of any of the Warranties shall continue to subsist notwithstanding Completion, subject to the provisions of Schedule 5.

 

11	FURTHER ASSURANCE

 

11.1

The Seller shall at its own expense do or procure to be done all such further acts and things and execute or procure the execution of all such other documents as the Buyer may from time to time reasonably require for the purpose of giving the Buyer the full legal and beneficial title to the Shares and otherwise giving the Buyer the full benefit of this Agreement provided always that the Buyer shall be responsible for all stamp duty payable as a result of the sale and purchase of the Shares.

 

11.2	The Seller hereby undertakes to the Buyer that following Completion it will not deliberately take any action with the intention of frustrating the Seller’s obligations under this Agreement.

 

12	ENTIRE AGREEMENT

 

12.1	Each party acknowledges and agrees with the other parties that:

 

12.1.1

this Agreement together with any documents referred to in this Agreement (together the “Transaction Documents”) constitute the entire and only agreement between the parties relating to the subject matter of the Transaction Documents;

 

12.1.2

it has not been induced to enter into any Transaction Document in reliance upon, nor has it been given, any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in the Transaction Documents and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto;

 

12.1.3

with the exception of the warranty and representation contained in clause 4.2 (Seller’s capacity and authority), the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into this Agreement or any other Transaction Document and which is expressly set out in this Agreement or other Transaction Document will be for breach of contract.

 

12.2

The provisions of this clause 12 shall not exclude any liability which any of the parties would otherwise have to any other party or any right which any of them may have in respect of any statements made fraudulently by any of them prior to the execution of this Agreement or any rights which any of them may have in respect of fraudulent concealment by any of them.

 

13	VARIATIONS, WAIVER AND INVALIDITY

 

13.1	This Agreement may be varied only by a document signed by the Buyer and the Seller.

 

13.2	A waiver of any term, provision or condition of, or consent granted under, this Agreement shall be effective only if given in writing and signed by the waiving or consenting party and then only in the instance and for the purpose for which it is given.

 

13.3

No failure or delay on the part of any party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

13.4	No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the Seller and the Buyer.

 

13.5	The rights and remedies provided in this Agreement are cumulative with and not exclusive of any rights or remedies provided by law.

 

13.6

If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction the validity, legality and enforceability under the law of that jurisdiction or any other jurisdiction of any other provision shall not be affected or impaired in any way.

 

14

NOTICES

 

14.1

Any notices, demands, legal proceedings, or other communications (“Notice”) given or made under or in connection with the matters contemplated by this Agreement shall be in writing and shall be delivered personally or prepaid first class post (registered air mail if posted to or from a place outside the United Kingdom):

 

 

 

 

 

 

14.2	Any Notice shall be deemed to have been duly given or made as follows:

 

14.2.1

if personally delivered, at the time of delivery;

 

14.2.2

if sent by first class post, two Business Days after the date of posting; and

 

14.2.3

if sent by registered air mail, four Business Days after the date of posting,

 

 

14.3	A party may notify the other party to this Agreement of a change to its name, relevant addressee or address for the purposes of clause 14.1 by a Notice provided that such change shall only be effective on:

 

14.3.1

the date specified in the Notice as the date on which the change is to take place; or

 

14.3.2

if no date is specified or the date specified is less than five Business Days after the date on which Notice is given (or is deemed to have been given in accordance with clause 14.2), the date falling five Business Days after notice of any such change has been given (or is deemed to have been given in accordance with clause 14.2).

 

14.4	For the avoidance of any doubt, a Notice will not be validly served if sent by e-mail or fax.

 

15	COUNTERPARTS

 

 

16

GENERAL

 

16.1	Time of the essence

 

 

16.2	Assignment

 

16.2.1

This Agreement shall be binding upon and enure for the benefit of the successors in title to the parties but, except as set out in clause 16.2.2, shall not be assignable by any party without the prior written consent of the other.

 

16.2.2

The Buyer may assign the benefit of this Agreement (including the Warranties) to any member of the Buyer’s Group and/or to its bank by way of security (from time to time) provided always that the Seller shall have no greater liability pursuant to this Agreement as a result of any such assignment.

 

16.3

Interest

 

 

16.4	Post completion matters

 

16.4.1

The Seller declares that for as long as it remains the registered holder of the Shares after Completion it will:

 

a)	hold the Shares and the dividends and any other moneys paid or distributed in respect of them after Completion and all rights arising out of or in connection with them in trust for the Buyer; and

 

b)	deal with the Shares and all such dividends, distributions and rights as the Buyer may direct for the period between Completion and the day on which the Buyer is entered in the register of members of the Company as the holder of the Shares.

 

16.4.2

The Seller hereby irrevocably appoints the Buyer as its attorney for the purpose of exercising any and all rights, privileges or duties attaching to the Shares including receiving notices of and attending and voting at all meetings of the members of the Company.

 

16.4.3

For the purposes of clause 16.4.2 the Seller authorises:

 

a)	the Company to send any notices in respect of the Shares to the Buyer; and

 

b)	the Buyer to complete and return proxy cards, consents to short notice and any other documents otherwise required to be signed by the Seller as holder of the Shares.

 

16.5	Confidentiality

 

16.5.1

Except as referred to in clause 16.5.2, each party shall treat as strictly confidential all information received or obtained as a result of entering into or performing this Agreement which relates to the provisions or subject matter of this Agreement, to any other party to this Agreement or to the negotiations relating to this Agreement and any other documents or agreements to be entered into in connection with it.

 

16.5.2

Any party may disclose information which would otherwise be confidential if and to the extent:

 

a)

it is required to do so by law, regulation, any Tax Authority, the UK Listing Authority, the London Stock Exchange or any other regulatory or governmental body to which it is subject wherever situated (save that where such disclosure is so required the party required to make the disclosure shall to the extent reasonably practicable consult with the other party prior to making such disclosure);

 

b)	it considers it necessary to disclose the information to its professional advisers, auditors and bankers provided that it does so on a confidential basis;

 

c)	the information has come into the public domain through no fault of that party; or

 

d)	each party to whom it relates has given its consent in writing.

 

16.6	Third Parties

 

16.6.1

The parties agree that (save as set out in clause 16.6.2 and where may be expressly stated otherwise in this Agreement) for the purposes of the Contracts (Rights of Third Parties) Act 1999 they do not intend any person other than a party to this Agreement to be able to enforce any term of this Agreement.

 

16.6.2

Clauses 5 (Protection of Goodwill) and 7 (Confidential Information) confer on the third parties expressly identified therein rights which are respectively directly enforceable by them subject to and in accordance with the terms of this Agreement.

 

17	GOVERNING LAW AND JURISDICTION

 

17.1	This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with English law.

 

17.2

Each of the parties to this Agreement irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to hear and decide any suit, action or proceedings, and/or to settle any disputes, which may arise out of or in connection with this Agreement and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of England and Wales.

 

 

 
 

 

 

 

 

Company name:	MUELLER PRIMAFLOW LIMITED
Registered number:	02662075
Registered office:	Stargate Business Park Nechells Birmingham B7 5SE
Date and place of incorporation	12 November 1991, England and Wales
Class of company	Private Limited Company (Ltd)
Issued share capital:	20,000 ordinary shares of £1,00 each
Directors:	Andrew Peter Goodland   Jeffrey Andrew Martin   Mark Millerchip   Patricia Anne Quinn   Andrew Nicholas Surtees
Secretary:	Gary Carl Wilkerson
Accounting reference date:	31 December
Auditors:	Ernst & Young LLP
Mortgages and charges:	None
Subsidiary undertakings and subsidiaries:	Primaflow Limited   Brasscapri Limited   KX Company Limited

 

 

 

 

 

Company name:	PRIMAFLOW LIMITED
Registered number:	01482585
Registered office:	Mueller Primaflow Limited Cuckoo Road Nechells Birmingham B7 5SE
Date and place of incorporation:	3 March 1980, England and Wales
Class of company:	Private Limited Company (Ltd) – (dormant)
Issued share capital:	100 ordinary shares of £1.00 each
Directors:	Jeffrey Andrew Martin; and Mark Millerchip
Secretary:	Gary Carl Wilkerson
Accounting reference date:	31 December
Auditors:	None
Outstanding mortgages and charges:	None
Subsidiary undertakings and subsidiaries:	None

 

 

Company name:	BRASSCAPRI LIMITED
Registered number:	01567660
Registered office:	Unit 2 Stargate Business Park Nechells Birmingham B7 5SE
Date and place of incorporation:	12 June 1981, England and Wales
Class of company:	Private Limited Company (Ltd) – (dormant)
Issued share capital:	100 ordinary shares of £1.00 each
Directors:	Jeffrey Andrew Martin; and Mark Millerchip
Secretary:	Gary Carl Wilkerson
Accounting reference date:	31 December
Auditors:	None
Outstanding mortgages and charges:	None
Subsidiary undertakings and subsidiaries:	None

 

 

Company name:	K X COMPANY LIMITED
Registered number:	04449907
Registered office:	Stargate Business Park Cuckoo Road Nechells Birmingham B7 5SE
Date and place of incorporation	29 May 2002, United Kingdom
Class of company	Private Limited Company
Issued share capital:	100,000 ordinary shares of £0.01 nominal value
Directors:	Jeffrey Andrew Martin; and Mark Millerchip
Secretary:	Gary Carl Wilkerson
Accounting reference date:	31 December
Auditors:	None
Mortgages and charges:	None
Subsidiary undertakings and subsidiaries:	Brassware Sales Limited

 

 

Company name:	BRASSWARE SALES LIMITED
Registered number:	01373054
Registered office:	Stargate Business Park, Cuckoo Road, Nechells, Birmingham B7 5SE
Date and place of incorporation	13 June 1978, United Kingdom
Class of company	Private Limited Company
Issued share capital:	3,820 ordinary shares of £1.00 nominal value
Directors:	Jeffrey Andrew Martin; and Mark Millerchip
Secretary:	Gary Carl Wilkerson
Accounting reference date:	31 December
Auditors:	None
Mortgages and charges:	None
Subsidiary undertakings and subsidiaries:	Instox Limited

 

 

Company name:	INSTOX LIMITED
Registered number:	02831837
Registered office:	Stargate Business Park, Cuckoo Road, Nechells, Birmingham B7 5SE
Date and place of incorporation	30 June 1993, United Kingdom
Class of company	Private Limited Company
Issued share capital:	100 ordinary shares of £1.00 nominal value
Directors:	Jeffrey Andrew Martin; and Mark Millerchip
Secretary:	Gary Carl Wilkerson
Accounting reference date:	31 December
Auditors:	None
Mortgages and charges:	None
Subsidiary undertakings and subsidiaries:	None

 

 
 

 

 

 

Address		Title number and class of title (if registered)		Use		Rent		Occupational interests/Brief details of lease and Encumbrances
Unit F2 Capital Point Capital Business Park Wentloog Avenue Cardiff CF3 2PW		CYM177577 (Title Absolute)		Up to 31/12/2025 – B1, B2 or B8.  After that date, any use except Excluded Uses		A peppercorn (if demanded)		Lease dated 16 April 2004 made between JR Smart (Builders) Limited (1) and Instox Limited (2).
Unit 2 Stargate Business Park Cuckoo Road Nechells Birmingham B7 5SY		WM890576 (Title Absolute)		B1(c), B2 or B8		£216,826		Lease dated 25 July 2006 made between A&J Mucklow (Birmingham) Limited (1) and Brassware Sales Limited (2).
6 Balloo Place BANGOR County Down BT19 7BP		Unregistered		B4 of Part B of Schedule to Planning (Use Classes) Order (Northern Ireland) 2004		£46,500		Lease dated 7 February 2009 made between Roman McLarnon (1) and Mueller Primaflow Limited (2).
Unit E Mead Industrial Park River Way Harlow Essex CM20 2SE		Unregistered		B1, B2 and B8		£51,875		Lease dated 11 February 2003 made between Mead Park (No. 1) Limited and Mead Park (No. 2) Limited (1) Instox Limited (2) and Brassware Sales Limited (3).
Unit 2 Friarsgate Molly Millars Lane Wokingham Surrey RG41 4SL		BK3585393 (Title Absolute)		B1(c), B2 and B8		£83,000		Lease dated 30 September 2003 made between The District Estates Limited (1) Instox Limited (2) and Brassware Sales Limited (3).

 

 

 

 

 

 

 

 

Address		Title number and class of title (if registered)		Use		Rent		Occupational interests/Brief details of lease and Encumbrances
Unit 1 Vanguard Court Douglas Close Preston Farm Industrial Estate Stockton on Tees TS18 3TR		Unregistered		B1(c), B2 and B8		£36,000		Underlease dated 12 September 2011 made between THUS Group Holdings plc (1) and Mueller Primaflow Limited (2)
Unit 7 Sett End Road Shadsworth Business Park Blackburn Lancashire BB1 2QR		LA950964 (Title Absolute)		B1, B2 and B8		£27,470		Lease dated 22 December 2003 made between Steelacre 2 Limited (1) and Instox Limited (2)
Unit 4, Block 16 Clydesmill Road Clydesmill Industrial Estate Glasgow G32 8RE		Unregistered		Classes 5 and 6 of the Use Classes (Scotland) Order 1997		£24,500		Lease dated 18 January 2013 made between Bedell Corporate Trustees Limited and Atrium Trustees Limited as Trustees of the A Fund of the Buccleuch Property Fund (1) and Mueller Primaflow Limited (2)
Units 105, 106, 107 Bridgwater Business Park Dunball Bridgwater TA6 4TB		ST283223 (Title Absolute)		B1, B2 and B8		£37,828		Lease dated 11 January 2010 made between Alvin Mark Lindley (1) Bridgwater Business Park Limited (2) and Mueller Primaflow Limited (3).
Part of Bay 2 Oxford Street Bilston West Midlands WV14 7DS		Unregistered		B8		£75,000		Lease made between Mueller Europe Limited (1) and Mueller Primaflow Limited (2).

 

 

 

 

 

1.

Bangor

 

1.1

Lease

 

 

2.

Bilston

 

2.1

Lease

 

 

2.2	Title Documents

 

2.2.1

Official copy register and title plan for freehold – title number WM161140

 

2.2.2

Lease plan for the draft Lease.

 

3.	Birmingham

 

3.1

Lease

 

 

3.2	Title Documents

 

3.2.1

Official copy register and title plan for leasehold – title number WM890576.

 

3.2.2

Official copy register and title plan for freehold – title number WM554634.

 

3.2.3

Transfer dated 24 July 2012 and made between (1) Brassware Sales Limited and (2) Mueller Primaflow Limited.

 

3.2.4

Licence to Assign dated 24 July 2012 and made between (1) A & J Mucklow (Investments) Limited (2) Brassware Sales Limited and (3) Mueller Primaflow Limited.

 

3.2.5

Assignment dated 24 September 2012 and made between (1) Brassware Sales Limited and (2) Mueller Primaflow Limited.

 

3.2.6

Notice of Assignment dated 24 July 2012

 

3.2.7

Planning Consent with application number C/00986/05/FUL.

 

3.2.8

Service Charge Accounts for financial year ending 30 June 2011

 

3.2.9

Service Charge Accounts for financial year ending 30 June 2013

 

3.2.10

Service Charge Accounts for financial year ending 30 June 2014

 

4.

Blackburn

 

4.1

Lease

 

 

4.2	Title Documents

 

4.2.1

Official copy register and title plan for leasehold – title number LA950964.

 

4.2.2

Official copy register and title plan for freehold – title number LA876124.

 

4.2.3

Official copy register and title plan for freehold – LA87030.7.

 

4.2.4

Agreement for Lease dated 6 October 2003 and made between (1) Steelacre 2 Limited and (2)  Instox Limited.

 

4.2.5

Certificate of Practical Completion dated 1 March 2005

 

4.2.6

Planning consent with application number 10.95/0674.

 

4.2.7

Planning consent with application number 10.99/0796.

 

4.2.8

Advertisement consent with application number 10.99/0795.

 

4.2.9

Planning consent with application number 10/03/0264.

 

4.2.10

Fire safety completion certificate for application number 03/0918 dated 31 March 2004

 

4.2.11

Building control certificate of completion for application number 03/0918 dated 28 May 2004

 

4.2.12

Asbestos survey dated July 2005.

 

5.	Bridgwater

 

5.1

Lease

 

 

5.2	Title Documents

 

5.2.1

Official copy register and title plan for leasehold – title number ST283223.

 

5.2.2

Official copy register and title plan for freehold – title number ST206202.

 

5.2.3

Agreement for Lease dated 13 November 2009 and made between (1) Alvin Mark Lindley and (2) Mueller Primaflow Limited.

 

5.2.4

Schedule of Condition to Lease dated January 2010.

 

5.2.5

Asbestos survey dated 23 November 2009.

 

5.2.6

Discharge Consent number 102557 dated 8 April 2004.

 

6.

Cardiff

 

6.1

Lease

 

 

6.2	Title Documents

 

6.2.1

Official copy register and title plan for leasehold – title number CYM177577.

 

6.2.2

Headlease dated 30 March 2000 and made between (1) Cardiff County Council (2) Food Parks UK Limited and (3) Portfolio Holdings Limited.

 

6.2.3

Deed of Variation dated 2 August 2002 and made between (1) The County Council of the City and County of Cardiff and (2) J R Smart (Builders) Ltd

 

6.2.4

Agreement for Lease dated 25 March 2004 and made between (1) J R Smart (Builders) Ltd and (2) Instox Limited.

 

6.2.5

Deed of Covenant dated 16 April 2004 and made between (1) The County Council of the City and County of Cardiff and (2) Instox Limited.

 

6.2.6

Notice of Subletting dated 27 April 2004

 

6.2.7

Certificate of Practical Completion dated 12 December 2003

 

6.2.8

Planning consent with application number 01/01304/R.

 

6.2.9

Planning consent with application number 02/02461/R.

 

6.2.10

Planning consent with application number 3354/C.

 

6.2.11

Planning consent with application number 96/01143/R.

 

6.2.12

Planning consent with application number 99/01857/R.

 

6.2.13

Building regulations approval with approval number TROWBR/77/02/FC

 

6.2.14

Building regulations approval with approval number TROWBR/77/02/FC/A1.

 

6.2.15

Building regulations approval with application number TROW/00137/03/FC.

 

6.2.16

Discharge of conditions for planning consents 96/01143/R and 02/2461/R

 

6.2.17

Building regulations certificate of completion for building regulations approval TROWBR/77/02/FC

 

6.2.18

Building regulations fire safety works certificate of completion for building regulations approval TROWBR/77/02/FC

 

6.2.19

Electricity Wayleave Agreement dated 10 May 2005 and made between (1) J R Smart (Builders) Ltd and (2) Western Power Distribution (South Wales) Plc

 

6.2.20

Building Condition Survey report dated March 2004

 

6.2.21

Asbestos survey dated July 2005.

 

6.2.22

Service Charge Accounts for financial year ending 31 December 2012

 

6.2.23

Service Charge Accounts for financial year ending 31 December 2013

 

6.3	Warranties

 

6.3.1

Warranty agreement dated 16 April 2004 and made between (1) Per Aarsleff Piling and (2) Instox Limited.

 

6.3.2

Warranty agreement dated 16 April 2004 and made between (1) Steve Sidford Associates and (2) Instox Limited.

 

6.3.3

Warranty Agreement dated 16 April 2004 and made between (1) RVW Consulting Limited and (2) Instox Limited.

 

6.3.4

Warranty Agreement dated 16 April 2004 and made between (1) Instox Limited and (2) JR Smart (Builders) Limited.

 

7.

Glasgow

 

7.1

Lease

 

 

7.2	Title Documents

 

7.2.1

Official copy register and title plan for freehold – title number LAN100724.

 

7.2.2

Schedule of condition prepared by Lambeth Smith Hampton dated 28 February 2012.

 

7.2.3

Licence for Fit Out Works signed by Andrew Surtees of Mueller Primaflow Limited on 15 March 2013.

 

8.

Harlow

 

8.1

Lease

 

 

8.2	Title Documents

 

8.2.1

Official copy register and title plan for freehold – title number EX232475.

 

8.2.2

Official copy register and title plan for freehold – title number EX4959471.

 

8.2.3

Official copy register for title number EX646269.

 

8.2.4

Licence for Alterations dated 11 February 2003 and made between (1) Mead Park (no 1) Limited and Mead Park (no 2) Limited (2) Instox Limited and (3) Brassware Sales Limited.

 

8.2.5

Rent Review Memorandum dated 30 September 2008 between (1) The Equitable Life Assurance Society and (2) Instox Limited.

 

8.2.6

Licence to Underlet dated 23 October 2013 and made between (1) The Prudential Assurance Company Limited (2) Mueller Primaflow Limited and (3) Robert Pringle Engineers Limited.

 

8.2.7

Underlease dated 23 October 2013 and made between (1) Mueller Primaflow Limited and (2) Robert Pringle Engineers Limited.

 

8.2.8

Rent Deposit Deed dated 23 October 2013 and made between (1) Mueller Primaflow Limited and (2) Robert Pringle Engineers Limited

 

8.2.9

Side Letter dated 23 October 2013 and made between (1) Mueller Primaflow Limited and (2) Robert Pringle Engineers Limited.

 

8.2.10

Notice of Dealing dated 4 November 2013.

 

8.2.11

Asbestos survey dated July 2005.

 

8.2.12

Energy Performance Certificate with reference number 0305-0968-4230-4900-5103.

 

8.2.13

Unit location plan.

 

8.3	Potential Assignment of Underlease

 

8.3.1

Draft Licence to Assign to be made between The Prudential Assurance Company Limited (1) Mueller Primaflow Limited (2) Robert Pringle Engineers Limited (3) and E.S.L (Basildon) Holdings Limited (4).

 

8.3.2

Bank reference from Barclays for E.S.L (Basildon) Holdings Limited dated 19 May 2014

 

8.3.3

Accountant’s reference from John Crook and Partners dated 9 May 2014

 

8.3.4

Unaudited Accounts for E.S.L (Basildon) Holdings Limited for the Year Ended 30 December 2010

 

8.3.5

Unaudited Accounts for E.S.L (Basildon) Holdings Limited for the Year Ended 30 December 2011

 

8.3.6

Unaudited Accounts for E.S.L (Basildon) Holdings Limited for the Year Ended 30 December 2012

 

8.3.7

Unaudited Accounts for E.S.L (Basildon) Holdings Limited for the Year Ended 30 December 2013

 

9.

Stockton

 

9.1

Lease

 

 

9.2	Title documents

 

9.2.1

Licence dated 18 August 2011 and made between (1) Avon Capital Estates (1) LLP (2) THUS Group Holdings plc and (3) Mueller Primaflow Limited.

 

9.2.2

Licence for Alterations dated 18 August 2011 and made between (1) Avon Capital Estates (1) LLP (2) THUS Group Holdings plc and (3) Mueller Primaflow Limited.

 

10.

Wokingham

 

10.1

Lease

 

 

10.2	Title Documents

 

10.2.1

Official copy register and title plan for leasehold – title number BK385393.

 

10.2.2

Official copy register and title plan for freehold – title number BK388447.

 

10.2.3

Rent Review Memorandum dated 11 December 2008 and made between (1) Eurocrest Estates Limited and (2) Instox Limited.

 

10.2.4

Section 106 Agreement dated 9 August 2000 and made between (1) District Estates Limited and (2) Wokingham District Council.

 

10.2.5

Supplemental Section 106 Agreement dated 8 August 2001 and made between (1) District Estates Limited (2) Wokingham District Council and (3) Countryside Properties (Commercial) Plc.

 

10.2.6

Certificate of Practical Completion dated 28 February 2002

 

10.2.7

Planning permission with application number F/2001/3415.

 

10.2.8

Planning permission with application number 99/69389/F.

 

10.2.9

Defects Re-Inspection dated 5 August 2003.

 

10.2.10

Wayleave Agreement dated 23 April 2001 and made between (1) The District Estates Limited and (2) British Telecommunications Plc

 

10.2.11

Asbestos survey dated July 2005.

 

10.2.12

Ground Conditions Investigation and Assessment dated January 2000.

 

10.2.13

Completion Statement for ground contamination and asbestos removal remediation works dated March 2001.

 

10.2.14

Letter from Environmental Services in connection with the Completion Statement, dated 2 September 2002

 

10.2.15

Remediation Action Plan for zonal soil removal dated March 2001.

 

10.2.16

Letter from Environment Agency dated 9 September 2003.

 

10.3	Collateral Warranties

 

10.3.1

Building contractor warranty dated 30 October 2003 and made between (1) Instox Limited and (2) Marbank Construction Limited.

 

10.3.2

Collateral warranty dated 30 October 2003 and made between (1) Instox Limited and (2) Paul Johnson Architects Limited.

 

10.3.3

Collateral warranty dated 30 October 2003 and made between (1) Instox Limited and (2) West Mewson Consulting Engineers Limited t/a AWA.

 

10.3.4

Collateral warranty dated 30 October 2003 and made between (1) Instox Limited and (2) Tweeds Project Services Limited.

 

10.3.5

Collateral warranty dated 30 October 2003 and made between (1) Instox Limited and (2) Griffiths Cleator Associates Limited

 

10.3.6

Sub-contractors warranty dated 30 October 2003 and made between (1) Instox Limited and (2) Chalbrook Services Limited.

 

10.3.7

Sub-contractors warranty dated 30 October 2003 and made between (1) Instox Limited and (2) Hanson Concrete Products Limited t/a Hanson Birchwood.

 

10.3.8

Sub-contractors warranty dated 30 October 2003 and made between (1) Instox Limited and (2) Industrial Hi-tech Heating Contractors Limited.

 

 

 
 

 

 
 

 

 

 

1	SELLER CAPACITY

 

1.1	Authorisations

 

1.1.1

This Agreement and the documents in the agreed terms referred to in it constitute (or shall constitute when executed) valid, legal and binding obligations on the Seller in the terms of the Agreement and the documents in the agreed terms referred to in it.

 

1.1.2

Compliance by the Seller with the terms of this Agreement and the documents in the agreed terms referred to in it shall not breach, or constitute a default under, any agreement or instrument to which the Seller is party or by which it is bound or any order, judgment, decree or other restriction applicable to the Seller.

 

2	THE COMPANY, THE SHARES AND SUBSIDIARIES

 

2.1	Incorporation and existence

 

2.1.1

The Company is a limited company incorporated under English law and has been in continuous existence since incorporation.

 

2.1.2

The information in Schedule 1 is true and accurate.

 

2.2	The Shares

 

 

2.3	The Subsidiaries

 

2.3.1

Each of the Subsidiaries is a wholly-owned subsidiary of the Company and each of the shares of each such company has been properly allotted and issued and is fully paid or credited as fully paid.

 

2.3.2

There is no Encumbrance in relation to the any of the shares in the capital of any of the Subsidiaries.

 

2.3.3

Each Subsidiary has been dormant (within the meaning of section 1169 of the Companies Act 2006 (as amended)) and outside the charge to corporation tax throughout its last 3 complete financial years and its current financial year, it has no assets of any kind and no liabilities or obligations of any kind whatsoever (whether present or future, actual or contingent) and there are no circumstances which could give rise to any liability or obligation on the part of each Subsidiary.

 

2.4	Other matters

 

2.4.1

The Company:

 

a)	does not own any shares or stock in the capital of, nor does it have any beneficial or other interest in, any company or business organisation other than the Subsidiaries;

 

b)	has not allotted or issued any securities that are convertible into shares;

 

c)	has not at any time purchased, redeemed or repaid any of its own share capital;

 

d)	does not control or take part in the management of (including as a shadow director) any other company or business organisation;

 

e)	does not have any liability as a former member, officer or shadow director of any body corporate, partnership or unincorporated association, nor are there any circumstances in which such liability could arise;

 

f)	is not currently nor has it agreed to become a member of any partnership or other unincorporated association, joint venture or consortium; and

 

g)	has not given any financial assistance in contravention of any applicable law or regulation.

 

2.4.2

The Company does not have any branch, agency, place of business or permanent establishment outside England and Wales.

 

3

ACCOUNTS

 

3.1

General

 

3.1.1

The Accounts show a true and fair view of:

 

a)	the assets, liabilities, financial position and state of affairs of the Company as at the Last Accounts Date; and

 

b)	the profits and losses of the Company (or of the Group to the extent that they are consolidated accounts) for the financial year ended on the Last Accounts Date.

 

3.1.2

The Accounts have been:

 

a)	prepared and audited in accordance with the standards, principles and practices specified on the face of the Accounts and, subject thereto, in accordance with UK GAAP; and

 

b)	prepared on a basis consistent with the 3 preceding accounting periods of the Company.

 

3.2	The Accounts:

 

a)	make proper provision in accordance with UK GAAP for all bad and doubtful debts and all obsolete, damaged or slow moving stock;

 

b)	depreciate all fixed assets in accordance with UK GAAP and at the rates specified in the Accounts;

 

c)	make proper provision or reserve in accordance with UK GAAP for or disclose in accordance with UK GAAP all liabilities (including all contingent or deferred liability to Tax) of the Company and the Group whether actual, contingent, disputed or otherwise; and

 

d)	are not affected by any extraordinary, exceptional or non-recurring items or by any transaction, contract or arrangement not on entirely arm’s length terms or by any other matter making the financial position and results shown in the Accounts unusual or misleading.

 

3.3	Accounting and other records

 

3.3.1

The books of account and all other material records of the Company (including any which it may be obliged to produce under any contract now in force) are in its possession and are accurate and complete in all material respects.

 

3.3.2

All deeds and documents (properly stamped where stamping is necessary for enforcement thereof) belonging to the Company are in the possession of the Company.

 

3.4	Management accounts

 

 

3.4.1

have been prepared on a basis consistent with that employed in preparing the management accounts of the Company for each month during the twelve month period prior to 31 December 2013 and in accordance with good business practice;

 

3.4.2

having regard to the purpose for which they were prepared, do not contain any material inaccuracies;

 

3.4.3

having regard to the purpose for which they were prepared, make adequate provision for all bad and doubtful debts and all obsolete, damaged or slow moving stock; and

 

3.4.4

having regard to the purpose for which they were prepared, do not materially overstate the profits nor materially understate the losses of the Company in respect of the periods to which they relate.

 

3.5	Changes since the last accounts date

 

 

3.5.1

the Company has carried on the Business in the ordinary course and as a going concern;

 

3.5.2

the Company has managed its working capital in the ordinary and usual course, and in a manner consistent with its management of working capital during the financial period in respect of which the Accounts were drawn;

 

3.5.3

no dividend, bonus or other distribution of profits or assets has been, or agreed to be, declared, made or paid by the Company and no management charge or other similar charge has been paid by the Company to the Seller or any Related Company of the Seller;

 

3.5.4

the Company has not borrowed or raised any money or taken any form of financial security and no capital expenditure has been incurred on any individual item by the Company in excess of £10,000 and the Company has not acquired, invested in or disposed of (or agreed to acquire, invest in or dispose of) any individual item in excess of £10,000;

 

3.5.5

no shareholder resolutions of the Company have been proposed or passed;

 

3.5.6

no payment has been made by the Company to, or benefit conferred (directly or indirectly) by, the Company on behalf of the Seller or any Related Company of the Seller.

 

4

ASSETS

 

4.1	Title and condition

 

4.1.1

There are no Encumbrances, nor has the Company agreed to create any Encumbrances, over any part of its undertaking or assets, and each asset used by the Company (tangible or intangible) is:

 

a)	legally and beneficially owned by the Company; and

 

b)	where capable of possession, in the possession of the Company and situated in England, Scotland or Northern Ireland.

 

4.1.2

The Company owns each asset (tangible or intangible) necessary for the operation of the Business as currently conducted.

 

4.1.3

All plant, machinery, vehicles and equipment owned or used by the Company are in reasonable condition and working order having regard to their age and usage and have been appropriately maintained.  None is dangerous.

 

4.1.4

All assets owned or used by the Company which are subject to a requirement of licensing or registration of ownership, possession or use are duly licensed or registered in the sole name of the Company.

 

4.1.5

All vehicles owned or used by the Company (including company vehicles used by any of its Employees) are registered in the sole name of the Company and are duly licensed and insured for all purposes for which they are used, and all registration documents relating thereto are in the possession of the Company.

 

4.1.6

The asset registers of the Company comprise a complete and accurate record of all material plant, machinery, equipment and vehicles owned, held or used by the Company and are capable of being reconciled in respect of each item with the book values of such assets in the accounting records of the Company.

 

4.1.7

Maintenance contracts are in place in respect of all assets of the Company which it is normal or prudent to have maintained by independent or specialist contractors and in respect of all assets which the Company is obliged to maintain or repair under any hire purchase, leasing, rental, insurance or other agreement; and all those assets have been regularly maintained in accordance with the terms and conditions of any such agreements.

 

4.2	Hire purchase and leased assets

 

 

4.3

Stock

 

 

4.3.1

is in the Seller’s reasonable opinion adequate in relation to the current trading requirements of the Business but not surplus to those requirements;

 

4.3.2

is in satisfactory condition;

 

4.3.3

is covered by appropriate insurance;

 

4.3.4

is within the control of the Company; and

 

4.3.5

is all accurately recorded in the books of account of the Company.

 

5	FINANCIAL MATTERS

 

5.1

Full details of all bank accounts maintained or used by the Company (including the name and address of the bank with which the account is kept and the number and nature of the account) are included within the Disclosure Documents.  Since the date of the bank reconciliations provided on Completion, no payment out of any of the accounts has been made, except for routine payments in the ordinary course of trading, and the present balances are not substantially different from those shown in those reconciliations.

 

5.2

No guarantee, mortgage, charge, pledge, lien, assignment or other security agreement or arrangement has been given by or entered into by the Company in respect of borrowings or other obligations of any third party or entered into by any third party in respect of borrowings or other obligations of the Company.

 

5.3	The Company has no outstanding loan capital, has not lent any money that has not been repaid, and there are no debts owing to the Company other than debts that have arisen in the normal course of business.

 

5.4	The Disclosure Documents include details of all overdraft, loan, foreign exchange and other financial, leasing and credit facilities currently available to the Company ("Facilities").

 

5.5	No alteration has been made to the terms of any of the Facilities since the Last Accounts Date and they are all in full force and effect.

 

5.6	None of the Facilities depends on any guarantee, indemnity or any security provided by any of the Seller or any third party.

 

5.7	The Company has not factored or discounted any of its debts or engaged in financing of a type which would not need to be shown or reflected in the Accounts or waived any right of set-off it may have against any third party.

 

5.8

The has been no contravention of or any non-compliance with the terms and conditions of any of the Facilities and no indebtedness of the Company is due and payable and no security over any of the assets of the Company is now enforceable, whether by virtue of the stated maturity date of the indebtedness having been reached or otherwise.  The Company has not received any notice whose terms have not been fully complied with or carried out from any creditor requiring any payment to be made or intimating the enforcement of any security which it may hold over the assets of the Company.

 

6	EFFECT OF SALE

 

 

6.1	cause the Company to lose the benefit of any material asset, permit, grant, subsidy, licence, or right it presently enjoys;

 

6.2

conflict with, or result in a breach of, or give rise to an event of default under, or require the consent of a person under, or enable a person to terminate, any material agreement, arrangement or obligation to which the Company is a party or a material legal or administrative requirement in any jurisdiction;

 

6.3	relieve any person of any material obligation to the Company (whether contractual or otherwise) or enable any person to determine any such obligation or any material right or benefit enjoyed by the Company or to exercise any material right in respect of the Company; or

 

6.4	result in any officer or Senior Employee receiving any payment or benefit or, so far as the Seller is aware, result in any officer or Senior Employee leaving the Company.

 

7	CONSTITUTION

 

7.1	Intra vires

 

 

7.2	Memorandum and articles, statutory books and resolutions

 

7.2.1

The memorandum and articles of association of each Group Company in the form in the Disclosure Letter are true and complete and contain or have annexed to them copies of all resolutions and agreements as are referred to in section 36(1) of the Companies Act 2006, and all amendments thereto (if any) were duly and properly made.

 

7.2.2

There is no written resolution of any Group Company with a circulation date prior to the date of this Agreement which has not yet been passed by the members or else lapsed in accordance with the Companies Act 2006.

 

7.2.3

The statutory books of each Group Company are up to date, in its possession and are complete and accurate in all material respects and in accordance with applicable legal requirements. No Group Company has received any notice or allegation that the register of members is incorrect, incomplete or should be rectified.

 

7.2.4

All resolutions, annual returns and other documents required to be delivered by any Group Company to the Registrar of Companies have been properly prepared and filed in accordance with applicable legal requirements and are complete and accurate.

 

7.2.5

Each Group Company has, at all times, complied with its articles of association.

 

7.3	Powers of attorney

 

 

8

INSURANCE

 

8.1

The Disclosure Letter contains a list of each current insurance and indemnity policy in respect of which the Company has an interest (together the “Policies”).  The Company has at all times paid the premiums on time in respect of the Policies and complied with the terms of the Policies.  The Company has not done or omitted to do anything which might make any of the Policies void or voidable or lead to any claim under the Policies being avoided by the insurers, and so far as the Seller is aware, there are no circumstances which might make any of the Policies void or voidable or lead to any claim under the Policies being avoided by the insurers.

 

8.2

The Company has at all material times been and is at the date of this Agreement adequately insured against accident, damage, injury, third party loss (including product liability), and has at all times effected such insurances as required by law and any of its contracts with Material Customers and Material Suppliers.

 

8.3	No claim is outstanding under any of the Policies and no matter exists which might give rise to a claim under any of the Policies.

 

8.4	The Company has not done or omitted to do anything which might result in an increase in the premium payable under any of the Policies.

 

9	CONTRACTUAL MATTERS

 

9.1

Contracts

 

 

a)	is not in the ordinary and usual course of business of the Company or which is material but is not on the Company’s standard terms and conditions, copies of which have been Disclosed;

 

b)	involves agency, franchising, marketing rights, partnership, joint venture, consortium, joint development, shareholders or similar arrangements;

 

c)	relates to the acquisition or disposal by the Company of shares in another company or the business or substantially all of the assets of another company;

 

d)	is capable of being terminated by a party thereto as a result of the execution or performance of this Agreement;

 

e)	restricts its freedom to engage in any activity or business in any part of the world in such manner as it thinks fit or confines its activity or business to a particular place; or

 

f)	is not on arm's length terms.

 

9.1.2

With regard to each contract to which the Company is a party (a “Contract”) no notice of termination of a Contract has been received or served by the Company, the Company has not done or omitted to do anything which would give grounds for determination, rescission, avoidance, repudiation or a material change in the terms of any such Contract and, so far as the Seller is aware, there are no circumstances in relation to the counterparties to the Contracts which would give grounds for determination, rescission, avoidance, repudiation or a material change in the terms of any such Contract.

 

9.1.3

The Company is not in material breach of any Contract and so far as the Seller is aware, no matter exists which might give rise to such a breach.

 

9.1.4

So far as the Seller is aware, no other party to a Contract is in breach of such Contract and so far as the Seller is aware no breach has been threatened.  The Seller is not aware of any matter which exists which might give rise to such a breach.

 

9.2	Trading Arrangements

 

9.2.1

The Disclosure Documents contain all material details of the terms on which the Company trades with its Material Customers and Material Suppliers.

 

9.2.2

During the 12 months ending on the date of this Agreement, there has been no substantial change in the basis or terms on which any person is prepared to do business with the Company and no Material Customer or Material Supplier has ceased or substantially reduced its business with the Company and no indication has been received by the Company or the Seller that there will or may be any such change, cessation or reduction.

 

9.2.3

The Disclosure Letter contains the material details of all promotional offers made by the Company in the two years prior to the date of this Agreement.

 

9.3	Arrangements with the Seller

 

9.3.1

There is no outstanding indebtedness or other liability (actual or contingent) and no outstanding contract, commitment or arrangement between the Company and the Seller or any Related Company of the Seller other than the Inter-Company Debt and the Disclosure Letter contains details of all such contracts or arrangements entered into between the Company and the Seller or any Related Company or connected person of the Seller in the two years preceding Completion.

 

9.3.2

Other than in relation to the Inter-Company Debt, neither the Seller nor a Related Company of the Seller is entitled to a claim of any nature against the Company or has assigned to any person the benefit of a claim against the Company to which the assignor would otherwise be entitled.

 

10	INTELLECTUAL PROPERTY

 

10.1

General

 

10.1.1

Save for software validly licensed to the Company, the Company is the sole legal and beneficial owner of the Company Intellectual Property.

 

10.1.2

The Disclosure Letter contains a complete and accurate list of all registered Company Intellectual property and applications for registration.

 

10.1.3

The Disclosure Letter contains a complete and accurate list of all material unregistered Company Intellectual Property.

 

10.1.4

The Disclosure Letter contains a complete and accurate list of all domain names used by the Company.

 

10.1.5

The Company Intellectual Property is free from Encumbrances and, so far as the Seller is aware, subsisting, valid and enforceable.

 

10.1.6

Nothing has been done, omitted or permitted by the Company and, so far as the Seller is aware, nothing has been done, omitted or permitted by any third party, which would cause the Company Intellectual Property to be subject to an action for revocation, compulsory licence, cancellation or amendment.

 

10.1.7

The Confidential Information is not subject to any disclosure obligation.

 

10.2	Renewals/maintenance

 

10.2.1

All fees for application, registration and renewal in relation to the registered Company Intellectual Property have been paid in full and on time.