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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 1/02/24 Primo Water Corp./CN 8-K:1,2,7,912/28/23 13:799K Broadridge Fin’l So… Inc |
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 34K 2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 62K Liquidation or Succession 3: EX-99.1 Miscellaneous Exhibit HTML 21K 4: EX-99.2 Miscellaneous Exhibit HTML 502K 8: R1 Document and Entity Information HTML 47K 11: XML IDEA XML File -- Filing Summary XML 12K 9: XML XBRL Instance -- ef20017660_8k_htm XML 16K 10: EXCEL IDEA Workbook of Financial Report Info XLSX 8K 6: EX-101.LAB XBRL Labels -- prmw-20231228_lab XML 64K 7: EX-101.PRE XBRL Presentations -- prmw-20231228_pre XML 46K 5: EX-101.SCH XBRL Schema -- prmw-20231228 XSD 15K 12: JSON XBRL Instance as JSON Data -- MetaLinks 13± 21K 13: ZIP XBRL Zipped Folder -- 0001140361-24-000191-xbrl Zip 62K
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(1) |
PRIMO WATER CORPORATION a company incorporated in Canada whose
registered office is at 1200 Britannia Rd East Mississauga, Ontario, Canada L4W 4T5 (the Seller); and
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(2) |
OSMOSIS BUYER LIMITED a company incorporated in England whose
registered office is at Fourth Floor Abbots House, Abbey Street, Reading, Berkshire, United Kingdom, RG1 3BD (the Purchaser),
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(A) |
The Seller and the Purchaser entered into a share purchase agreement on 2 November 2023 (the SPA) relating to the acquisition by the Purchaser, from the Seller, of the entire issued and outstanding shares in the share capital of Carbon Luxembourg S.à.r.l. whose registered office
is at 9, rue de Bitbourg, L-1273 Luxembourg, Grand Duchy of Luxembourg with RCS Luxembourg number B263162 (the Company).
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(B) |
The Parties wish to amend the terms of the SPA in accordance with clause 19.6 (Variation) of the SPA, subject to and in accordance with the terms of this Agreement.
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1. |
Interpretation
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1.1. |
Terms used but not defined in this Agreement shall have the meanings given to them in the SPA.
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1.2. |
Clauses 1.2 to 1.4 (inclusive) and 1.6 to 1.12 (inclusive) of the SPA shall apply to this Agreement as if references to “this Agreement” in such clauses were
references to this Agreement.
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2. |
Amendment of the SPA
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2.1. |
The Parties agree that, with effect from the date of this Agreement:
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(a) |
the definition of “Agreed Purchase Price Adjustment” in clause 1.1 of the SPA shall be replaced by the following:
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(b) |
the definition of “Protected Territories” in Clause 1.1 of the SPA shall be replaced by the following:
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(c) |
the following definition shall be inserted in Clause 1.1 of the SPA:
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(a) |
images and other materials created during, and derived from, marketing photo shoots arranged by, or carried out on behalf of, Primo Water Europe S.L.U;
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(b) |
the digital marketing campaign created by or on behalf of Primo Water Europe S.L.U, including all images, content and other materials created for that campaign; and
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(c) |
the TV marketing campaign created by or on behalf of Primo Water Europe S.L.U including all films, images, content or other materials created for that campaign,
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(i) |
any Branding IP (including the Seller Marks and any Transferring Brand IP); and
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(ii) |
the Intellectual Property Rights in and to the App;”
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(d) |
the following new sub-clauses 9.6A and 9.10 to 9.13 (inclusive) shall be inserted in Clause 9 of the SPA:
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(a) |
the software application known as COM; and
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(b) |
any proprietary configurations, customisations, modifications or integrations of any third party software (including those relating to Drupal, Magento, SAP, Hyperion and
Essbase) that have been created prior to Closing.
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(a) |
in relation to any online presence, including any website or app, for the purpose of advertising and/or promoting the products and/or services of the members of the Seller’s
Group to be provided outside the Protected Territories; and/or
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(b) |
to provide non-customer-facing services, including preparing, developing and printing advertising materials, in the Protected Territories for use outside the Protected
Territories.
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(a) |
in relation to any online presence, including any website or app, for the purpose of advertising and/or promoting the products and/or services of the Group Companies to be
provided in the Protected Territories;
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(b) |
to provide non-customer-facing services, including preparing, developing and printing advertising materials, outside the Protected Territories for use in the Protected
Territories; and/or
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(c) |
in order to exercise its rights to sell products in the webshop operated by the Business of the Group Companies on the websites located at the URLs www.maquinas-agua.pt and
www.waterdispensers-primo.co.uk and the account operated by the Business of the Group Companies on www.amazon.co.uk.
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(e) |
Part C of Schedule 12 of the SPA shall be amended to read as follows:
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(f) |
Paragraph (1)(a) of Part B of Schedule 12 shall be amended as follows:
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2.2. |
The Seller and the Purchaser hereby acknowledge and agree that it is proposed that, following Closing, the Company (and/or any of its Subsidiaries) may transfer
(i) its equity interests in Chateau D’Eau S.à.r.l. and (ii) its equity interests in Eden Springs (Nederland) B.V., and that such transfers may be taxable to the Company and may reasonably be expected to result in the Company suffering
or incurring Luxembourg recapture tax by reference to amounts of interest, write-down or other expense incurred on or before Closing in respect of the participations held by the Company and Cott Luxembourg. The Seller hereby grants its
permission to such transfers for the purposes of clause 13.8.1(b)(iii) of the SPA and, accordingly, any Specified Indemnity Claim under paragraph (b) of Part A of Schedule 12 to the SPA in respect of such transfers shall not be excluded
under or pursuant to clause 13.8.1(b)(iii) of the SPA.
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2.3. |
The Seller shall indemnify and hold the Purchaser harmless, from and against, and the Seller hereby covenants to pay to the Purchaser, on demand, an amount
equal to any stamp duty and all registration and transfer taxes and duties or their equivalents in all jurisdictions where such taxes and duties are payable (including any reasonable costs incurred by the Purchaser and/or any Group
Company in connection with the payment of such taxes and duties) in connection with the transfer by Eureau Sources (a French société par actions
simplifiée registered at the trade and companies registry of Aurillac under number 440 874 923) of its shares in La Licorne Holding (a French société
par actions simplifiée registered at the trade and companies registry of Romans under number 808 841 290) to the other shareholders of La Licorne Holding.
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2.4. |
Each variation under this Agreement constitutes a variation pursuant to, and in accordance with clause 19.6 (Variation) of the SPA, with effect from the date of this Agreement.
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2.5. |
Except as varied by the terms of this Agreement, the provisions of the SPA will remain in full force and effect.
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2.6. |
Save as otherwise expressly provided in this Agreement, nothing in this Agreement shall constitute a waiver or discharge of any rights, benefits, obligations
and/or liabilities of the Purchaser or the Seller under the SPA which have accrued immediately prior to execution of this Agreement.
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3. |
Acknowledgements
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3.1. |
The Seller and the Purchaser each acknowledge that (i) this Agreement constitutes a “Transaction Document” as defined in the SPA and (ii) all documents to which
the Seller and the Purchaser are both a party which make reference to the SPA shall be deemed to refer to the SPA as amended by this Agreement.
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3.2. |
Any reference in the SPA to the date of the SPA shall be a reference to 2 November 2023 rather than a reference to the date of this Agreement.
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4. |
Warranties
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(a) |
the Warrantor has obtained all corporate authorisations and all other governmental, statutory, regulatory or other consents, licences and authorisations
required to empower it to enter into and perform its obligations under this Agreement; and
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(b) |
entry into and performance by the Warrantor of this Agreement will not:
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(i) |
breach any provision of its constitutional documents; or
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(ii) |
result in a breach of any laws or regulations in its jurisdiction of incorporation or of any order, decree or judgment of any court or any governmental or regulatory authority,
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5. |
Further Assurance
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6. |
Whole Agreement
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7. |
Costs
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8. |
Counterparts
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9. |
Variations
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10. |
Third Party Enforcement Rights
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11. |
Arbitration
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12. |
Governing Law and Jurisdiction
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12.1. |
This Agreement and any non-contractual obligations arising out of or in connection with this Agreement shall be governed by English law.
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12.2. |
Each of the Parties irrevocably submits to the non-exclusive jurisdiction of the courts of England to support and assist the arbitration process pursuant to
clause 10, including if necessary the grant of interlocutory relief pending the outcome of that process. The emergency arbitrator provisions in Article 9B of the LCIA Rules shall not apply.
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12.3. |
The Seller shall at all times maintain an agent for service of process and any other documents in proceedings in England or any other proceedings in connection with this
Agreement. Such agent shall be Eden Springs UK currently of The Pinnacle, 170 Midsummer Boulevard, Milton Keynes, England, MK9 1FE and any claim
form, judgment or other notice of legal process shall be sufficiently served on the Seller if delivered to such agent at its address for the time being. The Seller irrevocably undertakes not to revoke the authority of this agent and if,
for any reason, the Purchaser requests the Seller to do so, it shall promptly appoint another such agent with an address in England and advise the Purchaser. If, following such a request, the Seller fails to appoint another agent, the
Purchaser shall be entitled to appoint one on behalf of the Seller at the Seller’s expense.
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SIGNED
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for and behalf of
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/s/ Marni Morgan Poe
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PRIMO WATER CORPORATION
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)
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SIGNED
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for and behalf of
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/s/ Mark Blunden
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OSMOSIS BUYER LIMITED
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)
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)
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Authorised Signatory
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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/28/24 Primo Water Corp./CN 10-K 12/30/23 141:21M |