Primo Water Corporation

Seller

 

Osmosis Buyer Limited

Purchaser

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Table of Contents

 

1.	Interpretation	1
2.	Sale and Purchase of the Shares	16
3.	Consideration	16
4.	Conditions	16
5.	Pre-Closing	18
6.	Closing Payment Schedule	24
7.	Closing	24
8.	Indemnities	25
9.	Intellectual Property Rights	26
10.	Leakage	29
11.	Warranties	31
12.	Tax Covenant	32
13.	Limitation of Liability	32
14.	Claims	36
15.	Termination	38
16.	Restrictions on the Seller	38
17.	Confidentiality	39
18.	Insurance	41
19.	Other Provisions	42

Schedule 1	The Company and the Subsidiaries	3
Schedule 2	Closing Obligations (Clause 7)	9
Schedule 3	Permitted Leakage	10
Schedule 4	Warranties given by the Seller under Clause 11.1	11
Schedule 5	Warranties given by the Purchaser under Clause 11.3	33
Schedule 6	Tax Covenant	34
Schedule 7	Owned Business IPR	1
Schedule 8	Material Contracts	2
Schedule 9	Material Properties	5
Schedule 10	Logos	6
Schedule 11	Separation and Transitional Services Principles	8
Schedule 12	Indemnities	22

(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

(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” and together with the Seller, the “parties”).

(A)	The Seller has agreed to sell and transfer the Shares (as defined below) and to assume the obligations imposed on the Seller under this Agreement.

(B)	The Purchaser has agreed to purchase and accept transfer of the Shares and to assume the obligations imposed on the Purchaser under this Agreement.

1.	Interpretation

1.1	Definitions

(a)

the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997;

(b)

the Foreign Corrupt Practices Act of 1977 of the United States of America, as amended by the Foreign Corrupt Practices Act Amendments of 1988 and 1998, and as may be further amended and supplemented from time to time (“FCPA”);

(c)

the UK Bribery Act 2010 (the “Bribery Act”); and

(d)

any other applicable law (including any (a) statute, ordinance, rule or regulation; (b) order of any court, tribunal or any other judicial body; and (c) rule, regulation, guideline or order of any public body, or any other administrative requirement) which:

(i)

prohibits the conferring of any gift, payment or other benefit on any person or any officer, employee, agent or adviser of such person or the request of such gift, payment or other benefit; and/or

(ii)

is broadly equivalent to the FCPA and/or the Bribery Act or was intended to enact the provisions of the OECD Convention or which has as its objective the prevention of corruption;

(a)

the retention bonuses, the amounts and recipients of which are described in column (G) of the spreadsheet provided via email by BMO at 2:35pm US CT on Thursday 26 October 2023, and which are to be paid to the relevant employees of the Group, as may be increased in the Seller’s sole discretion;

(b)

the transaction bonuses, the amounts and recipients of which are described in in column (D) of the spreadsheet provided via email by BMO at 2:35pm US CT on Thursday 26 October 2023, and which are to be paid to the relevant employees of the Group, as may be increased in the Seller’s sole discretion; and

(c)

any other retention and/or transaction bonuses to be paid in connection with the Transaction to such employees of the Group and on such terms as determined by the Seller in its sole discretion;

(a)

bottled water coolers;

(b)

mains-fed water coolers;

(c)

point-of-use filtration units;

(d)

spring water in formats larger than 1 gallon; and/or

(e)

mineral water in formats larger than 1 gallon;

(a)

information constituting exceptions to the Seller’s Warranties; and

(b)

details of other matters referred to in this Agreement;

(a)

acts of war, hostilities, military activity, terrorism, sanction, embargo or other calamity or crisis;

(b)

epidemics, pandemics, earthquakes, floods, tsunamis, hurricanes, volcanos, fires, tornadoes or other natural disasters;

(c)

changes in law or regulation;

(d)

changes in general political, economic, financial, regulatory or market conditions;

(e)

changes in conditions generally affecting the industries in which the Group Companies operate;

(f)

acts or omissions of any member of the Seller’s Group or any Group Company at the written request or with the written consent of the Purchaser; and

(g)

transactions contemplated by this Agreement or any other Transaction Document, including changes in control resulting from any such transaction, the announcement of the transactions contemplated by this Agreement, Events which are the subject of an indemnity in this Agreement or any other Transaction Document and any matter that is Disclosed;

(a)

any payment by a Group Company to, or on behalf of, or for the benefit of the Seller or any member of the Seller’s Group, including any:

(i)

dividend or distribution (whether in cash or in kind and whether actual or deemed) or any payments in lieu of any dividend or distribution, declared, paid or made;

(ii)

redemption, repurchase, repayment or return of shares, loan or other securities, or return of capital (whether by reduction of capital or otherwise and whether in cash or in kind);

(iii)

waiver, deferral, release, discount or forgiveness of any amount owed to any Group Company or any assumption, indemnification, guarantee, security, incurring or discharge of any liability (including in relation to any recharging of costs of any kind whether actual or contingent) by or on behalf of any Group Company;

(iv)

any payment made or assets, rights, value or benefit transferred or surrendered by or on behalf of a Group Company (excluding any transfers by a Group Company to another Group Company); and

(v)

consultant, director, advisory, management, monitoring, service, shareholder or other fees, charges or compensation of a similar nature paid;

(b)

any bonuses, incentives or commission (including any transaction or retention bonuses for management) paid or made (or declared to be or treated as paid or made) in connection with the preparation, negotiation or consummation of the Transaction by any Group Company, and Leakage under this paragraph (b) shall be deemed to be made to or on behalf of, or for the benefit of, the Seller;

(c)

any Seller’s Transaction Costs payable, in each case, by any Group Company to any third party in connection with implementation of the Transaction, and Leakage under this paragraph (c) shall be deemed to be made to or on behalf of, or for the benefit of, the Seller;

(d)

any agreement to enter into or carry out any of the actions or matters set out in paragraphs (a), (b) and (c) above;

(e)

any Tax or amount in respect of Tax payable or suffered (or required to be accounted for) at any time by any Group Company in respect of or in consequence of any of the matters referred to in paragraphs (a) to (d) inclusive above, and Leakage under this paragraph (e) shall be deemed to be made to or on behalf of, or for the benefit of, the Seller or member of the Seller’s Group receiving or benefitting from the matter referred to in paragraphs (a) to (d) above in respect of which the Leakage under this paragraph (e) arises; and

(f)

any Tax or amount in respect of Tax payable or suffered (or required to be accounted for) by any Group Company in respect of or in consequence of the payment, grant or vesting of any bonus or other amount, or the provision of any benefit (including the exercise of any option), to or in respect of any employee or office holder of a Group Company by the Seller or any member of the Seller’s Group, and Leakage under this paragraph (f) shall be deemed to be made to or on behalf of, or for the benefit of, the Seller,

(a)

if the relevant item of Leakage is captured within the Agreed Leakage Amount, the Closing Date; and/or

(b)

if the relevant item of Leakage is not captured within the Agreed Leakage Amount, the date on which the Seller pays to the Purchaser the amount of such Leakage pursuant to Clauses 10.3 and 10.4;

1.2	Singular, plural, gender

1.3	References to persons and companies

1.3.1

a person include any company, partnership or unincorporated association (whether or not having separate legal personality); and

1.3.2

a company includes any company, corporation or body corporate, wherever incorporated.

1.4	References to subsidiaries and holding companies

1.5	Schedules, Appendices and Annexes etc.

1.6

Headings

1.7	Reference to documents

1.8	Information

1.9	Legal Terms

1.10	Non-limiting effect of words

1.11	Currency Conversion

1.12	Reasonable endeavours

2.	Sale and Purchase of the Shares

3.	Consideration

3.1	The total consideration for the sale and purchase of the Shares shall be the payment by the Purchaser to the Seller at Closing of an amount (the “Consideration”) equal to:

3.1.1

five hundred and seventy-five million United States dollars (USD 575,000,000); less

3.1.2

the Agreed Purchase Price Adjustment;

3.1.3

the Daily Payment Amount; less

3.1.4

the Agreed Leakage Amount; less

3.1.5

the Leakage Daily Payment Amount.

3.2	Payment of the Consideration by the Purchaser to the Seller shall be made at Closing in accordance with paragraph 2.1.2 of Schedule 2.

3.3	All payments made by the Seller to the Purchaser or by the Purchaser to the Seller under this Agreement shall, so far as possible, be made by way of adjustment to the Consideration for the sale and purchase of the Shares.

4.	Conditions

4.1	Conditions Precedent

4.1.1

the Reorganisation having been completed in accordance with the Reorganisation Plan and the Seller having delivered to the Purchaser a written statement, prepared in good faith and duly executed by the Seller (the “Reorganisation Certificate”) confirming that the Reorganisation has been so completed (the “Reorganisation Condition”); and

4.1.2

the Polish Authority having provided its approval, consent, clearance, permission, authorization or confirmation of no-jurisdiction in respect of the Transaction or any appropriate waiting periods (including any extensions) having expired, lapsed or been terminated (as appropriate) (the “Merger Control Clearance”) (the “Merger Control Condition”).

4.2	Responsibility for Satisfaction

4.2.1

The Seller shall ensure the satisfaction of the Reorganisation Condition prior to the date on which Closing is due to take place in accordance with Clause 7.1.

4.2.2

The Purchaser shall assume all costs (including filing fees but excluding legal costs borne by the Seller) and use its best endeavours and take all steps necessary to obtain the Merger Control Clearance from the Polish Authority as soon as possible, but in any event prior to 5.00 p.m. (UK time) on 27 December 2023.

4.2.3

As soon as reasonably practicable, but no later than two (2) Business Days after the date of this Agreement, the Purchaser shall submit a complete merger control filing with the Polish Authority.

4.2.4

The Purchaser shall provide the Seller (or Seller’s legal advisors to the extent the relevant filing, notification, submission or documentation contains confidential business information relating to the Purchaser’s Group or the BDT Group) with a reasonable opportunity to comment on drafts of any filings, notifications, submissions, or other documentation prior to their submission to the Polish Authority and shall consider in good faith the views of the Seller. No information relating to the Seller, or any member of the Seller’s Group, or to its respective businesses shall be given to the Polish Authority without the Seller’s prior written consent.

4.2.5

The Purchaser shall organise regular review with the Seller and its legal advisors of the progress of any notifications and filings and shall promptly provide the Seller with copies of all material correspondence, documents, other communications (and written summaries of any non-written communication) (including any filing made by the Purchaser) with the Polish Authority relating to the Merger Control Clearance.

4.2.6

The Purchaser shall not participate in any meetings or discussions or correspondence with the Polish Authority relating to the Merger Control Clearance without first consulting with the Seller and taking into account in good faith its requests and requirements. Where practicable, the Purchaser shall give the Seller and its legal advisors the opportunity to participate in all meetings, communications and conferences with the Polish Authority and promptly inform the Seller of the content of any meeting or material conversation which takes place between the Polish Authority and the Purchaser or any of its employees, directors, officers, or advisers in relation to the Merger Control Clearance and shall, if requested by the Seller, provide a written summary thereof if neither the Seller nor any of its advisers participate in such meeting or material conversation with the Polish Authority.

4.2.7

Without prejudice to Clause 4.2.2, the Seller and the Purchaser agree that all requests and enquiries from the Polish Authority shall be dealt with by the Seller and the Purchaser in consultation with each other and the Seller and the Purchaser shall promptly co-operate with and provide all necessary information and assistance reasonably required by the Polish Authority upon being requested to do so by the other.

4.2.8

The Purchaser is only entitled to withdraw filings or to agree with the Polish Authority on the extension of the examination period for a filing if and to the extent the Seller has granted its prior written consent.

4.2.9

The Purchaser shall not, and shall procure that no member of the Purchaser’s Group will, prior to Closing, enter into any agreement or complete any transaction which, in each case, relates to the Business and would, or could reasonably be expected to, prevent or delay the Merger Control Clearance or otherwise interfere in a material manner with the corresponding proceedings or with the consummation of the Transaction.

4.3	Non-Satisfaction/Waiver

4.3.1

The Seller and the Purchaser may at any time jointly waive in whole or in part and conditionally or unconditionally the Conditions by written agreement.

4.3.2

If the Conditions are not satisfied or waived by 5.00 p.m. (UK time) on the Long Stop Date each of the Purchaser or the Seller may, in its sole discretion, terminate this Agreement, and neither the Seller nor the Purchaser shall have any claim against the other under it, save for any claim arising from breach of any obligation contained in Clause 4.2 and/or under the Surviving Clauses.

5.	Pre-Closing

5.1	The Seller’s Obligations in Relation to the Conduct of Business

5.1.1

The Seller undertakes to procure that between the date of this Agreement and Closing, each Group Company shall carry on its business as a going concern in the ordinary course as carried on prior to the date of this Agreement, save with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed.

5.1.2

Without prejudice to the generality of Clause 5.1.1 and subject to Clause 5.2, the Seller undertakes to procure that, between the date of this Agreement and Closing, each Group Company shall not without the prior written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed:

(a)

dispose of or grant any option in respect of any material part of its assets, or acquire any assets, in each case involving consideration, expenditure or liabilities in excess of €250,000;

(b)

make any material change in the nature or scope of its business;

(c)

enter into, modify or terminate any material contract or any contract affecting a material part of its business in a manner which is material to the Group or enter into any unusual or onerous contract, in each case having an annual value in excess of €250,000;

(d)

discontinue or cease to operate all or a material part of its business;

(e)

refinance, terminate, cancel, prepay, assign, waive or amend in any material manner the terms of, any existing financing facilities, or enter into any new financing facilities;

(f)

commence or settle any litigation which could result in a payment to, or by, a Group Company of more than €100,000, provided that this Clause 5.1.2(f) shall not prohibit any Group Company from taking any steps reasonably necessary to settle any Adjustment Litigation where the aggregate Losses incurred or suffered by the Group as a result of such steps do not exceed the applicable Adjustment Litigation Amount;

(g)

in connection with the Properties, enter into or agree:

(i)

the termination or service of notice to terminate, surrender or acceptance of any surrender of or waiver of the terms of any lease, tenancy or licence;

(ii)

the entry into or variation of any agreement, lease, tenancy, licence or other commitment in each case; and

(iii)

a material increase or variation for any rent or other payments required to be paid by a Group Company in connection with a leasehold property; or

(iv)

the granting of any easement, covenant, right of way, permit, encroachment or similar interest, including any Encumbrances;

(h)

create, allot or issue any shares, loan capital or other securities (or create any right or option to subscribe for any share or other security);

(i)

reduce its share capital or purchase or redeem its own shares;

(j)

declare, authorise or pay any dividend or other distribution (whether in cash, stock or in kind);

(k)

acquire (whether by way of purchase, subscription or otherwise) any share or other interest in any person or other venture or acquire any business carried on by any person;

(l)

incorporate any subsidiary undertaking;

(m)

create any Encumbrance over its shares or over any of its assets;

(n)

enter into, authorise or complete any statutory merger, absorption, demerger or other legal combination or division (including for the avoidance of doubt a merger between the Company and its Subsidiary CHATEAU D’EAU S.à r.l.);

(o)

enter into of any transaction with any member(s) of the Seller’s Group other than on arm’s length terms and in the ordinary course of business;

(p)

make a loan to any person (other than to another Group Company) in excess of €50,000;

(q)

incur capital expenditure in excess of €500,000 other than in the ordinary course of business;

(r)

terminate the employment contract or enter into any employment contract with a new employee with an annual base salary of more than €90,000 (or, where the relevant employee is part of, or will become an employee who will be part of, the CIT Business, €60,000), other than validly for cause pursuant to the terms of their employment contract;

(s)

transfer the employment of any employee of any Group Company with an annual base salary of more than €40,000 from any Group Company to any member of the Seller’s Group;

(t)

take any steps to effect its winding up, liquidation, administration, receivership or other analogous insolvency proceedings;

(u)

change its residence for Tax purposes or create any permanent establishment or other place of business in any jurisdiction in which the relevant Group Company is not so resident as at the date of this Agreement;

(v)

change the conduct of its Tax affairs in a manner which is materially inconsistent with such conduct prior to the date of this Agreement;

(w)

amend any Tax return, or amend or withdraw any claim, election, surrender, notice, consent or other relevant filing for Tax purposes, except to the extent such amendment or withdrawal was taken into account in the Locked Box Accounts or could not have a material adverse effect on the Tax position of any Group Company after Closing;

(x)

enter into any agreement with any Tax Authority or settle any dispute with or enquiry by any Tax Authority, except to the extent such agreement, settlement or discussion was taken into account in the Locked Box Accounts or could not reasonably be expected to have a material adverse effect on the Tax position of any Group Company after Closing;

(y)

amend its articles of association, by-laws or equivalent constitutional documents or adopt further articles of association, by-laws or equivalent constitutional documents;

(z)

grant any rights in relation to, or enter into, terminate or modify any agreement relating to, any of the Business IPR (other than registrations or applications for, or other rights in, any Seller Marks in territories outside the Protected Territories) (the “Relevant Business IPR”), except in each case to grant any non-exclusive licence in the ordinary course of business which does not place any material restrictions or limitations on the operation of the Business conducted by the Group Companies or the use by the Group Companies of the Relevant Business IPR; or

(aa)

allow any registrations for the Relevant Business IPR to lapse, be abandoned or be surrendered or for applications in relation to the Relevant Business IPR to not be prosecuted.

5.1.3

Without prejudice to the generality of Clause 5.1.1 and subject to Clause 5.2:

(a)

the Seller undertakes to procure that, between the date of this Agreement and Closing, each relevant Group Company shall (as applicable) pay the relevant Bonuses relating to the Transaction; and

(b)

the Purchaser undertakes to procure that, following Closing, each relevant Group Company shall (as applicable) pay the relevant Bonuses relating to retention, provided that (a) the Seller shall provide the Purchaser with all information reasonably required to make such payments; and (b) the Seller shall include such amounts in the Seller Notified Leakage Amount to be notified to the Purchaser in accordance with Clause 10.2.1.

5.2	Exceptions to Seller’s Obligations in Relation to the Conduct of Business

5.2.1

subject to Part F of Schedule 12, any action taken by any member of the Seller’s Group to implement the Reorganisation in accordance with the Reorganisation Plan;

5.2.2

any matter reasonably undertaken by any Group Company in an emergency or disaster situation with the intention of minimising any adverse effect of such situation in relation to the Group (of which the Purchaser will be notified promptly);

5.2.3

any matter expressly permitted by this Agreement or required to give effect to and to comply with this Agreement;

5.2.4

any action required to be undertaken to comply with applicable legal or regulatory requirements; and/or

5.2.5

any matter undertaken at the written request or with the prior written consent of the Purchaser, provided, that, in respect of Clause 5.2.2, the Seller shall notify the Purchaser as soon as reasonably practicable of any action taken or proposed to be taken pursuant thereto, shall provide to the Purchaser all such information as the Purchaser may reasonably request in relation to such action and shall, where able to do so under applicable law, consult with the Purchaser and take into account any reasonable requests of the Purchaser, in each case prior to taking any such action.

5.3

Insurance

5.4	Announcement Obligation

5.5	Debt Financing

5.5.1

The Seller shall, in each case at the sole cost of the Purchaser, use all commercially reasonable endeavours to, and shall cause the Group Companies to use all commercially reasonable endeavours to, provide cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by the Purchaser, including:

(a)

participating in a reasonable number of meetings and presentations with prospective lenders and ratings agencies, including direct contact between appropriate members of senior management of the Group Companies, on the one hand, and the actual and potential lenders, on the other hand;

(b)

assisting with the preparation of materials for rating agency presentations, bank information memoranda (including a bank information memorandum that does not include material non-public information and the delivery of customary authorization letters with respect to the bank information memoranda executed by a senior officer of the Group Companies authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Group Companies) and similar documents required in connection with the Debt Financing;

(c)

taking actions reasonably requested by the Purchaser to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available on the Closing Date;

(d)

unless it takes undue or onerous efforts to produce, furnishing, at least three (3) Business Days prior to the Closing Date, such documentation and information as is requested in writing by the Purchaser at least ten (10) days prior to the Closing Date to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and 31 C.F.R. §1010.230, in order to satisfy the conditions set forth in the Conditions Exhibit;

(e)

executing definitive documents and instruments required to consummate the Debt Financing (provided that such documents shall be effective no earlier than as of the Closing and no director or officer that will cease to hold office after the Closing shall be required to execute any such document or instrument) and taking reasonable steps to facilitate the grant of guarantees and the pledging of collateral in connection with the Debt Financing provided that such documents shall be effective no earlier than as of the Closing;

(f)

cooperating with, and taking all actions reasonably requested by, the Purchaser in order to facilitate the release and termination of guarantees, security interests and definitive documents for the Existing Credit Facility (as they relate to any Group Company, or the assets or equity interests thereof, subject to the Closing) at Closing upon or simultaneously with the funding of the Debt Financing, and arranging for delivery to the Purchaser of Release Letters, lien terminations and other instruments of discharge in customary form and substance as set forth in Schedule 2; and

(g)

unless it takes undue or onerous efforts to produce, furnishing the Purchaser and the Debt Financing Sources with any pertinent and customary information regarding the Group Companies as may be reasonably requested by the Purchaser to the extent that such information is required in connection with the Debt Commitment Letter (including all information required by the Conditions Exhibit).

5.5.2

The Seller hereby consents, on behalf of itself and the Group Companies, to the use of the Group Companies’ logos in connection with the Debt Financing; provided that such logos are used in a manner that is not intended or reasonably likely to harm or disparage the Group Companies’ reputation or goodwill.

5.5.3

Clause 5.5.1 shall not require the Group Companies to:

(a)

take any action that would conflict with or violate any Group Company’s organisational documents or applicable law;

(b)

take any action that would result in any shareholder, officer, director, manager or other representative of any Group Company incurring any personal liability with respect to any matters relating to the Debt Financing;

(c)

take any action to the extent it would unreasonably interfere with the business or operations of the Group Companies or would result in a breach of or give rise to a right of termination under any material customer or supply agreement or would breach the provisions of this Agreement; or

(d)

pay any fee or expense in connection with the Debt Financing prior to the Closing unless reimbursed by the Purchaser.

5.5.4

The Purchaser shall indemnify and hold harmless the Seller and each Group Company from and against any and all Losses suffered or incurred by them in connection with the Debt Financing (including actions taken in accordance with this Clause 5.5), except to the extent that such Losses result from (i) the Seller or the Group having provided the Purchaser (or omitted to provide the Purchaser) with information that was intentionally materially incorrect or misleading (including as a result of its omission) or (ii) the gross negligence, bad faith or wilful misconduct of the Seller or the Group.

5.5.5

The Purchaser may amend, amend and restate or replace the Debt Commitment Letter with any Alternative Debt Commitment Letter to provide for any alternative or replacement Debt Financing in connection with the transactions contemplated by this Agreement, provided that either:

(a)

the Alternative Debt Commitment Letter (i) does not impose new or additional conditions precedent or expand upon the conditions precedent to the Debt Financing set forth in the existing Debt Commitment Letter in any manner that would reasonably be expected to delay the Closing and (ii) does not reduce the aggregate amount of available Debt Financing to less than the amount required in order for Purchaser to consummate the transactions contemplated by this Agreement; or

(b)

the Seller has provided the Purchaser with prior written consent to such amendment, amendment and restatement or replacement (as applicable).

5.5.6

The Purchaser acknowledges and agrees that obtaining Debt Financing or financing of any kind is not a condition to completion of the Transaction and reaffirms its obligation to consummate the Transaction subject solely to the satisfaction or waiver of the Conditions irrespective and independently of the availability of the Debt Financing or any other financing.

5.5.7

The Purchaser shall use commercially reasonable endeavours to: (a) subject to Clause 5.5.5 and to the extent necessary to pay the Consideration and discharge the Purchaser’s obligations pursuant to paragraph 2.1.2 of Schedule 2, maintain in effect the Debt Financing Commitment until Closing has occurred; (b) to the extent necessary to pay the Consideration and discharge the Purchaser’s obligations pursuant to paragraph 2.1.2 of Schedule 2, satisfy on a timely basis all conditions precedent applicable to the Purchaser or any member of the Purchaser’s Group in the Debt Financing Commitment; and (c) to the extent necessary to pay the Consideration and discharge the Purchaser’s obligations pursuant to paragraph 2.1.2 of Schedule 2, enter into definitive agreements with respect thereto, and obtain the Debt Financing, on the terms and conditions contemplated by the Debt Financing Commitment and the related fee letters (or terms and conditions that are no less favourable to the Seller’s Group).

5.5.8

Notwithstanding anything to the contrary contained herein, the Seller, on behalf of itself and the Group Companies, hereby irrevocably and unconditionally acknowledges and agrees that this Agreement may not be enforced against any Debt Financing Sources Related Party and no Debt Financing Sources Related Party shall have any liability under this Agreement for any action of any kind or description (whether in tort, contract or otherwise) based on, in respect of, or by reason of, the transactions contemplated hereby, including any dispute related to, or arising from, the Debt Financing, the Debt Commitment Letter, any of the agreements entered into in connection therewith or the performance thereof (provided that, notwithstanding the foregoing, nothing herein shall affect the rights of the Purchaser against any Debt Financing Sources Related Party with respect to the Debt Financing or any of the transactions contemplated thereby or the any services thereunder).

5.6	Works council

6.	Closing Payment Schedule

6.1	Not less than three (3) Business Days prior to the Closing Date, the Seller shall provide the Purchaser with an Excel spreadsheet (the “Closing Payment Schedule”) setting out:

6.1.1

the amount of the Consideration payable to the Seller in accordance with Clause 3.1;

6.1.2

the Daily Payment Amount in respect of the Shares;

6.1.3

the Agreed Leakage Amount (if any); and

6.1.4

the Leakage Daily Payment Amount (if any).

6.2	The Seller shall provide the Purchaser with a non-binding, draft Closing Payment Schedule no less than 10 Business Days prior to Closing.

7.

Closing

7.1	Date and Place

7.1.1

the Merger Control Condition has been satisfied on or prior to 5.00 p.m. (UK time) on 27 December 2023, then Closing shall take place on the Scheduled Closing Date; or

7.1.2

if Clause 7.1.1 does not apply, then Closing shall, unless the parties mutually agree in writing to a different date, take place on the earliest Business Day which is both (i) at least five (5) Business Days after the date on which the Merger Control Condition is satisfied in accordance with Clause 4.1.2; and (ii) the last Business Day of a month.

7.2	Closing Events

7.3	Breach of Closing Obligations

7.3.1

in the case of non-compliance by the Seller with paragraphs 1.1.1, 1.1.2, 1.1.3, 1.1.4 or 1.1.10 of Schedule 2, or in the case of non-compliance by the Purchaser with paragraphs 2.1.1 and 2.1.2 of Schedule 2, to terminate this Agreement (other than the Surviving Clauses) without liability on its part, such termination to take effect two (2) Business Days following such notice unless the other party has remedied its non-compliance in all respects by the end of the second Business Day; or

7.3.2

to effect Closing so far as practicable having regard to the defaults which have occurred; or

7.3.3

to fix a new date for Closing (being not more than 10 Business Days after the agreed date for Closing) in which case the provisions of this Clause 7.3 and Schedule 2 shall apply to Closing as so deferred but provided such deferral may only occur once. If the Long Stop Date falls before the date to which Closing has been deferred in accordance with this Clause 7.3.3 (the “Deferred Closing Date”), the Long Stop Date will be deemed to have been extended to the day immediately following the Deferred Closing Date.

7.4

Within the month following Closing, the Purchaser, and as applicable the Company, shall see to any formalities required under Luxembourg law in connection with the transfer of the Shares pursuant to this Agreement, including but not limited to causing the transfer of the Shares from the Seller to the Purchaser to be filed with the Luxembourg Register of Trade and Companies and the Luxembourg Register of Beneficial Owners.

8.	Indemnities

9.	Intellectual Property Rights

9.1	Definitions

(a)

any Branding IP (including the Seller Marks and any Transferring Brand IP);

(b)

the Intellectual Property Rights in and to the App; and

(c)

any Intellectual Property Rights licensed to the Purchaser or any Group Company under the other Transaction Documents;

(a)

the Transferring Target Domain Names; and

(b)

the Transferring Trade Marks;

(a)

the Seller’s Group will assign any identified Transferring Target Domain Names to a Group Company; or

(b)

the Purchaser’s Group will assign any identified Transferring Seller Domain Names to a member of the Seller’s Group;

(a)

are registered in the name of a Group Company;

(b)

contain any of the Seller Marks; and

(c)

have been used exclusively in the business of the Excluded Entities outside the Protected Territories in the twelve (12) months prior to the Closing Date;

(a)

are registered in the name of a member of the Seller’s Group;

(b)

contain any of the Transferring Trade Marks (but excluding, for the avoidance of doubt, the Seller Marks); and

(c)

have been used exclusively in the Business operated by the Group Companies in the twelve (12) months prior to the Closing Date;

(a)

are owned by a member of the Seller’s Group or registered in the name of a member of the Seller’s Group; and

(b)

have been used exclusively in the Protected Territories by the Business operated by the Group Companies in the twelve (12) months prior to the Closing Date, including ACQUATOR, DOBRA WODA, SIPWELL, CLEARWATER and CHATEAU D’EAU (but excluding, for the avoidance of doubt, the Seller Marks); and

9.2	Transferring Brand IP

9.2.1

any Transferring Trade Marks that are identified prior to the Closing Date are assigned to a Group Company with effect from the Closing Date on the terms of a Transferring Trade Marks Assignment; and

9.2.2

any Transferring Target Domain Names that are identified prior to the Closing Date are assigned to a Group Company with effect from the Closing Date on the terms of a Transferring Domain Name Assignment,

9.3	Transferring Seller Domain Names

9.4	Eden Springs Trade Mark Assignments

9.5	Change of Primo corporate names

9.5.1

shall procure that the Group Companies whose corporate name contains “PRIMO”, as soon as reasonably practicable following the Closing Date and in any event by the date falling two (2) years after the Closing Date, pass all required resolutions to change their corporate names to a name which does not include “PRIMO” or any confusingly similar names;

9.5.2

shall procure the prompt registration of the new names with the appropriate court or registry; and

9.5.3

upon receipt of confirmation from the appropriate court or registry that such name changes have been effected, shall provide the Seller with written proof that such name changes have been effected.

9.6	Shared Non-Branding IP

9.7	Licence of the App

9.8	Wrong pockets

9.8.1

any Intellectual Property Rights that were used exclusively in the Protected Territories in respect of the Business operated by the Group Companies at any time in the twelve (12) months prior to the Closing Date are owned by a member of the Seller’s Group, the Seller shall, or shall procure that the relevant other member of the Seller’s Group shall (as applicable), as soon reasonably practicable after becoming aware of the ownership of those Intellectual Property Rights, transfer them to the Purchaser or another member of the Purchaser’s Group nominated by the Purchaser for no additional consideration; and

9.8.2

any Intellectual Property Rights that were used, but not exclusively, in respect of the Business operated by the Group Companies at any time in the twelve (12) months prior to the Closing Date are owned by a member of the Purchaser’s Group, excluding any Transferring Technology Assets, the Purchaser shall, or shall procure that the relevant other member of the Purchaser’s Group shall (as applicable), as soon reasonably practicable after becoming aware of the ownership of those Intellectual Property Rights, transfer them to the Seller or another member of the Seller’s Group nominated by the Seller at the Seller’s cost.  For the avoidance of doubt, if there is any conflict between this Clause 9.8(b) and the provisions of Clause 1.12 (Transferring Technology Assets) of Schedule 11, Clause 1.12 of Schedule 11 shall prevail to the extent of the inconsistency.

9.9	Bibo Distributor Appointment

10.

Leakage

10.1

Covenant

10.1.1

from (but excluding) the Locked Box Date to (and including) the date of this Agreement, there has been no Leakage;

10.1.2

from the date of this Agreement to (and including) the Closing Date, there will be no Leakage; and

10.2	Adjustment for Leakage

10.2.1

The Seller shall conduct a reasonable review to identify any Leakage suffered or incurred by the Group Companies from (but excluding) the Locked Box Date until (and including) the date falling no earlier than three (3) Business Days prior to the Closing Date and shall notify the Purchaser of any amounts of Leakage identified pursuant to such review (the “Seller Notified Leakage Amount”).

10.2.2

If any breach of Clause 10.1 comes to the attention of the Purchaser on or prior to Closing, then, if the Seller agrees that Leakage has occurred as a result of such breach, the amount that would otherwise need to be paid by the Seller pursuant to Clauses 10.3 and 10.4 in respect of such Leakage shall be the “Purchaser Notified Leakage Amount”.

10.2.3

An amount equal to:

(a)

the aggregate of the Seller Notified Leakage Amount and the Purchaser Notified Leakage Amount (being the “Agreed Leakage Amount”); plus

(b)

the aggregate of all Leakage Daily Payment Amounts applicable to the Agreed Leakage Amount,

10.3	Payment for Leakage

10.4	Adjustments to the Leakage calculation

10.5	Limitations

10.5.1

The liability of the Seller under this Clause 10 shall terminate on the expiry of the period of nine (9) months following the Closing Date, save in respect of any such claim of which the Purchaser has given notice in writing to the Seller before the expiry of that period containing reasonable details of the relevant breach and of the calculation of the amounts claimed.

10.5.2

The aggregate liability of the Seller in respect of all claims under this Clause 10 shall not exceed the amount of Leakage made to or on behalf of, or for the benefit of, the Seller or the Seller’s Group incurred or suffered by any Group Company plus any applicable Leakage Daily Payment Amount.

10.5.3

The Seller shall have no liability to the Purchaser under Clause 10.1, Clause 10.2 or Clause 10.3 if Closing does not occur.

11.	Warranties

11.1	The Seller’s Warranties

11.1.1

The Seller warrants to the Purchaser that the statements set out in Schedule 4 are true and accurate as of the date of this Agreement and, in respect of the Fundamental Warranties and Tax Warranties only, will be true and accurate at Closing as if they had been repeated at Closing by reference to the facts and circumstances then existing.

11.1.2

The only Seller’s Warranties given in respect of Tax matters are the Tax Warranties and each of the other Seller’s Warranties shall be deemed not to be given in respect of such matters.

11.1.3

Any Seller’s Warranty qualified by the expression “so far as the Seller is aware” or any similar expression shall, unless otherwise stated, be deemed to refer to the actual knowledge of Tom Harrington (CEO), David Hass (CFO), Krzysztof Zarzeczny, Matt Vernon and Eva Ben-Mizzian having made reasonable inquiries into the matter (with no imputation of the knowledge of any other person).

11.1.4

The Purchaser acknowledges and agrees that the Seller does not give or make any warranty or representation as to the accuracy of the forecasts, estimates, projections, statements of intent or statements of opinion provided to the Purchaser or any of its directors, officers, employees, agents or advisers on or prior to the date of this Agreement, including in the site visit materials contained in folder 2.3 of the Clean Room Folder in the Data Room.

11.2	Seller’s Disclosures

11.2.1

The Seller’s Warranties (other than the Fundamental Warranties) are subject to any matter which is Disclosed in the Disclosure Letter.

11.2.2

The deemed repetition of the Tax Warranties on Closing shall further be subject to any matter which is Disclosed in the Supplementary Disclosure Letter.

11.3	The Purchaser’s Warranties

11.3.1

The Purchaser warrants to the Seller that the statements set out in Schedule 5 are true and accurate as of the date of this Agreement.

11.3.2

The Purchaser further warrants to the Seller that the statements set out in Schedule 5 will be true and accurate in all respects at Closing as if they had been repeated at Closing by reference to the facts and circumstances then existing.

11.4	Loss basis enhancement undertaking

12.	Tax Covenant

13.	Limitation of Liability

13.1	Time Limitation for Claims

13.1.1

Claim for a breach of a Business Warranty unless a notice of the relevant Claim is given by the Purchaser to the Seller within three years following Closing;

13.1.2

Claim for breach of a Fundamental Warranty unless a notice of the relevant Claim is given by the Purchaser to the Seller within four (4) years following Closing;

13.1.3

Reorganisation Indemnity Claim (other than a Reorganisation Indemnity Tax Claim) unless a notice of such Reorganisation Indemnity Claim is given by the Purchaser to the Seller within 18 months following Closing;

13.1.4

Tax Claim, Reorganisation Indemnity Tax Claim, Specified Tax Claim or any Specific Indemnity Claim unless a notice of such Tax Claim, Reorganisation Indemnity Tax Claim, Specified Tax Claim or Specific Indemnity Claim is given by the Purchaser to the Seller within seven (7) years following Closing.

13.2	Minimum Claims

13.3	Aggregate Minimum Claims

13.3.1

The Seller shall not be liable for any Claim for a breach of the Business Warranties or the Tax Warranties unless the aggregate amount of all such Claims for which the Seller would (but for this Clause 13.3.1) be liable exceeds USD 2,875,000.

13.3.2

Where the liability agreed or determined for any such Claim or series of Claims exceeds USD 2,875,000, subject as provided elsewhere in this Clause 13, the Seller shall be liable for the entire amount of the Claim or series of Claims as agreed or determined and not just the excess.

13.4	Maximum Liability

13.4.1

all Claims for breach of the Business Warranties shall not exceed €1.00; and

13.4.2

all other Claims in relation to this Agreement (including all Claims for breach of a Fundamental Warranty, Reorganisation Indemnity Claims, Reorganisation Indemnity Tax Claims, Specified Tax Claims and Specific Indemnity Claims) but excluding, for the avoidance of doubt, any claim for a breach of Clause 10 (to which the provisions of Clause 10 shall apply), shall not exceed an amount equal to the Consideration payable to (or at the direction of) the Seller at Closing.

13.5	Contingent Liabilities

13.6

Losses

13.7	Provisions

13.8	Matters Arising Subsequent to this Agreement

13.8.1

The Seller shall not be liable for:

(a)

any Claim (other than any Tax Claim (to which the provisions of Schedule 6 shall apply) or any Reorganisation Indemnity Claim, any Reorganisation Indemnity Tax Claim, any Specific Indemnity Claim or any Specified Tax Claim) to the extent that the Claim has arisen as a result of anything done or omitted to be done by the Seller pursuant to and in compliance with this Agreement or any other Transaction Document or otherwise at the request in writing or with the approval in writing of the Purchaser; or

(b)

any Claim (other than a Tax Claim (to which the provisions of Schedule 6 shall apply)) to the extent that the Claim has arisen as a result of any voluntary act, omission or transaction of the Purchaser or any member of the Purchaser’s Group or any of the Group Companies, or their respective directors, officers, employees or agents or successors in title, after Closing, other than any act, omission or transaction which is either (i) contemplated by this Agreement or any other Transaction Document; (ii) carried out or effected pursuant to a legally binding commitment created or a legal requirement imposed on or before Closing; (iii) carried out or effected at the written request or with the written permission of the Seller; or (iv) carried out or effected by the Group Company concerned in the ordinary course of business of that Group Company as carried on at Closing.

13.8.2

The Seller shall not be liable for any Claim for a breach of Seller’s Warranty (other than a Claim for breach of the Fundamental Warranties or a Tax Claim (to which the provisions of Schedule 6 shall apply)) to the extent that the Claim has arisen as a result of:

(a)

the passing of, or any change in, after Closing, any law, rule, regulation or published administrative practice of any government, governmental department, agency or regulatory body including (without prejudice to the generality of the foregoing) any increase in the rates of Taxation;

(b)

any change after Closing of any generally accepted and published interpretation or application of any legislation;

(c)

any change after Closing of any generally accepted accounting principles, procedure or published practice; or

(d)

any change in accounting or Taxation reporting practice of the Purchaser or the Purchaser’s Group introduced or having effect after Closing, other than a change which is necessary in order to comply with the law or generally accepted accounting principles applicable to the Purchaser or the relevant Group Company at Closing.

13.9	Purchaser’s Actual or Constructive Knowledge

13.10

Purchaser’s Right to Recover

13.10.1

Prior to Recovery from the Seller etc.

13.10.2

Following Recovery from the Seller etc.

13.11

Corresponding Benefits

13.12

No Double Recovery and no Double Counting

13.12.1

No party may recover for breach of or under this Agreement more than once in respect of the same Losses suffered (or part of such Losses), and no amount (including any Tax relief) (or part of any amount) shall be taken into account, set off or credited more than once for breach of or under this Agreement, with the intent that there will be no double counting for breach of or under this Agreement.

13.12.2

The Purchaser may not recover for a breach under this Agreement if and to the extent that it or a member of the Purchaser’s Group has actually recovered the relevant amount in respect of the same Loss under the W&I Policy.

13.13

Mitigation

13.14

Fraud

13.15

Warranty and Indemnity Insurance

13.15.1

the parties agree and acknowledge that, as at the date of this Agreement, the Purchaser has entered into or will (after this Agreement has been entered into but on the same date as this Agreement) enter into the W&I Policy, which contains a waiver from the W&I Insurer waiving its rights to take subrogated action or to exercise rights assigned to it against the Seller or its directors or officers in relation to any Claim, other than in the event of fraud or fraudulent misrepresentation by either the Seller or its directors or officers;

13.15.2

the Purchaser:

(a)

shall not agree to any amendment, variation or waiver of the waiver referred to in Clause 13.16.1 (or do anything which has a similar effect) without the prior written consent of the Seller; and

(b)

shall not novate, or otherwise assign its respective rights with respect to the waiver referred to in Clause 13.16.1 (or do anything which has similar effect) or do anything which causes the waiver referred to in Clause 13.16.1 not to have full force and effect in accordance with its terms;

13.15.3

the Purchaser acknowledges and agrees that the Seller shall not be liable to pay any excess or any of the costs relating to the W&I Policy (or, for the avoidance of doubt, any title insurance); and

13.15.4

the parties agree that the Purchaser’s sole recourse in respect of any Claim for breach of a Business Warranty shall be under the W&I Policy, save in the case of the first €1.00 due in respect of all such Claims or in the case of fraud or fraudulent misrepresentation by the Seller.

14.

Claims

14.1	Notification of Potential Claims

14.2	Notification of Claims

14.3	Tax Authority Claims

14.3.1

Upon the Purchaser or any Group Company becoming aware of a Tax Authority Claim which could give rise to, result in or increase any Reorganisation Indemnity Tax Claim or any Specified Tax Claim, the Purchaser shall procure that the relevant Group Companies take such action and give such information and assistance in connection with the affairs of the relevant Group Companies as the Seller may reasonably and promptly by written notice request to avoid, dispute, resist, appeal, compromise or defend the Tax Authority Claim, provided that the Seller shall indemnify the Purchaser and the relevant Group Companies to the Purchaser’s reasonable satisfaction for reasonably incurred expenses and provided that, in the Purchaser’s reasonable opinion, such action is not likely to affect materially adversely either the future liability of the Purchaser or the Group Company concerned to Tax or the business or financial interests of any of them.

14.3.2

If the Seller does not request the Purchaser to take any appropriate action within thirty (30) calendar days of notice to the Seller (whether or not given pursuant to Clause 14.1), or no action is required to be taken by virtue of Clause 14.3.1, the Purchaser shall be free to satisfy or settle (or allow the Group Company concerned to satisfy or settle) the relevant Tax Liability on such terms as it may in its absolute discretion think fit (provided that, for the avoidance of doubt, Clauses 14.3.3 to 14.3.5 (inclusive) shall continue to apply in any event).

14.3.3

In relation to any Tax Authority Claim, the Purchaser shall:

(a)

keep the Seller fully informed of the progress of all material matters as soon as reasonably practicable;

(b)

promptly notify the Seller of any intended material oral communication or any meeting with a relevant Tax Authority and/or tax counsel, including details of any finalised agenda (and a summary of the position proposed to be taken in relation to the points on such agenda) and (where within the Purchaser’s control) allow the Seller or its representative to attend any such meeting;

(c)

promptly provide the Seller with copies of or extracts from all material documents (including copies of any notes relating to any oral communication or meeting referred to in paragraph (b) above and advice received from tax counsel) and material correspondence; and

(d)

at least ten (10) Business Days prior to the date of any intended submission, provide to the Seller for prior review any material document or correspondence which is to be submitted to the relevant Tax Authority and make such amendments to such documents or correspondence as the Seller may reasonably require (if such comments are notified to the Purchaser on a timely basis).

14.3.4

The Purchaser shall procure that no Tax Authority Claim is settled or otherwise compromised without the Seller’s prior written consent (not to be unreasonably withheld, conditioned or delayed), provided that the Seller shall indemnify the Purchaser and the relevant Group Companies to the extent reasonable in respect of any Losses to the extent arising as a result of the relevant Tax Authority Claim not being so settled or otherwise compromised when the opportunity first arose.

14.3.5

The Purchaser shall use reasonable efforts to ensure that no member of the Purchaser Group nor any Group Company nor any of their respective advisers shall submit any correspondence or return or send any document to any Tax Authority where the Purchaser is aware that the effect of submitting such correspondence or return or sending such document will put such Tax Authority on notice of any matter which will give rise to, or will increase, a Reorganisation Indemnity Tax Claim or a Specified Tax Claim, without first affording the Seller a reasonable opportunity to comment thereon and without taking account of such comments if reasonably made and on a timely basis, and provided that nothing in this Clause 14.3.5 shall operate to as to require the Purchaser or any Group Company to file a return otherwise than on a proper basis or otherwise than in compliance with applicable laws, as determined by the Purchaser acting reasonably and in good faith.

15.	Termination

15.1	If this Agreement is terminated in accordance with Clause 4.3.2, Clause 7.3.1 or is otherwise terminated by written agreement between the parties, the rights and obligations of the parties under this Agreement shall cease immediately, other than the Surviving Clauses.

15.2	The Purchaser may terminate this Agreement (other than the Surviving Clauses) by written notice to the Seller at any time before Closing if any Material Adverse Change occurs at any time before Closing.

16.	Restrictions on the Seller

16.1	Restrictions

16.1.1

in any Relevant Capacity during the Restricted Period induce or seek to induce any Restricted Employee to become employed whether as employee, consultant or otherwise by any member of the Seller’s Group, whether or not such Restricted Employee would thereby commit a breach of his contract of service, except for those persons who (a) answer an advertisement of a post available to the public generally; or (b) are recruited through an employment agency, provided that no member of the Seller’s Group encourages or advises such agency to approach any Restricted Employee; or

16.1.2

carry on or be engaged or concerned or interested economically or otherwise in any manner in any business that competes with the Business in the Protected Territories for a period of two (2) years after the Closing Date.

16.2	Exceptions

16.3	Reasonableness of Restrictions

16.4	Interpretation

16.4.1

“Relevant Capacity” means for its own account or for that of any person, firm or company (other than for the Purchaser or the Group Companies);

16.4.2

“Restricted Employee” means any person who is a Senior Employee, provided that such person is employed by the Group at the time the Seller or member of the Seller’s Group (other than a Group Company) approaches that person; and

16.4.3

“Restricted Period” means one (1) year commencing on Closing or such shorter period of time recognised by applicable law as being binding on the Seller.

16.5	Waiver of Rights

17.	Confidentiality

17.1	Announcements

17.1.1

any announcement, communication, or circular required by law or any governmental or regulatory body or the rules of any stock exchange on which the shares of any party or its holding company are listed provided that the party with an obligation to make an announcement or communication or issue a circular (or whose holding company has such an obligation) shall consult with the other party (or shall procure that its holding company consults with the other party) and take into account their reasonable comments, in each case insofar as is reasonably practicable before complying with such an obligation; and

17.1.2

any earnings announcements and/or investor conferences in the ordinary course of business of any party.

17.2	Confidentiality

17.2.1

Subject to Clauses 17.1 and 17.2.2, each of the Seller and the Purchaser shall treat as strictly confidential and not disclose or use any information received or obtained as a result of entering into this Agreement (or any other Transaction Document) which relates to (“Confidential Information”):

(a)

the existence and the provisions of this Agreement and of any other Transaction Document;

(b)

the negotiations relating to this Agreement (and any other Transaction Document);

(c)

(in the case of the Seller) any information relating to the Group Companies and any other information relating to the business, financial or other affairs (including future plans and targets) of the Purchaser’s Group; and

(d)

(in the case of the Purchaser) any information relating to the business, financial or other affairs (including future plans and targets) of the Seller’s Group.

17.2.2

Clause 17.2.1 shall not prohibit disclosure or use of any information if and to the extent:

(a)

the disclosure or use is required by law, any governmental or regulatory body or any stock exchange on which the shares of a party or its holding company or, in the case of the Purchaser, any member of the BDT Group are listed (including where this is required as part of any actual or potential offering, placing and/or sale of securities of any member of the Seller’s Group, the Purchaser’s Group or, in the case of the Purchaser, the BDT Group);

(b)

the disclosure is made by the Purchaser to any other member of the Purchaser’s Group or to any member of the BDT Group, or to any of member of the Purchaser’s Group’s or any member of the BDT Group’s respective shareholders, partners, managers, investors or potential investors in any connected fund;

(c)

the disclosure or use is required to vest the full benefit of this Agreement in the Seller or the Purchaser;

(d)

the disclosure or use is required for the purpose of any judicial proceedings arising out of this Agreement or any other Transaction Document;

(e)

the disclosure is made to a Tax Authority to the extent reasonably required in order to facilitate the efficient management of the Tax affairs of the disclosing party or, if the disclosing party is the Seller, the Seller’s Group or, if the disclosing party is the Purchaser, the Purchaser’s Group or the BDT Group;

(f)

the disclosure is made to a party to whom assignment is permitted under Clause 19.3.2 on terms that such assignee undertakes to comply with the provisions of Clause 17.2.1 in respect of such information as if it were a party to this Agreement;

(g)

the disclosure is made to advisers, consultants or actual or potential debt or equity financiers of any member of the Seller’s Group, any member of the Purchaser’s Group or any member of the BDT Group, in each case on terms that such advisers, consultants or financiers undertake to comply with the provisions substantially similar to Clause 17.2.1 in respect of such information;

(h)

the information is or becomes publicly available (other than by breach of the Confidentiality Agreement or of this Agreement);

(i)

the disclosure is made on a confidential basis to potential purchasers of all or part of the Seller’s Group, the Purchaser’s Group or the BDT Group or to any of their professional advisers, consultants or debt or equity financiers provided that such persons need to know the information for the purposes of considering, evaluating, advising on or furthering the potential purchase;

(j)

the disclosure is made to the W&I Insurer on a confidential basis for the purposes of the W&I Policy;

(k)

the disclosure is made in connection with an earnings announcement and/or investor conference in the ordinary course of business of any party;

(l)

the other party has given prior written approval to the disclosure or use; or

(m)

the information is independently developed without reference to any Confidential Information; or

(n)

the disclosure is made to an actual or potential lender, debt financing source, Debt Financing Source Related Party or other potential source of capital for the purposes of Clause 5.5 and consists only of information customarily disclosed to such lender or source,

18.

Insurance

18.1	The Purchaser acknowledges and agrees that from the Closing Date:

18.1.1

no Group Company shall have or be entitled to the benefit of any Seller’s Insurance Policy in respect of any event, act or omission that takes place after the Closing Date and it shall be the sole responsibility of the Purchaser to ensure that adequate insurance policies are put in place for such Group Company with effect from the Closing Date, provided that, subject to Clause 18.1.2, the Seller shall ensure that each Group Company continues to benefit from the applicable occurrence-based wordings in any Seller's Insurance Policy in respect of any claim or liability arising out of or in connection with any event, act or omission that takes place on or prior to the Closing Date;

18.1.2

if the Purchaser requests the Seller to bring a claim under the occurrence-based wordings in any Seller's Insurance Policy in accordance with Clause 18.1.1:

(a)

any costs relating to such claim shall be at the sole cost of the Purchaser; and

(b)

the Seller shall not be required to bring any claim that would, or would be reasonably likely to, materially increase the premium under the relevant Seller’s Insurance Policy unless the Purchaser bears the cost of any such increase to such premium that arises as a result of such claim; and

18.1.3

subject to Clause 18.2, neither the Seller nor any member of the Seller’s Group shall be required to maintain any Seller’s Insurance Policy for the benefit of any Group Company.

18.2

Notwithstanding Clause 18.1.3, the Seller and/or the Group Companies shall ensure that prior to Closing a directors’ and officers’ liability insurance policy is put or remains in place for a period of at least six years from Closing, as will enable the Group Companies to make claims arising out of any matter, cause or event occurring on or before Closing under those policies, and the cost of such insurance shall be borne by the Group Companies.

19.	Other Provisions

19.1	Further Assurances

19.1.1

Each of the Seller and the Purchaser shall, and shall use reasonable endeavours to procure, that any necessary third party shall, from time to time execute such documents and perform such acts and things as either of them may reasonably require to transfer the Shares in accordance with this Agreement and to give the other the full benefit of this Agreement.

19.1.2

The Seller shall, and shall procure that the relevant members of the Seller’s Group shall, retain for a period of seven (7) years from Closing any books, records and documents to the extent they relate to the Group Companies or the business carried on by the Group Companies at Closing and shall, and shall procure that the relevant members of the Seller’s Group shall, if reasonably requested by the Purchaser, allow the Purchaser or the relevant Group Company reasonable access to such books, records and documents, including the right to take copies, at the Purchaser’s expense, (i) for the purposes of complying with any reporting or filing obligations relating to tax, accounting or regulatory matters; (ii) in order to negotiate, refute, settle, compromise or otherwise deal with any claim, investigation or enquiry by a regulatory authority regarding the Group Companies; and (iii) to enable the Purchaser’s Group, the BDT Group and the Group Companies to comply with their own Tax obligations or facilitate the management or settlement of their own Tax affairs.

19.1.3

The Purchaser shall, and shall procure that the relevant Group Companies shall, retain for a period of seven (7) years from Closing any books, records and documents of the Group Companies to the extent they relate to the period prior to Closing and shall, and shall procure that the relevant Group Companies shall, if reasonably requested by the Seller, allow the Seller reasonable access to such books, records and documents, including the right to take copies, at the Seller’s expense, (i) for the purposes of complying with any reporting or filing obligations relating to Tax, accounting or regulatory matters; (ii) in order to negotiate, refute, settle, compromise or otherwise deal with any claim, investigation or enquiry by a regulatory authority regarding the Group Companies; and (iii) to enable the Seller’s Group to comply with its own Tax obligations or facilitate the management or settlement of its own Tax affairs.

19.1.4

Release of Guarantees

(a)

The Purchaser shall use all reasonable endeavours to procure as soon as reasonably practicable after becoming aware of any Seller Guarantee Arrangement, the release (conditional upon Closing having occurred) of the Seller or any member of the Seller’s Group (other than a Group Company) from Seller Guarantee Arrangement, provided that the Purchaser shall not be required to provide any securities, guarantees or indemnities on more onerous terms than such securities, guarantees or indemnities in place between any member of the Seller’s Group and any Group Company at the date of this Agreement.

(b)

The Seller shall use best endeavours to procure by Closing or, to the extent not done by Closing, as soon as reasonably practicable thereafter, the release of each Group Company from any and all securities, guaranties or indemnities given by or binding upon the Group Company in respect of any liability of the Seller or any member of the Seller’s Group (other than a Group Company). Pending such release, the Seller shall indemnify the Group Companies against all amounts paid by any of them pursuant to any such securities, guarantees and indemnities in respect of such liability of the Seller which arises after Closing.

19.1.5

Shared Contracts

19.2	Employee incentives

19.2.1

In respect of any share incentive, share option or other share-based incentive arrangement granted before Closing pursuant to the LTIP to an Employee or former employee of any of the Group Companies where any of the Group Companies are required to account for such liabilities to a relevant Tax Authority, the Purchaser appoints the Seller as its agent, and the Seller agrees to act as agent on behalf of the Purchaser or the relevant employing Group Company (as applicable), to collect an amount equal to any income tax and social security contributions liabilities (to the extent legally and contractually recoverable from the relevant Employees or former employees) arising on or after Closing, and pay such amounts to, or to the order of, the Purchaser or the relevant employing Group Company (as applicable).

19.2.2

If the Seller becomes aware after Closing of any matter which could give rise to a liability under Clause 19.2.1 it shall give notice of that matter to the Purchaser as soon as reasonably practicable.

19.2.3

Each of the parties shall provide all other relevant parties with all information reasonably required relating to the calculation of amounts payable under Clause 19.2.1 and the filing of payroll, withholding, income and other tax returns and forms with which such amounts are paid or reported within ten (10) Business Days of the liability arising or, if sooner, five (5) Business Days before the date the liability is payable under Clause 19.2.4.

19.2.4

The due date for payment under Clause 19.2.1 shall be five (5) Business Days before the latest date on which the income tax or social security contributions may be paid to any Tax Authority without a liability to interest and penalties arising.

19.3	Whole Agreement

19.3.1

The Transaction Documents contain the whole agreement between the Seller and the Purchaser relating to the sale and purchase of the Shares to the exclusion of any terms implied by law which may be excluded by contract and supersede any previous written or oral agreement between the Seller and the Purchaser in relation to the sale and purchase of the Shares.

19.3.2

The Purchaser agrees and acknowledges that, in entering into the Transaction Documents, it is not relying on any representation, warranty or undertaking not expressly incorporated into them.

19.3.3

Each of the Seller and the Purchaser agrees and acknowledges that its only right and remedy in relation to any representation, warranty or undertaking made or given in connection with the Transaction Documents shall be for breach of the terms of the Transaction Documents and each of the Seller and the Purchaser waives all other rights and remedies (including those in tort or arising under statute) in relation to any such representation, warranty or undertaking.

19.3.4

Nothing in this Clause 19.2 excludes or limits any liability for fraud.

19.4	Assignment

19.4.1

Except as permitted by Clauses 19.4.2 and 19.4.3 or as otherwise expressly provided in this Agreement, no party may without the prior written consent of the other party, assign, grant any security interest over, hold on trust or otherwise transfer the benefit of the whole or any part of this Agreement.

19.4.2

A party may without the consent of the other parties, assign to a member of its Respective Group and, in the case of the Purchaser, any member of the BDT Group, the benefit of the whole or any part of this Agreement provided that:

(a)

if the assignee ceases to be a member of that party’s Respective Group and, if applicable, a member of the BDT Group, it shall before ceasing to be so assign the benefit, so far as assigned to it, back to that party or assign the benefit to another member of that party’s Respective Group, or, in the case of the Purchaser, any other member of the BDT Group, as the case may be; and

(b)

the assignee shall not be entitled to receive under this Agreement any greater amount than that to which the assigning party would have been entitled.

19.4.3

This Agreement and all or any of the benefits arising under it may be assigned or charged in whole or in part by the Purchaser to its financial lenders or banks or other creditors or any member of their groups (including funds) or any security agent or trustee acting on their behalf as security agent, in each case for any financing or refinancing in respect of the transactions contemplated by the Transaction Documents (including any additional facilities and hedging made available in connection with such financing or refinancing) and such benefit may further be assigned to any other financial institution or other creditors by way of security for the borrowings of the Purchaser resulting from any refinancing of the borrowings made under such financing or refinancing or to any person entitled to enforce such security or to any transferee under a valid enforcement of such security.

19.5	Third Party Rights

19.5.1

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of, or enjoy any benefit under, this Agreement, except to the extent set out in this Clause 19.5.

19.5.2

A Group Company (whilst the Group Company remains in the Purchaser’s Group) may enforce and rely on Clause 19.1.4(b) to the same extent as if it were a party to this Agreement.

19.5.3

A Relevant Person may enforce and rely on Clause 16.5 (as applicable) to the same extent as if it were a party to this Agreement.

19.5.4

The consent of the persons to whom third party rights are granted pursuant to Clause 19.5.2 and 19.5.3 shall not be required to terminate this Agreement or to amend or waive any term thereof.

19.6

Variation

19.7	Time of the Essence

19.8	Method of Payment and Set Off

19.8.1

Any payments pursuant to this Agreement shall be made in full, without any set off, counterclaim, restriction or condition and without any deduction or withholding (save as may be required by law or as otherwise agreed).

19.8.2

Any payments pursuant to this Agreement shall be made by electronic transfer in immediately available cleared funds on the due date for payment. Confirmation that the amount due has been received by the transferee bank shall constitute a good discharge of the relevant payment obligation.

19.9

Costs

19.9.1

Save as expressly stated in this Agreement or any other Transaction Document, the Seller shall bear all costs incurred by it and the Seller’s Group in connection with the preparation, negotiation and entry into of this Agreement and the sale of the Shares.

19.9.2

Save as expressly stated in this Agreement or any other Transaction Document, the Purchaser shall bear all such costs incurred by it in connection with the preparation, negotiation and entry into of this Agreement and the purchase of the Shares.

19.9.3

The Purchaser shall bear all costs relating to the W&I Policy.

19.10

Stamp Duty

19.11

Interest

19.12

Grossing-up

19.12.1

All sums payable under this Agreement shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by law. If any deductions or withholdings are required by law from any payment in respect of a Seller Obligation or a Purchaser Obligation, the payer shall be obliged to pay to the recipient such sum as will after such deduction or withholding has been made leave the recipient with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if the recipient shall have transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated or any Respective Group or person with an interest in the recipient shall have transferred its rights under this Agreement or its interest in the recipient or changed its tax residence or the permanent establishment to which its rights under this Agreement or its interest in the recipient are allocated then the liability of the payer under this Clause 19.12.1 shall be limited to that (if any) which it would have been had no such transfer or change taken place.

19.12.2

If the recipient of a payment made under Clause 19.12.1 or Clause 19.12.3 or any Respective Group of or person with an interest in such recipient obtains a Relief in respect of the relevant deduction, withholding or Taxation, then it shall pay to the payer such amount as the recipient of the payment (acting in good faith) certifies to the payer will leave it together with any Respective Group of or person with an interest it (after such reimbursement) in no better and no worse position than it would have been in if the payer had not been required to make such deduction or withholding or such Taxation had not arisen, in each case to the relevant extent.

19.12.3

Where any payment is made under this Agreement in respect of a Seller Obligation or a Purchaser Obligation and that sum is subject to a charge to Taxation in the hands of the recipient then the sum payable shall be increased to such sum as will ensure that:

(a)

after payment of such Taxation; and

(b)

after giving credit for any Relief available to the recipient in respect of the matter giving rise to the payment, to the extent that such Relief results in an actual saving of Tax for the recipient at the time of the payment, or the recipient, acting reasonably, confirms in writing that such an actual saving of Tax is reasonably expected to be made as a result of the Relief by the end of the accounting period following the one in which the payment is made (and provided further that the recipient will provide to the payer, on demand, reasonable supporting evidence for such confirmation),

19.12.4

Clause 19.12.3 shall apply in respect of any amount deducted or withheld as contemplated by Clause 19.12.1 as it applies to sums paid to the payee, save to the extent that in computing the Tax chargeable the payee is able to obtain a credit for the amount deducted or withheld.

19.12.5

Clause 19.12.3 shall not apply:

(a)

to Taxation attributable to a payment being properly treated as an adjustment to the Consideration under the terms of this Agreement; or

(b)

to the extent that the amount of the indemnity, compensation or reimbursement payment has already been increased to take account of the Taxation that will or would be charged on receipt.

19.13

Notices

19.13.1

Subject to Clause 19.13.6, any notice or other communication in connection with this Agreement (each, a “Notice”) shall be in writing and may be delivered personally or sent by e-mail, recorded or special delivery or courier using an internationally recognised courier company.

19.13.2

A Notice to the Seller shall be sent to the following address, or such other person or address as the Seller may notify to the Purchaser from time to time:

E-mail:

mpoe@primowater.com

Attention:

Chief Legal Officer

19.13.3

Subject to Clause 19.13.4, a Notice shall be effective upon receipt and shall be deemed to have been received:

(a)

at the time recorded by the delivery company, in the case of recorded or special delivery;

(b)

at the time of delivery, if delivered by hand or courier; and

(c)

at the time of sending if sent by e-mail, provided that receipt shall not occur if the sender receives an automated message that the e-mail has not been delivered to the recipient.

19.13.4

A Notice that is deemed by Clause 19.13.3 to be received after 5.00 p.m. on any day, or on a Saturday, Sunday or public holiday in the place of receipt, shall be deemed to be received at 9.00 a.m. on the next day that is not a Saturday, Sunday or public holiday in the place of receipt.

19.13.5

For the purposes of this Clause 19.13, all references to time are to local time in the place of receipt. For the purposes of Notices by e-mail, the place of receipt is the place in which the party to whom the Notice is sent has its postal address for the purpose of this Agreement.

19.13.6

E-mail is not permitted for any Notice which terminates, gives notice to terminate or purports to terminate this Agreement.

19.14

Invalidity

19.14.1

If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the parties.

19.14.2

To the extent it is not possible to delete or modify the provision, in whole or in part, under Clause 19.14.1, then such provision or part of it shall, to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall, subject to any deletion or modification made under Clause 19.14.1, not be affected.

19.15

Agent for Service of Process

19.16

Counterparts

19.17

Arbitration

19.18

Governing Law and Submission to Jurisdiction

19.18.1

This Agreement and the documents to be entered into pursuant to it and any non-contractual obligations arising out of or in connection with this Agreement and such documents shall be governed by English law.

19.18.2

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 19.17, 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.