WYEVALE GARDEN CENTRES – OPPORTUNITY TO ACQUIRE 145 OPERATIONAL GARDEN CENTRES
Phase 1 Data Room
You must accept the following terms (the "Terms and Conditions") in order to be granted access to the Phase 1 Data Room for the Proposed Transaction. Please read the information and check the box at the bottom of the page to accept such Terms and Conditions and enter the Phase 1 Data Room.
You are being granted access to the information contained in this on-line Phase 1 Data Room for the purposes of considering the potential acquisition by you of one or more of the Garden Centres (as defined below) as part of the potential disposal of all of the Garden Centres ultimately owned by the Seller (as defined below) (the "Proposed Transaction").
You understand that access to this Phase 1 Data Room is subject to applicable law and these Terms and Conditions, which undertaking you give in favour of each of Terra Firma Investments (GP) 3 Limited (for and on behalf of Terra Firma Capital Partners III, L.P.) and Trellis Acquisitions Limited (together, the "Seller") and Wyevale Garden Centres Limited ("WGC") and each of their respective Connected Persons (as defined below).
These Terms and Conditions relate to all information and material of whatever nature at any time and from time to time supplied by Christie & Co (as agent for the Seller), the Seller, WGC or by any other Connected Person of any such person whether orally or in writing, or in digital or any other format to you and/or any of your Authorised Recipients (as defined below) or which is otherwise obtained by you and/or any of your Authorised Recipients in respect of the Proposed Transaction and/or the Garden Centre(s) (the "Confidential Information").
In consideration of the Confidential Information being disclosed to you and any of your Authorised Recipients, you agree with and undertake to Christie & Co, the Seller, WGC and each of their Connected Person as follows.
1. You will hold the Confidential Information in strict confidence and will not (directly or indirectly, in whole or in part) disclose, copy, reproduce, distribute or permit the same, to any person other than as permitted in writing by Christie & Co or the Seller, except to: (i) those of your officers, employees, Group Undertakings, agents and the officers, employees and professional advisers of any of those Group Undertakings who strictly need access to it for the purposes of evaluating, negotiating or participating in the Proposed Transaction or in the proper discharge of their duties; (ii) your professional advisers and (iii) providers of financing for the purposes of the Proposed Transaction (the persons listed in (i), (ii) and (iii) above being, together, your "Authorised Recipients"), and only to the extent that they need that access, on the terms of these Terms and Conditions and on the basis that you will procure that they themselves will not disclose, copy, reproduce or distribute or permit the same in respect of such Confidential Information to any person who is not an Authorised Recipient.
1. You undertake not to (and to procure that your Authorised Recipients will not), without Christie & Co's or the Seller's prior written consent:
(a) reveal, disclose or announce to any person other than an Authorised Recipient, the contents of these Terms and Conditions, the Confidential Information, that negotiations are taking place in relation to the Proposed Transaction or any information concerning the status or progress of such negotiations; or
(b) use the Confidential Information for any purpose other than to evaluate, negotiate or participate in the Proposed Transaction and in particular you will not use (and will procure that your Authorised Recipients do not use) the Confidential Information: (i) for any other purpose or in any way that is or may be detrimental to the Proposed Transaction, the Seller, WGC and/or the Garden Centre(s); or (ii) in the future conduct of your or your Authorised Recipients' trading operations except where our discussions result in your buying any Garden Centre(s).
2. You further undertake:
(a) to effect and maintain (and to procure that your Authorised Recipients effect and maintain) the same security, privacy and confidentiality measures to safeguard the Confidential Information from unauthorised access, use and misappropriation as you and your Authorised Recipients would maintain to safeguard your own similar information that you do not wish to publicly disclose;
(b) to keep and make available to Christie & Co and the Seller on demand a list of all Authorised Recipients to whom any Confidential Information is given; and
(c) to notify (and to procure that your Authorised Recipients notify) Christie & Co and the Seller as soon as practicable of any unauthorised use, copying or disclosure of the Confidential Information of which you become aware and to provide all reasonable assistance to Christie & Co, the Seller, WGC and each other Connected Person with a view to terminating such unauthorised use, copying or disclosure.
3. You acknowledge that the Confidential Information may include personal data which is subject to the Data Protection Act 1998 and the General Data Protection Regulations and undertake that, insofar as it does, you will not (and you will procure that your Authorised Recipients will not) do anything in relation to that data that would cause any person to be in breach of those laws and regulations.
4. You will (and you will procure that your Authorised Recipients will) only make sufficient Copies (as defined below) of the Confidential Information as may be reasonably required for the purpose of evaluating, negotiating or participating in the Proposed Transaction or (where applicable) in the proper discharge of an Authorised Recipient's duty as your or another Authorised Recipient's officer, and mark as confidential any analyses, plans, reports, compilations, studies and other documents that contain or otherwise reflect or are generated from any Confidential Information.
5. The obligation to maintain the confidentiality of the Confidential Information does not apply to any part of the Confidential Information which:
(a) at the time of supply to you or your Authorised Recipients is or has become publicly known, except through breach of the undertakings set out in these Terms and Conditions by you or your Authorised Recipients;
(b) subsequently comes lawfully into your possession or that of an Authorised Recipient from a third party who is not obliged to keep the Confidential Information confidential; or
(c) is required to be disclosed by law, regulation or any governmental or competent regulatory authority, as long as you or the Authorised Recipient making such disclosure first consults the Seller on, and takes into account the Seller's reasonable requirements in respect of, the proposed form, timing, nature and purpose of the disclosure.
6. You will, before any disclosure, notify each of your Authorised Recipients to whom any Confidential Information is to be disclosed of the confidential nature of the Confidential Information and procure that each of your Authorised Recipients who receives any Confidential Information is aware of the obligations under these Terms and Conditions and adheres to the terms of these Terms and Conditions as if that person had given the undertakings contained in these Terms and Conditions in your place.
7. You confirm that you will be responsible for any fees, costs and fees incurred by you or your employees, agents or advisers in connection with the Proposed Transaction. None of Christie & Co, the Seller or WGC nor any of their Connected Persons will in any circumstances bear any such fees, costs or expenses.
8. You will, to the extent reasonably practicable, destroy or (if required by Christie & Co) return (and will procure that your Authorised Recipients destroy or return) to Christie & Co or the Seller on demand (and in any case no later than five business days following such demand), or in any event if you cease to be interested in acquiring any Garden Centre, any document (including any note, analysis or memorandum prepared by you or your Authorised Recipients) containing Confidential Information and any Copies which may have been made, and take reasonable steps to expunge all Confidential Information from any computer, word processor or other device containing Confidential Information (and following such deletion not attempt to recover such material) and confirm (at the request of Christie & Co or the Seller) in writing that such destruction or deletion has taken place. The undertakings in this paragraph shall not apply to any Confidential Information which you or an Authorised Recipient must retain under any applicable law, rule or regulation, including the rules of a professional body.
9. Without prejudice to paragraph 2(b), you undertake not to (and you will procure that none of your Authorised Recipients will), without the Seller's prior written consent, for a period of 12 months from the date on which you first access the Phase 1 Data Room:
(a) directly or indirectly make or have any contact whatsoever in relation to any Garden Centre or the Proposed Transaction with any shareholder, director, officer, employee, consultant, agent or professional adviser of the Seller or WGC or any of their Group Undertakings or any person who has been a supplier, contractor or sub-contractor of or to any of them in relation to the Garden Centre(s) in the 12 months preceding the date on which you first access the Phase 1 Data Room; or
(b) directly or indirectly solicit, endeavour to entice away, employ or offer to employ any officer or senior executive of the Seller or WGC or any of their Group Undertakings. For the avoidance of doubt, this paragraph 10(b) does not prohibit you or your Authorised Recipients from engaging in any of the activities referred to in this paragraph 10(b) where the relevant person approaches you or your Authorised Recipients as a result of general advertising not specifically directed to personnel of the Seller, WGC or any of their Group Undertakings.
10. You understand that the Confidential Information does not purport to be all inclusive and that none of Christie & Co, the Seller or WGC nor any of the Connected Persons make any representation or warranty (express or implied) as to the accuracy, reliability or completeness of any of the Confidential Information. You acknowledge and agree that none of Christie & Co, the Seller or WGC nor any of the Connected Persons are under any obligation to correct any inaccuracies or omissions in the Confidential Information which may exist or become apparent. Accordingly, you agree with each of Christie & Co, the Seller, WGC and each of their Connected Persons that none of Christie & Co, the Seller or WGC nor any of their Connected Persons shall have any liability to you or any other person resulting from the inaccuracy, unreliability or incompleteness of any of the Confidential Information and/or the use of any of the Confidential Information by you and/or them and, without prejudice to the generality of the foregoing, that you and your Authorised Recipients will be bound by the terms of any disclaimer of liability on our part and/or on the part of any of the Connected Persons. This paragraph will not exclude any liability for, or remedy in respect of, fraud or fraudulent misrepresentation.
11. Save as expressly set out in these Terms and Conditions, none of Christie & Co, nor any of the Connected Persons shall owe any duty of care to you nor any other person.
12. Nothing in these Terms and Conditions will be construed as granting to or conferring on you or any of your Authorised Recipients any proprietary rights in or to the Confidential Information.
13. The Seller reserves the right in its sole and absolute discretion to: (i) accept or reject any offer from any person (whether or not such offer represents the highest proposed acquisition price for any Garden Centre) without notice or explanation; (ii) change the procedure, or terminate or restart any and all discussions and negotiations (including those with you) in relation to the whole or any part of the Proposed Transaction, at any time; and (iii) conduct negotiations and conclude any agreement with any interested party or parties, including negotiating with any one or more interested party or parties in respect of the same Garden Centre or Garden Centres and/or entering into exclusivity agreements with prospective purchasers in respect of any Garden Centre or Garden Centres without notifying any other interested party. Any transaction with you or any other party is subject to contract.
14. Without affecting any other rights or remedies that they may have, you acknowledge that a person with rights under these Terms and Conditions may be irreparably harmed by any breach of their terms and that damages alone may not necessarily be an adequate remedy. Accordingly, a person bringing a claim under these Terms and Conditions will be entitled to the remedies of injunction, specific performance and other equitable relief, or any combination of these remedies, for any threatened or actual breach of its terms, and no proof of special damages will be necessary to enforce these Terms and Conditions. The failure to exercise or delay in exercising a right or remedy provided by this agreement, by law or in equity, does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this agreement, by law or in equity prevents further exercise of the right or remedy or the exercise of another right or remedy available to any of Christie & Co, the Seller, WGC or any of their Connected Persons whether contractual, equitable, proprietary or otherwise.
15. You acknowledge and agree that documents or information, whether containing Confidential Information or otherwise, made available to you or any of your Authorised Recipients prior to or in the course of discussions in respect of the Proposed Transaction, shall not constitute an offer by any person and are not intended as, and should not be construed in any way as, a recommendation, invitation or inducement (direct or indirect) to you or any of your Authorised Recipients to engage in investment activity and that any subsequent sale would be of real property and would not involve securities or investments (including specified or controlled investments pursuant to the Financial Services and Markets Act 2000).
16. You acknowledge that none of Christie & Co, the Seller or WGC nor any of their Connected Persons has any control over, nor any liability with respect to, the operation of or contents of any virtual data rooms or sites used in connection with the Proposed Transaction, including any liability with regard to (i) availability of or access to any data room or site or (ii) the security of any data room or site.
17. You acknowledge and agree that the undertakings set out in these Terms and Conditions will survive completion of negotiations, whether or not any sale of any Garden Centre(s) to you is completed. Such undertakings shall survive for a fixed period of two years from the date on which you first access the Phase 1 Data Room. The terms of these Terms and Conditions and your obligations under these Terms and Conditions may only be amended or modified by written agreement between you and the Seller.
18. If any provision of these Terms and Conditions is held to be invalid or unenforceable, that provision shall (so far as it is invalid or unenforceable) have no effect and shall be deemed not to be included in these Terms and Conditions, but without invalidating any of the remaining provisions.
19. Each of the Seller, WGC and each of their Connected Person shall have the right under the Contracts (Rights of Third Parties) Act 1999 to enforce the terms of these Terms and Conditions (as amended from time to time), subject to and in accordance with paragraph 21. The parties to these Terms and Conditions may by agreement terminate or rescind or vary it in any way without the consent of any of the other Connected Persons. Save as provided in this paragraph 20, a person who is not a party to these Terms and Conditions shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
20. These Terms and Conditions, the relationship between the parties and each Connected Person, the conduct of the procedure for the sale by us and the Seller of the Garden Centre(s) and any non-contractual rights arising out of these Terms and Conditions, shall be governed by, and construed in accordance with, English law, and each party irrevocably submits to the exclusive jurisdiction of the English courts.
For the purposes of these Terms and Conditions:
"Connected Persons" means (a) the Seller, WGC and each of their respective directors, officers, employees, consultants, professional advisers, bankers, agents and representatives; (b) each of the Seller's, WGC&'s respective Group Undertakings and their respective directors, officers, employees, professional advisers, consultants, bankers, agents and representatives; (c) directors, officers, employees and partners of any such adviser, agent or representative or of their respective Group Undertakings;
"Control" and its derivatives means the power of a person in relation to another person to secure (i) by means of the holding of shares or the possession of voting power in that person or any other person, or (ii) by virtue of any powers conferred by the articles of association or other document regulating or relating to that person, that the affairs of that person are conducted in accordance with the wishes of the person with such power (and "Controlled" shall be construed accordingly);
"Copies" means any copies of Confidential Information, including any document, electronic file, note, extract, analysis, report and any other way of representing or recording or recalling information which contains, reflects or is derived from the Confidential Information;
"Group Undertaking" means, in relation to a person, that person and any person that Controls or is Controlled by or is under common Control, with, that person from time to time and includes, without limitation, subsidiary undertakings and parent undertakings as defined in the Companies Act 2006;
"Garden Centre" means any garden centre or associated business owned and/or operated by WGC (and its related assets and businesses);
"Seller" means, together, Terra Firma Investments (GP) 3 Limited (for and on behalf of Terra Firma Capital Partners III, L.P.) and Trellis Acquisitions Limited; and
"WGC" means Wyevale Garden Centres Limited and each of its Group Undertakings.
By clicking on the "Accept" button below, I acknowledge that I have read, understood and agree, on my own behalf and on behalf of the organisation I represent, to the above Terms and Conditions.