ACQUISITION OPPORTUNITY | Project Jaguar (“the Company”)
LEADING UK AEROSOL FILLER & LIQUID PACKER
Duff & Phelps has been retained to seek a purchaser for the Company’s business and assets. All communications, enquiries and requests for information should be addressed to the following professionals:
Matthew Peat – Director Tom Bond – Senior Associate [email protected] [email protected] + 44 (0) 16 1827 9163 + 44 (0) 16 1827 9166
To find out more about Duff & Phelps Ltd. and other businesses available for sale visit www.duffandphelps.com/uk-restructuring.
Business Description / Opportunity Overview Historic Financial Performance • The principal activity of the Company is the contract filling of aerosols and liquid Profit & Loss Account FY18 12 Mnths to Sep-18 packing. £'000
• The Company was incorporated in 2002 and trades from its site in the north of England. Turnover 5,874 The site consists of three leasehold warehouses, which contain the Company’s Costs of sales (4,420) production lines, stock and back office function. The Company employs 24 members of Gross Profit 1,454 staff. 24.8% • The Company has three operational production lines, with a fourth currently being Overheads (1,434)
installed. The new line is anticipated to be operational in April 2020 and will be the EBITDA 20 Company’s most efficient and fastest line, with the potential of providing significant cost Depreciation (41) savings. Amortisation (12) Interest (27) • Butane gas is the key raw material used in the production process of aerosol products. Profit / (Loss) before tax (60) The Company has the facilities to store up to 12 tonnes of gas onsite at any one time. Taxation 6 Profit / (Loss) after tax (54) Recent Trading Performance • The Company is still finalising the FY19 accounts, however they anticipate reporting a Balance Sheet FY18 Sep-18 turnover of c£5.8m, which is broadly in line with the level achieved in FY18. £'000 Strong Market Position and Reputation FIXED ASSETS 376 CURRENT ASSETS • The Company has developed a strong relationship with its customer base since Stock 1,703 commencing trade 17 years ago. The Company exports its products all over the world, Debtors 967 Cash at Bank and in Hand - including USA, Canada, Europe and West Africa. 2,670 • As a result of these relationships, certain customers provide free-issue material to the CREDITORS: < 1 yr 2,611 Company. NET CURRENT ASSETS / (LIABILITIES) 59 Experienced Value-Led Team TOTAL ASSETS LESS CURRENT LIABILITIES 435 CREDITORS: > 1 yr - • The Company benefits from an experienced senior leadership team with extensive Provisions for liabilities 188 industry experience. 247 CAPITAL AND RESERVES Assets Available for Sale Share Capital and share Premium 30 Profit and Loss Account and Reserves 217 • Plant and Machinery - The Company owns four aerosol filling production lines and a number of other pieces of equipment and tools. SHAREHOLDERS' FUNDS 247
• Stock - Current stock that is held on site consists of finished goods (filled aerosol cans), * Year ending 30 September 20XX empty cans and other raw materials (e.g. butane gas, chemicals, valves and caps), with further free issue material held separately. • Goodwill • Fixtures and Fittings • Computer Equipment
CONFIDENTIAL
Non-disclosure agreement (the “Agreement”) between Duff & Phelps Ltd. of The Shard, 32 London Bridge Street, London SE1 9SG (“Duff & Phelps”, “we”, “us”, and “our”) and ………………………… of ……………………………. (“you” and “your”)
9 March 2020
Dear Sirs
NON-DISCLOSURE AGREEMENT RE: PROPOSED ACQUISTION OF PROJECT JAGUAR (the “Proposed Transaction”)
1 CONFIDENTIALITY
1.1 For the purposes of evaluating the Proposed Transaction, you have requested Confidential Information from us and the Company. In consideration of and as a condition to us or the Company (or any of our respective Representatives) providing you or any Relevant Person with such Confidential Information you agree and irrevocably undertake (for the benefit of us, the Company, and each of our Representatives) to (and shall procure that each Relevant Person irrevocably undertakes to):
1.1.1 keep the Confidential Information confidential and not disclose or permit it to be made available to any third party other than to a Relevant Person who is directly involved with you in relation to the Proposed Transaction and who (i) you have made aware of the confidential nature of the Confidential Information and (ii) is either subject to a general duty of confidentiality to you which extends to the Confidential Information or has executed a written undertaking to comply with the terms of this Agreement;
1.1.2 not copy or reproduce or make notes of extracts of any of the Confidential Information whether in writing, xerographically, photographically, magnetically, or video or film, optically or in any other manner whatsoever;
1.1.3 disclose and use the Confidential Information only for the Permitted Purpose; and
1.1.4 promptly upon our written request, return, destroy or delete (at our sole unfettered discretion) and not attempt to recover (in each case, to the extent practically possible): (i) all written Confidential Information; and (ii) all Confidential Information held in any form of information storage system and provide a letter confirming that you have not retained any Confidential Information and that you have destroyed all notes and records made by you and your Relevant Persons containing Confidential Information, except that you and your Relevant Persons shall be entitled to retain any Confidential Information to the extent required to comply with any applicable law, regulation, or mandatory legal process or procedure provided that in each case it is kept confidential in accordance with the terms of this Agreement.
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1.2 Nothing in paragraphs 1.1.1 - 1.1.4 of this Agreement shall apply to any Confidential Information which:
1.2.1 is in or comes into the public domain for any reason except for your failure, or the failure of any of your Relevant Persons, to comply with the terms of this Agreement;
1.2.2 is already known to you at the date of disclosure to you (as evidenced by your written records), other than as a result of a breach of any confidentiality obligations by you or any Relevant Person; or
1.2.3 is disclosed to you by a third party without any obligations of confidentiality and where you are aware that the third party owes no obligations of confidentiality to us, the Company, or any of our Representatives in respect of that Confidential Information.
1.3 Notwithstanding the provisions of paragraphs 1.1.1 - 1.1.4, you may disclose Confidential Information to the extent that you or your Relevant Persons are required to so disclose by law or any regulatory or government authority (in which event you shall give us notice of such requirement as soon as is legally permissible and practicable, make such disclosure to the minimum extent legally permissible, and shall use all reasonable endeavors to maintain the confidentiality of any Confidential Information so disclosed).
2 NO COMMITMENT
Nothing in this Agreement constitutes a commitment by us, the Company, or our Representatives or a commitment by you or your Relevant Persons to proceed with the Proposed Transaction and all discussions between us regarding the Proposed Transaction remain subject to a formal written agreement being entered into in relation to the Proposed Transaction.
3 NO REPRESENTATIONS OR RELIANCE
3.1 You acknowledge and agree that:
3.1.1 neither we, the Company, nor any of our respective Representatives, make any representation or warranty (whether express or implied) as to the quality, accuracy or completeness of the Confidential Information or otherwise;
3.1.2 neither we, the Company, nor any of our respective Representatives shall have any liability to you or your Relevant Persons resulting from the use of or reliance upon the Confidential Information or for any errors therein or omissions therefrom; and
3.1.3 neither we, the Company, nor any of our respective Representatives will be under any obligation to update or correct any inaccuracy or omission in the Confidential Information.
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3.2 Nothing in paragraph 3.1 shall exclude liability for any remedy in respect of fraud, fraudulent misrepresentation, or any other liability that cannot be lawfully excluded.
3.3 You acknowledge and agree that:
3.3.1 you will rely absolutely on your own opinions and/or professional advice concerning the Confidential Information; and
3.3.2 that you have no remedy under this Agreement or any subsequent agreement against us, the Company, or any of our respective Representatives having been afforded every opportunity which might reasonably be expected to inspect the Confidential Information, to interview the management of the Company and to obtain such further information as you may require in order to satisfy yourself fully as to the completeness and accuracy of the Confidential Information.
4 NOTICE
You shall give us notice as soon as practicable upon becoming aware that Confidential Information has been disclosed in breach of this Agreement.
5 LIABILITY
You acknowledge and agree that you will be responsible for the full performance and fulfilment of the terms of this Agreement, and any breach of any terms of this Agreement, by any of your Relevant Persons as if you were the party that had breached them.
6 INDEMNITY
You acknowledge and agree to indemnify and hold harmless to the fullest extent permitted by law, us, the Company, and our respective Representatives for any breach by you or your Relevant Persons of the terms of this Agreement.
6.1 You acknowledge and agree (in addition to, and without affecting, any other rights or remedies available under this Agreement) to:
6.1.1 indemnify, keep indemnified and hold us, the Company, and our respective Representatives harmless from and against all actions, claims, demands, liabilities, damages, costs, losses or expenses (including, without limitation, consequential losses, loss of profit, loss of reputation and all interest, penalties, legal and other professional costs and expenses), directly or indirectly arising out of or in connection with any breach or non-performance by you or your Relevant Persons, of any of the provisions of this Agreement; and
6.1.2 if a payment due under paragraph 6.1.1 is subject to tax (whether by way of direct assessment or withholding at its source), pay to us, the Company, or our respective Representatives (as the case may be) such amounts as shall
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ensure that the net receipt after tax is the same as it would have been were the payment not subject to tax.
7 DAMAGES NOT SUFFICIENT
You acknowledge and agree that damages may not be an adequate remedy for any breach of the terms of this Agreement and that we, the Company and our respective Representatives shall be entitled to seek immediate injunctive relief, specific performance, and other equitable relief for any threatened or actual breach of this Agreement without proof of actual damages in addition to any other remedies available at law or in equity.
8 YOUR UNDERTAKINGS
8.1 In consideration of us and the Company agreeing to supply, and so supplying Confidential Information to you and any Relevant Person, you hereby undertake and agree to the terms set out in paragraphs 8.2 - 8.4.
8.2 You shall not, and shall procure that your Relevant Persons shall not, in connection with the Proposed Transaction, directly or indirectly, without our prior written consent, contact or have dealings with:
8.2.1 the Company or any of the Company’s direct or indirect shareholders, directors, officers, managers, or employees (other than those representatives of the Company who you are instructed by us or the Company to contact in connection with the Proposed Transaction);
8.2.2 any current or past regulator, lender, customer, competitor, supplier, distributor, agent, or adviser or, or any other person that you are, or become, aware has or has at any time during the term of this Agreement had a business relationship with the Company;
in each case, other than in the ordinary and normal course of business on a basis unconnected with the Proposed Transaction and then only for the purpose of those activities and without reference to any Confidential Information.
8.3 You shall not, and you shall procure that your Relevant Persons shall not, in connection with the Proposed Transaction, directly or indirectly, without our prior written consent, enter into any negotiation, contract, or arrangement with any other person who you are aware may be seeking to participate in the Proposed Transaction.
8.4 You shall not, and you shall procure that your Relevant Persons shall not, directly or indirectly, solicit, interfere with, offer employment to, engage, contract or negotiate with or attempt to contract or negotiate with, endeavor to entice away, or employ in any capacity any of our, the Company’s, or our respective Representative’s directors, officers, employees, clients or prospect clients whether on your own account or on behalf of any person, firm or company.
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9 NO AGENCY
You confirm that you are acting in this matter, and are entering into this Agreement, as principal and not as agent or broker for any other person.
10 NO WAIVER
10.1 You agree that any failure or delay by us, the Company, or our respective Representatives in exercising any right, power, or privilege under this Agreement will not operate as a waiver thereof and that any single or partial waiver thereof will not preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement.
11 ENTIRE AGREEMENT
This Agreement comprises the entire agreement between us concerning the confidentiality of the Confidential Information and no waiver or variation of any term of this Agreement will be effective unless approved in writing by a representative of ours and yours. For the avoidance of doubt, the consent of any person that may derive a benefit under this Agreement (other than the parties hereto) shall not be required for any waiver, variation or termination of this Agreement even if such waiver, variation, or termination relates to or affects such benefit.
12 THIRD PARTY RIGHTS
No person who is not a party to this Agreement, other than the Company, and our respective Representatives, shall have any rights to enforce any term of this Agreement.
13 GOVERNING LAW AND JURISDICTION
This Agreement and any non-contractual or other obligations arising out of or in connection with it shall be governed by and constructed in accordance with English law. The parties submit to the exclusive jurisdiction of the English courts in respect of any claim or dispute arising out of or in connection with this Agreement, including a claim or dispute relating to any non-contractual obligations arising out of or in connection with this Agreement.
14 ILLEGALITY
The invalidity, illegality, or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the legality, validity, or enforceability or continuance in force of that provision in any other jurisdiction or any other provision in that or any other jurisdiction.
15 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which when executed shall be deemed to be an original and all of the counterparts together shall constitute one and the same agreement.
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16 DEFINITIONS
In this Agreement:
Affiliates means any body corporate or partnership which is a subsidiary, subsidiary undertaking, holding company, or parent undertaking of Duff & Phelps and each body corporate or partnership which is a subsidiary or subsidiary undertaking of the holding company or parent undertaking of Duff & Phelps;
Company means Project Jaguar;
Confidential Information means:
(i) all information, details and data of all kinds (whether written or oral) and in any form provided before or after the date of this Agreement directly or indirectly by us, the Company, or any of our Representatives to you or any of your Relevant Persons in connection with the Proposed Transaction including, but not limited to, information relating to management, financial, commercial, technical, and other arrangements relating to us and the Company and the affairs of clients, customers and suppliers of ours and the Company’s);
(ii) the existence and contents of this Agreement, each party’s, the Representatives’, and the Relevant Persons’ interests in the Proposed Transaction and the existence and contents of any discussions between the parties and / or our Representatives and / or your Relevant Persons;
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Group means the Company and any body corporate or partnership which is a subsidiary, subsidiary undertaking, holding company, or parent undertaking of the Company and each body corporate or partnership which is a subsidiary or subsidiary undertaking of the holding company or parent undertaking of the Company;
Permitted Purpose means considering, evaluating, negotiating, implementing and / or advising in relation to the Proposed Transaction;
Relevant Person means your parent undertaking and any of your subsidiary undertakings or any subsidiary undertaking of your parent undertaking and any of your directors, officers, employees and professional advisers;
Representatives means:
(i) Affiliates;
(ii) investors in the Company or any Affiliate (including any member of such investors’ group undertaking) and debt providers; and
(iii) directors, officers, employees, advisers, managers, investment advisers, partners, general partners, agents, and consultants of any person named in (i) or (ii) above.
The terms “holding company”, “parent undertaking”, “subsidiary”, “group undertaking”, and “subsidiary undertaking” shall (wherever used in this Agreement) have the meanings given to them in the Companies Act 2006.
Please confirm your acceptance of the terms of this Agreement by signing the enclosed duplicate of this Agreement and returning it to us.
Yours faithfully
Benjamin Wiles for and on behalf of Duff & Phelps Ltd.
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I, having full authority to do so, hereby agree for and on behalf of ……………………………… to the above terms.
Signed: ______
Name: ______
Position: ______
Date: ______
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