TC09562 - [2025] UKFTT 00762 (TC)

Fecha: 23-May-2025

The SPA

The SPA

27.

The key terms of the SPA were as follows:

(1)

the parties were CPW (as vendor) and BBUK (as purchaser);

(2)

the recitals provided that CPW carried on the Businesses and had agreed to transfer the Goodwill to BBUK and to permit BBUK to carry on the Businesses on the terms of the agreement;

(3)

clause 1.1 defined the Goodwill as “the goodwill and custom of [CPW] in relation to the Businesses, including the exclusive right for [BBUK] and its successors and assigns to carry on the Businesses (and to represent themselves as carrying on the Businesses) in continuation of and in succession to [CPW]”;

(4)

clause 2.1 provided that CPW agreed to sell, and BBUK agreed to purchase, “the Goodwill and the right to carry on the Businesses all legal and beneficial right, title and interest in and to the Goodwill and the right to carry on the Businesses free from all encumbrances”;

(5)

clauses 2.2 and 2.3 provided that:

(a)

BBUK would “assume no liability in respect of the Businesses and Goodwill and/or any other business of the Vendor Group except as expressly set out in this Agreement”; and

(b)

BBUK would “acquire no right or title of any nature in any asset of the Vendor Group except as expressly set out in this Agreement”;

(6)

clause 3.1 provided that:

(a)

the aggregate consideration payable by BBUK was £50,800,000, apportioned as to £50,799,000 to the Goodwill and £1,000 to the right to carry on the Businesses; and

(b)

the consideration was to be left outstanding as a loan at an interest rate of 1% over Sterling LIBOR accruing from the completion date – defined in clause 1.1 as the date of the agreement (which is to say 25 June 2008) – to the date of repayment and to be repayable in cash in full, together with all accrued interest, on or before the third anniversary of the completion date;

(7)

clause 4.1 provided that completion of the agreement was to take place on the completion date;

(8)

clause 4.2 provided that, at completion:

(a)

CPW would, insofar as it was able to do so, permit BBUK to assume the conduct of the Businesses and BBUK would carry on the Businesses with effect from the completion date;

(b)

CPW would deliver to BBUK such items and documents to enable BBUK to carry on the Businesses with effect from the completion date and/or as might be required by the agreement;

(c)

CPW would procure that BBUK had access to the properties listed in a schedule to the agreement which were owned, leased or licensed by CPWUK and used by the Businesses (the “Properties”); and

(d)

CPW would enter into the MSA;

(9)

clause 4.3 provided that, at completion, BBUK would enter into the MSA;

(10)

clause 5 was headed “Accounting Records” and provided that:

(a)

from completion, CPW would retain for the benefit of BBUK “all turnover, debtors creditors and accounting records in relation to the Businesses (the “Accounting Records”) – clause 5.1.1;

(b)

from completion, CPW would “assume the liabilities arising from the Businesses only on behalf of [BBUK]” – clause 5.1.2; and

(c)

BBUK would be entitled to access and/or to request the transfer of the Accounting Records for its benefit at any time after the completion date;

(11)

clause 6 provided that:

(a)

no legal or beneficial title in any of the Properties would transfer to BBUK pursuant to the agreement; and

(b)

CPW would, during the term of the agreement and in accordance with the MSA, procure that CPWUK continued to carry out various services in respect of each of the Properties as listed in a schedule to the agreement, under the terms of a management services agreement dated 26 November 2004 (the “Property Management Services”). As defined in schedule 2 to the SPA, the Property Management Services comprised:

(i)

the payment of rent, council tax and all property–related expenses;

(ii)

the maintenance and insurance of the Properties;

(iii)

providing access to the Properties in the condition required by CPW;

(iv)

all other matters reasonably required to operate and manage the Properties;

(v)

tax services; and

(vi)

“retail services” comprising “the operation and management of the Carphone Warehouse Stores … [and] all necessary support that may be required including, without limitation, the provision of professional staff, legal, taxation, accountancy and IT advice each as a cost of the Businesses”;

(12)

clause 7 dealt with the use by BBUK of specified logos, trademarks and names relating to the Businesses (the “Carphone Warehouse Brands”). It provided that, “[in] addition to the transfer of the Businesses and Goodwill, [CPW] hereby grants [BBUK] the non–exclusive right to use the Carphone Warehouse Brands solely in respect of carrying on the Businesses, in a similar way to how they were being used by the Business [sic] immediately prior to the Completion Date” and required BBUK to comply with any brand guidelines of CPW applicable from time to time in respect of any such brands;

(13)

clause 8 provided that:

(a)

neither party intended that the agreement or the termination of the agreement would operate to transfer the employment contracts of any employee from any member of the CPW Group to BBUK; and

(b)

however, if the Transfer of Undertakings (Protection of Employment) Regulations 2006 or any equivalent non–UK legislation applied in those circumstances such that the employment contracts or any liability arising in respect of any transferring employee were transferred from any member of the CPW Group to BBUK, then CPW would indemnify BBUK on demand in respect of any costs, expenses, damages or losses thereby arising;

(14)

clause 10 contained warranties on the part of CPW to the effect, inter alia, that:

(a)

it was the legal and beneficial owner of the Businesses and the Goodwill; and

(b)

the Carphone Warehouse Brands did not “comprise or infringe any rights owned or controlled by third parties”; and

(15)

clause 11 provided, inter alia, that:

(a)

the agreement and the MSA were the entire agreement between the parties in connection with the subject matter of the agreement and the MSA;

(b)

at BBUK’s request and cost, CPW would take all such steps as were reasonably necessary or desirable to secure the vesting in BBUK of the Goodwill free from any liens, encumbrances or adverse interests; and

(c)

nothing in the agreement would constitute a partnership or employment relationship between the parties.