EXHIBIT 2.8
DATED: JANUARY 31, 2003
THIRD AGREEMENT TO AMEND SHARE SALE AGREEMENT
BETWEEN
CONSOLIDATED WATER CO. LTD.
AND
NORTH-AMERICAN MORTGAGE & FINANCE CORPORATION
AND
TRANSCONTINENTAL FINANCE CORPORATION LIMITED
XXXXXXX XXXXX, XXXXXXX & XXXXXXXXX
ZEPHYR HOUSE
P.O. BOX 709 GT
XXXX STREET
GRAND CAYMAN
CAYMAN ISLANDS
THIRD AGREEMENT TO AMEND SHARE SALE AGREEMENT
THIS THIRD AGREEMENT TO AMEND SHARE SALE AGREEMENT is made this 31st day of
January 2003,
BETWEEN:
1. CONSOLIDATED WATER CO. LTD., formerly Cayman Water Company Limited, of
Trafalgar Place, West Bay Road, P.O. Box 1114 GT, Grand Cayman
(hereinafter "the Purchaser") of the first part; and
2. NORTH-AMERICAN MORTGAGE & FINANCE CORPORATION OF Elizabethan Square,
Xxxxxx Town, Grand Cayman (hereinafter "NAMF") and TRANSCONTINENTAL
FINANCE CORPORATION LIMITED, of Elizabethan Square, Xxxxxx Town, Grand
Cayman, (hereinafter "TCF") (together the "Vendors") of the second
part.
WHEREAS:
The parties hereto entered into a Share Sale Agreement dated October 4, 2002
(the "Share Sale Agreement").
The Share Sale Agreement provided at Clause 8.8 that the Share Sale Agreement
could be modified by an instrument in writing signed by the duly authorised
representatives of the parties.
The Share Sale Agreement was amended to provide for a later completion date and
the consequences thereof by an Agreement to Amend Share Sale Agreement dated
November 29, 2002 and by a Second Agreement to Amend Share Sale Agreement dated
December 30, 2002 (together the "Amending Agreements").
The completion of the Share Sale Agreement as amended by the Amending Agreements
was made conditional on the happening of certain events on or before January 31,
2003, and the parties have agreed that the conditions precedent to the Share
Sale Agreement as amended by the Amending Agreements are unlikely to be
satisfied by that date and accordingly the parties have agreed to enter into
this third amending agreement to provide for a later completion date and the
consequences thereof.
NOW IT IS HEREBY AGREED as follows:-
1. Clause 3 of the Share Sale Agreement as amended by the Amending
Agreements is deleted in its entirety and replaced with the following:
"3. PURCHASE CONSIDERATION
3.1. The Purchase Price for the Shares and the Assignments shall
be:-
3.1.1. the cash portion of US$14,600,000.00, subject to
adjustment pursuant to clauses 3.2 to 3.5 inclusive
in the order that such clauses are set out below; and
3.1.2. the allotment and issue at Completion to NAMF of
185,714 fully paid ordinary shares of a nominal or
par value of CI$1.00 each in the capital of the
Purchaser, credited as fully paid and non assessable
("the Consideration Shares") which Consideration
Shares shall entitle NAMF to the benefit of the
Registration Rights Agreement.
3.2. The cash portion of US$14,600,000.00 provided for in clause
3.1.1 shall be adjusted (by increasing if the amount is
positive or decreasing if the amount is negative the same as
necessary) by an amount equal to:
3.2.1. 90.91% of the difference between "Actual Gross Equity
of OCC" and "Calculated Gross Equity of OCC"; and
3.2.2. 47.77% of the difference between "Actual Gross Equity
of OCBVI" and "Calculated Gross Equity of OCBVI".
"Actual Gross Equity of OCC" is the sum of "Shareholders'
Equity" and the "Profit Sharing Agreement Provision" as they
appear on the balance sheet of OCC, as at the end of the
calendar month immediately prior to Completion. This amount
shall be initially determined from the amounts shown on the
OCC balance sheet in its management accounts as at 31 December
2002 for the purpose of calculating the Initial Payment (as
defined in clause 3.6 below) and, subsequently, shall be
determined at the expense of OCC by OCC's Auditors for the
purposes of calculating the Adjusting Payment (as defined in
clause 3.7 below).
"Actual Gross Equity of OCBVI" is the sum of "Shareholders'
Equity" and the "Profit Sharing Provision" as they appear on
the balance sheet of OCBVI, as at the end of the calendar
month immediately prior to Completion. This amount shall be
initially determined from the amounts shown on the OCBVI
balance sheet in its management accounts as at 31 December
2002 for the purpose calculating of the Initial Payment (as
defined in clause 3.6 below) and, subsequently, shall be
determined at the expense of OCBVI by OCBVI's Auditors for the
purposes of the Adjusting Payment (as defined in clause 3.7
below).
3.3. For the purposes of clause 3.2:
3.3.1. "Calculated Gross Equity of OCC" shall mean:
3.3.1.1. US$6,291,000 if Completion is on or between
1st and 31st October, 2002.
3.3.1.2. US$6,425,000 if Completion is on or between
1st and 30th November, 2002.
3.3.1.3. US$6,559,000.00 if Completion is on or
between 1st and 31st December, 2002.
3.3.1.4. US$6,693,000.00 if Completion is on or
between 1st and 31st January, 2003
3.3.2. "Calculated Gross Equity of OCBVI" shall mean:
3.3.2.1. US$6,614,000 if Completion is on or between
1st and 31st of October, 2002.
3.3.2.2. US$6,890,000 if Completion is on or between
1st and 30th November, 2002.
3.3.2.3. US$7,166,000.00 if Completion is on or
before 1st and 31st December 2002.
3.3.2.4. US$7,442,000.00 if Completion is on or
before 1st and 31st January 2003
3.4. The parties agree that the cash portion of US$14,600,000.00
provided for in clause 3.1.1 as adjusted by clause 3.2 (and
applying the provisions of clause 3.3) is based on the
assumption that the business of the Companies, shall, from the
end of the calendar month immediately prior to Completion
until the date of Completion, be conducted and operated in its
usual and normal manner and that they do not suffer or incur
any extraordinary, nonrecurring or unusual losses or expenses
or make any dividend payments. To the extent that such losses
or expenses are incurred or dividends paid during the period
aforementioned, the cash portion of US$14,600,000.00 provided
for in clause 3.1.1 as adjusted by clause 3.2 (and applying
the provisions of clause 3.3) shall be decreased as follows:
3.4.1. in relation to OCBVI, by 47.77% of the impact of
such events on Actual Gross Equity of OCBVI during
the period aforementioned; and
3.4.2. in relation to OCC, by 90.91% of the impact of such
events on Actual Gross Equity of OCC during the
period aforementioned.
The parties shall agree the amount of any decrease under clauses 3.4.1
and/or 3.4.2; provided that in the absence of agreement as to the
amount of such decrease by or on Completion the Purchaser may retain
such amount of the Purchase Price as is reasonable and following
Completion the amount of the decrease in the Purchase Price shall be
determined as soon as reasonably possible at the expense of the
Purchaser by the relevant Company's Auditors. Within five (5) working
days of such determination, in the event that the amount so retained
exceeds the amount so determined the difference shall be paid by the
Purchaser to the Vendors and in the event that the amount so retained
is less than the amount so determined the difference shall be paid by
the Vendors to the Purchaser.
3.5. The cash portion of US$14,600;000.00 as provided for in clause
3.1.1, as adjusted by clauses 3.2 to 3.4 (inclusive) above
shall be further adjusted by increasing the same by a simple
interest factor calculated on the same at the rate of 12.5%
per annum (based on a 365 day year) calculated daily for the
period of July 1, 2002 until the date of Completion.
3.6. On Completion, an initial payment of the Cash Consideration
calculated based upon the management accounts described in
clause 3.2 above (the "Initial Payment") shall be paid, at the
option of TCF, by way of bankers draft drawn on a Cayman
Islands class A licensed bank or wire transfer to TCF and
receipt thereof by TCF shall be a good and final discharge of
the Purchaser's obligation to make such payment to the
Vendors.
3.7. Within 5 Business Days after the "Actual Gross Equity of OCC"
and the "Actual Gross Equity of OCBVI" have been determined by
OCC's Auditors and OCBVI's Auditors respectively pursuant to
clause 3.2 or otherwise agreed between the parties an
adjusting payment, calculated as the Cash Consideration based
upon such determination less the Initial Payment (the
"Adjusting Payment"), shall be made by the Purchaser to TCF,
if the Adjusting Payment is a positive amount, or by the
Vendors to the Purchaser, if the Adjusting Payment is a
negative amount. OCC's Auditors and OCBVI's Auditors shall
determine "Actual Gross Equity of OCC" and the "Actual Gross
Equity of OCBVI" respectively within 60 days of Completion
unless the parties have already agreed the amounts of "Actual
Gross Equity of OCC" and the "Actual Gross Equity of OCBVI"
between themselves.
3.8. Notwithstanding anything to the contrary herein contained, all
adjustments required by Clauses 3.2 to 3.5 inclusive to
calculate the Purchase Price shall be made as if Completion
had occurred on January 31, 2003."
2. Clauses 4.2, 4.3 and 5.1 of the Share Sale Agreement as amended by the
Amending Agreements are amended by deleting "January 31, 2003" wherever
it appears, and substituting therefor "February 14, 2003".
3. Clause 5.9.1 of the Share Sale Agreement as amended by the Amending
Agreements is amended to read as follows:
"5.9.1 pay the Initial Payment as calculated pursuant to and in the
manner as set out in clause 3.6;".
4. Except as expressly modified by this Agreement, the Share Sale
Agreement and the Amending Agreements continue in full force and effect
according to their terms.
AS WITNESS WHEREOF the parties hereto have set their hands and date first above
written.
SIGNED for and on behalf of )
Consolidated Water Co. Ltd )
by Xxxxxxx X. Xxxxxx ) /s/ Xxxxxxx X. Xxxxxx
duly authorised and in the presence of: )--------------------------------------
Xxxxxxx X. Xxxxxx, Chairman of the
Board and Chief Executive Officer
/s/ Xxxxxxxxx X. XxXxxxxxx
----------------------------------------
Witness
Witness name: Xxxxxxxxx X. XxXxxxxxx
Address: P.O. Box 1114 GT
Occupation: President, CWCO
SIGNED for and on behalf of )
North-American Mortgage & Finance ) /s/ Xxxx Xxxx
Corporation by Xxxxxxxx Secretaries Limited )-----------------------------------
duly authorised and in the presence of: ) Xxxx Xxxx, Director of Xxxxxxxx
Secretaries Limited,
Attorney-in-fact
/s/ Xxxxxxxxxx Xxxxxxxx
----------------------------------------
Witness
Witness name: Xxxxxxxxxx Xxxxxxxx
Address: P.O. Box 884, GT, Grand Cayman
Occupation: Secretary
SIGNED for and on behalf of )
Transcontinental Finance Corporation ) /s/ Xxxx Xxxx
Limited by Xxxxxxxx Secretaries Limited )-----------------------------------
duly authorised and in the presence of: ) Xxxx Xxxx, Director of Xxxxxxxx
Secretaries Limited,
Attorney-in-fact
/s/ Xxxxxxxxxx Xxxxxxxx
----------------------------------------
Witness
Witness name: Xxxxxxxxxx Xxxxxxxx
Address: P.O. Box 884, GT, Grand Cayman
Occupation: Secretary
