EXHIBIT 2.14
DATED DECEMBER 16, 2002
SHARE SALE AGREEMENT
BETWEEN
CONSOLIDATED WATER CO. LTD.
AND
BACARDI & COMPANY LIMITED
XXXXXXX XXXXX, XXXXXXX & XXXXXXXXX
ZEPHYR HOUSE
P.O. BOX 709 GT
XXXX STREET
GRAND CAYMAN
CAYMAN ISLANDS
DATED DECEMBER, 2002
SHARE SALE AGREEMENT
PARTIES
BETWEEN
Consolidated Water Co. Ltd., of P.O. Box 1114 GT, Trafalgar Place, West Bay
Road, Grand Cayman, facsimile number (000)-000-0000, e-mail xxxx@xxxxx.xx
(hereinafter "the Purchaser") of the first part
AND
Bacardi & Company Limited of X.X. Xxx X-0000, 0000 Xxxxxxx Xxxx, Xxxxxx,
Xxxxxxx, facsimile number (000) 000 0000, email xxxx@xxxxxxx.xxx.xx, (the
"Vendor") of the second part.
WHEREAS:
The Purchaser has contracted to acquire the shares of the Company (as herein
defined) held by DesalCo Ltd ("DesalCo") and wishes to acquire the shares of
the Company held by the Vendor on the terms of this Agreement.
NOW IT IS HEREBY AGREED as follows;
1. INTERPRETATION
1.1. In this Agreement the following words and expressions have
the following meanings:
"BHD$" means Bahamian dollars;
"Business Day" means a day on which licensed banks are open
for business in the Bahamas.
"Company" means the company listed in Schedule 1 in relation
to which the Vendor holds issued shares as set out in
Schedule 1.
"Company's Auditors" means PriceWaterhouseCoopers.
"Deed of Release" means the deed in the form set out in
Schedule 3.
"Last Accounts" means the audited accounts of the Company as
at June 30 2002.
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"Shares" means the issued shares of the Company held by the
Vendor as set out in Schedule 1.
"Warranties" means the warranties and representations by the
Vendor in clause 6 and Schedule 2.
1.2 All references in this Agreement to a statutory provision
shall be construed as including references to:
1.2.1 Any statutory modification, consolidation or
re-enactment (whether before or after the date of
this Agreement) for the time being in force;
1.2.2. All statutory instruments or orders made pursuant to
a statutory provision; and
1.2.3. Any statutory provisions of which a statutory
provision is a consolidation, re-enactment or
modification.
1.3 Any reference in this Agreement to the Vendor includes its
successors and assigns.
1.4 Clause headings in this Agreement are for ease of reference
only and do not affect the construction of any provision.
2. AGREEMENT FOR SALE
Subject to the terms and conditions of this Agreement, the Vendor
shall sell as beneficial owner and the Purchaser shall purchase the
Shares, free from all liens, charges and encumbrances and with all
rights attaching to them, with effect from completion of this
Agreement.
3. PURCHASE CONSIDERATION
3.1 Subject to the provisions of paragraph 3.2, the purchase
price shall be BHD$690.00 per share paid in cash in the
manner set out in paragraph 3.4.
3.2 The obligation of the Purchaser to pay the price per share
set out in paragraph 3.1 is subject to the following
conditions, all of which are for the benefit of the
Purchaser:
(a) that as at the date of Completion:
(i) the number of issued and outstanding shares
(including shares subject to option or
warrant) of the Company shall not exceed
15,043, but such number of shares shall be
in
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addition to the 377 shares previously
redeemed by the Company and held in
Treasury;
(ii) the Company is not in default of any terms
of any borrowing;
(iii) the Company's long term debt including the
current portion thereof does not exceed
BHD$2,300,000;
(iv) the Company is validly subsisting and in
good standing and is not in default of any
term of any material contract;
(b) As at the end of the calendar month immediately
prior to Completion, the Net Current Assets of the
company are not less than BHD$1,270,000.00 (One
Million, Two Hundred and Seventy Thousand Bahamian
Dollars). The Net Current Assets of the Company as
at the end of the calendar month immediately prior
to Completion shall be agreed by the parties and in
the absence of agreement reached five Business Days
prior to Completion, shall be determined at the
expense of the Purchaser by the Company's Auditors;
(c) that between July 1st 2002 and the date of
Completion the business of the Company shall have
been conducted and operated in its usual and normal
manner and the Company has not suffered or incurred
any extraordinary, non recurring or unusual losses
or expenses;
(d) that prior to Completion, the Purchaser is satisfied
that the reverse osmosis plant located at Windsor
Well Fields, New Providence, Bahamas is capable at
operating at not less than 95% of its rated volume
capacity to produce product water of rated quality.
For this purpose, the Purchaser will be allowed to
inspect and test the said reverse osmosis plant on a
normal working day within five Business Days of
Completion at a time mutually convenient to the
parties and the Company. During the test, the Vendor
will procure that the Company will, subject to the
Company's production requirements, use its best
efforts to operate the plant at its maximum capacity
within the operating specification of the plant's
component parts.
3.3 Should any of the conditions specified in 3.2 not be
satisfied, the Purchaser may at its option:
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(a) by notice to the Vendor, terminate this Agreement.
In such event, this Agreement shall cease to have
effect and each party shall have no further claim
under it against the other; or
(b) enter into discussions with the Vendor in an attempt
to agree an alternate price per share. If the
parties are able to agree an alternate price per
share this Agreement shall be binding on the parties
save that the price per share in paragraph 3.1 shall
be that agreed by the parties. In the event that the
parties are not able to agree an alternate price per
share not later than fourteen (14) days after the
day set for Completion pursuant to clause 5.1 (or
such later time as the parties may agree in writing)
this Agreement shall cease to have effect and each
party shall have no claim under it against the
other.
3.4 The purchase price shall be paid by bankers draft or wire
transfer to such account as the Vendor may designate.
4. CONDITIONS PRECEDENT AND RESCISSION
4.1 In addition to the conditions in paragraph 3.2 relating to
the price per share, the obligation of the Purchaser to
purchase the Shares is conditional on the following
conditions precedent, all of which are for the benefit of the
Purchaser:
(a) the approval of the Board of Directors of the
Company to the transfer of the Shares to the
Purchaser pursuant to the Company's Articles of
Association.
(b) the approval in writing of the Water and Sewerage
Corporation of the Commonwealth of The Bahamas. The
Vendor agrees it will cause the Company to use its
best efforts to obtain any required approval and the
Purchaser shall co-operate in the matter to the
extent that may be necessary;
(c) the consent in writing of The Bahamas Investment
Authority which it shall be the Purchasers
obligation to apply for and pursue expeditiously and
which the Vendor shall assist in to the extent it
can do so and a copy of which application and all
material correspondence in connection with which the
Purchaser shall provide to the Vendor;
(d) consents in writing from The Royal Bank of Canada
and The Inter-American Investment Corporation as
bankers and secured lenders to the Company to the
transfer of the Shares to the Purchaser the
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obligation for the obtaining of which shall fall
equally on the Purchaser and the Vendor;
(e) the Exchange Control Regulations and the approval in
writing by the Exchange Control to the sale of the
Shares by the Vendor to the Purchaser hereunder and
to the purchase by the Purchaser pursuant to the
Tender Offer (as defined in clause 7) of shares from
other shareholders of the Company (other than
DesalCo) as provided for in clause 4.1 (f);
(f) acceptances to the Tender Offer (as defined in
clause 7) from shareholders of the Company (other
than DesalCo) such that the Purchaser, after
acquisition of the Shares from the Vendor, the
DesalCo shares and the Tender Offer Shares be
entitled to be the registered holder of not less
than 7523 shares of the Company representing 51% of
the issued share capital of the Company.
4.2 If any of the above conditions precedent is not fulfilled
(or, at the option of the Purchaser, waived in writing) by
February 14 2003, (or such later date as may be agreed in
writing by the parties) this Agreement shall cease to have
effect and each party shall have no further claim under it
against the other
4.3 The Purchaser shall be entitled to rescind this Agreement by
notice in writing to the Vendor if prior to Completion it
appears any of the Warranties is not or was not true and
accurate in any material respect or if any act or event
occurs which had it occurred on or before the date of this
agreement, would have constituted a breach of the Warranties
or if there is any material breach or non-fulfilment of any
of the Warranties which (capable of being remedied) is not
remedied prior to Completion.
4.4 The parties hereto acknowledge that the Articles of the
Company contain certain pre-emption rights and that the sale
of the shares to the Purchaser hereunder is subject thereto.
5. COMPLETION
5.1 Completion of the sale and purchase of the Shares shall take
place at the offices of the Vendor's attorneys Xxxxx &
Xxxxxxx, Deltec House, Xxxxxx Xxx, New Providence, Bahamas on
February 14 2003 (or such earlier or later date as the
parties may agree in writing) at 10 o'clock in the forenoon.
5.2 At Completion, the Vendors shall deliver (or procure the
delivery, as the case may be) to the Purchaser of the
following:
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5.2.1 Minutes of a meeting of the Board of Directors of
the Vendor (or if applicable, resolutions signed by
all directions of the Vendor) authorising and
approving the execution and delivery by the Vendor
of this Agreement;
5.2.2 Duly completed and signed transfers in favour of the
Purchaser of the Shares together with the relevant
share certificates;
5.2.3 The Deed of Release duly executed by the Vendor;
5.2.4 The resignations of the directors of the Company
appointed by the Vendor with a written
acknowledgement in such form as is agreed by the
Parties;
5.2.5 An Assignment (or at the option of the Purchaser, a
full and complete Discharge) by the Vendor of all
its right, title and interest in a Management
Services Contract dated May 24th 1996 between the
Vendor and the Company in a form satisfactory to the
Purchaser;
5.2.5 Opinions of Vendor's counsel in the form attached as
Schedule 4;
5.2.6 The seal and Certificate of Incorporation of the
Company;
5.2.7 The statutory books, books of account and documents
of record of the Company, complete and up to date;
5.2.8 The appropriate forms to amend the mandates given by
the Company to its bankers;
5.2.9 All documents and records in the possession or
control of the Vendor relating to the performance of
its obligations under the Management Services
Contract referred to in paragraph 5.2.4.
5.3 The Vendor shall repay all monies, if any, then owing by them
to the Company, whether due for payment or not.
5.4 Board Meetings of the Company shall be held at which:
5.4.1 Such persons as the Purchaser may nominate shall be
appointed additional directors;
5.4.2 The transfers referred to in clauses 5.2.1 shall be
approved; and
5.4.3 The resignations referred to in clauses 5.2.3 shall
be submitted and accepted.
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5.5 On completion of the matters referred to above, the Purchaser
will pay the purchase price and deliver an Indemnity in the
form attached as Schedule 5.
6. WARRANTIES BY THE VENDORS
6.1 The Vendor warrants to the Purchaser that the Warranties set
out in Schedule 2 are true and accurate in all respects and
fully, clearly and accurately disclose every matter to which
they relate.
6.2 Each of the Warranties is without prejudice to any other
warranty or undertaking and, except where expressly stated,
no clause contained in this Agreement governs or limits the
extent or application of any other clause.
6.3 Subject to the provisions of clause 6.4, the rights and
remedies of the Purchaser in respect of any breach of the
Warranties shall not be affected by completion of the
purchase of the Shares, by an investigation made by or on
behalf of the Purchaser into the affairs of the Company, by
any failure to exercise or delay in exercising any right or
remedy or by any other event or matter whatsoever, except a
specific and duly authorised written waiver or release.
6.4 Claims against the Vendor for breach of warranty shall be
wholly barred and unenforceable unless written particulars of
the same shall have been given by the Purchaser to the Vendor
within a period of 3 years from Completion.
WARRANTIES BY THE PURCHASER
6.5 The Purchaser warrants that the execution, delivery and
performance of this Agreement and consummation of the
transactions contemplated hereby do not and will not:
(a) violate, conflict with or result in any breach of
the Certificate of Incorporation or the Memorandum
or Articles of Association of the Purchaser;
(b) conflict with or violate any law or Government Order
applicable to the Purchaser;
(c) result in any breach of or constitute a default (or
an event with the giving of notice or lapse of time,
or both, would become a default) under, require any
consent under, or give to others any rights of
termination, amendment acceleration, suspension,
revocation or cancellation or result in the creation
of any encumbrances on any of the assets or
properties of the Purchaser or its business pursuant
to any agreement, contract, licence, permit,
franchise or other
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instrument agreement or arrangement to which the
Purchaser is a party.
7. COVENANTS BY THE PURCHASER
Subject to the provisions of paragraph 3.1 and paragraph 4, the
Purchaser agrees that it will, in accordance with the relevant laws
and procedures of the Commonwealth of the Bahamas, immediately
following the execution and exchange of this Agreement make a Tender
Offer in such form as is agreed with the Vendor to all other
shareholders of the Company (other than DesalCo Limited) at the same
price per share as paid to the Vendor hereunder with a period of
acceptance being on or before February 14 2003 (or such earlier or
later date as the Purchaser, may at its option, specify) on
substantially the same terms as this Agreement and subject to the
completion of this Agreement (the "Tender Offer").
8. GENERAL
8.1 Except as provided herein and as may be required by law, no
announcement of any kind shall be made with respect to the
subject matter of this Agreement unless specifically agreed
between the parties. The Vendor acknowledges that the
Purchaser is concurrently undertaking a listing or offering
of shares in the capital of the Purchaser on the NASDAQ
Exchange and agrees that the Purchaser may, without any prior
notice or consultation with the Vendor, make such
announcements and disclosures as may be required pursuant to
the relevant laws, rules or regulations relating to such
listing or offering.
8.2 Effective on the date of this Agreement, the Confidentiality
Agreement relating to the Company is cancelled and the Vendor
agrees it will cause the Company to take such steps as are
necessary to cancel the same.
8.3 If this agreement ceases to have effect the Purchaser will
release and return to the Vendor all documents concerning it
provided to the Purchaser or its advisers in connection with
this agreement and will not use or make available to any
other person any information which it or its advisers have
been given in respect of the Company and which is not in the
public domain.
8.4 This agreement shall be binding upon each party's successors
and assigns it, except as provided herein, none of the rights
of the parties under this agreement or the Warranties may be
assigned to transferred.
8.5 All expenses incurred by or on behalf of the parties,
excluding the audit of the Company as of June 30, 2002 and
the certification referred to in paragraph 3.2.(b) which
shall be paid for by the Purchaser, but including all
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fees of agents, representatives, solicitors, accountants and
actuaries employed by any of them in connection with the
negotiation, preparation or execution of this agreement shall
be borne solely by the party who incurred the liability.
8.6 Any notice required to be given by any of the parties under
this agreement may be sent by fax to such number as set out
in this Agreement with original to follow by courier to the
address set out in this Agreement, Communications sent by fax
shall be deemed to have been received on the day immediately
following the date of transmission.
8.7 This Agreement may be executed and exchanged in counterparts.
9. GOVERNING LAW AND JURISDICTION
9.1 This Agreement is governed by and shall be construed in
accordance with the laws of The Commonwealth of the Bahamas.
9.2 The parties hereto agree that the Courts of the Bahamas shall
have the jurisdiction to settle any disputes that may arise
in connection with this Agreement and that any judgement or
order of such Court in connection with this Agreement is
conclusive and binding on them and may be enforced against
them in the courts of any other jurisdiction. This clause is
for the benefit of the Purchaser only and shall not limit the
right of the Purchaser to bring proceedings against the
Vendor in connection with this Agreement in any other court
of competent jurisdiction or concurrently in more than one
jurisdiction.
9.3 The Purchaser waives any objection which it may have to the
courts of the Bahamas on the grounds of venue or forum non
conveniens or any similar grounds as regards proceedings in
connection with this Agreement and the consents to service of
process by mail or by any other manner permitted by Bahamian
law.
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IN WITNESS WHEREOF the parties hereto have set their hands and seals the day
and date first above written.
SIGNED AND SEALED by the )
Purchaser in the presence )
of: ) /s/ Xxxxxxx X. Xxxxxx
) --------------------------------
)
/s/ Xxxxxxx Xxxxxx ) /s/ Xxxxxxxxx X. XxXxxxxxx
--------------------------------- ) --------------------------------
Witness )
SIGNED AND SEALED by the Vendor )
In the presence of: )
) /s/ Xxxxxxxxx Xxxxxxx-Xxxxxx
) --------------------------------
)
/s/ Xxxx Xxxxxxx ) /s/ Xxxxx X'Xxxxxxx
--------------------------------- ) --------------------------------
Witness )
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