EXHIBIT 2.9
DATED: OCTOBER 8, 2002
AGREEMENT
BETWEEN
CONSOLIDATED WATER CO. LTD.
AND
SAGE WATER HOLDINGS (BVI) LTD.
XXXXXXX XXXXX, XXXXXXX & XXXXXXXXX
ZEPHYR HOUSE
P.O. BOX 709 GT
XXXX STREET
GRAND CAYMAN
CAYMAN ISLANDS
2
AGREEMENT RE: OCEAN CONVERSION (BVI) LTD.
BETWEEN:
(1) Consolidated Water Co. Ltd. of P.O. Box 1114 GT, Grand Cayman
(hereinafter called "Consolidated") of the first part; and
(2) Sage Water Holdings (BVI) Ltd. of X.X. Xxx 000, Xxxx Xxxx, Xxxxxxx, BVI
(hereinafter called "Sage") of the second part.
WHEREAS:
(a) Sage is the holder of 555,000 Class B voting shares of Ocean Conversion
(BVI) Ltd. ("OCBVI") ("the Company") and holds a 45% profit sharing
interest pursuant to Deeds of Assignment made between Sage and Xxxxxx
Xxxxxxx Limited ("EOL") and North America Mortgage and Finance
Corporation ("NAMF") respectively dated June 30th, 1997;
(b) NAMF is the holder of 535,000 Class A voting shares of the Company
("the NAMF shares") and together with EGL holds a 55% profit sharing
interest pursuant to Share Repurchase and Profit Sharing Agreements
dated December 3rd, 1993 (as amended) (the "PSAs");
(c) DesalCo Limited ("DesalCo") is the holder of 120,000 Class C non-voting
shares of the Company ("the DesalCo shares"). Consolidated intends to
acquire the entire issued share capital of DesalCo.
(d) Consolidated intends to acquire the NAMF shares and take an assignment
and novation of the PSAs following which Consolidated and Sage, with
the consent of the Company, intend to release their interests under the
PSAs and enter into a new amended and restated profit sharing agreement
with the Company;
(e) Under the Articles of Association of the Company the approval of the
Board of Directors is required to the proposed transfer of the NAMF
shares to Consolidated. Under the PSAs, the consent of the Company,
Sage and others is required to the proposed assignment and novation of
the PSAs to Consolidated;
(f) Sage has agreed to approve, and to cause the Company to approve, the
share transfers and assignment and novation as aforesaid on the terms
hereof.
Now, therefore, for and in consideration of the promises herein and other good
and valuable consideration, the sufficiency of which is hereby acknowledged the
parties hereto agree as follows:
3
1. CONDITIONS PRECEDENT
The obligations of the parties hereunder are conditional on the
following conditions precedent, all of which are for the benefit of
Consolidated:
(a) the Completion of a purchase of shares by Consolidated
under a Share Sale Agreement with North-American Mortgage &
Finance Corporation and Transcontinental Finance
Corporation Ltd. dated October 4, 2002.
(b) the Completion of the purchase of shares by Consolidated
under a Share Sale Agreement with Xxxxxxx X. and Xxxxxxxx
X. Xxxxxxx dated October 4, 2002.
If any of the above conditions precedent is not fulfilled (or at the
option of Consolidated, waived in writing) by November 29, 2002 (or
such later date as the parties may agree in writing) this Agreement
shall cease to be in effect and neither party shall have any claim
arising from it against the other.
2. COVENANTS OF THE PARTIES
Subject to the satisfaction of the conditions precedent in paragraph 1,
the parties agree that Completion shall take place at the offices of
the Purchaser's attorneys, Xxxxxxx Xxxxx, Xxxxxxx & Xxxxxxxxx, 4th
Floor Zephyr House, Xxxx Street, Xxxxxx Town, Grand Cayman on November
29, 2002 at ten a.m. or such earlier date as Consolidated may specify
after giving 5 business days notice to Sage:
(a) Sage will cause the Company to adopt the resolutions
attached as Schedule 1 as and when requested by
Consolidated;
(b) Sage will provide its consent to and execute the proposed
assignment and novation of the PSAs, which assignment and
novation shall be in the form attached as Schedule 2, as
and when requested by Consolidated;
(c) Consolidated and Sage will enter into an amendment to the
PSAs with the Company in the form attached as Schedule 3;
(d) Consolidated will cause DesalCo to enter into an amendment
to the Management Services Contract between the Company and
DesalCo dated September 30th, 1992 (as amended) in the form
attached as Schedule 4; and
(e) Sage will and Consolidated will cause DesalCo to enter into
the Share Sale Agreement on the terms of Schedule 5.
3. GENERAL
4
3.1 Except as provided herein, no announcement of any kind shall be made
with respect to the subject matter of this Agreement unless
specifically agreed between the parties. Sage agrees that Consolidated
may, without any prior notice or consultation with Sage, make such
announcements and disclosures as may be required pursuant to the
relevant laws, rules or regulations relating to the listing or offering
of the Consolidated's Shares on the NASDAQ Exchange.
3.2 If this Agreement ceases to have effect Consolidated will release and
return to Sage all documents provided to Consolidated 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.
3.3 This agreement shall be binding upon each party's successors and
assigns and personal representatives (as the case may be) but, except
as provided herein, none of the rights of the parties under this
Agreement may be assigned to transferred.
3.4 All expenses incurred, including all fees of solicitors, accountants
and other professionals required to effect the transactions referred to
in paragraph 2 above shall be for the account of Consolidated.
Otherwise, the expenses incurred by the parties in the negotiation
preparation or execution of this Agreement shall be borne solely by the
party who incurred the liability.
3.5 Time shall be of the essence of this agreement.
3.6 Any notice required to be given under this Agreement shall either be
delivered personally or sent by first class recorded delivery post
(air mail if overseas) or telex or full rate telegram or telecopy. The
address for service of each party shall be its registered office for
the time being and shall be his address stated above or any other
address for service previously notified to the other party or (in the
absence of any such notification) his last known place of residence. A
notice shall be deemed to have been served as follows:
3.6.1 if personally delivered, at the time of delivery:
3.6.2 if posted by inland mail, at the expiration of 48 hours or (in the case
of air mail) 7 days after the envelope containing the same was
delivered into the custody of the postal authorities; and
3.6.3 if sent by telex, or telecopy at the time of transmission.
5
in proving such service it shall be sufficient to prove that
personal delivery was made, or that the envelope containing
such notice was properly addressed and delivered into the
custody of the postal authority as a prepaid first class
recorded delivery or air mail letter (as appropriate) or that
the telex or telecopy was transmitted as the case may be.
4. GOVERNING LAW AND JURISDICTION
4.1 This Agreement is governed by and shall be construed in
accordance with the laws of the British Virgin Islands.
4.2 The parties hereto agree that the Courts of the British Virgin
Islands shall have the exclusive jurisdiction to settle any
disputes that may arise in connection with this Agreement and
that any judgment or order of a British Virgin Islands 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
Consolidated only and shall not limit the right of
Consolidated to bring proceedings against the other parties in
connection with this Agreement in any other court of competent
jurisdiction or concurrently in more than one jurisdiction.
4.3 Sage and the Company waive any objection which they may have
to the courts of the British Virgin Islands 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 the relevant law.
4.4 Without prejudice of the rights of Consolidated to employ any
method of service permitted by British Virgin Islands law,
Sage and the Company hereby irrevocably appoint Xxxxxx
Xxxxxx-Xxxxxx & Xxxxxx, 000 Xxxx Xxxxxx, P.O. Box 144, Road
Town, Tortola as their authorised agent for service of process
in the British Virgin Islands. Any claim, form, writ, summons,
judgment or other notice of legal process shall be
sufficiently served on them if delivered to that agent at its
address for the time being. They shall not revoke the
authority of that agent. If for any reason such agent no
longer serves as agent of theirs to receive service of
process, they shall promptly appoint another such agent and
immediately advise the Consolidated of that appointment.
IN WITNESS WHEREOF the parties hereto have set their hands and seals the day
and date first above written.
6
SIGNED for and on behalf of
Consolidated Water Co. Ltd.
in the presence of:
Xxxxxxxxx X. XxXxxxxxx /s/ Xxxxxxx X. Xxxxxx
----------------------
/s/ Xxxxxxxxx X. XxXxxxxxx
--------------------------
Witness
SIGNED for and on behalf of
Sage Water Holdings (BVI) Ltd.
in the presence of:
Zinmavo Xxxxx Xxxx /s/ Xxxxx Xxxxxxxx
----------------------
/s/ Zinmavo Xxxxx Xxxx
----------------------
Witness
