SALE AND PURCHASE AGREEMENT
TABLE OF
CONTENTS
Preamble
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3 | |||||
Article 1:
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Preamble and Annexes | 4 | ||||
Article 2:
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Definitions | 4 | ||||
Article 3:
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Partial Repayment of the Loan and Assignment of the Outstanding Loan | 7 | ||||
Article 4:
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The Escrow Agreement | 8 | ||||
Article 5:
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Sale and Purchase of the Shares | 8 | ||||
Article 6:
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Condition Precedent to Closing | 9 | ||||
Article 7:
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Closing | 9 | ||||
Article 8:
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Term and Termination | 10 | ||||
Article 9:
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Post Closing Obligations | 10 | ||||
Article 10:
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Mutual Release | 10 | ||||
Article 11:
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Non-Competition | 11 | ||||
Article 12:
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Use Of Ridgewood Name | 11 | ||||
Article 13:
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Indemnification | 11 | ||||
Article 14:
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Language | 12 | ||||
Article 15:
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Assignment | 12 | ||||
Article 16:
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Entire Agreement | 12 | ||||
Article 17:
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Governing Law And Dispute Settlement | 12 | ||||
Article 18:
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Miscellaneous | 13 | ||||
ANNEXES
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||||||
Annex (1):
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The Company Details | 18 | ||||
Annex (2):
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Agreed Form of EFG Loan Agreement | 19 | ||||
Annex (3):
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Agreed Form of Certificate of General Counsel | 47 | ||||
Annex (4):
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Agreed Form of Escrow Agreement | 48 | ||||
Annex (5):
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Shares’ Distribution among the Purchasers | 83 | ||||
Annex (6):
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Agreed Form of the Execution SPA | 84 | ||||
Annex (7)
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Agreed Form of the Second Execution SPA | 88 | ||||
Annex (8):
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Form of Limited Power of Attorney | 92 | ||||
Annex (9):
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Agreed Form of ZG Release Letter in favour of the Sellers | 93 | ||||
Annex (10):
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Agreed Form of Resignation Letter | 95 | ||||
Annex (11)(a):
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Agreed Form of Release Letter by ZG, the Second Purchaser and the Company in favour of the Sellers | 96 | ||||
Annex (11)(b):
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Agreed Form of Release Letter by ZG, Xxxxxxx Xxxxx Xxxx Xxxxxxx and the Company in favour of the Sellers | 98 | ||||
Annex (12):
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Agreed Form of Release in Favour of ZG and the Company by the Sellers | 99 | ||||
Annex (13):
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Agreed Form of Assignment of the Outstanding Loan To ZG | 101 | ||||
Annex (14):
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Form of the Specific Release Letter in favour of ZG | 102 | ||||
Annex (15):
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Form of Minutes of the Extraordinary General Shareholders Meeting | 104 |
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This Sale and Purchase Agreement (the “Agreement”) is
made on the 10th day of December, 2009.
By and
Between:
1. Ridgewood Near East Holdings LLC, a limited liability
company, established and organized under the laws of Delaware,
having its registered offices at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000, represented herein by Xx. Xxxxxxx X.
Xxxxxx, in his capacity as the legal representative of Ridgewood
Near East Holdings, LLC;
2. RW Egyptian Holdings, LLC, a limited liability company,
established and organized under the laws of New Jersey, having
its registered offices at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000, represented herein by Xx. Xxxxxxx X. Xxxxxx,
in his capacity as the legal representative of RW Egyptian
Holdings, LLC;
(referred to hereinafter collectively as
“Ridgewood” or the
“Sellers”); and
3. Xx. Xxxx Xxxxxx, an Egyptian national, holding
national ID No. 25809011602892 issued June, 2002 resident
at 000, Xx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx, Xxxxx (referred to
hereinafter as “ZG” or the “First
Purchaser”);
4. El Orouba for Water Desalination SAE, an Egyptian joint
stock company, whose registered office is at 26 Helmy Abd El
Atti Street, Nasr City, Cairo, Egypt, represented herein by
Xx. Xxxx Xxxxxx, in his capacity as its legal
representative (referred to hereinafter as the “Second
Purchaser”).
(together with ZG referred to hereinafter collectively as the
“Purchasers”); and
5. Ridgewood Egypt for Infrastructure LLC, an Egyptian
limited liability company, commercial registration
no. 327201 issued on November 11, 1999, whose
registered office is at 000 Xx Xxxxxx Xx., Xxxxxxxxxx, Xxxxx,
Xxxxx, represented herein by Xx. Xxxx Xxxxxx, in his
capacity as the General Manager (referred to hereinafter as the
“Company”).
PREAMBLE
WHEREAS, by virtue of the Purchase and Sale Agreements
(as hereinafter defined), the Sellers Own 20,000 quotas (the
“Shares”) representing 100% of the capital of the
Company;
WHEREAS, the Sellers have provided financial support to
the Company during the prior years and have outstanding loans
amounting to USD 25,563,086 owing to them by the Company
(the “Loan”); and
WHEREAS, through the efforts of ZG the Company has
succeeded in procuring funding from EFG Hermes to finance the
partial repayment of the Loan; and
WHEREAS, upon Closing the Sellers have agreed to transfer
to ZG, whether directly or indirectly through the Second
Purchaser, the Ownership of the Shares and to transfer to ZG the
Outstanding Loan (as hereinafter defined) and the Second
Purchaser and ZG have agreed to the transfer of the Shares and
Outstanding Loan, as applicable, all in accordance with the
terms and conditions of this Agreement;
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NOW, THEREFORE, it is agreed as follows:
ARTICLE 1:
PREAMBLE AND
ANNEXES
The above Preamble and the Annexes to this Agreement constitute
an integral part thereof.
ARTICLE 2:
DEFINITIONS
2.1 Wherever used in this Agreement or the
Annexes hereto, unless the context otherwise requires, the
following words and expressions shall have the following
respective meanings:
“Affiliates” | means any person or entity that directly or indirectly Controls, is Controlled by, or is under common Control with another person or entity. For the avoidance of doubt Affiliates of the Sellers shall exclude the Company; | |
“Articles of Association” | means the articles of incorporation of the Company, as amended from time to time; | |
“Business Day” | means a day on which most major banks are open for business in Cairo, Egypt but does not include a Friday or a Saturday or any other day which is a public holiday in such city; | |
“Business” | means the business relating to water, waste water, power generation or any other similar business that the Company is involved in at the date of this Agreement; | |
“Certificate of General Counsel” | means the certificate issued by the Senior Vice President and General Counsel of the Sellers to be provided by the Sellers at or prior to Closing to the Escrow Agent substantially in the Form of Annex (3); | |
“Claim/Claims” | means any claims, rights, actions, causes of actions, suits, liens, obligations, accounts, debts, damages (whether general, special, indirect or punitive), demands, agreements, promises, covenants, contracts, judgments, indemnities, guarantees, liabilities, controversies, costs, expenses and attorneys’ or paralegals’ or other fees whatsoever, whether based on contract, tort, statute or other legal or equitable theory of recovery, whether xxxxxx or inchoate, mature or unmatured, contingent or fixed, liquidated or unliquidated, known or unknown, accrued or unaccrued, or asserted or unasserted (individually, a “Claim” and collectively, “Claims”); | |
“Company” | means Ridgewood Egypt for Infrastructure LLC, an Egyptian limited liability company, commercial register number 327201 with its head office located at 000 Xx Xxxxxx Xx., Xxxxxxxxxx, Xxxxx, Xxxxx basic information about which is set out in Annex (1); |
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“Closing” | means the release of the Loan Partial Repayment Amount to the Sellers and the release of the Escrow Documents to the Purchasers, Lender and the Sellers upon the receipt of the Certificate of General Counsel by the Escrow Agent , as provided under this Agreement and the Escrow Agreement; | |
“Closing Date” | means the date on which Closing takes place; | |
“Control” or “Controlled By” | means the possession or ownership, directly or indirectly, of the following: (a) in the case of a corporation, 50% or more of the outstanding voting securities thereof; (b) in the case of a limited liability company, partnership, limited partnership or venture, 50% or more of the voting rights therein; (c) in the case of a trust or estate, 50% or more of the beneficial interest therein; (d) in the case of any other entity, 50% or more of the economic or beneficial interest therein; or (e) in the case of any entity, the power or authority, through the ownership of voting securities, by agreement or otherwise, to direct the management, activities or policies of the entity; | |
“Damages” | means all direct losses, assessments, charges, actual damages, deficiencies, liabilities, fines, costs and expenses (including reasonable legal fees, interest and penalties paid, and the reasonable costs of investigation, defense or settlement of any of the foregoing); | |
“Effective Date” | means the date of signature of this Agreement; | |
“EFG Loan” | means the loan to be made by the Lender pursuant to the EFG Loan Agreement; | |
“EFG Loan Agreement” | means the agreement between the Lender and the Company dated December 10, 2009 a copy of which is attached herewith as Annex (2); | |
“Escrow Account” | means the escrow account to be opened by the Escrow Agent, in accordance with the Escrow Agreement; | |
“Escrow Agent” | means HSBC Bank Egypt SAE; | |
“Escrow Agreement” | means the Escrow Agreement to be entered into among the Sellers, the Purchasers, the Lender, the Company and the Escrow Agent for the purpose of effecting payment of the Loan Partial Repayment Amount and the release of the Escrow Documents, substantially in the form attached hereto in Annex (4), with such amendments thereto as may be approved by the parties to such Escrow Agreement in writing; | |
“Escrow Documents” | means the Sellers’ Documents and the Purchasers’ Documents to be deposited with the Escrow Agent in accordance with the provisions of the Escrow Agreement; | |
“Execution SPA” | means the share purchase agreement to be signed between the Sellers and the Purchasers for execution purposes substantially in the form attached herewith as Annex (6); |
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“First Purchaser Shares” | means such rights (but not legally registered title) as the Sellers have to 5200 Shares pursuant to the Purchase and Sale Agreements and otherwise under applicable law that the First Purchaser is purchasing on the terms and subject to the conditions of this Agreement; | |
“GAFI” | means the General Authority for Investment and Free Zones, a governmental instrumentality of the Arab Republic of Egypt; | |
“Lender” | means the lender under the EFG Hermes Loan Agreement; | |
“Loan” | means the existing loan amounting to USD 25,563,086 owing by the Company to Ridgewood; | |
“Loan Partial Repayment Amount” | means USD 13,000,000 to be paid by the Company to Ridgewood for the partial settlement of the existing Loan; | |
“Long Stop Date” | means the date falling 120 days from the Effective Date. Long Stop Date shall be extended automatically for an additional period of ninety days without need for any further action in the event the Long Stop Date under the Escrow Agreement is extended; | |
“Non-Competition Period” | means the period starting on (and including) the date of Closing and ending on (but excluding) the earlier of (i) the date on which the First Purchaser no longer owns any Shares, and (ii) the fifth anniversary of Closing; | |
“Own” or “Ownership” | means (i) with respect to the Shares, the rights of the Sellers to the Shares evidenced by the Purchase and Sale Agreements and such ownership of the Shares as the Sellers have under applicable law and not the legally registered title to the Shares and (ii) with respect to the Loan, legal entitlement; | |
“Outstanding Loan” | means USD 12,563,086 which will remain outstanding after the Loan Partial Repayment Amount has been received by Ridgewood; | |
“Parties” | means the Sellers, the Purchasers, and the Company; | |
“Person” | means an individual, partnership, corporation, joint stock company, limited liability company, association, trust, joint venture, unincorporated organization, and any government, governmental department or agency or political subdivision thereof; | |
“Purchase and Sale Agreements” | means (i) the Purchase and Sale Agreement entered into on the 15th day of February 2001 by and between Xxxx Xxxxxx Girges and RW Egyptian Holdings, LLC relating to 200 of the outstanding Shares and (ii) the Purchase and Sale Agreement entered into on January 19, 2001 by Xxxxxxx Xxxxxxx Kortam and Ridgewood Near East Holding, LLC relating to 19,800 of the outstanding Shares; |
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“Purchasers’ Documents” | means the documents to be deposited with the Escrow Agent by the Purchasers in accordance with the Escrow Agreement; | |
“Restricted Territories” | means the entire territory of all of the countries located in the continent of Africa and, in addition, Lebanon, Saudi Arabia, United Arab Emirates, Muscat, Oman, Yemen, Kuwait, Syria, Turkey, Iraq and Iran; | |
“Share Purchase Price” | means the aggregate price of the Shares referred to in Article 5 hereof and payable by the First Purchaser and the Second Purchaser to the Sellers at Closing; | |
“Second Purchaser Shares” | means such rights (but not legally registered title) as the Sellers have to 14,800 Shares pursuant to the Purchase and Sale Agreements and otherwise under applicable law, that the Second Purchaser is purchasing on the terms and subject to the conditions of this Agreement; | |
“Subsidiaries” |
means the following entities: Sinai for Environmental Services, an Egyptian Joint Stock company, having its registered office at 000 Xx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx, Xxxxx; and Ridgewood for Water Desalination, an Egyptian Joint Stock company, having its registered office at 000 Xx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx, Xxxxx; |
|
“Sellers’ Documents” | means the documents to be deposited by the Sellers with the Escrow Agent in accordance with the terms of the Escrow Agreement; | |
“USD” | means the lawful currency of the United States of America. |
2.2 Unless the context otherwise requires,
reference to an Article or Annex is to an Article or Annex of
this Agreement.
2.3 The headings used in this Agreement are
included for ease of reference only and shall not affect the
construction or interpretation thereof.
ARTICLE 3:
PARTIAL
REPAYMENT OF THE LOAN AND ASSIGNMENT OF THE OUTSTANDING LOAN
3.1 Within three Business Days from the
Effective Date, the Loan Partial Repayment Amount shall be
deposited in the Escrow Account to be opened in accordance with
the Escrow Agreement. The said amount shall be released by the
Escrow Agent upon Closing in accordance with the terms and
conditions of the Escrow Agreement.
3.2 Upon Closing and receipt of the Loan
Partial Repayment Amount, Ridgewood hereby:
(a) acknowledges partial repayment of the Loan and releases
the Company from any liability to the Sellers in connection
therewith and (b) agrees to assign all its rights related
to the Outstanding Loan to ZG.
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ARTICLE 4:
THE ESCROW
AGREEMENT
4.1 The Sellers, Purchasers and the Lender
shall enter into the Escrow Agreement with the Escrow Agent
substantially in the form attached herewith as Annex (4) on
the Effective Date.
4.2 For the avoidance of doubt, within ten
Business Days from the Effective Date the Sellers shall deliver
the Sellers’ Documents and the Purchasers shall deliver the
Purchasers’ Documents to the Escrow Agent to be released on
Closing Date in accordance with the terms and conditions of the
Escrow Agreement.
4.3 Furthermore, within three
(3) Business Days from the Effective Date, the Lender shall
deposit the Loan Partial Repayment Amount in the Escrow Account
to be released upon Closing in accordance with the terms and
conditions of the Escrow Agreement.
ARTICLE 5:
SALE AND
PURCHASE OF THE SHARES
5.1 Subject to the satisfaction of the
condition precedent outlined under Article (6) herein
below, and receipt by the Sellers of the Loan Partial Repayment
Amount, each of the Sellers shall transfer Ownership in the
Shares to the Purchasers and the Purchasers shall purchase all
of such Seller’s Ownership in the Shares in accordance with
Annex (5) of this Agreement. It is understood and agreed
that: (i) the Sellers have agreed to transfer Ownership in
the Shares to ZG together with the Second Purchaser, and or to
ZG and Xx. Xxxxxxx Xxxxx Xxxx Xxxxxxx at ZG’s option
at the time of execution in the event GAFI does not approve
transfer to the Second Purchaser; (ii ) the Sellers agreement to
include the Second Purchaser is based on the fact that it is
wholly owned by ZG and his family members up to the first degree
and that ZG has undertaken to maintain the same shareholding
structure of the Second Purchaser up to the date on which title
to the Shares is transferred and registered in the name of the
Purchasers
and/or ZG;
(iii) accordingly, the Sellers, ZG and the Second Purchaser
have signed the Execution SPA substantially in the form attached
herewith as Annex (6); and (iv) as a precautionary measure,
the Sellers and ZG will sign another Execution SPA (the
“Second Execution SPA”) to be deposited with
Zulficar & Partners Law Firm, substantially in the
form attached herewith as Annex (7 ), to be used in case
transfer of Shares to the Second Purchaser at the time of
execution is not approved by GAFI. In such a case, ZG shall
deliver the original Execution SPA to Zulficar &
Partners Law Firm against receipt of the Second Execution SPA.
5.2 The Share Purchase Price shall be an
aggregate amount of USD 1 (one) payable by the First
Purchaser and the Second Purchaser to the Sellers.
5.3 The Execution SPA shall be signed by the
Sellers and the Purchasers and deposited in escrow with the
Escrow Agent to be released on the Closing Date in accordance
with the terms and conditions of the Escrow Agreement.
5.4 The Sellers shall further execute a
limited power of attorney, substantially in the form attached
herewith as Annex (8), whereby the Sellers shall authorize
Zulficar and Partners Law Firm to exercise on behalf of the
Sellers all actions, sign all documents, not otherwise executed
by the Sellers, necessary or required to transfer the Shares to
the Purchasers. The Power of Attorney shall be delivered to the
Escrow Agent to be released upon Closing in accordance with the
terms and conditions of the Escrow Agreement.
5.5 ZG, on behalf of himself and any
Affiliates, including but not limited to Mariridge Incorporated,
shall sign (i) a release letter in the form attached
herewith as Annex (9) whereby, among other things, he
releases the Sellers, their officers, directors, managers,
shareholders and
8
Affiliates (“Sellers ZG Released Parties”) from
(a) any liability whatsoever relating to the bonus due to
him or his Affiliates upon the sale of the Company or any of its
assets, any other outstanding compensation or benefits owed or
alleged to be owed to him or his Affiliates, either under US or
Egyptian law or pursuant to any contract or agreement, and,
(b) any and all claims he or his Affiliates may have
against the Sellers ZG Released Parties, or any of them, under
US or Egyptian law and (ii) a resignation letter in the
form attached herewith as Annex (10) from his post as an
employee of the Sellers or any of their Affiliates (other than
the Company) and waives any rights to any termination
compensation or any other rights or claims against the Sellers
and any of their Affiliates related to his involvement or
employment or any other reason whatsoever. Furthermore, ZG, the
Second Purchaser and the Company shall sign a release letter in
favor of the Sellers in the form attached herewith as Annex
(11)(a). Similarly ZG, Xx. Xxxxxxx Xxxxx Xxxx Xxxxxxx and
the Company shall sign a release letter in the form attached
herewith as Annex (11)(b). The above letters shall be signed and
deposited with the Escrow Agent to be released to the Sellers
upon Closing.
5.6 The Sellers shall sign (i) two
original release letters in favor of ZG and the Company in the
form attached herewith as Annex (12), (ii) two original
assignments relating to the assignment of the Outstanding Loan
to ZG in the form attached herewith as Annex (13) and
(iii) a specific release in favor of ZG in the form
attached herewith as Annex(14) The above documents shall be
signed by the Sellers and deposited with the Escrow Agent to be
released in accordance with the terms and conditions of the
Escrow Agreement.
5.7 The Shares to be transferred by the
Sellers to the Purchasers shall include any rights the Sellers
have or may have as a result of their Ownership of the Shares on
Closing, including but not limited to, any dividends declared or
made before or after Closing.
ARTICLE 6:
CONDITION
PRECEDENT TO CLOSING
The Parties agree that Closing is conditional upon obtaining the
necessary approvals of this Agreement, by the shareholders of
each of Ridgewood Electric Power Trust V, The Ridgewood
Power Growth Fund, and Ridgewood/Egypt Fund, as determined by
their Managing Shareholder pursuant to the requirements of the
respective Declarations of Trust of such entities and Delaware
law. The Parties agree that completion and delivery of the
Certificate of General Counsel to the Escrow Agent shall be
sufficient evidence of the satisfaction of this condition
precedent to Closing.
ARTICLE 7:
CLOSING
7.1 Upon satisfaction of the Closing condition
precedent set forth under Article (6) above, the Sellers
shall deliver the Certificate of the General Counsel to the
Escrow Agent and notify the Purchasers and the Lender that the
Closing condition has been satisfied.
7.2 Upon receipt of the Certificate of the
General Counsel by the Escrow Agent, the Escrow Agent shall
immediately (i) transfer the Loan Partial Repayment Amount
to the Sellers in the bank accounts designated in the Escrow
Agreement, and (ii) deliver the Escrow Documents in
accordance with the Escrow Agreement.
9
ARTICLE 8:
TERM AND
TERMINATION
If the condition precedent set forth in Article (6) herein
is not satisfied, and unless the Sellers and the Purchasers
otherwise mutually agree in writing to waive such condition
precedent, this Agreement shall automatically terminate without
need for any legal or judicial procedure on the Long Stop Date
as extended pursuant to the Escrow Agreement.
ARTICLE 9:
POST CLOSING
OBLIGATIONS
9.1 Each Party will cooperate with the
reasonable requests of any other Party in order to consummate
the transactions contemplated by this Agreement.
9.2 After Closing, the manager of the Company
shall call on the extraordinary meeting of the shareholders of
the Company for the purpose of considering the matters set forth
in the draft minutes of such meeting attached hereto as Annex
(15). Each of the Sellers agrees to vote in favour of the
matters set forth in such minutes.
9.3 The Company and its officers, directors
and employees shall make available to the Sellers the books and
records of the Company and the Subsidiaries concerning periods
prior to Closing, upon reasonable notice to the Company, for the
purpose of permitting the Sellers or their officials to prepare
financial statements, tax returns, respond to regulatory
inquiries and the like or otherwise as reasonably requested by
the Sellers.
ARTICLE 10:
MUTUAL
RELEASE
10.1 Without in any way limiting the scope or
applicability of Article 13, at and as of the Closing Date,
the Sellers, on behalf of itself and its predecessors,
successors, parent companies, subsidiaries, Affiliates,
divisions, assignees, and nominees, and all present and former
partners, employees, directors, officers, agents, attorneys,
beneficiaries, representatives and stockholders (“Sellers
Affiliates”), in consideration of good and valuable
consideration, the receipt of which is hereby acknowledged, do
hereby release and forever discharge the Purchasers and the
Company, and each of their predecessors, successors, partners,
parent companies, subsidiaries, Affiliates, divisions, assignees
and nominees, and all present and former partners, employees,
directors, officers, agents, attorneys, beneficiaries,
representatives, and stockholders (collectively referred to as
“Purchaser/Company Affiliates”), of and from any and
all manner of Claims the Sellers
and/or
Sellers Affiliates may have against Purchaser, Company and the
Purchaser/Company Affiliates, including, without limitation, any
Claims in connection with, arising out of, or which are in any
way related to the Purchaser/Company Affiliates’ management
or operation of the Business.
10.2 At and as of the Closing Date, the
Purchasers, Company, Purchasers/Company Affiliates, and each of
them, in consideration of good and valuable consideration, the
receipt of which is hereby acknowledged, do hereby release and
forever discharge the Sellers and/ or the Sellers Affiliates, of
and from any and all manner of Claims the Purchasers, Company ,
Purchaser/Company Affiliates may have against the Sellers and
/or the Sellers Affiliates, including, without limitation, any
Claims in connection with, arising out of, or which are in any
way related to the Sellers
and/or the
Sellers Affiliates ownership, management or operation of the
Business, or the sale of Shares to the Purchasers or the
ownership of Shares by the Purchasers.
10
ARTICLE 11:
NON-COMPETITION
In consideration of the Agreement hereby entered into, each of
the Sellers hereby covenants and agrees that, during the
Non-Competition Period, they shall not and shall procure that
none of their Affiliates shall, directly or indirectly:
(a) carry on, be engaged in or have an ownership interest
in any Person that carries on or is engaged in the Business
within the Restricted Territories; provided, however, that
notwithstanding the foregoing, each of the Sellers may own
securities in any Person engaged in the Business that is a
publicly held corporation, but only to the extent that such
Seller does not own, of record or beneficially, more than 3%
(three percent) of the outstanding equity securities of any such
Person, or
(b) solicit, knowingly encourage or attempt to solicit or
knowingly encourage any person employed in a managerial,
supervisory, technical or sales capacity by the Company or its
Subsidiaries immediately prior to the Closing (the
“Restricted Employees”) to leave the employment
of the Company or its Subsidiaries (whether or not such
Restricted Employee would commit a breach of contract by reason
of leaving such employment or engagement); provided, however,
nothing in this Clause 10 shall prohibit a Seller from
seeking to employ any Person by means of general advertising
that is not specifically directed towards the Restricted
Employees; provided further, however, that no Seller shall,
during the Non-Competition Period, employ: (a) a senior
employee who is a Restricted Employee for a period of three
(3) years following the termination of such employee’s
employment with the Company or its Subsidiaries or (b) any
other Restricted Employee for a period of one (1) year
following termination of such employee’s employment with
the Company or its Subsidiaries, or
(c) solicit, knowingly encourage or attempt to solicit or
knowingly encourage any customer of the Company or any of its
Subsidiaries immediately prior to the Closing (the
“Restricted Customers”) to terminate its
relationship or business dealings with the Company or any of its
Subsidiaries (whether or not such Restricted Customer would
commit a breach of contract by reason of this termination).
ARTICLE 12:
USE OF
RIDGEWOOD NAME
12.1 The Sellers hereby agree that the Company
shall continue to have the right to use the name
“Ridgewood” as part of its name for the conduct of its
business in the Restricted Territory without time limitation and
the Sellers hereby warrant that they shall not use the name
“Ridgewood” in the Restricted Territory as long as it
is used by the Company or its subsidiaries.
12.2 The Company and the Purchasers shall
indemnify and hold the Sellers, their officers, directors,
managers, shareholders and Affiliates harmless against any and
all third party Claims, whether direct or indirect, arising
from, relating to or otherwise resulting from the Company’s
or the Purchasers’ use of or its or their conducting
business under the “Ridgewood” name.
ARTICLE 13:
INDEMNIFICATION
The Purchasers and the Company, individually, and jointly and
severally, agree to indemnify and hold the Sellers
and/or the
Sellers Affiliates harmless against any third-party Claims and
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Damages arising out of, related to or in connection with
(i) the transfer or subsequent ownership of the Shares,
(ii) the ownership, management or operation of the Company
and the Business, (iii) any Claim of Xx. Xxxxxxx
Xxxxxxx Xxxxxx, or (iv) any Claim of the Lender, EFG-Hermes
or any of its Affiliates. The Sellers and /or the Sellers
Affiliates will promptly notify the Purchasers and the Company
of any such Claim and of the election to (y) retain
counsel, whose fees, costs and expenses will be paid by the
Purchasers and the Company, or (z) have the Purchasers or
the Company retain counsel, acceptable to the Sellers
and/or the
Sellers Affiliates, to assume the defense of the Sellers
and/or the
Sellers Affiliates. Neither the Purchasers, the Company nor
their respective representatives, may settle any Claim without
the consent of the Sellers
and/or the
Sellers Affiliates, which consent shall not be unreasonably
withheld.
For the purpose of the foregoing, Claims made by
(i) Ridgewood investors, (ii) the United States
Securities and Exchange Commission, and (iii) the United
States Internal Revenue service shall not be covered by this
Indemnification Clause.
ARTICLE 14:
LANGUAGE
If this Agreement is translated into any language other than
English and any conflict arises between the English language
version of this Agreement and any non-English language version,
the provisions of the English language version shall prevail.
Each other document or notice or other communication in
connection with this Agreement shall be in English or
accompanied by an English translation. The receiving party shall
be entitled to assume the accuracy of and rely upon any English
translation of any document, notice or other communication given
or delivered to it pursuant to this Agreement.
ARTICLE 15:
ASSIGNMENT
This Agreement shall be binding on and inure to the benefit of
each Party’s permitted successors and assigns. No Party may
assign (or declare any trust in favor of a third party over) all
or any part of the benefit of, or its rights or benefits under,
this Agreement without the prior written consent of the other
Parties hereto. Any attempted assignment in violation of this
Article shall be void.
ARTICLE 16:
ENTIRE
AGREEMENT
This Agreement and the Annexes, certificates, and other
agreements and instruments specifically referred to herein
(i) constitute the entire agreement between and among the
Sellers, the First Purchaser, Second Purchaser and the Company
relating to the subject matter of this Agreement and supersede
all prior agreements and understandings (written and oral)
between them and (ii) are intended to, and do not, confer
on any Person other than a Party hereto any rights or remedies
hereunder.
ARTICLE 17:
GOVERNING
LAW AND DISPUTE SETTLEMENT
17.1 This Agreement is to be governed by and
construed in accordance with the laws of the Arab Republic of
Egypt.
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17.2 All disputes arising out of or in
connection with this Agreement and its subject matter shall be
finally resolved by arbitration under the Rules of Arbitration
of the International Chamber of Commerce in Paris (the
“Rules”) by three (3) arbitrators appointed
according to the Rules. Arbitration shall take place in Cairo,
Egypt and shall be conducted in the English language.
ARTICLE 18:
MISCELLANEOUS
18.1 Notices
Notices or any other communications required or permitted
hereunder shall be given in writing in the English language and
shall be deemed to have been delivered: (i) when delivered
in person or by messenger service against receipt thereof,
(ii) on the date of confirmation of receipt of transmission
by telecopier (or the first Business Day in the city where the
recipient is located following such receipt if (a) the date
is not a Business Day or (b) confirmation of receipt is
given after 5pm local time of the recipient (subsequently
confirmed by registered mail, return receipt requested or by
courier)) or (iii) upon proof of delivery by an
internationally recognized courier service (with confirmation of
receipt), addressed to the relevant party at its address set
forth in Clause 18.2 below.
18.2 Addresses
Notices under this Agreement shall be sent to a Party at its
address outlined below. The Party having changed the said
address shall notify to the other Party the new address within
the reasonable period of time not to exceed (10) Business
Days from the date of such change.
If to the Purchasers:
26 Helmy Abd Xx Xxxx Xxxxxx, Xxxx Xxxx, Xxxxx, Xxxxx
Attn: Xx. Xxxx Xxxxxx
Fax. Number: 00000 00000000
Attn: Xx. Xxxx Xxxxxx
Fax. Number: 00000 00000000
If to the Sellers:
Ridgewood Near East Holdings LLC
RW Egyptian Holdings, LLC
c/o Ridgewood
Renewable Power, LLC
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn.: Xxxxxx Xxxxxxx
Facsimile #-845-622-3633
If to the Company:
Ridgewood Egypt for Infrastructure
000, X Xx Xxxxxx Xx.
Xxxxxxxxxx, Xxxxx, Xxxxx
Attn.: Xx. Xxxx Xxxxxx
Fax Number: 00000 00000000
18.3 Amendments
This Agreement may only be amended or modified in writing signed
by each of the Parties hereto.
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18.4 Severability
The invalidity of any provision of this Agreement or portion of
a provision shall not affect the validity of any other provision
of this Agreement or the remaining portion of the applicable
provision. The parties further agree to replace such invalid
provision with a valid and enforceable provision that will
achieve, to the extent possible, the business, economic and
other purposes of such invalid provision.
18.5 Counterparts
This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been
signed by each of the Parties and delivered to the other Parties.
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IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement, or caused this Agreement to be executed by their
respective officers thereunto duly authorized, all as of the
date first above written.
THE SELLERS
Ridgewood Near East
Holdings LLC
Name: |
Xxxxxxx X. Xxxxxx |
Title: |
President |
Signature: |
/s/ Xxxxxxx
X. Xxxxxx |
XX Egyptian Holdings,
LLC
Name: |
Xxxxxxx X. Xxxxxx |
Title: |
President |
Signature: |
/s/ Xxxxxxx
X. Xxxxxx |
THE PURCHASERS
El Orouba for Water
desalination SAE
Name: |
Xxxx Xxxxxx |
Title: |
President |
Signature: |
/s/ Xxxx
Xxxxxx |
Xx. Xxxx
Xxxxxx
Name : |
Xxxx Xxxxxx |
Signature: |
/s/ Xxxx
Xxxxxx |
THE COMPANY
Ridgewood Egypt for
Infrastructure LLC
Name: |
Xxxx Xxxxxx |
Title: |
General Manager |
Signature: |
/s/ Xxxx
Xxxxxx |
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