EXHIBIT 2.1
DATED: OCTOBER 4th, 2002
SHARE SALE AGREEMENT
BETWEEN
CONSOLIDATED WATER CO. LTD.
AND
XXXXXXX X. XXXXXXX AND XXXXXXXX X. XXXXXXX
XXXXXXX XXXXX, XXXXXXX & XXXXXXXXX
ZEPHYR HOUSE
P.O. BOX 709 GT
XXXX STREET
GRAND CAYMAN
CAYMAN ISLANDS
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SHARE SALE AGREEMENT
THIS SHARE SALE AGREEMENT is made this 4th day of October 2002
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) XXXXXXX X. XXXXXXX and XXXXXXXX X. XXXXXXX of 00 Xxxxxx Xxxx, Xxxxx, XX
00, Xxxxxxx (the "Vendors") of the second part.
WHEREAS:
The Purchaser wishes to acquire the entire issued share capital of DesalCo
Limited (which owns the entire issued share capital of DesalCo (Barbados) Ltd.)
from the Vendors 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 (save where (1) expressly otherwise
provided or (2) the Agreement otherwise requires):
"Affiliates" means at any time with respect to a person,
another person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is
under common control with, such person;
"BACO" means Bacardi & Company Limited, a company incorporated
in Vaduz, Liechtenstein, with its principal offices at the
Bacardi plant situate at Xxxxxx Road, Nassau, Bahamas;
"Binder Volumes" means the files of documents referred to in
clause 5 of Schedule 2, the indexes of which have been marked
and initialed by way of confirmation of the contents of such
files;
"Business Day" means a day on which class A licensed banks are
open for business in the Cayman Islands;
"Business" means the business of the design, bidding,
supplying, installation, management and/or operation of
seawater desalination plants in the Caribbean Basin;
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"Caribbean Basin" shall have the meaning as set out in
Schedule 5;
"Company" means DesalCo Limited, formerly Sea Conversion
Technology Ltd., the registered office of which is c/x
Xxxxxxxx Corporate Services Limited, 0xx xxxxx, Xxxxxxxxxx
Xxxxxxxx, X.X. Xxx 000XX, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx;
"Company's Auditors" means Deloitte & Touche, Bermuda;
"Completion" means completion of the sale and purchase of the
Shares;
"Deed of Release" means the deed in the form set out in
Schedule 3;
"DesalCo Group" means the Company and DesalCo (Barbados) Ltd.
together or, where the context requires, either of them
individually;
"Disclosure Letter" means the letter dated the date hereof
written by or on behalf of the Vendors to the Purchaser and
signed by the Vendors;
"DWEER Distributorship Agreement" means the Agreement the form
of which is attached as Schedule 6 dated 24th September, 2002
between the Company and DWEER-Tech;
"DWEER-Tech" means DWEER Technology Ltd., a Cayman Islands
exempted company, owned by the Vendors;
"DWEER Transfer Agreement" means the Agreement for the sale of
the business of designing, developing, manufacturing,
marketing and selling DWEER Products and the patents, patent
applications and other intellectual property relating to DWEER
products dated 11th April, 2002 between the Company and
DWEER-Tech, as amended and restated as the Amended and
Restated Agreement for the sale of the business of designing,
developing, manufacturing, marketing and selling DWEER
Products and the patents, patent applications and other
intellectual property relating to DWEER products and
Associated Technology on 24th September, 2002, the form of
which is attached hereto as Schedule 7;
"Engineering Services Agreement" means the agreement in the
form attached as Schedule 8 to be entered into by the Company
and DWEER Technology Ltd.;
"the LT Investments" means the amount of US$1,571,131
representing the value of the Company's investments in WCL,
OCC and OCBVI as set out in Schedule 1, and Note 5 of the Last
Accounts of the Company;
"the Licences" means A Licence to Produce Water from Seawater
provided to Ocean Conversion (Cayman) Limited by the
Government of
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the Cayman Islands dated April 25, 1994, a Licence to Produce
and Supply Potable Water from Seawater provided to Ocean
Conversion (Cayman) Ltd. by the Government of the Cayman
Islands dated June 18, 1997 and a Licence to Produce and
Supply Water from Seawater provided to Ocean Conversion
(Cayman) Ltd. by the Government of the Cayman Islands dated
December 31, 2001, all as amended;
"TCF/NAMF Agreement" means the Share Sale Agreement between
the Purchaser and North-American Mortgage & Finance
Corporation (hereinafter "NAMF") and Transcontinental Finance
Corporation Limited (hereinafter "TCP") of even date, a copy
of which (excluding Schedule 5 thereto) is attached as
Schedule 9;
"Last Accounts" means the audited accounts of the DesalCo
Group as at June 30th, 2002;
"Last Accounts Date" means June 30th, 2002;
"Purchase Price" means the consideration payable by the
Purchaser to the Vendors as calculated pursuant to clause 3.1;
"Shares" means the issued shares of the Company held by the
Vendors as set out in Schedule 1;
"Warranties" means the warranties and representations by the
Vendors in clause 6;
"Water Supply Companies" means the companies listed in
Schedule 1 and "Water Supply Company" shall be construed
accordingly. With the exception of the Company, the individual
Water Supply Companies shall be referred to in this Agreement
by the initials appearing next to their names in Schedule 1;
"WCL JV Agreement" means the Joint Venture Agreement, dated
10th November, 1995, between the Company and BACO;
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 thereof being in force at Completion;
1.2.2. All statutory instruments or orders made pursuant to
such statutory provision; and
1.2.3. Any statutory provisions of which such statutory
provision is a consolidation, re-enactment or
modification.
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1.3. Any reference in this Agreement to the Vendors (or either of
them) includes their respective personal representatives.
1.4. In this Agreement any word or expression that imports any
gender shall include all genders and the singular shall
include the plural and vice versa.
1.5. Clause headings in this Agreement are for ease of reference
only and do not affect the construction of any provision.
1.6. The schedules hereto form part of this Agreement and shall
have effect as if set out herein. Any reference to this or the
"Agreement" (whether in this Agreement or in the schedules
hereto) shall include both this Agreement and the schedules
hereto.
2. AGREEMENT FOR SALE
Subject to the terms and conditions of this Agreement, the Vendors
shall sell as beneficial owners 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.
3. PURCHASE CONSIDERATION
3.1 The Purchase Price for the Shares shall be *, subject to
adjustment pursuant to clauses 3.2 to 3.5 inclusive in the
order that such clauses are set out below;
3.2 The purchase price of * provided for in clause 3.1 shall be
adjusted (by increasing if the amount is positive or
decreasing if the amount is negative the same as necessary) by
an amount (if any) equal to "Total Current Assets of DesalCo
Group" minus "Total Current Liabilities of DesalCo Group" as
at the end of the calendar month immediately prior to
Completion. "Total Current Assets of DesalCo Group" and "Total
Current Liabilities of DesalCo Group" shall be determined from
the consolidated balance sheet of the DesalCo Group as at the
end of the calendar month immediately prior to Completion.
These amounts shall be as 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.
3.3 The purchase price of * provided for in clause 3.1 as adjusted
by clause 3.2 shall be further adjusted (by increasing if the
amount is positive or decreasing if the amount is negative the
same as necessary) by an amount equal to:
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* Omitted pursuant to a request for confidential treatment.
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(i) 9.09% of "Actual Gross Equity of OCC" minus
"Calculated Gross Equity of OCC" as at the end of the
calendar month immediately prior to Completion; and
(ii) 7.14% of "Actual Gross Equity of OCBVI" minus
"Calculated Gross Equity of OCBVI" as at the end of
the calendar month immediately prior to Completion.
"Actual Gross Equity of OCC", "Calculated Gross Equity of
OCC", "Actual Gross Equity of OCBVI" and "Calculated Gross
Equity of OCBVI" shall have the meanings as defined in the
TCF/NAMF Agreement.
3.4 The parties agree that the purchase price of * provided for in
clause 3.1 as adjusted by clause 3.2 and clause 3.3 above is
based on the assumption that the business of the Water Supply
Companies (excluding for the purposes of this clause only,
WCL), 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, non-recurring 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 purchase
price of * provided for in clause 3.1 as adjusted by clause
3.2 and clause 3.3 above shall be decreased as follows:
(a) to the full extent of the impact of such event on
shareholders' equity of the DesalCo Group during the
period aforementioned. Shareholders' equity of the
DesalCo Group shall be as agreed by the parties and
in the absence of agreement shall be determined in
accordance with the following provisions hereof; and
(b) by 7.14% of the impact of such event on Actual Gross
Equity of OCBVI during the period aforementioned as
determined under the TCF/NAMF Agreement; and
(c) by 9.09% of the impact of such event on Actual Gross
Equity of OCC during the period aforementioned as
determined under the TCF/NAMF Agreement.
In the absence of agreement under sub-clause (a) above or
determination of Actual Gross Equity of OCBVI or Actual Gross
Equity of OCC under the TCF/NAMF Agreement 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 (i) by the
Company's auditors (in the case of a reduction under
sub-clause
---------------
* Omitted pursuant to a request for confidential treatment.
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(a) above) or (ii) under the TCF/NAMF Agreement (in the case
of a deduction pursuant to sub-clause (b) or (c) above).
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 Purchase Price of * as provided for in clause 3.1, 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 10% per annum
(based on a 365 day year) calculated daily for the period of
July 1, 2002 until the date of Completion.
3.6 The Purchase Price shall be paid, at the option of the
Vendors, by way of bankers draft drawn on a Cayman Islands
class A licensed bank or wire transfer to such account as the
Vendors may designate.
3.7 In the event that the Purchaser completes the purchase of the
shares held by BACO in WCL within 180 days of Completion
hereunder, the Vendors agree that they will pay to the
Purchaser a sum equal to * minus any lesser amount payable to
BACO per share under such sale i.e. *. This clause shall
survive Completion.
4. CONDITIONS PRECEDENT AND RESCISSION
4.1 Completion is conditional on the following conditions
precedent, all of which are for the benefit of the Purchaser:
(a) the contemporaneous completion of the TCF/NAMF
Agreement;
(b) the execution and exchange of a share purchase
agreement between the Purchaser and BACO, in relation
to the shares held by BACO in WCL; and
(c) the approval in writing of the Governor in Council of
the Cayman Islands to the purchase by the Purchaser
of the Shares pursuant to the Licences.
The Purchaser agrees to use its best efforts to negotiate,
execute and exchange a share purchase agreement between the
Purchaser and BACO in relation to the shares held by BACO in
WCL.
4.2 If conditions precedent (b) and (c) above are not fulfilled
(or, at the option of the Purchaser, waived in writing) or if
the TCF/NAMF Agreement is validly rescinded in accordance with
the terms thereof by or on October
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* Omitted pursuant to a request for confidential treatment.
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31, 2002, (or such later date as the parties may in writing
agree) this Agreement shall cease to have effect and each
party shall have no further claim under it against the other.
4.3 If condition precedent (a) above is not fulfilled by or on
October 31, 2002 (or such later date as the parties may agree
in writing) (1) the Purchaser may, provided the
non-fulfillment of such condition precedent is due to an act
or omission of the Vendors or TCP or NAMF and (2) the Vendors
may, provided the non-fulfillment of such condition precedent
is due to an act or omission of the Purchaser either:
(a) defer Completion not more than 28 days after the due
date and the provisions of this clause 4.3, including
this sub-clause, shall apply to Completion as so
deferred; or
(b) in the case of the Purchaser, waive condition
precedent (a) and pursue all remedies available to
it; or
(c) in the case of the Vendors, proceed to Completion so
far as practicable (without prejudice to its rights
hereunder) and pursue all other remedies available to
it as if condition precedent (a) did not exist; or
(d) rescind this Agreement in which case this Agreement
shall cease to have effect and each party shall have
no further claim under it against the other.
5. COMPLETION
5.1 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 29th, 2002 at 10:00 in the forenoon or such earlier
date as the Purchaser may specify after giving five Business
Days notice to the Vendors.
5.2 At Completion, the Vendors shall deliver (or procure the
delivery, as the case may be) to the Purchaser of the
following:
5.2.1 duly completed and signed transfers in favour of the
Purchaser of the Shares together with the relevant
share certificates;
5.2.2 the Deed of Release duly executed by the Vendors;
5.2.3 the resignations of all of the directors and officers
in the DesalCo Group with a written acknowledgement
in such form as the Purchaser may require that such
persons (other than the Vendors) have no claim
against any company in the DesalCo Group;
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5.2.4 the resignation of the Vendors as employees in the
DesalCo Group;
5.2.5 duly completed and executed copies of the Engineering
Services Agreement (executed by both the Company and
DWEER-Tech) dated as of the day of Completion;
5.2.6 the resignation of Xxxxxxx X. Xxxxxxx as a director
and officer of WCL, OCC, and OCBVI with written
acknowledgements in such form as the Purchaser may
require that he has no claim against WCL, OCC, or
OCBVI; and
5.2.7 the resignation of employment, or evidence of
termination of employment, of Xxxxx X. Xxxxxxx as an
employee of the Company.
5.3 At Completion or as soon as practicable thereafter the Vendors
shall deliver or make available to the Purchaser:
5.3.1 The seals, including any duplicates, and Certificates
of Incorporation of the DesalCo Group, and the
Certificate of Change of Name of the Company;
5.3.2 The statutory books, books of account and records of
the DesalCo Group, complete and up to date, all in a
method of transmittal reasonably satisfactory to the
Purchaser provided that the Vendors may retain and
keep copies of all records relating to the sale of
the Shares contemplated hereby;
5.3.3 The appropriate forms to amend the mandates given by
the DesalCo Group to its bankers; and
5.3.4 All equipment, furniture, supplies, drawings,
software, electronic data, intellectual property and
all other rights and assets owned by or under the
possession and control of the DesalCo Group whether
located at the offices of the Company at the
International Centre, 26 Bermudiana Road, Xxxxxxxx,
Bermuda or at the premises of DSB at Xxxxx Lane,
Barbados or elsewhere.
5.4 At Completion the Vendors shall repay all monies then owing by
them to any of the Water Supply Companies, whether due for
payment or not.
5.5 At or prior to Completion board meetings of the DesalCo Group
shall be held (or resolutions passed) at which:
5.5.1 Such persons as the Purchaser may nominate shall be
appointed additional directors and officers;
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5.5.2 In relation to the Company, the transfers referred to
in clauses 5.2.1 shall be approved;
5.5.3 In relation to the Company, the Engineering Services
Agreement is approved and execution of the same is
authorised;
5.5.4 It is confirmed that the DWEER Distributorship
Agreement, and the DWEER Transfer Agreement, remain
in full force and effect at Completion, without
modification from what is attached to this Agreement;
and
5.5.3 The resignations referred to in clauses 5.2.3 and
5.2.4 shall be submitted and accepted.
5.6 At or prior to Completion the Purchaser shall deliver to the
Vendors a copy of a resolution of the board of directors of
the Purchaser:
5.6.1 approving and authorizing the execution and delivery
of this Agreement and all documents related to the
transactions contemplated by this Agreement; and
5.6.2 appointing Xxxxxxx X. Xxxxxxx as a director of the
Purchaser in Group 1 of its directors, whose current
term expires at the annual general meeting of the
Purchaser in 2004.
5.7 On Completion the Purchaser will pay the Purchase Price, in
the manner as set out in clause 3.6.
6. WARRANTIES
6.1 Subject to all matters or things disclosed in the Disclosure
Letter, the Vendors jointly and severally warrant to the
Purchaser that, as at the date hereof and, again, as at
Completion, the Warranties set out in Schedule 2 are true and
accurate in all respects.
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 The rights and remedies of the Purchaser in respect of any
breach of the Warranties pursuant to clause 6.1, clause 6.6 or
clause 6.8 shall not be affected by Completion, 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 The information in and incorporated in the Disclosure Letter
shall be deemed to be disclosed again at Completion.
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6.5 The Vendors shall disclose in writing to the Purchaser any
matter or thing (other than those matters or things already
disclosed in the Disclosure Letter) which may to the knowledge
of the Vendors arise or, regardless of when they occurred,
become known to the Vendors after the date hereof and before
Completion which is inconsistent with any of the Warranties or
which might make any such Warranties inaccurate or misleading
at Completion.
6.6 If the Vendors fail to disclose as required by clause 6.5, the
Purchaser's remedy shall be whatever remedies are available to
the Purchaser without limitation under this Agreement or
otherwise.
6.7 In the event of any of such matters or things as are mentioned
in clause 6.5 above being disclosed to the Purchaser before
Completion then, if the aggregate effect of such matters or
things are such that the Business of the DesalCo Group is
materially and adversely affected, the Purchaser may, prior to
Completion, rescind this Agreement by notice in writing to the
Vendors. For the purposes of this clause 6.7, the Business of
the DesalCo Group shall be deemed to be materially and
adversely affected if the Purchaser, had it known of such
matters or things, might reasonably have been expected to
reduce the Purchase Price by * or more. Upon such rescission
this Agreement shall cease to have effect and each party shall
have no further claim under it against the other. Other than
as provided for in this Agreement, the Purchaser shall not be
entitled to rescind this Agreement.
6.8 For the avoidance of doubt and notwithstanding the provisions
of clause 6.7 above, in the event of any such matters or
things as are mentioned in clause 6.5 being disclosed to the
Purchaser before Completion:
(i) which do not give rise to the Purchaser's option of
recission pursuant to clause 6.7; or
(ii) which do give rise to such option but the Purchaser
does not elect to exercise such option;
the Purchaser shall be entitled to claim damages for breach of
the terms of this Agreement.
6.9 The Purchaser shall not be entitled to exercise its rights of
rescission under clause 6.7 without first giving the Vendors
seven days in which to remedy such matter or thing to the
reasonable satisfaction of the Purchaser and, if necessary,
the date set for Completion shall be deferred to such later
date (being no later than the later of (i) seven days from the
giving of notice by the Purchaser of his decision to rescind
and (ii) the date on which Completion would have taken place
had the right of rescission not arisen)
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* Omitted pursuant to a request for confidential treatment.
11
as shall give the Vendors the opportunity to remedy the matter
or thing to the reasonable satisfaction of the Purchaser.
6.10 The provisions of Schedule 4 shall operate to limit the
liability of the Vendors under and in respect of the
provisions of clauses 3.4 and 6 of this Agreement and the
Warranties set out in Schedule 2 of this Agreement; provided
that, such limitations shall in no way be exclusive
limitations and shall not prevent the Vendors or the Purchaser
from relying on any other provisions of this Agreement or any
legal principle with a view to limiting their liability
hereunder.
6.11 The Purchaser hereby represents and warrants to the Vendors as
follows:
The Purchaser is a company duly organized, validly existing
and in good standing under the laws of the Cayman Islands. The
Purchaser has all requisite corporate power and authority to
enter into this Agreement, to perform its obligations
hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. All corporate acts and other
proceedings required to be taken by the Purchaser to authorize
the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have
been duly and properly taken. This Agreement has been duly
executed and delivered by the Purchaser and constitutes legal,
valid and binding obligations of the Purchaser, enforceable
against the Purchaser in accordance with its terms.
6.12 The Purchaser acknowledges that it has not entered into this
Agreement in reliance upon any warranty, representation or
promise other than those set forth in this Agreement.
7. RESTRICTIVE AGREEMENTS
7.1 For the purpose of assuring to the Purchaser the full benefit
of the businesses and goodwill of the Company, each of the
Vendors undertakes by way of further consideration for the
obligations of the Purchaser under this Agreement as a
separate and independent agreement (which shall survive
Completion) that they will not, unless performing or required
under the Engineering Services Agreement or the DWEER
Distributorship Agreement, or acting as a director of the
Purchaser or otherwise with the consent of the Purchaser:
7.1.1 at any time after Completion disclose to any person,
and, where the same is in his possession or control,
shall use his best endeavours to prevent the
publication or disclosure, without the prior written
consent of the Purchaser, such consent not to be
unreasonably withheld, of any information concerning
the business, accounts or finances of any Water
Supply Company or any of its clients' or
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customers' transactions or affairs, which may, or may
have, come to his knowledge;
7.1.2 for a period of seven years after Completion either
on his own account or for any other person directly
or indirectly endeavour to entice away from
employment with any Water Supply Company or the
Purchaser any person who to his knowledge is now or
has preceding the date of this Agreement been an
employee of any Water Supply Company or the Purchaser
save for Xxxxx Xxxxxxx and Xxxx XxXxxxx whom the
Vendors may employ from a date no earlier than 6
months after Completion or such earlier date as the
Purchaser may agree to in writing;
7.1.3 for a period of seven years after Completion, without
the Purchaser's prior written consent, either alone
or jointly with or as manager, agent for or employee
of or consultant to any person, directly or
indirectly carry on or be engaged or concerned or
interested in the Business (other than as a holder of
(1) less than 5 percent of any class of shares or
debentures of any person listed on any stock exchange
which is directly or indirectly engaged or concerned
or interested in the Business or (2) any interest in
any pooled investment vehicle over which Vendors do
not exercise control).
8. DWEER TECHNOLOGY
After Completion the Purchaser agrees that it will cause the Company to
maintain the DWEER Transfer Agreement in full force and effect, and
undertakes to ensure that the Company completes the transfer of
technology and fulfils its other obligations as set out therein. The
Purchaser agrees that this Share Sale Agreement creates no relationship
with DWEER-Tech and does not allow the Purchaser to make any claims
against DWEER-Tech under this Share Sale Agreement.
9. GENERAL
9.1 Subject to the terms of any confidentiality agreements binding
on the Purchaser, except as provided herein, and where
necessary for Completion by disclosing the minimum amount of
information necessary, no announcement of any kind shall be
made with respect to the subject matter of this Agreement
unless specifically agreed in writing between the parties.
Subject to the terms of any confidentiality agreements binding
on the Purchaser the Vendors agree that the Purchaser may,
without any prior notice or consultation with the Vendors,
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 Purchaser's shares on the
NASDAQ Exchange. This clause shall survive Completion.
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9.2 If this Agreement ceases to have effect the Purchaser will
release and return to the Vendors all documents provided to
the Purchaser or its advisers in connection with this
Agreement and will not use, disclose or make available to any
other person any information which it or its advisers have
been given in respect of any DesalCo Group company and which
is not in the public domain.
9.3 This Agreement shall be binding upon each party's successors
and assigns and personal representatives (as the case may be)
but, none of the rights of the parties under this Agreement or
the Warranties may be assigned or transferred. Notwithstanding
the aforesaid, the Vendors agree that, if they are requested
to do so by the Purchaser, they will procure that the Company
take title, at the expense of the Purchaser, to the shares
held by NAMF in OCBVI pursuant to the terms of the TCF/NAMF
Agreement, provided that the Company shall not incur any
liability from doing so and, in so far as the Company does
incur any liability from doing so, the Purchaser shall fully
and effectively indemnify the Company in respect of such
liability for so long as the Company is owned by the Vendors.
9.4 Save as otherwise agreed in writing or provided herein, all
expenses incurred by or on behalf of the parties, including
all 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.
9.5 Time shall be of the essence of this Agreement, both as
regards the dates and periods specifically mentioned and as to
any dates and periods which may by agreement in writing
between or on behalf of the Vendors and the Purchaser be
substituted for them.
9.6 All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be served by
delivering the same by hand or by sending the same by
facsimile or reputable courier service and shall be deemed
given, if sent by hand, when delivered, if sent by facsimile,
upon the date stated in the transmission report or, if sent by
courier service, on delivery by the relevant courier service,
in each case, to the address set out below or such other
address as is notified by the relevant person from time to
time, provided that a notice given in accordance with the
above but received on a non-working day or after business
hours in the place of receipt shall only be deemed to be given
on the next working day in that place:
(a) if to the Purchaser,
Consolidated Water Co. Ltd.
Trafalgar Xxxxx
Xxxx Xxx Xxxx
00
X.X. Xxx 0000 XX
Xxxxx Cayman
Facsimile:x0 (000) 000-0000
(b) if to the Vendors,
Xxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxx
00 Xxxxxx Xxxx
Paget, PG 02
Bermuda
Facsimile No: x0 (000) 000-0000
9.7 If any of the provisions of this Agreement is found by any
Court or any other competent authority to be void or
unenforceable, that provision shall be deemed to be deleted
from this Agreement and the remaining provisions of this
Agreement shall continue in full force and effect.
Notwithstanding the foregoing, the parties shall thereupon
negotiate in good faith in order to agree the terms of a
mutually satisfactory provision to be substituted for the
provision so found to be void or unenforceable.
9.8 This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof, supersedes
all previous agreements and understandings between the parties
with respect hereto, and may not be modified except by an
instrument in writing signed by the duly authorised
representatives of the parties.
9.9 Each party acknowledges that in entering into this Agreement
it does not do so on the basis of, and does not rely on, any
representation, warranty or other provision except as
expressly provided herein, and all conditions, warranties, or
other terms implied by statute or common law are hereby
excluded to the fullest extent permitted by law.
9.10 This Agreement may be entered into in any number of
counterparts and by the parties to it on separate
counterparts, each of which when so executed and delivered
shall be an original, but all the counterparts shall together
constitute one and the same instrument.
10. GOVERNING LAW AND JURISDICTION
10.1 This Agreement is governed by and shall be construed in
accordance with the laws of the Cayman Islands.
10.2 The parties hereto agree that the Courts of the Cayman Islands
shall have the jurisdiction to settle any disputes that may
arise in connection with this Agreement and that any judgement
or order of a Cayman 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 shall not limit the right of either party hereto
to bring proceedings
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against the other party in connection with this Agreement in
any other court of competent jurisdiction or concurrently in
more than one jurisdiction.
10.3 The parties hereto waive any objection which they may have to
the courts of the Cayman Islands on the grounds of venue or
forum non-conveniens or any similar grounds as regards
proceedings in connection with this Agreement and they consent
to service of process by mail or by any other manner permitted
by the relevant law.
10.4 Without prejudice of the rights of the Purchaser to employ any
method of service permitted by Cayman Islands Law, the Vendors
hereby irrevocably appoint Campbells, Attorneys-at-Law, as
their authorised agent for service of process in the Cayman
Islands. Any claim, form, writ, summons, judgement or other
notice of legal process shall be sufficiently served on the
Vendors if delivered to that agent at its address for the time
being. The Vendors shall not revoke the authority of that
agent. If for any reason that such agent no longer serves as
agent of the Vendors to receive service of process, the
Vendors shall promptly appoint another such agent and
immediately advise the Purchaser of that appointment.
AS WITNESS WHEREOF the parties hereto have set their hands the date first above
written.
SIGNED for and on behalf of )
Consolidated Water Co. Ltd. )
by )
in the presence of: )
)
)
/s/ Xxxxxxx X. Xxxxxx ) /s/ Xxxxxxx X. Xxxxxx
------------------------------------ ) ------------------------------------
Witness
SIGNED by the Vendors ) /s/ X. X. Xxxxxxx
in the presence of: ) ------------------------------------
) Xxxxxxx X. Xxxxxxx
)
)
)
/s/ Xxxxx Xxxxxxx ) /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------ ) ------------------------------------
Witness Xxxxxxxx X. Xxxxxxx
00 Xxxxx Xxxx
Xxxx 0 - XX00
Xxxxxxx
