EXHIBIT 2.4
DATED: JANUARY 31, 2003
THIRD AGREEMENT TO AMEND SHARE SALE AGREEMENT
BETWEEN
CONSOLIDATED WATER CO. LTD.
AND
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ZEPHYR HOUSE
P.O. BOX 709 GT
▇▇▇▇ STREET
GRAND CAYMAN
CAYMAN ISLANDS
EXHIBIT 2.4
THIRD AGREEMENT TO AMEND SHARE SALE AGREEMENT
THIS THIRD AGREEMENT TO AMEND SHARE SALE AGREEMENT is made this 31st day of
January, 2003
BETWEEN:
(1) CONSOLIDATED WATER CO, LTD., formerly Cayman Water Company Limited, of
Trafalgar Place, West Bay Road, P.O. Box 1114 GT, Grand Cayman
(hereinafter "the Purchaser") of the first part; and
(2) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇
▇▇, ▇▇▇▇▇▇▇ (the "Vendors") of the second part.
WHEREAS:
The parties hereto entered into a Share Sale Agreement dated October 4, 2002
(the "Share Sale Agreement").
The Share Sale Agreement provided at Clause 9.8 that the Share Sale Agreement
could be modified by an instrument in writing signed by the duly authorised
representatives of the parties.
The Share Sale Agreement was amended to provide for a later completion date and
the consequences thereof by an Agreement to Amend Share Sale Agreement dated
November 29, 2002 and a Second Agreement to Amend Share Sale Agreement dated
December 30,2002 (together the "Amending Agreements").
The completion of the Share Sale Agreement as amended by the Amending Agreements
was made conditional on the happening of certain events on or before January 31,
2003, and the parties have agreed that the conditions precedent to the Share
Sale Agreement as amended by the Amending Agreements are unlikely to be
satisfied by that date and accordingly the parties have agreed to enter into
this third amending agreement to provide for the later completion date and the
consequences thereof.
NOW IT IS HEREBY AGREED as follows:-
1. Clauses 4.2, 4.3 and 5.1 of the Share Sale Agreement as amended by the
Amending Agreement are each amended by deleting "January 31, 2003",
wherever it appears, and substituting therefor "February 14, 2003".
2. Clause 3 of the Share Sale Agreement as amended by the Amending
Agreements is deleted in its entirety and replaced with the following:
"3. PURCHASE CONSIDERATION
3.1 The Purchase Price for the Shares shall be US$9,400,000.00,
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 US$9,400,000.00 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 initially determined from
the Company's balance sheet in its management accounts as at
31 December 2002 for the purpose of calculating the Initial
Payment (as defined in clause 3.6 below) and, subsequently,
shall be determined at the expense of the Purchaser by the
Company's Auditors for the purposes of calculating the
Adjusting Payment (as defined in clause 3.8 below).
3.3 The purchase price of US$9,400,000.00 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:
(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 US$9,400,000.00
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 US$9,400,000.00 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 (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 US$9,400,000.00 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 five 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 On Completion, an initial payment of the Purchase Price
calculated based upon the management accounts described in
clause 3.2 above (the "Initial Payment") 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 1,911 multiplied by US$690.00 minus
any lesser amount payable to BACO per share under such sale
i.e. 1911 x {US$690 - BACO per share price). This clause shall
survive Completion.
3.8 Within 5 Business Days after the "Total Current Assets of
DesalCo Group" and "Total Current Liabilities of DesalCo
Group" have been determined by the Company's Auditors and the
"Actual Gross Equity of OCC" and the "Actual Gross Equity of
OCBVI" have been determined by OCC's Auditors and OCBVI's
Auditors respectively pursuant to clause 3.2 and 3.3 or
otherwise agreed between the parties an adjusting payment,
calculated as the Purchase Price based upon such determination
less the Initial Payment (the "Adjusting Payment"), shall be
made by the Purchaser to the Vendors, if the Adjusting Payment
is a positive amount, or by the Vendors to the Purchaser, if
the Adjusting Payment is a negative amount. All determinations
to be made by Auditors under clauses 3.2 and 3.3 shall be made
within 60 days of Completion unless the parties have already
agreed the relevant amounts between themselves.
3.9 Notwithstanding anything to the contrary herein contained, all
adjustments required by Clauses 3.2 to 3.5 inclusive to
calculate the Purchase Price shall be made as if Completion
had occurred on January 31, 2003."
3. Clause 5.7 of the Share Sale Agreement as amended by the Amending
Agreements is amended to read as follows:
"On Completion the Purchaser shall pay the Initial Payment as
calculated pursuant to and in the manner as set out in clause 3.6.".
4. Except as expressly modified by this Agreement, the Share Sale
Agreement as amended by the Amending Agreement continues in full force
and effect according to its terms.
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: )
)
)
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Witness
SIGNED by the Vendors )
in the presence of: ) /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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