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STOCK PURCHASE AGREEMENT
AMONG
SEATEC SYSTEMS, INC.
AS SELLER,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(SOLELY WITH RESPECT TO ARTICLE V AND SECTION 7.7)
AS SELLER,
SEATEC BELIZE LIMITED
(SOLELY WITH RESPECT TO ARTICLE IV AND SECTIONS 7.1, 7.2, AND 7.4),
AND
CONSOLIDATED WATER CO. LTD.
AS BUYER.
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June 27, 2000
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") dated June 27, 2000,
is entered into among SEATEC SYSTEMS, INC., a company incorporated under the
laws of Delaware ("SeaTec"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), who has executed
this Agreement solely with respect to Article V and Section 7.5, SEATEC BELIZE
LIMITED, a company organized under the laws of Belize ("SBL"), which has
executed this Agreement solely with respect to Article IV and Sections 7.1, 7.2
and 7.4 and CONSOLIDATED WATER CO. LTD., a company incorporated under the laws
of the Cayman Islands, British West Indies ("Consolidated Water").
RECITALS
A. SeaTec owns 998 ordinary shares of SBL, which represents 99.8% of
the issued and outstanding ordinary shares of SBL.
B. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") owns two ordinary shares of SBL,
which represents the remaining 0.2% of the issued and outstanding ordinary
shares of SBL.
C. Consolidated Water will purchase from SeaTec and ▇▇▇▇▇▇▇, and SeaTec
and ▇▇▇▇▇▇▇ will sell to Consolidated Water, all of their ordinary shares (the
"Shares") of SBL, for an aggregate purchase price of U.S.$3,857,000 (the
"Purchase Price"), and subject to and in accordance with other terms and
conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE
IDEFINITIONS
SECTION 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"AFFILIATE" means, with respect to any specified Person, any other
Person (other than SBL) that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified Person. "CONTROL" (including the terms "CONTROLLING," "CONTROLLED
BY" and "UNDER COMMON CONTROL WITH"), with respect to the relationship between
or among two or more Persons, means the possession, directly or indirectly or as
trustee or executor, of the power to direct or cause the direction of the
affairs or management of a Person, whether through the ownership of voting
securities, as trustee or executor, by contract or otherwise, including, without
limitation, the ownership, directly or indirectly, of securities having the
power to elect a majority of the board of directors or similar body governing
the affairs of such Person.
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"ASSETS" has the meaning specified in Section 4.14 hereof.
"BANKRUPTCY" means (a) an adjudication of bankruptcy under the U.S.
Bankruptcy Reform Act of 1978, as amended, or any successor statute, (b) the
specified Person stops payment of, is deemed unable under Belize bankruptcy Law
or otherwise admits inability to pay its debts or becomes or is deemed to be
insolvent, (c) the making of a winding up or administration order in respect of
the specified Person, (d) an assignment for the benefit of creditors, (e) the
specified Person either does, resolves to do or commences negotiations with a
view to doing any of the following: (i) makes a general or special arrangement
or composition (whether voluntary or compulsory) with its creditors or any class
of creditors, (ii) declares or agrees to a moratorium, (iii) issues a notice
convening a meeting to resolve to do any of the foregoing (other than for the
purpose of a solvent amalgamation or reconstruction), or (iv) makes a proposal
for a voluntary arrangement under Belize bankruptcy Law to be made in respect of
the specified Person, (f) the filing of a voluntary petition in bankruptcy or
reorganization or the passing of a resolution for voluntary liquidation,
reconstruction or winding up (other than for the purpose of a solvent
amalgamation or reconstruction), or (g) the failure to vacate the appointment of
a receiver, trustee, provisional liquidator or administrative receiver for any
part or all of the assets or property of a party within 60 days from the date of
such appointment.
"CONFIDENTIAL INFORMATION" of any Party means all data, reports,
interpretations, trade secrets, forecasts and records containing or otherwise
reflecting information concerning such Party or the transactions contemplated
hereby which is of a confidential nature, or which is not available to the
general public and which such Party provides or has previously provided to the
other Party(ies) at any time pursuant to or in connection with this Agreement or
the transactions contemplated hereby. "Confidential Information" includes any
information obtained by a meeting with personnel or a representative of a Party
or its subsidiaries, together with analyses, compilations, studies or other
documents prepared by the Party obtaining the information, which contain the
Confidential Information. However, "Confidential Information" does not include
any information which: (a) at the time of disclosure or thereafter is available
to the public (other than as a result of a disclosure by a Party in violation of
the terms of this Agreement); or (b) was or becomes available to a Party from a
source other than the Party, unless such Party knows that the source is bound by
the terms of a confidentiality agreement with the other Party.
"ENCUMBRANCE" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and Tax liens), charge,
encumbrance, adverse claim, option, preferential arrangement or restriction of
any kind, including, without limitation, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership.
"ENVIRONMENTAL LAWS" means The Belize Environmental Protection Act and
the Regulations made thereunder.
"GAAP" means United States generally accepted accounting principles and
practices as in effect during the relevant period and applied consistently
throughout the periods involved.
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"GOVERNMENTAL AUTHORITY" means the respective federal, state or local
government, governmental, regulatory or administrative authorities (or
subdivisions thereof) of the United States or Belize, as the case may be, and
their respective agencies, commissions, courts, tribunals or judicial or
arbitral bodies. It is not the intent of this Agreement, nor shall it be the
effect of this Agreement, to submit or subject any Party to, or authorize the
exercise of, jurisdiction by any Governmental Authority not otherwise having
jurisdiction.
"GOVERNMENTAL ORDER" means applicable orders, writs, judgments,
injunctions, decrees, stipulations, determinations or awards entered by or with
a Governmental Authority.
"INTELLECTUAL PROPERTY" means (a) inventions, whether or not
patentable, whether or not reduced to practice, and whether or not yet made the
subject of a pending patent application or applications, (b) ideas and
conceptions of potentially patentable subject matter, including, without
limitation, any patent disclosures, whether or not reduced to practice and
whether or not yet made the subject of a pending patent application or
applications, (c) national (including the United States) and multinational
statutory invention registrations, patents, patent registrations and patent
applications (including all reissues, divisions, continuations,
continuations-in-part, extensions and reexaminations) and all rights therein
provided by international treaties or conventions and all improvements to the
inventions disclosed in each such registration, patent or application, (d)
trademarks, service marks, trade dress, logos, trade names and corporate and
partnership names, whether or not registered, including all common law rights,
and registrations and applications for registration thereof, including, but not
limited to, all marks registered in trademark offices throughout the world, and
all rights therein provided by international treaties or conventions, (e)
copyrights (registered or otherwise) and registrations and applications for
registration thereof, and all rights therein provided by international treaties
or conventions, (f) moral rights (including, without limitation, rights of
paternity and integrity), and waivers of such rights by others, (g) computer
software, including, without limitation, operating systems and specifications,
data, data bases, files, documentation and other materials related thereto, (h)
trade secrets and confidential, technical and business information (including
ideas, flow charts, logic diagrams, formulas, compositions, patterns, devices,
methods, techniques, processes, inventions, and conceptions of inventions
whether patentable or unpatentable and whether or not reduced to practice), (i)
whether or not confidential, technology (including know-how and show-how),
manufacturing and production processes and techniques, research and development
information, drawings, specifications, designs, plans, proposals, technical
data, copyrightable works, financial, marketing and business data, selling,
pricing and cost information or procedures, business and marketing plans and
customer and supplier lists and information, (j) copies and tangible embodiments
of all the foregoing, in whatever form or medium, (k) all rights to obtain and
rights to apply for patents, and to register trademarks and copyrights, (l) all
rights to ▇▇▇ or recover and retain damages and costs and attorneys' fees for
present and past infringement of any of the foregoing, and (m) all goodwill
associated with the foregoing.
"LAW" means applicable statutes, ordinances, regulations, rules, codes,
other requirements or rules of law issued by a Governmental Authority.
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"MATERIAL ADVERSE EFFECT" means any circumstance, change in, or effect
on the business of any Party that: (a) is materially adverse to the business,
operations, assets or liabilities, results of operations or the financial
condition of such Party, or (b) adversely and materially affects the ability of
such Party to operate or conduct its business in the manner in which it is
currently, operated or conducted.
"PARTY" means SeaTec, ▇▇▇▇▇▇▇, SBL or Consolidated Water, as the
context of this Agreement requires. The plural usage of Party collectively
refers to SeaTec, ▇▇▇▇▇▇▇, SBL and Consolidated Water.
"PERSON" means any individual, partnership, firm, corporation, limited
liability company, limited liability partnership, joint venture, association,
trust, unincorporated organization or other entity, as well as any syndicate or
group that would be deemed to be a person under Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended.
"RECEIVABLES" means any and all accounts, notes and other receivables
of SBL from third parties, including, without limitation, customers, arising
from the conduct of SBL's business or otherwise before the date hereof, whether
or not in the ordinary course, together with all unpaid financing charges
accrued thereon.
"TANGIBLE PERSONAL PROPERTY" means machinery, equipment, tools,
supplies, furniture, fixtures, personalty, vehicles, rolling stock and other
tangible personal property used in SBL's business.
"TAX" or "TAXES" means any and all taxes, stamp duties, fees, levies,
duties, tariffs, imposts, and other charges of any kind (together with any and
all interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any Governmental Authority or taxing authority,
including, without limitation: taxes or other charges on or with respect to
income, franchises, windfall or other profits, gross receipts, property, sales,
use, capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth; taxes or other charges in the nature of
excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes;
license, registration and documentation fees; and customs duties, tariffs, and
similar charges.
"TO THE KNOWLEDGE" means the actual knowledge of the applicable Party
and/or any executive, manager or director of the Party, and an individual shall
be deemed to have "knowledge" of a particular fact, circumstance or other matter
if: (a) such Person is actually aware of such fact or matter, or (b) a prudent
individual would be expected to discover or otherwise become aware of such fact,
circumstance or other matter in the course of conducting a reasonably
comprehensive inquiry concerning the truth or existence of such fact,
circumstance or other matter. SeaTec and SBL shall be deemed to have notice and
knowledge of any Governmental Order delivered to, or served on, SeaTec or SBL,
or any of their Affiliates.
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ARTICLE II
PURCHASE AND SALE
SECTION 2.1 CLOSING. The closing of the purchase and sale of the Shares
(the "Closing") shall take place at the offices of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, on
July 21, 2000, or such other date as is mutually agreed to in writing by the
Parties (the "Closing Date").
SECTION 2.2 PURCHASE AND SALE. Subject to the fulfillment of the terms
and conditions contained herein, and based upon the representations and
warranties set forth herein, on the Closing Date, Consolidated Water shall
purchase from SeaTec and ▇▇▇▇▇▇▇, and SeaTec and ▇▇▇▇▇▇▇ shall sell to
Consolidated Water (the "Closing"), the Shares free and clear of any and all
Encumbrances. In consideration of and in full payment for the Shares,
Consolidated Water shall pay to SeaTec and ▇▇▇▇▇▇▇ on the Closing Date, by wire
transfer of immediately available funds, the Purchase Price less the Deposit
referred to in Section 2.3 hereof and as adjusted in accordance with Section
7.3(a) hereof.
SECTION 2.3 ▇▇▇▇▇▇▇ MONEY DEPOSIT. Upon execution of this Agreement by
all of the Parties, Consolidated Water shall make a wire transfer payment to
SeaTec in the amount of $25,000 (the "Deposit"). If the Governmental Authority
of Belize and its Water and Sewerage Authority have not approved the
consummation of this Agreement and the transactions contemplated hereunder by
the Closing Date, or SeaTec or ▇▇▇▇▇▇▇ fails to honor its or his obligations
hereunder on the Closing Date for any reason other than Consolidated Water's
material breach of any of its obligations hereunder, then SeaTec promptly shall
make a wire transfer payment to Consolidated Water after the Closing Date of the
full amount of the Deposit. If the closing of the transactions contemplated
hereunder occurs on the Closing Date, the Deposit shall be applied to the
Purchase Price, and Consolidated Water shall make a wire transfer payment to
SeaTec and ▇▇▇▇▇▇▇ in the aggregate amount of $3,832,000, as adjusted in
accordance with Section 7.3(a) hereof. If the closing of the transactions
contemplated hereunder does not occur on the Closing Date, SeaTec shall retain
the Deposit, and Consolidated Water shall have no further liability to SeaTec
whatsoever.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
WITH RESPECT TO SEATEC
As an inducement to Consolidated Water to enter into this Agreement,
SeaTec, as of the date hereof and on the Closing Date, represents, warrants and
covenants to Consolidated Water as follows:
SECTION 3.1 ORGANIZATION, QUALIFICATION, ETC. OF SEATEC. SeaTec is a
duly organized and validly existing corporation under the laws of the State of
Delaware and has all necessary corporate power and authority to own, operate or
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lease the properties and assets now owned, operated or leased by it and to carry
on its business as it has been, is currently and is anticipated to be conducted.
SECTION 3.2 TITLE TO THE SHARES. SeaTec (a) has good and marketable
title to and legal and beneficial ownership of 998 Shares, and (b) has full
right, power and authority to sell, assign, transfer and deliver its Shares
hereunder, free and clear of any Encumbrance.
SECTION 3.3 AUTHORITY OF SEATEC. SeaTec has all necessary corporate
power and authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by SeaTec, the performance by SeaTec of its
obligations hereunder and the consummation by SeaTec of the transactions
contemplated hereby have been duly authorized by all requisite corporate action
on the part of SeaTec. This Agreement has been duly executed and delivered by
SeaTec and (assuming due authorization, execution and delivery by Consolidated
Water) constitutes the legal, valid and binding obligation of SeaTec,
enforceable against SeaTec in accordance with its terms, except as such
enforcement may be subject to (a) Bankruptcy or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
SECTION 3.4 NO CONFLICT. Assuming the making and obtaining of all
filings, notifications, consents, approvals, authorizations and other actions
referred to in SCHEDULE 3.4 hereto, the execution, delivery and performance of
this Agreement by SeaTec and the consummation of the transactions contemplated
hereby do not and will not (a) violate, conflict with or result in the breach of
any provision of SeaTec's Certificate of Incorporation or Bylaws, (b) to the
knowledge of SeaTec, conflict with or violate any Law or Governmental Order
applicable to SeaTec, which violation or conflict would, individually or in the
aggregate, have a Material Adverse Effect on SeaTec, its business or on the
transactions contemplated hereby, or (c) to the knowledge of SeaTec, result in
any breach of, constitute a default (or an event which 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 of, or result in the creation of any
Encumbrance on any of the assets or properties of SeaTec or its business
pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument, agreement or
arrangement to which SeaTec is a party or by which any of such assets or
properties is bound or affected which conflict or violation would, individually
or in the aggregate, have a Material Adverse Effect on the ability of SeaTec to
consummate the transactions contemplated hereby.
SECTION 3.5 CONSENTS AND APPROVALS. Except as set forth in SCHEDULE 3.5
hereto, the execution, delivery and performance of this Agreement by SeaTec and
the transactions contemplated hereby do not and will not require, to the
knowledge of SeaTec, any consent, approval, authorization or other order of,
action by, filing with or notification to any Governmental Authority or any
third party.
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SECTION 3.6 LITIGATION. There are no claims or proceedings by or
against SeaTec or any of SeaTec's subsidiaries or any of SeaTec's or its
subsidiaries' directors, officers, employees or agents pending or, to the
knowledge of SeaTec, threatened and which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect or could reasonably be
expected to affect the legality, validity or enforceability of this Agreement or
the consummation of the transactions contemplated hereby.
SECTION 3.7 INDEBTEDNESS OF SBL. On the Closing Date, there are no
amounts due from SBL to SeaTec, directly or indirectly.
SECTION 3.8 TRANSFER TAXES. SeaTec shall pay all transfer taxes of any
kind (including stamp duties required by the Government of Belize) applicable to
the transfer of the Shares to Consolidated Water.
SECTION 3.9 BROKERS. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of SeaTec.
SECTION 3.10 REGISTRATION OF SHARES. The Shares have not been
registered under the Securities Act of 1933 or any other applicable Law.
SECTION 3.11 FULL DISCLOSURE. No representation or warranty of SeaTec
contained in this Agreement and the Schedules attached hereto and no written
statement contained in any financial , operating or other data furnished since
February 17, 2000 or to be furnished to Consolidated Water pursuant to this
Agreement contains or will contain any materially untrue statement of a material
fact, or omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading.
SECTION 3.12 NO IMPLIED REPRESENTATIONS. SeaTec makes no
representations or warranties other than those (a) expressly set forth in this
Agreement and the Schedules attached hereto, and (b) in any written statement
contained in any financial , operating or other data furnished to Consolidated
Water since February 17, 2000, or to be furnished to Consolidated Water pursuant
to this Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
WITH RESPECT TO SBL
As an inducement to Consolidated Water to enter into this Agreement,
SeaTec and SBL, as of the date hereof and on the Closing Date, jointly and
severally represent, warrant and covenant to Consolidated Water as follows:
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SECTION 4.1 ORGANIZATION, QUALIFICATION, ETC. OF SBL. SBL is a duly
incorporated and validly existing company under the laws of Belize and has all
necessary corporate power and authority to own, operate or lease the properties
and assets now owned, operated or leased by it and to carry on its business as
it has been, is currently and is currently anticipated to be conducted. SBL is
duly licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation of
its business makes such licensing or qualification necessary, except where the
failure to be so licensed, qualified or in good standing does not have, or could
not reasonably be expected to have, a Material Adverse Effect. All material
corporate actions taken by SBL have been duly authorized and SBL has not taken
any action that in any respect conflicts with, constitutes a default under or
results in a violation of any provision of its Memorandum of Association and
Articles of Association (collectively, the "Charter Documents"), except to the
extend such conflict or failure does not have a Material Adverse Effect. True
and correct copies of SBL's (a) Charter Documents as amended and restated
through the date hereof and (b) resolutions of SBL's board of directors and
stockholders adopted prior to the date hereof heretofore have been delivered to
Consolidated Water and all of such resolutions remain in full force and effect
in the form delivered to Consolidated Water, unless any of such resolutions have
been modified and the modified resolutions are provided to Consolidated Water
prior to the Closing.
SECTION 4.2 CAPITALIZATION OF SBL. The entire authorized capital stock
of SBL consists of 1,000 ordinary shares of $10.00 (Belize) each. All of the
authorized shares are issued and outstanding. There are no preemptive rights
with respect to any ordinary shares of SBL and, there are no outstanding
options, subscriptions, warrants, calls, contracts, convertible securities, or
other rights, agreements, arrangements or commitments of any character under
which SBL is or may become obligated to issue, assign or transfer any ordinary
shares or purchase, redeem or otherwise acquire any outstanding ordinary shares
of SBL, except as set forth in SCHEDULE 4.2 attached hereto. All outstanding
ordinary shares of SBL have been duly and validly authorized and issued and are
fully paid and owned, beneficially and of record as follows: 998 Shares owned by
SeaTec and two Shares owned by ▇▇▇▇▇▇▇. Neither SBL nor SeaTec has granted any
option or other right to purchase any ordinary shares of SBL or any interest
therein from any such stockholder.
SECTION 4.3 AUTHORITY OF SBL. SBL has all necessary corporate power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. The execution and
delivery by SBL of this Agreement, the performance by SBL of its obligations
hereunder and the consummation by SBL of the transactions contemplated hereby
have been duly authorized by all requisite corporate action on the part of SBL.
This Agreement has been duly executed and delivered by SBL and (assuming due
authorization, execution and delivery by the other parties thereto) constitutes
the legal, valid and binding obligation of SBL, enforceable against SBL in
accordance with its terms, except as such enforcement may be subject to (a)
Bankruptcy or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
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SECTION 4.4 NO CONFLICT. Assuming the making and obtaining of all
filings, notifications, consents, approvals, authorizations and other actions
referred to in SCHEDULE 4.4 hereto, the execution, delivery and performance of
this Agreement by SBL and the consummation of the transactions contemplated
hereby do not and will not (a) violate, conflict with or result in the breach of
any provision of SBL's Charter Documents, (b) to the knowledge of SeaTec,
conflict with or violate any Law or Governmental Order applicable to SBL, its
business or the Assets which violation or conflict could, individually or in the
aggregate, have a Material Adverse Effect on SBL, its business or on the
transactions contemplated hereby, or (c) to the knowledge of SeaTec, conflict
with, result in any breach of, constitute a default (or an event which 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 of, or result in
the creation of any Encumbrance on any of its Assets pursuant to, any note,
bond, mortgage or indenture, contract, agreement, lease, sublease, license,
permit, franchise or other instrument, agreement or arrangement to which SBL is
a party or by which any of such assets or properties is bound or affected which
conflict, breach, default or violation could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect on SBL or
the business of SBL.
SECTION 4.5 CONSENTS AND APPROVALS. Except as set forth in SCHEDULE 4.5
hereto, to the knowledge of SeaTec, the execution, delivery and performance of
this Agreement by SBL does not and will not require any consent, approval,
authorization or other order of, action by, filing with or notification to any
Governmental Authority or any third party.
SECTION 4.6 LITIGATION. There are no actions, disputes or claims being
brought or, to the knowledge of SeaTec, threatened by or against SBL of any of
SBL's subsidiaries or any of SBL's directors, officers, employees or agents, or
affecting any of the Assets, pending or threatened, and which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
SECTION 4.7 FINANCIAL INFORMATION.
(a) To the knowledge of SeaTec, SBL's audited annual financial
statements for the year ended December 31, 1999 (the "1999 Financial
Statements"), which have been furnished by SBL to Consolidated Water have been
prepared in accordance with GAAP, which principles have been consistently
applied throughout the periods involved (except as disclosed therein) and fairly
present in all material respects the financial state of affairs of SBL as of the
dates thereof and the results of SBL's operations for the period then ended.
(b) Since December 31, 1999, SBL has not paid or declared any
dividend or distribution with respect to its outstanding capital stock.
SECTION 4.8 RECEIVABLES. All Receivables reflected on the 1999
Financial Statements arose from, and the Receivables existing as of the Closing
Date will have arisen from,
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the sale of services to persons not Affiliated with SBL and in the ordinary
course of its business consistent with past practice and constitute or will
constitute, as the case may be, only valid claims of SBL not subject to valid
claims of set-off, off-set or other valid defenses or counterclaims. The 1999
Financial Statements make full provision for all doubtful debts and all bad
debts have been written off, except for doubtful debts and bad debts that,
individually or in the aggregate, would not have a Material Adverse Effect on
SBL or the Business.
SECTION 4.9 CONDUCT OF BUSINESS IN THE ORDINARY COURSE. Since the date
it commenced operations of its plant in Belize, SBL has conducted its business
only in the ordinary course.
SECTION 4.10 COMPLIANCE WITH LAWS. To the knowledge of SeaTec, SBL has
conducted and continues to conduct its business in all material respects in
accordance with all applicable Laws and all applicable Governmental Orders
entered by or with any Governmental Authorities, and SBL is in compliance with
all such Laws or Governmental Orders, except to the extent that the failure to
so conduct or comply therewith would not, in the aggregate, have a Material
Adverse Effect on SBL, the business of SBL or on the transactions contemplated
hereby
SECTION 4.11 MATERIAL CONTRACTS AND OTHER INFORMATION.
(a) SBL has made available, or within twenty-one (21) days
after the date of this Agreement will make available, to Consolidated Water for
review and duplication, correct and complete copies (or in the case of oral
contracts, summaries thereof) of all of the following contracts and agreements
of SBL, together with all material contracts, agreements, leases and subleases
to which SBL is a party concerning the management or operation of any real
property and all material agreements relating to Intellectual Property (such
material contracts and agreements, listed in SCHEDULE 4.11 hereto, collectively,
"Material Contracts"):
(i) each contract and agreement for the purchase of
inventory or personal property with any supplier or for the furnishing of
services to SBL, or otherwise related to the business of SBL under the terms of
which SBL; (A) is reasonably anticipated to pay or otherwise give consideration
of more than U.S.$50,000 in the aggregate over the remaining term of such
contract or (B) cannot cancel without penalty or further payment and without
more than 30 days' notice;
(ii) each contract and agreement for the sale of
inventory or other personal property or for the furnishing of services by SBL
which: (A) is reasonably anticipated to involve consideration of more than
U.S.$50,000 in the aggregate during the fiscal year ending December 31, 2000 or
in any fiscal year thereafter, (B) is reasonably anticipated to involve
consideration of more than U.S.$100,000 in the aggregate over the remaining term
of the contract or (C) cannot be canceled by SBL without penalty or further
payment and without more than 30 days' notice;
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(iii) all broker, distributor, dealer, manufacturer's
representative, franchise, agency, sales promotion, market research, marketing,
consulting and advertising contracts and agreements to which SBL is a party;
(iv) all management contracts and contracts with
independent contractors, consultants or other persons (including Affiliates) (or
similar arrangements) involving exclusive rights or requiring payments in excess
of U.S.$50,000 individually to which SBL is a party and which are not cancelable
without penalty or further payment on 30 days' or less notice;
(v) all contracts and agreements relating to
indebtedness of SBL in excess of U.S.$50,000 individually or U.S.$100,000 in the
aggregate;
(vi) all contracts and agreements with any
Governmental Authority to which SBL is a party;
(vii) all contracts and agreements that limit or
purport to limit the ability of SBL to compete in any line of business, or with
any person, or in any geographic area or during any period of time;
(viii) all contracts and agreements between or among
SBL on the one hand and any Affiliate of SBL on the other hand;
(ix) all leases and subleases for tangible personal
property having a value in excess of U.S.$50,000; for purposes of this
Agreement, the term "lease" shall include any and all leases, subleases,
sale/leaseback agreements or similar arrangements.
(x) all contracts relating to Intellectual Property
and all contracts relating to real property owned, leased or used by SBL; and
(xi) all other contracts and agreements whether or
not made in the ordinary course of business, which are material to SBL or the
conduct of its business.
(b) Each Material Contract: (i) is valid and binding on SBL
and, to the knowledge of SeaTec, is in full force and effect, and (ii) does not
contain any term or provision which permits the cancellation, termination or
modification thereof as a result of the transactions contemplated by this
Agreement. To the knowledge of SeaTec, SBL is not, and no other party to any
Material Contract is, in breach of or default under any Material Contract, which
breach or default would have a Material Adverse Effect on SBL.
(c) Except as set forth in the Material Contracts, there is no
contract, agreement or other arrangement granting any person any preferential
right to purchase, other than in the ordinary course of SBL's business
consistent with past practice, any of the properties, assets or services of SBL.
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(d) Except as set forth in the Material Contracts, there is no
outstanding guarantee or agreement for indemnity or for suretyship either given
by or for the benefit of SBL.
(e) Prior to the date of this Agreement, or twenty-one (21)
days hereafter, SBL has made available, or has caused to be made available, to
Consolidated Water for review and duplication, correct and complete copies of
the following:
(i) the 1999 Financial Statements and all other
financial information reasonably requested by Consolidated Water;
(ii) all returns and reports in respect of all taxes
which have been filed with the appropriate Governmental Authorities with respect
SBL for each of the past five years;
(iii) copies of all current insurance policies of
SBL;
(iv) copies of all current manufactures' warranties
on all of SBL's plant equipment;
(v) evidence satisfactory in the sole and absolute
judgment of Consolidated Water that SBL owns or has the rights to use all
proprietary technology which it utilizes in its business;
(vi) copies of all employment agreements between SBL
and each of its employees;
(vii) all the documentation and information relating
to the design and operation of SBL's plant;
(viii) a complete inventory list of all SBL
equipment, as well as confirmation that all such equipment is operational;
(xi) a valuation of SBL's inventory, which is
approved in writing by Consolidated Water; and
(x) such other documentation and information as is
reasonably requested by Consolidated Water in order to determine whether to
enter into this Agreement.
SECTION 4.12 INTELLECTUAL PROPERTY.
(a) To the knowledge of SeaTec, the conduct of SBL's business
as operated on the date hereof and on the Closing Date, does not conflict with,
misappropriate or infringe any Intellectual Property rights or franchises of any
Person (including, but not limited to, patents, trade secrets or other
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proprietary rights of any third party), and SBL owns or has the right to use all
Intellectual Property necessary for the conduct of its business as operated on
the date hereof and on the Closing Date.
(b) SeaTec has designed and constructed certain parts
necessary for the conduct of SBL's business and operations. As of the Closing,
SeaTec hereby grants to Consolidated Water a non-exclusive, non-terminable
royalty free license to use such parts in the business and operations of SBL
after the Closing. Consolidated Water may not sub-license for the use of such
parts; provided, however, that Consolidated Water shall have the right to
transfer such license to any third party to whom Consolidated Water may transfer
the capital stock or Assets of SBL at any time after the Closing. Such license
shall be limited to the use of the parts at the Real Property (as defined in
Section 4.13) in connection with the operation of a plant on the Real Property.
SECTION 4.13 REAL PROPERTY. SBL owns or leases the real property
identified in SCHEDULE 4.13 hereto (the "Real Property"). The Real Property
comprises all the real property owned, used or occupied by SBL in connection
with its business and SBL has never owned any interest in any other real
property other than the Real Property. To the knowledge of SeaTec, there is no
violation of applicable Law (including, without limitation, any building,
planning, zoning law or environmental law) or any covenants, stipulations or
conditions relating to any of the Real Property and SBL is in peaceful and
undisturbed possession of each parcel of Real Property, except to the extent
such violation or failure to be in such possession does not have a Material
Adverse Effect. To the knowledge of SeaTec, there are no contractual or legal
restrictions that preclude or restrict in any material manner the ability to use
any of the Real Property in the manner in which they are currently being used
and the Real Property has all rights and easements reasonably necessary for
their use and enjoyment for the purposes of SBL's business. SBL is not leasing
or subleasing and has not leased or sublet any parcel or any portion of any
parcel of Real Property to any other Person, nor has SBL assigned its interest
under any lease or sublease for any leased Real Property to any third party. To
the knowledge of SeaTec, there are no outstanding material disputes with any
Person relating to the Real Property or its use and no notices have been given
or received by SBL which would adversely affect the use and enjoyment of the
Real Property.
SECTION 4.14 ASSETS. SBL owns, leases or has the legal right to use all
the properties and assets used or intended to be used or required in the conduct
of its business and which are material and, with respect to contract rights, is
a party to and enjoys the right to the benefits of all material contracts and
agreements used and/or intended to be used by SBL or required in or relating to
the conduct of its business (such properties, assets and contract rights
collectively referred to as the "Assets"). SBL has good title to or, in the case
of leased or subleased Assets, valid and subsisting leasehold interests in, all
the Assets, free and clear of all Encumbrances. All the Assets are in good
operating condition and repair, ordinary wear and tear excepted, and are
suitable for the purposes for which they are used and intended.
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SECTION 4.15 SUPPLIERS. SBL has not received any notice, nor is SBL
aware, that any supplier (other than SeaTec) will not sell supplies and other
goods or provide services to SBL at any time after the date hereof on terms and
conditions substantially similar to those used in its current sales to SBL,
subject only to general and customary price increases.
SECTION 4.16 TAXES.
(a) RETURNS AND REPORTS.
(i) All returns and reports in respect of all Taxes
required to be filed with respect to SBL or its business have been filed;
(ii) all Taxes required to be shown on such returns
and reports or otherwise due have been paid;
(iii) all such returns and reports are true, correct
and complete in all material respects;
(iv) no adjustment relating to such returns has been
proposed by any tax authority and, to the knowledge of SeaTec or SBL, no basis
exists for any such adjustment;
(v) there are no pending or to the knowledge of
SeaTec threatened actions or proceedings for the assessment or collection of
Taxes against SBL;
(vi) SBL has not been at any time a member of any
partnership or joint venture or the holder of a beneficial interest in any trust
for any period for which the statute of limitations for any Tax has not expired;
and
(vii) all Taxes required to be withheld, collected or
deposited by or with respect to SBL have been timely withheld, collected or
deposited, as the case may be, and, to the extent required, have been paid to
the relevant taxing authority, except to the extent the failure to do so would
not have a Material Adverse Effect.
(b) OUTSTANDING TAX ISSUES.
(i) There are no outstanding waivers or agreements
extending the statute of limitations for any period with respect to any Tax to
which SBL may be subject;
(ii) to the knowledge of SeaTec, there are no
proposed reassessments of any property owned by SBL or other proposals that
could increase the amount of any Tax to which SBL would be subject; and
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(iii) no power of attorney that is currently in force
has been granted with respect to any matter relating to Taxes that could affect
SBL.
(c) Prior to the Closing, SBL will deliver to Consolidated
Water correct and complete copies of all filed federal, state and foreign
income, franchise and similar tax returns since its formation, and correct and
complete summaries of all examination reports, and statements of deficiencies
assessed against or agreed to by SBL since its formation.
(d) On the 1999 Financial Statements, reserves and allowances
have been provided adequate to satisfy all liabilities for Taxes relating to SBL
for periods through the date thereof.
SECTION 4.17 BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of SBL.
SECTION 4.18 ENVIRONMENTAL COMPLIANCE. To the knowledge of SeaTec, SBL
and the Real Property are, and at all times since SeaTec and/or SBL have
occupied the Real Property have been, in material compliance with all applicable
Environmental Laws, except to the extent the failure to be in material
compliance would not have a Material Adverse Effect.
SECTION 4.19 FULL DISCLOSURE. No representation or warranty with
respect to SBL contained in this Agreement and the Schedules attached hereto and
no written statement contained in any financial, operating or other data
furnished since February 17, 2000 to Consolidated Water pursuant to this
Agreement, contains any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading.
SECTION 4.20 NO IMPLIED REPRESENTATIONS. SBL makes no representations
or warranties other than those (a) expressly set forth in this Agreement and the
Schedules attached hereto, and (b) in any written statement contained in any
financial, operating or other data furnished to Consolidated Water since
February 17, 2000, or to be furnished to Consolidated Water pursuant to this
Agreement.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
WITH RESPECT TO ▇▇▇▇▇▇▇
As an inducement to Consolidated Water to enter into this Agreement,
▇▇▇▇▇▇▇, as of the date hereof and on the Closing Date, represents and warrants
to Consolidated Water as follows:
SECTION 5.1 TITLE TO THE SHARES. ▇▇▇▇▇▇▇ (a) has good and marketable
title to and legal and beneficial ownership of two Shares, has not granted any
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option or other right to purchase his Shares or any interest therein, and (b)
has full right, power and authority to sell, assign, transfer and deliver its
Shares hereunder, free and clear of any Encumbrance.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF CONSOLIDATED WATER
As an inducement to each of SeaTec and ▇▇▇▇▇▇▇ to enter into this
Agreement, Consolidated Water, as of the date hereof and on the Closing Date,
represents, warrants and covenants to each of such Parties as follows:
SECTION 6.1 ORGANIZATION, QUALIFICATION, ETC. Consolidated Water is a
duly organized and validly existing company under the laws of the Cayman
Islands, British West Indies, and has all necessary corporate power and
authority to own, operate or lease the properties and assets now owned, operated
or leased by it and to carry on its business as it has been, is currently and is
currently anticipated to be conducted.
SECTION 6.2 INVESTMENT INTENT. Consolidated Water is acquiring the
Shares for investment purposes and not with a view to, or for resale in
connection with, the distribution or disposition thereof (except in a
transaction or transactions permitted under the applicable securities laws).
SECTION 6.3 AUTHORITY OF CONSOLIDATED WATER. Consolidated Water has all
necessary corporate power and authority to enter into this Agreement, to carry
out its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Consolidated Water, the
performance by Consolidated Water of its obligations hereunder and the
consummation by Consolidated Water of the transactions contemplated hereby have
been duly authorized by all requisite corporate action on the part of
Consolidated Water. This Agreement has been duly executed and delivered by
Consolidated Water and (assuming due authorization, execution and delivery by
SeaTec) constitutes the legal, valid and binding obligation of Consolidated
Water, enforceable against Consolidated Water in accordance with its terms,
except as such enforcement may be subject to (a) Bankruptcy or other similar
laws now or hereafter in effect relating to creditors' rights generally, and (b)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
SECTION 6.4 NO CONFLICT. Assuming the making and obtaining of all
filings, notifications, consents, approvals, authorizations and other actions
referred to in SCHEDULE 6.4 hereto, the execution, delivery and performance of
this Agreement by Consolidated Water and the consummation of the transactions
contemplated hereby do not and will not (a) violate, conflict with or result in
the breach of any provision of Consolidated Water's Memorandum of Association
and Articles of Association, (b) to the knowledge of Consolidated Water,
conflict with or violate any Law or Governmental Order applicable to
Consolidated Water, which violation or conflict could, individually or in the
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aggregate, have a Material Adverse Effect on Consolidated Water. or (c) to the
knowledge of Consolidated Water, result in any breach of, constitute a default
(or an event which 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
of, or result in the creation of any Encumbrance on any of the assets or
properties of Consolidated Water or its business pursuant to, any note, bond,
mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument, agreement or arrangement to which Consolidated is
a party or by which any of such assets or properties is bound or affected which
conflict or violation would, individually or in the aggregate, have a Material
Adverse Effect on the ability of Consolidated Water to consummate the
transactions contemplated hereby.
SECTION 6.5 CONSENTS AND APPROVALS. The execution, delivery and
performance of this Agreement by Consolidated Water do not and will not require,
to the knowledge of Consolidated Water, any consent, approval, authorization or
other order of, action by, filing with, or notification to, any Governmental
Authority or, except as set forth on SCHEDULE 6.5 hereto, any third party.
SECTION 6.6 LITIGATION. There are no claims or proceedings by or
against Consolidated Water or any of Consolidated Water's subsidiaries or any of
Consolidated Water's or its subsidiaries' directors, officers, employees or
agents pending or to the knowledge of Consolidated Water threatened which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect or could reasonably be expected to affect the legality, validity or
enforceability of this Agreement.
SECTION 6.7 BROKERS. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Consolidated Water.
SECTION 6.8 FULL DISCLOSURE. No representation or warranty of
Consolidated Water contained in this Agreement and the Schedules attached hereto
and no written statement contained in any financial, operating or other data
furnished or to be furnished to SeaTec or SBL pursuant to this Agreement, or in
connection with the transactions contemplated by this Agreement, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state a material fact necessary to make the statements contained herein or
therein not misleading.
SECTION 6.9 NO IMPLIED REPRESENTATIONS. Consolidated Water makes no
representations or warranties other than those (a) expressly set forth in this
Agreement and the Schedules attached hereto, and (b) in any written statement
contained in any financial, operating or other data furnished to the other
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Parties since February 17, 2000, or to be furnished to the other Parties
pursuant to this Agreement.
ARTICLE VII
CONDITIONS AND DELIVERIES
SECTION 7.1 APPROVAL BY GOVERNMENT OF BELIZE. Within fifteen (15) days
after the execution of this Agreement by all of the Parties, SeaTec and SBL
shall commence their efforts to seek such approvals from the Governmental
Authority of Belize and its Water and Sewerage Authority as are necessary to
effectuate the consummation of this Agreement and the transactions contemplated
hereunder. SeaTec shall provide Consolidated Water with written notice of the
date ("Commence Date") that SeaTec has commenced its efforts to obtain such
approvals from the Government of Belize. SeaTec shall keep Consolidated Water
fully apprised of its efforts and progress with respect to gaining such
approvals. SeaTec shall promptly provide Consolidated Water with copies of all
documents relating thereto, and all such documents shall be considered
Confidential Information. In the event that either SeaTec or Consolidated Water
determines, in its sole discretion, that (i) such approvals will not be obtained
or will not be obtained on favorable terms, or (ii) such approvals, or the
seeking thereof, will or may adversely impact SBL's contractual relationship
with the Government of Belize or its Water and Sewerage Authority, then SeaTec
or Consolidated Water, as the case may be, shall have the right to terminate
this Agreement prior to Closing by written notice to the other parties hereto.
If this Agreement is terminated pursuant to this Section 7.1, then this
Agreement shall terminate, except for the provisions of Article IX which shall
survive such termination.
SECTION 7.2 CONDITIONS PRECEDENT TO THE PARTIES' OBLIGATIONS TO CLOSE.
In addition to the conditions set forth in Section 7.1 hereof, the obligations
of each of SeaTec, ▇▇▇▇▇▇▇ and Consolidated Water hereunder to consummate the
transactions contemplated hereby are subject to the satisfaction or, in each
Parties' sole discretion, waiver in writing on or before the Closing of each of
the following conditions:
(a) DELIVERIES. Receipt by the appropriate parties of
the items enumerated in Sections 4.11, 7.3, 7.4 and 7.5 hereof;
(b) NO PROCEEDING OR LITIGATION. No action, proceeding or
litigation shall have been commenced or threatened by any Governmental Authority
seeking to restrain or materially alter the transaction contemplated hereby
which, in the reasonable good faith determination of SeaTec or Consolidated
Water, is likely to render it impossible or unlawful, or otherwise render
inadvisable the parties' intent, to consummate the transactions contemplated
hereby;
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(c) RESIGNATION OF DIRECTORS AND OFFICERS. All the
directors and officers of SBL have resigned and SBL has delivered to
Consolidated Water copies of the letters of resignation from all such officers
and directors;
(d) COMPLETION OF QUANTITY AND QUALITY TESTS. Prior to
the Closing Date, SBL shall have conducted, with the supervision of a
representative of Consolidated Water, three eight hour tests examining the
production capacity of the SBL plant in terms of quantity ("Quantity Test") and
quality ("Quality Test") at "as designed" pressures and flow rates. The Quantity
Test shall have demonstrated that the plant produces at least 384,000 U.S.
gallons of product water per day, and the Quality Test shall have demonstrated
that the plant produces water at no more than 420 milligrams per liter of total
dissolved solids before post treatment;
(e) NO AMOUNTS OWED TO AFFILIATES. SBL shall not be
indebted to any of its Affiliates in any manner;
(f) BOARD REPRESENTATION. The Board of Directors of SBL
shall consist of all members selected by Consolidated Water; and
(g) NO ADVERSE CHANGE. If Consolidated Water reasonably
determines as a result of its due diligence review from the date of this
Agreement until the Closing Date that there has been a material adverse change
in SBL's business, assets, operations or prospects ("Material Adverse Change"),
then Consolidated Water shall have the right to terminate this Agreement up to
the Closing Date by providing written notice of such termination to SeaTec, SBL
and ▇▇▇▇▇▇▇. Notwithstanding the immediately preceding sentence, Consolidated
Water shall not have the right to terminate this Agreement if there is a
Material Adverse Change resulting from Consolidated Water's acquisition of the
Government of Belize's Water and Sewerage Authority. If this Agreement is
terminated by Consolidated Water pursuant to this Section 7.2(h), this Agreement
shall terminate and no Party shall have any obligation or liability to the other
Party, except for the provisions of Article IX, which shall survive such
termination. Consolidated Water acknowledges and understands that any changes in
the terms of the agreement between SBL and the Belize Water and Sewerage
Authority after the Closing Date shall be at the risk of Consolidated Water, and
Consolidated Water shall have no claims against SeaTec, SBL or ▇▇▇▇▇▇▇ as a
result of any changes in the terms of such agreement after the Closing Date.
SECTION 7.3 DELIVERIES BY CONSOLIDATED WATER. On or prior to the
Closing, Consolidated Water shall execute (where necessary) and deliver or cause
to be delivered to SeaTec and SBL the following documents, certificates and
agreements:
(a) PURCHASE PRICE. Consolidated Water shall make a wire
transfer payment to SeaTec and ▇▇▇▇▇▇▇ in the aggregate amount of $3,832,000 if
all of the following conditions are satisfied on the Closing Date: (i) SBL has
U.S.$20,000 in cash, (ii) SBL's Water and Sewerage Authority Accounts Receivable
equals U.S.$70,000, (iii) SBL has inventory equal to $_________ amount to be set
following due diligence, and (iv) SBL has no liabilities except those incurred
in the ordinary course of business. If any of these conditions are not
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satisfied, the Purchase Price shall be reduced or increased dollar for dollar;
provided, however, that no adjustment in the Purchase Price shall be made for a
change in the Inventory Value unless there is an adjustment in the Inventory
Value of at least U.S.$10,000 in which event the Purchase Price shall be reduced
or increased dollar for dollar;
(b) REPRESENTATIONS AND WARRANTIES. A certificate
executed by a duly authorized officer of Consolidated Water certifying that the
representations and warranties of Consolidated Water contained in this Agreement
are true and correct in all material respects as of the Closing;;
(c) RESOLUTIONS. A true and complete copy, certified by
the Secretary of Consolidated Water, of the resolutions duly and validly adopted
by the board of directors of Consolidated Water evidencing its authorization of
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby;
(d) INCUMBENCY CERTIFICATE. A certificate of the
Secretary of Consolidated Water certifying the names and signatures of the
officers of Consolidated Water authorized to sign this Agreement and the other
documents to be delivered hereunder on behalf of Consolidated Water;
(e) LEGAL OPINIONS. Opinions of Consolidated Water's
counsel, Steel, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP and ▇▇▇▇▇ & ▇▇▇▇▇▇▇, in form and substance
satisfactory to SeaTec and SBL.
SECTION 7.4 DELIVERIES BY SEATEC AND SBL. On or prior to the Closing,
SeaTec and SBL shall execute or cause to be executed and deliver or cause to be
delivered to Consolidated Water the following documents, certificates and
agreements:
(a) STOCK CERTIFICATES. A stock certificate representing
998 Shares, together with stock transfer forms duly executed to effect transfer
of the Shares to Consolidated Water on the books and records of SBL;
(b) REPRESENTATIONS AND WARRANTIES OF SEATEC. A
certificate executed by a duly authorized officer of SeaTec certifying that: (i)
the representations and warranties relating to SeaTec and SBL contained in this
Agreement are true and correct in all material respects as of the Closing, and
(ii) the approvals in Schedules 3.4 and 3.5 hereto have been received;
(c) REPRESENTATIONS AND WARRANTIES OF SBL. A certificate
executed by a duly authorized officer of SBL certifying that: (i) the
representations and warranties relating to SBL contained in this Agreement are
true and correct in all material respects as of the Closing, and (ii) the
approvals in Schedules 4.4 and 4.5 hereto have been received;
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(d) RESOLUTIONS OF SEATEC AND SBL. True and complete copies,
certified by the Secretaries of SeaTec and SBL, of the resolutions duly and
validly adopted by the boards of directors of SeaTec and SBL evidencing their
authorization of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby;
(e) INCUMBENCY CERTIFICATES OF SEATEC AND SBL. Certificates of
the Secretaries of SeaTec and SBL certifying the names and signatures of the
officers of SeaTec and SBL authorized to sign this Agreement and the other
documents to be delivered hereunder on behalf of SeaTec and SBL;
(f) STAMP DUTIES. SeaTec shall have paid all stamp duties of
any kind required by the Government of Belize applicable to or as a result of
the transfer of the Shares to Consolidated Water, and shall provide evidence of
same to Consolidated Water. This Section 7.4(f) shall survive the Closing;
(g) LEGAL OPINIONS. Opinions of SeaTec's counsel, Black &
▇▇▇▇▇▇▇▇▇, and SBL's counsel, Musa & Balderamos, in form and substance
satisfactory to Consolidated Water;
(h) STATUTORY BOOKS. SBL's Register of Directors and Managers,
Register of Mortgages, Minute Books, Seal and Register of Members, reflecting
SeaTec as the registered owner of 998 ordinary shares of SBL, representing 99.8%
of the issued and outstanding capital stock of SBL, and ▇▇▇▇▇▇▇ as the
registered owner of two ordinary shares of SBL, representing the remaining 0.2%
of the issued and outstanding capital stock of SBL, shall be presented to
Consolidated Water's counsel for inspection;
(i) BANK ACCOUNTS. Transfer of authority to act as the
signatory on any bank accounts which SBL maintains, and a notice which
Consolidated Water may deliver to all banks in which SBL maintains accounts
regarding such transfer of authority; and
(j) MODEM AND CONTROL PANEL ACCESS. Consolidated Water shall
have been given access codes to the modem and all SBL control programs relating
to SBL's plant in Belize, which codes shall enable Consolidated Water to operate
the modem and control programs after the Closing.
(k) MINISTER'S APPROVAL. Letter of approval from the Minister
of Natural Resources granting permission for the transfer of the Shares to
Consolidated Water as an alien company under the Aliens Landholding Act.
(l) DIRECTORS. Signed resolutions of the Directors of SBL
appointing as Directors nominees of Consolidated Water.
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SECTION 7.5 DELIVERIES BY ▇▇▇▇▇▇▇. On or prior to the Closing, ▇▇▇▇▇▇▇
shall execute or cause to be executed and deliver or cause to be delivered to
Consolidated Water the following documents, certificates and agreements:
(a) STOCK CERTIFICATE. A stock certificate representing
two Shares, together with stock transfer forms duly executed to effect transfer
of the Shares to Consolidated Water on the books and records of SBL;
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 SURVIVAL AND LIMITATION ON DAMAGES.
(a) All representations and warranties contained in this
Agreement, the Schedules attached hereto and made in writing by or on behalf of
a Party in response to a written request for information from another Party
after February 17, 2000 and prior to the Closing Date shall survive the
execution and delivery of this Agreement and the Closing for a period of
eighteen (18) months following the Closing Date, and SeaTec, ▇▇▇▇▇▇▇ and SBL
shall not have any liability for indemnification to the Consolidated Indemnitees
identified in Section 8.2 hereof, including, without limitation, with respect to
the matters set forth in Section 8.2, as to which SeaTec, ▇▇▇▇▇▇▇ or SBL has not
received a Notice of Claim (as defined in Section 8.4) within such eighteen (18)
month period. SeaTec and SBL shall have no liability for indemnification to the
Consolidated Indemnitees identified in Section 8.2 hereof arising out of or
relating to any matter, fact or circumstance of which Consolidated Water has
been provided with explicit written information by SeaTec or SBL prior to the
Closing Date.
(b) SeaTec, ▇▇▇▇▇▇▇ and SBL shall have no liability (for
indemnification or otherwise) to the Consolidated Indemnitees identified in
Section 8.2 hereof, including without limitation, the matters set forth in
Section 8.2 hereof, until the total of all Consolidated Claims exceeds
U.S.$200,000 (the "Tipping Amount"); provided that if, in any such case, the
aggregate amount of such Consolidated Claims (as defined in Section 8.2 hereof)
exceeds the Tipping Amount, then the applicable indemnifying party hereunder
shall be obligated to pay the full amount of such Consolidated Claims, including
the Tipping Amount.
(c) Notwithstanding anything to the contrary in this
Agreement, SeaTec's and SBL's aggregate liability to the Consolidated
Indemnitees identified in Section 8.2 hereof, including, without limitation,
with respect to the matters set forth in Section 8.2 hereof, shall not exceed
the Purchase Price.
SECTION 8.2 CONSOLIDATED WATER'S RIGHT TO INDEMNIFICATION. Subject to
the provisions of this Article VIII and in addition to any other rights and
remedies available to Consolidated Water under applicable law, SeaTec agrees to
indemnify and hold harmless Consolidated Water and any of its officers,
directors, shareholders, employees, agents, successors and assigns (the
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"Consolidated Indemnitees") from and against any and all losses, obligations,
liabilities, damages, claims, deficiencies, costs and expenses (including, but
not limited to, the amount of any settlement entered into pursuant hereto and
all reasonable legal and other expenses incurred in connection with the
investigation, prosecution or defense of the matter) (collectively "Consolidated
Claims"), which may be sustained or incurred by Consolidated Water in connection
with, arising out of, or relating to (i) any breach of any, or any false,
incorrect or misleading, representation or warranty that is made by SeaTec
and/or SBL herein or in any Exhibit, Schedule, certificate or other document
delivered since February 17, 2000 to Consolidated Water by SeaTec or SBL
pursuant to this Agreement and that is qualified as to materiality, (ii) any
material breach of, or any materially false, incorrect or misleading,
representation or warranty that is made by SeaTec and/or SBL herein or in any
Exhibit, Schedule, certificate or other document delivered to Consolidated Water
by SeaTec with respect to SeaTec or SBL pursuant to this Agreement and that is
qualified as to materiality, (iii) any material breach of any agreements and
covenants made by SeaTec and/or SBL herein or in any Exhibit, Schedule,
certificate or other document delivered since February 17, 2000 to Consolidated
Water by SeaTec with respect to SeaTec or SBL in connection with this Agreement,
and (iv) any and all costs and expenses (including reasonable attorneys' fees)
incurred by Consolidated Water in connection with the enforcement of its rights
under this Agreement.
SECTION 8.3 SEATEC'S RIGHTS TO INDEMNIFICATION. Subject to the
provisions of this Article VIII and in addition to any other rights and remedies
that may be available to SeaTec under applicable law, Consolidated Water agrees
to indemnify and hold harmless ▇▇▇▇▇▇▇, SeaTec, SBL and their respective
officers, directors, shareholders, employees, agents, representatives,
attorneys, successors, predecessors and assigns (the "SeaTec Indemnitees") from
and against Claims which may be asserted against or sustained or incurred by the
SeaTec Indemnitees in connection with, arising out of, or relating to (i) any
breach of any, or any false, incorrect or misleading, representation or warranty
that is made by Consolidated Water herein or in any Exhibit, Schedule,
certificate or other document delivered to the SeaTec Indemnitees by or on
behalf of Consolidated Water in connection with this Agreement and that is
qualified as to materiality, (ii) any material breach of, or any materially
false, incorrect or misleading, representation or warranty that is made by
Consolidated Water herein or in any Exhibit, Schedule, certificate or other
document delivered to the SeaTec Indemnitees by or on behalf of Consolidated
Water in connection with this Agreement and that is qualified as to materiality,
(iii) any breach of any agreements and covenants made by Consolidated Water
herein or in any Exhibit, Schedule, certificate or other document delivered to
the SeaTec Indemnitees by or on behalf of Consolidated Water in connection with
this Agreement, and (iv) any and all costs and expenses incurred by the SeaTec
Indemnitees in connection with the enforcement of their rights under this
Agreement. Notwithstanding the foregoing, Consolidated Water's aggregate
liability under this Article VIII shall not exceed the Purchase Price.
Notwithstanding anything contained herein to the contrary, Consolidated Water
shall not have any liability for indemnification to the SeaTec Indemnitees,
including, without limitation, with respect to the matters set forth in this
Section 8.3, as to which Consolidated Water has not received a Notice of Claim
(as defined in Section 8.4) within a period of eighteen (18) months following
the Closing Date.
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SECTION 8.4 PROCEDURE FOR CLAIMS.
(a) NOTICE OF CLAIM. Promptly, but in any event within 30
days after obtaining knowledge of any claim or demand which may give rise to, or
could reasonably give rise to, a claim for indemnification hereunder (any such
claim an "Indemnification Claim"), the party or parties entitled to
indemnification hereunder (the "Indemnified Party") shall give written notice to
the party or parties subject to indemnification obligations therefor (the
"Indemnifying Party") of such Indemnification Claim (a "Notice of Claim"). A
Notice of Claim shall be given with respect to all Indemnification Claims then
known; PROVIDED, HOWEVER, that the failure to timely give a Notice of Claim to
the Indemnifying Party shall not relieve the Indemnifying Party from any
liability that it may have to the Indemnified Party hereunder to the extent that
the Indemnifying Party is not prejudiced by such failure. Subject to Section 8.1
hereof, no Indemnified Party shall be entitled to give a Notice of Claim with
respect to any representation and warranty eighteen (18) months from the Closing
Date. The Notice of Claim shall set forth the amount (or a reasonable estimate)
of the loss, damage or expense suffered, or which may be suffered, by the
Indemnified Party as a result of such Indemnification Claim and a brief
description of the facts giving rise to such Indemnification Claim. The
Indemnified Party shall furnish to the Indemnifying Party such information (in
reasonable detail) as the Indemnified Party may have with respect to such
Indemnification Claim (including copies of any summons, complaint or other
pleading which may have been served on it and any written claim, demand,
invoice, billing or other document evidencing or asserting the same).
(b) THIRD PARTY CLAIMS.
(i) If the claim or demand set forth in the
Notice of Claim is a claim or demand asserted by a third party (a "Third Party
Claim"), the Indemnifying Party shall have 15 days (or such shorter period if an
answer or other response or filing with respect to the pleadings served by the
third party is required prior to the 15th day) after the date of receipt by the
Indemnifying Party of the Notice of Claim (the "Notice Date") to notify the
Indemnified Party in writing of the election by the Indemnifying Party to defend
the Third Party Claim on behalf of the Indemnified Party.
(ii) If the Indemnifying Party elects to defend a
Third Party Claim on behalf of the Indemnified Party, the Indemnified Party
shall make available to the Indemnifying Party and its agents and
representatives all records and other materials in its possession which are
reasonably required in the defense of the Third Party Claim and subject to the
limitations set forth in this Article VIII, the Indemnifying Party shall pay any
expenses payable in connection with the defense of the Third Party Claim as they
are incurred (whether incurred by the Indemnified Party or Indemnifying Party).
(iii) In no event may the Indemnifying Party
settle or compromise any Third Party Claim without the Indemnified Party's
consent, which shall not be unreasonably withheld.
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(iv) If the Indemnifying Party elects to defend a
Third Party Claim, the Indemnified Party shall have the right to participate in
the defense of the Third Party Claim, at the Indemnified Party's expense (and
without the right to indemnification for such expense under this Agreement);
PROVIDED, HOWEVER, that subject to the limitations set forth in this Article
VIII, the reasonable fees and expenses of counsel retained by the Indemnified
Party shall be at the expense of the Indemnifying Party if (A) the use of the
counsel chosen by the Indemnifying Party to represent the Indemnified Party
would present such counsel with a conflict of interest; (B) the parties to such
proceeding include both the Indemnified Party and the Indemnifying Party and
there may be legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifying Party; (C)
within 10 days after being advised by the Indemnifying Party of the identity of
counsel to be retained to represent the Indemnified Party, the Indemnified Party
shall have objected to the retention of such counsel for valid reasons (which
shall be stated in a written notice to Indemnifying Party), and the Indemnifying
Party shall not have retained different counsel reasonably satisfactory to the
Indemnified Party; or (D) the Indemnifying Party shall authorize the Indemnified
Party to retain separate counsel at the expense of the Indemnifying Party.
(v) Subject to the limitations set forth in this
Article VIII, if the Indemnifying Party does elect to defend a Third Party
Claim, or does not defend a Third Party Claim in good faith, the Indemnified
Party shall have the right, in addition to any other right or remedy it may have
hereunder, at the sole and exclusive expense of the Indemnifying Party, to
defend such Third Party Claim; PROVIDED, HOWEVER, that such expenses shall be
payable by the Indemnifying Party only if and when such Third Party Claim
becomes payable.
(vi) To the extent that an Indemnified Party
recovers on a Third Party Claim, the amount of such recovery (after deduction of
all costs and expenses incurred in connection with such Third Party Claim) shall
reduce, dollar-for-dollar, the indemnification obligation otherwise owing by the
Indemnifying Party.
(c) COOPERATION IN DEFENSE. The Indemnified Party shall
cooperate with the Indemnifying Party in the defense of a Third Party Claim.
Subject to the foregoing, (i) the Indemnified Party shall not have any
obligation to participate in the defense of or to defend any Third Party Claim,
and (ii) the Indemnified Party's defense of or its participation in the defense
of any Third Party Claim shall not in any way diminish or lessen its right to
indemnification as provided in this Agreement.
(d) PERIODIC PAYMENTS. Any indemnification required by this
Article VIII shall be made by periodic payments during the investigation or
defense as and when bills are received or costs, disbursements or expenses
incurred.
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ARTICLE IX
CONFIDENTIALITY
SECTION 9.1 CONFIDENTIAL INFORMATION. Each Party shall keep
confidential and not disclose to any third party (except as expressly permitted
under this Agreement) all Confidential Information obtained from the other
parties hereto in connection with the negotiation of this Agreement and the
transactions contemplated hereby. Except as permitted by SBL in writing,
Consolidated Water shall not use the Confidential Information to develop or
operate a business which directly competes with the business of SBL, prior to
completing the purchase of the Shares pursuant to this Agreement.
SECTION 9.2 PERMITTED DISCLOSURES. Notwithstanding the provisions of
Section 9.1 hereof, (a) any Party may disclose any Confidential Information to
its attorneys, accountants, agents or other representatives (collectively,
"Representatives") so long as the Representatives are informed of the
confidential nature of the Confidential Information and the limited purposes for
which it may be used; (b) if in the written opinion of the disclosing Party's
legal counsel, disclosure is required pursuant to any applicable Laws; or (c) if
legally compelled by Governmental Order, judicial or administrative order,
deposition, interrogatory, request for documents, subpoena, investigative demand
or other discovery process. However, in the case of the foregoing clause (c),
the disclosing Party shall use its reasonable best efforts to prevent disclosure
of the Confidential Information by legal means including, if applicable,
attempting to obtain a protective order.
SECTION 9.3 SEATEC AND SBL EMPLOYEES. For a period of five (5) years
following the date of this Agreement, Consolidated Water, and any Affiliates
thereof, shall not, directly or indirectly, solicit for employment, employ or
retain in any manner any person who was or is employed by SeaTec or SBL during
such period except upon the prior written consent of SeaTec; provided, however,
that if Consolidated Water completes the purchase of the Shares pursuant to this
Agreement, the restrictions relating to the employees of SBL set forth in this
Section shall immediately terminate.
SECTION 9.4 RETURN OF CONFIDENTIAL INFORMATION. If the purchase of the
Shares pursuant to this Agreement is not completed for any reason, then
Consolidated Water (i) will promptly deliver to SeaTec all documents or other
materials furnished by SBL or SeaTec constituting Confidential Information,
together with all copies and summaries thereof in the possession or under the
control of Consolidated Water or its Representatives, and (ii) will destroy
materials generated by Consolidated Water or its Representatives that include or
refer to any part of the Confidential Information, without retaining a copy of
any such material.
SECTION 9.5 ENFORCEMENT. It is the intent and understanding of the
Parties that the covenants and restrictions set forth in Article IX are
reasonable and enforceable. If a court or arbitrator having jurisdiction
determines that any such covenant or restriction is unenforceable for any reason
whatsoever, then it is the intent of the Parties that the court or arbitrator
making such determination shall have the power to reduce or limit the covenant
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or restriction in such a manner that the covenant or restriction will be
enforceable in its reduced or limited form. Except as expressly stated herein,
the Parties acknowledge that the restrictions set forth in this Article IX are
independent covenants which shall survive the expiration or termination of this
Agreement. The Parties agree that they shall be entitled to enforce these
restrictions through all legal means, including without limitation, injunctive
relief.
ARTICLE X
DEFAULT AND REMEDIES FOR DEFAULT
SECTION 10.1 EVENTS OF DEFAULT. Any one or more of the following events
shall be considered an event of default under this Agreement ("Event of
Default"):
(a) Any Party hereto materially fails to abide by, observe, or
perform any of the covenants, conditions or agreements contained in this
Agreement or any of the other agreements referenced in this Agreement.
(b) Any representation or warranty made by any Party in this
Agreement or any other document referenced in this Agreement proves to be false
or erroneous or any statement, certificate, or information furnished since
February 17, 2000 by the Parties proves to be false or erroneous and the breach
of such representation or warranty has a Material Adverse Effect on the
non-breaching Parties.
SECTION 10.2 NOTICE. When an Event of Default has occurred, the
breaching Party shall immediately give written notice thereof to the
non-breaching Party.
SECTION 10.3 REMEDIES. If an Event of Default occurs, the non-breaching
Party may pursue any remedies available at law or in equity.
ARTICLE XI
GENERAL PROVISIONS
SECTION 11.1 EXPENSES. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the Party
incurring such costs and expenses.
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SECTION 11.2 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made) upon the earliest to occur of
(a) receipt, if made by personal service, (b) three days after delivery, if made
by reputable overnight courier service, (c) upon the delivering Party's receipt
of a written confirmation of a transmission made by cable, by telecopy, by
telegram, or by telex or (d) seven days after being mailed by registered or
certified mail (postage prepaid, return receipt requested) to the respective
Parties at the following addresses (or at such other address for a Party as
shall be specified in a notice given in accordance with this Section 11.2):
(a) if to Consolidated Water:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.A.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to SeaTec, SBL or ▇▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Black & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 11.3 PUBLIC ANNOUNCEMENTS. Except as required by Law or any
applicable Governmental Authority, no Party to this Agreement shall make, or
cause to be made, any disclosure, including, without limitation, any press
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release or public announcement in respect of this Agreement or the transactions
contemplated hereby without the prior written consent of the other party.
SECTION 11.4 HEADINGS. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 11.5 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party.
SECTION 11.6 ENTIRE AGREEMENT. This Agreement, including all of the
Exhibits and Schedules attached hereto which are incorporated herein by this
reference, constitute the entire agreement of the Parties hereto with respect to
the subject matter hereof and thereof and supersede all prior representations,
warranties, statements, covenants, agreements and undertakings, both written and
oral, made by or between the Parties with respect to the subject matter hereof
and thereof.
SECTION 11.7 ASSIGNMENT. This Agreement and the rights and duties
hereunder may not be assigned or assumed by operation of law or otherwise (other
than an assignment by Consolidated Water to an Affiliate of Consolidated Water)
without the express prior written consent of the other Parties hereto (which
consent may be granted or withheld in the sole discretion of such other Parties,
as applicable).
SECTION 11.8 AMENDMENT; WAIVER. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each
Party hereto. Each Party to this Agreement may (a) extend the time for the
performance of any of the obligations or other acts of the other Parties, (b)
waive any inaccuracies in the representations and warranties of the other
Parties contained herein or in any document delivered by the other Party
pursuant hereto or (c) waive compliance with any of the agreements or conditions
of the other Parties contained herein. Any such extension or waiver shall be
valid only if set forth in an instrument in writing signed by all of the other
Parties to be bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or a subsequent waiver of the
same term or condition, or a waiver of any other term or condition, of this
Agreement. The failure of any Party to assert any of its rights hereunder shall
not constitute a waiver of any of such rights.
SECTION 11.9 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida that are
applicable to contracts executed in and to be performed entirely within that
jurisdiction (without regard to its principles regarding conflicts of law).
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SECTION 11.10 JURISDICTION; SERVICE OF PROCESS. Each of the parties
hereto agrees that all actions or proceedings initiated by any party hereto and
arising directly or indirectly out of this Agreement which are brought to
judicial proceedings shall be litigated in Florida courts sitting in Miami-Dade
County, Florida. Each of the parties hereto expressly submits to the
jurisdiction of the above-referenced courts and consents to process being served
in any suit, action or proceeding of the nature referred to above either (a) by
the mailing of a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to its address as set forth herein, or (b) by serving
a copy thereof upon such party's authorized agent for service of process (to the
extent permitted by applicable law, regardless whether the appointment of such
agent for service of process for any reason shall prove to be ineffective or
such agent for service of process shall accept or acknowledge such service);
PROVIDED that, to the extent lawful and practicable, written notice of said
service upon said agent shall be mailed by registered or certified mail, postage
prepaid, return receipt requested, to the party at its address as set forth
herein. Each party hereto agrees that such service, to the fullest extent
permitted by law, (i) shall be deemed in every respect effective service of
process upon it in any such suit, action or proceeding, and (ii) shall be taken
and held to be valid personal service upon and personal delivery to it.
SECTION 11.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 11.12 ATTORNEYS' FEES. If any legal action or other proceeding
is brought for the enforcement of this Agreement, the prevailing Party shall be
entitled to recover reasonable attorneys' fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it may be
entitled.
SECTION 11.13 FURTHER ACTION. Each of the Parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable Law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and consummate and
make effective the transactions contemplated by this Agreement.
SECTION 11.14 DISCLOSURE ON SCHEDULES. If any item or fact is disclosed
on a Schedule to this Agreement, and such item or fact is required to be
disclosed on any other Schedule(s) to this Agreement, then such item or fact
shall be deemed to have been disclosed on such other Schedule(s).
SECTION 11.15 USE OF SEATEC NAME. Within 30 days following Closing,
Consolidated Water shall commence and diligently pursue all steps necessary to
cause SBL to change its name to a name which does not include the name "SeaTec"
or any variant thereof. Consolidated Water, for itself and its Affiliates,
covenants and agrees that Consolidated Water and its Affiliates will not use the
name "SeaTec" or any variant thereof at any time following execution of this
Agreement, and such covenant and agreement shall survive indefinitely
notwithstanding any other term of this Agreement.
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IN WITNESS WHEREOF, SeaTec, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, SBL and Consolidated
Water have caused this Agreement to be executed as of the date first written
above by their respective officers thereunto duly authorized.
SEATEC SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(solely with respect to Article V and Section 7.5)
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
SEATEC BELIZE LIMITED
(solely with respect to Article IV and
Sections 7.1, 7.2 and 7.4)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CONSOLIDATED WATER CO. LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman & CEO
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SCHEDULES TO
STOCK PURCHASE AGREEMENT
AMONG
SEATEC SYSTEMS, INC. AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
AS SELLERS,
SEATEC BELIZE LIMITED
AND
CONSOLIDATED WATER CO. LTD.
AS BUYER
DATED JUNE 27, 2000
SCHEDULES 3.4, 3.5, 4.4 AND 4.5:
Approval of the following governmental authorities is required in order
to complete the contemplated transactions without Material Adverse Effect to
SeaTec Belize Limited:
Water and Sewerage Authority of the Government of Belize
Minister Responsible for Lands of the Government of Belize
Director of Exchange Control of the Central Bank of Belize
SCHEDULE 4.2:
None, other than those which may exist by virtue of law or the SeaTec
Belize Limited's Memorandum or Articles of Association
SCHEDULE 4.11:
Water Purveyor Contract between SeaTec Systems, Inc. and the
Water and Sewerage Authority of the Government of Belize,
dated June 26, 1992, as amended by amendments dated October
19, 1992 and November 1, 1995
Lease between the Government of Belize and SeaTec Systems,
Inc. dated April 27, 1993 for land identified as San ▇▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇/▇
Certificate of Lease dated May 18, 1993 issued by the
Registrar of Lands of the Government of Belize with respect to
land identified as San ▇▇▇▇▇, Block 7, Parcel 1870/1
Equipment Loan Contract between SeaTec Belize Limited and
Texaco Belize Limited, dated June 17, 1996
Letter from the Minister of Finance of the Government of
Belize to SeaTec Systems, Inc. dated June 26, 1992
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Approved Enterprise (SeaTec Belize Limited) Order, 1993
(Statutory Instrument No. 16 of 1993) issued by the Minister
of Economic Development of the Government of Belize
Gross Receipts Tax (Exemption) (SeaTec Belize Limited) Order,
1995 (Statutory Instrument No. 57 of 1995) issued by the
Minister of Economic Development of the Government of Belize
Approved Enterprise (SeaTec Belize Limited) (Amendment) Order,
1995 (Statutory Instrument No. 61 of 1995) issued by the
Minister of Economic Development of the Government of Belize
SCHEDULE 4.13:
SeaTec Belize Limited is the lessee of land identified as San
▇▇▇▇▇, Block 7, Parcel 1870/1 pursuant to a Lease between the
Government of Belize and SeaTec Systems, Inc. dated April 27,
1993
SCHEDULES 6.4 AND 6.5:
Central Bank of Belize
European Investment Bank
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