EXHIBIT 10.16
ENGAGEMENT AGREEMENT
THIS AGREEMENT is made the 5th day of December 2003
BETWEEN: CONSOLIDATED WATER CO. LTD.,
a Cayman Islands company having its registered office at
Trafalgar Place, West Bay Road
P.O. Box 1114 GT, Grand Cayman, B.W.I.
("the Company")
AND XXXXXXX X. XXXXXX
of 81 Drake Quay, Governors Harbour,
P. O. Box 30749 SMB, Grand Cayman, B.W.I.
("the Chairman")
IT IS HEREBY AGREED:-
ENGAGEMENT
1. Subject to satisfaction of the condition precedent in Clause 11 on or
before December 31, 2003, the Chairman is engaged as Chairman of the
Company for three (3) years commencing on the 1st day of January, 2004
subject to the termination provisions set out in Clauses 17 and 18
hereof and to the extension provisions set out in Clause 19 hereof.
REMUNERATION
2. The Chairman's remuneration will be US$165,000.00 per annum, payable
monthly in arrears.
3. In addition, during the term of this Agreement, the Company will pay
the full cost of providing medical insurance, as generally provided for
the Company's employees from time to time, for the Chairman and his
spouse.
4. In addition, during the term of this Agreement, the Company will make
contributions to a pension scheme, of the Chairman's choice but
approved pursuant to the National Pensions Law (1998 Revision) of the
Cayman Islands, in the same manner and on the same basis as it makes
contributions, from time to time, in respect of its other employees
pursuant to the National Pensions Law.
5. The Chairman's remuneration will be reviewed by the Company's Board of
Directors (the "Board") as of January 1st each year who may grant an
increase but shall not reduce the Chairman's salary below the level set
out in Clause 2 hereof.
6. Further, for each completed financial year beginning with the financial
year 2004, not later than 28th February following the end of each
financial year, the Chairman will be paid a bonus calculated as
follows;
(a) PERFORMANCE BONUS
1.5% of the net profit of the Company (calculated before
charging this bonus and before charging dividends or crediting
any amount accruing from the re-valuation of the Company's
assets) to a maximum of 40% of the remuneration set out in
Clause 2 (as adjusted by Clause 5); and
(b) INCREMENTAL BONUS
15% of the amount, if any, by which the net profits
(calculated as in clause 6(a)) of the Company for that
financial year exceeds the highest annual net profit earned by
the Company in any prior financial year.
The aggregate of the Performance Bonus and the Incremental Bonus, if
any, calculated aforesaid shall be paid as to 75% in cash and, subject
to approval of the members of the Company at the Company's next annual
general meeting, as to 25% in ordinary shares of the Company valued at
the market price at the close of trading of the same on December 31st
of the relevant financial year (or if such day is not a trading day, at
the close of trading on the preceding trading day). If such approval is
not obtained, the aggregate of the Performance Bonus and the
Incremental Bonus shall be paid entirely in cash.
RESPONSIBILITIES
7. The Chairman shall use his best endeavors to promote the Company's
interests and welfare.
8. The Chairman shall perform the duties commonly performed by a Chairman
of a publicly listed company and also the duties reasonably required of
and assigned to him by the Board including, without limiting the
generality of the foregoing, management of corporate governance issues,
financial public relations and identification and initial investigation
of new projects.
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The Chairman shall discharge his duties in accordance with the
directions of the Board. The Chairman accepts that his duties, which
include traveling on the Company's business, both within the Cayman
Islands and abroad, may from time to time require work to be undertaken
on Saturdays, Sundays, bank and public holidays. The Chairman shall
not, directly or indirectly, engage in any activities or work which are
deemed by the Board to be detrimental to the best interests of the
Company. The Board hereby consents to the Chairman's continued
involvement with Xxxxx Xxxxxxxx, Chartered Accountants.
9. In case of inability to work due to illness or injury, the Chairman
shall notify the Company immediately and produce a medical certificate
for any absence longer than ten working days.
10. The Chairman is entitled to up to ten (10) days sick leave per year
without a medical certificate.
11. This Agreement is conditional upon the Chairman undergoing a medical
examination in such form as is usual and customary in the Cayman
Islands, the results of which demonstrate to the Board's satisfaction
that the Chairman is capable of performing the responsibilities set
forth in Clauses 7 and 8.
HOLIDAYS
12. The Chairman is entitled, during every calendar year to the following
holidays during which his remuneration will continue to be payable:-
(a) all public holidays in the Cayman Islands, and
(b) five (5) weeks vacation to be taken at a time to be approved
by the Board.
REIMBURSEMENT OF EXPENSES/FEES
13. (a) All expenses for which the Chairman claims reimbursement
shall be in accordance with any policies established by the
Board from time to time and shall be within the operating
budgets approved by the Board. The Company shall reimburse the
Chairman for the costs incurred by the Chairman in his
performance of the Capacity on production of the necessary
vouchers or, if he is unable to produce vouchers, on the
Chairman proving, to the Board's satisfaction, the amount he
has spent for those purposes.
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(b) All fees and payments received by the Chairman for or in
relation to acting as director or officer of a subsidiary or
affiliate of the Company shall be retained by the Chairman who
shall not be required to account to the Company for the same.
NON-COMPETITION
14. Providing that the Chairman may make investments in quoted companies
not exceeding 1% of the issued share capital thereof, the Chairman
agrees, as a separate and independent agreement, that he will not,
during any period for which he has been remunerated hereunder, whether
for his own account or for the account of any other person, either
alone or jointly with or as manager, agent for or employee of or as
consultant to any person, company or firm, directly or indirectly,
carry on or be engaged or concerned or interested in any person firm or
entity who conducts business identical to or similar to that conducted
by the Company in any jurisdiction in which the Company carries on
business (whether directly or indirectly).
COMPANY INFORMATION, DOCUMENTS, CONFIDENTIALITY AND NON-SOLICITATION
15. (a) All information, documents, books, records, notes, files,
memoranda, reports, customer lists and other documents, and
all copies of them, relating to the Company's business or
opportunities which the Chairman keeps, prepares or conceives
or which become known to him or which are delivered or
disclosed to him or which, by any means come into his
possession, and all the Company's property and equipment are
and will remain the Company's sole and exclusive property both
during the term of this Agreement and after the termination or
expiration hereof;
(b) If this Agreement is terminated for any reason, or if the
Company at any time requests, the Chairman must promptly
deliver to the Company the originals and all copies of all
relevant documents that are in his possession, custody or
control together with any other property belonging to the
Company.
(c) The Chairman shall not, at any time during the term of this
Agreement or after it's termination or expiration, either for
his own account or for the account of any other person, firm
or company, solicit or endeavor to entice away from the
Company any person, firm or company who, at any time during
the currency of this Agreement were employees, customers or
suppliers of or were in the habit of dealing with the Company.
16. Except where such information is a matter of public record or when
required to do so by law, the Chairman must not, either before or after
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this Agreement ends, disclose to any person any information relating to
the Company or its customers of which he becomes possessed while acting
as Chairman.
TERMINATION
17. This Agreement shall terminate and, except to the extent previously
accrued, all rights and obligations of both parties under it shall
cease if any of the following events occurs:-
(a) The Chairman dies.
(b) The Chairman is adjudicated bankrupt or makes any arrangement
or composition with his creditors.
(c) In any year, the company does not extend the term of this
Agreement in accordance with Clause 19 hereof.
(d) The Chairman gives six (6) months written notice of
termination to the Company.
18. (a) The Company may, by written notice, terminate this Agreement
with immediate effect if the Chairman conducts himself in a
manner that would justify immediate dismissal of an employee
in accordance with the Labour Law and, except to the extent
previously accrued, all rights and obligations of both parties
under this Agreement shall cease.
(b) If through physical or mental illness, the Chairman is unable
to discharge his duties for sixty (60) successive days, as to
which a certificate by any doctor appointed by the Company
shall be conclusive, the Chairman shall be relieved of his
duties and his salary shall be reduced to US$1,000.00 per
annum and his bonus entitlement suspended, and the Company
shall continue to pay the full cost of providing medical
insurance for the Chairman and his immediate family together
with pension contributions (such contributions to be based on
the pension contribution made on behalf of the Chairman for
the previous financial year of the Company) for a period of
two years at which time his employment shall be terminated.
Extension
19. On or before June 30th of each year during the term of this Agreement
(or any extension thereof), the Board shall determine whether to extend
the term of this Agreement, and if the Board so determines the term of
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this Agreement shall be extended such that the term shall be for three
years from January 1st of the next following year.
In the event that the Board determines not to extend the Agreement in
any year, the term of the Agreement shall expire on December 31stof
that year and the Company, on that date, shall pay to the Chairman, in
cash, twice the annual remuneration as set out in Clause 2 as adjusted
by Clause 5 hereof.
NOTICES
20. Any notice to be served under this Agreement must be in writing and
shall be deemed to be duly served if it is handed personally to the
Secretary of the Company or to the Chairman as the case may be, or if
it is sent by registered post to the address at the head of this
Agreement. A notice sent by post shall be deemed to be served on the
third day following the date on which it was posted.
PREVIOUS AGREEMENTS SUPERCEDED
21. This Agreement supersedes all prior contracts and understandings
between the parties save that benefits earned or accrued under prior
contracts shall not be extinguished or affected except to the extent
that the words `each of the first seven trading days in the month of
October' in clause 8(b)(ii) of the Second Amendment of Engagement
Agreement dated March 21, 2000 shall be deleted and replaced with the
words `December 31st' as they relate only to the options granted in
respect of the calendar year 2003.
No change or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party against whom it is
sought to be enforced.
HEADINGS
22. The headings herein are included for convenience only and have no legal
effect.
APPLICABLE LAW AND JURISDICTION
23. This Agreement shall be construed and the legal relations between the
parties determined in accordance with the laws of the Cayman Islands to
the jurisdiction of the courts of which the parties hereby agree to
submit. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid. If any
provision of this Agreement or the application of it is prohibited or
is held to be invalid, that prohibition or invalidity shall not affect
any other provision, or the application of any other provision which
can be given effect without the invalid provision or prohibited
application and, to this end, the provisions of this Agreement are
declared to be severable.
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EXECUTED FOR AND ON BEHALF OF CONSOLIDATED WATER CO.
CONSOLIDATED WATER CO LTD. LTD.
BY:
IN THE PRESENCE OF:
/s/ illegible /s/ Xxxxxxx Xxxxxx
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WITNESS
EXECUTED BY XXXXXXX X. XXXXXX
IN THE PRESENCE OF:
/s/ illegible /s/ Xxxxxxx Xxxxxx
----------------------------- -----------------------------------
WITNESS XXXXXXX X. XXXXXX
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