EXHIBIT - 10.27
DATED: February 7, 2003
AMENDED AND RESTATED
PROFIT SHARING AGREEMENT
BETWEEN
OCEAN CONVERSION (BVI) LTD.
AND
DESALCO LIMITED
AND
CONSOLIDATED WATER CO. LTD.
AND
SAGE WATER HOLDINGS (BVI) LIMITED
XXXXXXX XXXXX, XXXXXXX & XXXXXXXXX
ZEPHYR HOUSE
P.O. BOX 709 GT, GRAND CAYMAN
1. RELEASE
1.1 Consolidated and Sage hereby agree to release the Company from
its obligations under the two Profit Sharing Agreements and
Sage Assignments in consideration for the Company agreeing to
restate the profit sharing agreements on the terms hereinafter
set out.
2. PROFIT SHARING AGREEMENT
2.1 If in respect of any accounting period following the date
hereof in which the Company shall have profits available for
the payment of dividends and does pay such dividend therefrom
the Company shall procure that in the absence of agreement to
the contrary a distribution shall be made to each of
Consolidated and Sage or to their nominees equal to the
following:
202,500 X THE DIVIDEND PER SHARE DECLARED AND PAID
2.2 The profit sharing shall be paid by the Company to each of
Consolidated and Sage concurrently with the payment of
dividends.
2.3 The duration of this profit sharing agreement shall be for so
long as the Company remain in business as a going concern.
2.4 The factor of 202,500 specified in Clause 3.1 shall at all
times be equal to the lesser of (i) 202,500, and (ii) 202,500
multiplied by the total number of issued and fully paid shares
and divided by 1,230,000 (being the total number of shares in
issue at the date hereof.
3. All costs, local fees and other expenses in the preparation and
execution of this Agreement and the settlement contained herein shall
be borne and paid by the party incurring such cost.
4. ASSIGNMENT
4.1 Neither of the parties shall assign or transfer or purport to
assign any of its rights or obligations hereunder without the
prior written consent of the other party.
5. SUCCESSORS AND ASSIGNS
The Agreement shall ensure for the benefit of and be binding on the
respective successors in title and permitted assigns (if any) of each
party who shall procure that each such assignee shall execute a deed
with the other party by which the assignee agrees to be bound by terms
identical, mutatis mutandis, to the terms of this Agreement (including
the terms of this clause).
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6. WAIVER, FORBEARANCE AND VARIATION
6.1 The rights of either party shall not be prejudiced or
restricted by an indulgence or forbearance extended to the
other party in respect of any breach.
6.2 This Agreement shall not be varied or cancelled, unless such
variation or cancellation shall be expressly agreed in writing
by a duly authorised person of each party.
7. GOVERNING LAW
7.1 The construction, validity and performance of this agreement
shall be governed in all respects by the laws of the British
Virgin Islands.
7.2 Except as may be set out elsewhere herein the courts of the
British Virgin Islands shall have exclusive jurisdiction to
settle any dispute which may arise between the parties in
respect of the construction validity or performance of this
Agreement or as to the rights and liabilities of the parties
hereunder.
8. SEVERABILITY
8.1 If any of the provisions of this Agreement is found by any
competent authority to be void or unenforceable, such
provision shall be deemed to be deleted from this Agreement
and the remaining provisions of this Agreement shall continue
in full force and effect. Notwithstanding the foregoing the
parties hereto shall thereupon negotiate in good faith in
order to agree the terms of a mutually satisfactory provision
to be substituted for the provision so found to be void or
unenforceable.
9. GENERAL MATTERS
9.1 This Agreement supersedes any previous agreement between the
parties in relation to the matters dealt with herein and
represents the entire understanding between the parties in
relation thereto.
9.2 Reference to any statute or statutory provision includes a
reference to that statute or statutory provision as from time
to time amended, extended or re-enacted.
9.3 Words denoting the singular number only shall include the
plural and vice versa.
9.4 Unless the context otherwise requires, reference to any clause
is to a clause of this Agreement.
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9.5 The headings in this Agreement are inserted for convenience
only and shall not effect the construction hereof.
9.6 Covenants expressed to be by two parties shall (except where
the context prohibits) be deemed to be joint and several
covenants.
10. NOTICES
10.1 Any notice required to be given under this Agreement shall
either be delivered personally or sent by first class recorded
delivery post (air mail if overseas) or telex or full rate
telegram or telecopy. The address for service of each party
shall be its registered office for the time being and shall be
his address stated above or any other address for service
previously notified to the other party or (in the absence of
any such notification) his last known place of residence. A
notice shall be deemed to have been served as follows:
10.1.1 if personally delivered, at the time of delivery;
10.1.2 if posted by inland mail, at the expiration of 48
hours or (in the case of air mail) 7 days after the
envelope containing the same was delivered into the
custody of the post authorities; and
10.1.3 if sent by telex, or telecopy at the time of
transmission.
In proving such service it shall be sufficient to prove that
personal delivery was made, or that the envelope containing
such notice was properly addressed and delivered into the
custody of the postal authority as a prepaid first class
recorded delivery or air mail letter (as appropriate) or that
the telex or telecopy was transmitted as the case may be.
IN WITNESS WHEREOF the parties hereto have set their hands and seals the day and
date first above written.
SIGNED AND SEALED by and on behalf of )
Ocean Conversion (BVI) Ltd. )
)
)
/s/ X.X. XXXXXX ) /s/ Xxxxxxxxx X. XxXxxxxxx
-------------------- --------------------------
Witness X.X. XXXXXX Director
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)
SIGNED AND SEALED by and on behalf of )
DesalCo Limited )
In the presence of: )
)
)
/s/ X.X. XXXXXX ) /s/ Xxxxxxxxx X. XxXxxxxxx
-------------------- --------------------------
Witness X.X. XXXXXX Director
SIGNED AND SEALED by and on the behalf of )
Consolidated Water Co. Ltd. )
In the presence of: )
)
)
/s/ X.X. XXXXXX ) /s/ Xxxxxxxxx X. XxXxxxxxx
-------------------- --------------------------
Witness X.X. XXXXXX Director
SIGNED AND SEALED by and on the behalf of )
Sage Water Holdings (BVI) Ltd. )
In the presence of: )
)
)
/s/ [ILLEGIBLE] ) /s/ [ILLEGIBLE]
-------------------- --------------------------
Witness [ILLEGIBLE] Director
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