EXHIBIT 2.2
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is made as of June 5, 2008.
AMONG:
(1) Ridgewood Near East Holdings, LLC, a limited liability company,
established and organized under the laws of Delaware, having its
registered offices at 947 Linwood Avenue, Ridgewood, New Jersey 07450,
represented herein by Mr. Randall D. Holmes, in his capacity as the
legal representative of Ridgewood Near East Holdings;
(2) RW Egyptian Holdings, LLC, a limited liability company, established and
organized under the laws of New Jersey, having its registered offices at
947 Linwood Avenue, Ridgewood, New Jersey 07450, represented herein by
Mr. Randall D. Holmes, in his capacity as the legal representative of
Ridgewood Egyptian Holdings;
(collectively, the "First Party" or "Sellers"); and
(3) Horus Private Equity Fund III L.P., a Cayman Islands Limited Partnership
having its registered office at c/o M&C Corporate Services Limited, P.O.
Box 309G7 Ugland House, South Church Street, George Town, Grand Cayman,
Cayman Islands managed by EFG-Hermes Private Equity and represented
herein by Mr. Samer S. Yassa, in his capacity as the legal
representative of the fund, referred to hereinafter as (the "Second
Party" or "First Purchaser"); and
(4) Mariridge for Infrastructure Projects, an Egyptian joint stock company,
whose registered office is at 26 Helmy Abd El Atti Street, Nasr City,
Cairo, Egypt, represented herein by Mr. Zaki Girges, the Company's legal
representative, referred to hereinafter as (the "Second Purchaser").
(5) HSBC Egypt, an Egyptian bank, with its head office located at 306
Kornish El Nile, Maadi registered with the Commercial Register under No.
218992 and represented herein by Mr. Amr Tharwat in his capacity as the
legal representative of the bank, referred to hereinafter as (the
"Escrow Agent").
(6) Ridgewood Egypt for Infrastructure Projects LLC, an Egyptian limited
liability company, commercial register No. 327201 issued on November 11,
1999, whose registered office is at 165 El Orouba Street, Heliopolis,
Cairo, Egypt, represented herein by Mr. Zaki Girges, in his capacity as
the General Manager, referred to hereinafter as ("the Company") (All the
above parties shall be collectively referred to as the "Parties")
WHEREAS
(A) Defined terms used herein shall have the meanings given such terms in
the Sale and Purchase Agreement attached hereto ("Sale and Purchase
Agreement") unless otherwise defined herein;
(B) The Sellers Own First Purchaser Shares and Loan and the Second Purchaser
Shares and Loan; and
(C) The First Purchaser and the Second Purchaser wish to acquire and the
Sellers wish to agree on the mechanism of payment of the Share Purchase
Price, the Loan Purchase Price and the Second Purchaser Payment between
the First Purchaser, the Second Purchaser and the Sellers for the
transfer of the First Purchaser Shares and Loan to the First Purchaser
and the Second Purchaser Shares and Loan to the Second Purchaser and the
delivery of certain documents to the First Purchaser on the terms of
this Agreement and the Sale and Purchase Agreement dated June 56, 2008
among the Sellers, the First Purchaser, the Second Purchaser and the
Company (the "Purchase and Sale Agreement").
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the Parties hereto agree as follows:
1. Appointment of the Escrow Agent.
--------------------------------
The Sellers, First Purchaser, Second Purchaser and the Company hereby
appoint and designate the Escrow Agent as escrow agent for the purpose
set forth herein, and the Escrow Agent does hereby accept such
appointment under the terms and conditions set forth herein.
2. Establishment of Escrow Account.
--------------------------------
Contemporaneously with the execution of this Escrow Agreement:
2.1 The Escrow Agent shall have opened an interest bearing escrow account
for the purpose of this Agreement at its ____ Branch, subject to the
terms and conditions of this Agreement (the "Escrow Account").
2.2 The First Purchaser and Second Purchaser shall deposit with the Escrow
Agent and the Escrow Agent shall hold in the Escrow Account, subject to
the terms and conditions hereof, an amount of Twenty Seven Million Five
Hundred Thousand US Dollars (US$27,500,000) (the "Purchase Price").
2.3 The First Purchaser shall deposit with the Escrow Agent, and the Escrow
Agent shall hold in the Escrow Account, subject to the terms and
conditions hereof the payment of an amount of Two Million US Dollars
(US$ 2,000,000) (the "Second Purchaser Payment") in the Escrow Account.
3. Disposition and Termination.
----------------------------
3.1 Delivery of Documents Upon Completion under the Purchase and Sale
Agreement, the Sellers, the Purchasers and the Company shall deliver to
the Escrow Agent the Escrow Agent Certificate substantially in the form
attached herewith as Annex B, together with the documents set out in
Annex A.
3.2 Upon delivery of the Escrow Agent Certificate and the documents
described in Annex A, the Escrow Agent shall make deliveries as follows:
(i) the Purchase Price deposited in the Escrow Account shall be
delivered to the Sellers or a designee thereof; (ii) the Second
Purchaser Payment shall be delivered to the Second Purchaser and (iii)
the documents described in Annex A shall be delivered to the First
Purchaser.
In this event the Escrow Agent shall, simultaneously with payment of the
Share Purchase Price and the Loan Purchase Price to the Sellers and the
Second Purchaser Payment to the Second Purchaser, pay the interest
accrued on the Purchase Price, and the Second Purchaser Payment to the
First Purchaser.
In such event, the payment to the Sellers of the Purchase Price shall be
on the following account(s):
- USD 27,500,000 by wire transfer to Ridgewood Renewable Power
LLC. In:
Account Name: Ridgewood Renewable Power LLC Oper
Account No.:
Bank Name: Wachovia Bank
Summit, NJ
ABA (wire) 031201467
ABA (ACH) 031100225
and the Second Purchaser Payment shall be paid to the Second
Purchaser on the following account:
- USD 2,000,000 to:
Commercial International Bank (Egypt) SAE
4, Farid Street (off El Thawra St.)
Heliopolis - Cairo - Egypt
Swift Code: CIB EEG CX081
For Credit to the Account of Zaki Yousif Girges
Account No.:
Notwithstanding the foregoing, the Escrow Agent shall immediately and
automatically return the Share Purchase Price, the Loan Purchase Price
and the Second Purchaser Payment, with any incurred interest thereon to
the First Purchaser upon the passage of 90 calendar days, from the date
hereof, without receipt of the Escrow Agent Certificate and the
documents listed in Annex A of this Agreement, unless it has received
written instructions signed by the Second Purchaser and the First
Purchaser advising the Escrow Agent to act otherwise. In such event,
return of the Purchase Price and the Second Purchaser Payment to the
First Purchaser in addition to any interest accrued thereon shall be
made by the Escrow Agent to the First Purchaser on the following
account:
Bank Name : Arab African International Bank
Address : 5 Midan Al Saray Al Koubra - Garden City
Account Name : Horns Private Equity Fund III LP
Account Number :
Swift Code : ARAIEGCX
Correspondent in USD JP Morgan New York
Swift Code : CHAS US 33
Account No. :
4. Duties of Escrow Agent
----------------------
The Escrow Agent undertakes to perform only those duties which are
expressly set forth in this Agreement on its part.
The duties and responsibilities of the Escrow Agent hereunder shall be
determined solely by the express provisions of this Escrow Agreement and
no other or further duties or responsibilities shall be implied. The
Escrow Agent shall not have any liability under, nor duty to inquire
into the terms and provisions of any agreement or instructions, other
than as outlined in this Escrow Agreement.
The Escrow Agent shall be under no duty to inquire into or investigate
the validity, accuracy or content of any such document.
5. Payment to the Escrow Agent
---------------------------
Upon execution of this Escrow Agreement, First Purchaser and the Sellers
shall pay the Escrow Agent, in equal proportion (i.e., fifty-fifty), the
compensation for services to be rendered by the Escrow Agent in
connection with the preparation, execution, performance, delivery of
this Escrow Agreement. The fees of the Escrow Agent shall be USD $10,000
and shall be paid by the First Purchaser and the Sellers on the date of
this Escrow Agreement. To the extent that the Escrow Agreement remains
in effect for more than 90 days, additional fees shall be payable at the
rate of US$ 3,500 per month, payable on the first day of the month in
equal proportion by First Purchaser and Sellers.
6. Term of Escrow Agreement
------------------------
This Escrow Agreement shall remain in full force and effect from the
date of execution until the occurrence of one of the events outlined in
Article 3 herein.
7. Notices
-------
All notices and communications hereunder shall be in writing and shall
be deemed to be duly served if sent by registered mail, return receipt
requested, as follows:
If to the Escrow Agent:
(i) If to First Purchaser:
Horus Private Equity Fund III, L.P
c/o M&C corporate Services Limited
P.O.Box 309G7, Ugland House
South Church Street, George Town
Grand Cayman, Cayman Islands
If to Sellers:
Ridgewood Near East Holding LLC
RW Egyptian Holdings LLC
c/o Ridgewood Renewable Power LLC
947 Linwood Ave.
Linwood, New Jersey 07450 U.S.A
Attn: Robert E. Swanson
(with a copy to)
Day Pitney LLC
7 Times Square New York, N.Y. 0036 U.S.A.
Attn:Frank Lawatsch JRE&G
If to the Second Purchaser:
Zaki Yousif Girges
165 El Orouba Street
Heliopolis, Cairo, Egypt
or at such other address as any of the parties may have furnished to the
other parties in writing by registered mail, return receipt requested.
Any such notice or communication served in the manner specified in this
Article 7 shall be deemed to have been served as of the date of its
receipt.
8. Waiver; Modification
--------------------
The provisions of this Escrow Agreement may be waived, altered, amended
or supplemented, in whole or in part, only by a written document signed
by all of the Parties hereto.
9. Assignment
----------
Neither this Escrow Agreement nor any right or interest hereunder may be
assigned in whole or in part by any party without the prior written
consent of the other Parties.
10. Governing Law
-------------
This Escrow Agreement shall be governed by and construed in accordance
with the laws of the Arab Republic of Egypt.
11. Limitation of Liability
-----------------------
The First Purchaser, the Sellers and the Second Purchaser recognize that
the Escrow Agent shall not be held liable, in case of and breach of the
First Purchaser, the Seller and/or the Second Purchaser under this
Agreement.
12. Dispute Resolution.
-------------------
All disputes arising out of or in connection with this Agreement
including the breach, termination, validity and or implementation
thereof, shall be finally settled by arbitration under the Rules of
Arbitration of the International Chamber of Commerce ("ICC") then in
effect (the "Rules") in Paris, France. The arbitral tribunal shall be
composed of three arbitrators appointed as follows:
1. The Sellers shall collectively appoint one co-arbitrator and the
Purchasers shall collectively appoint one co-arbitrator. The
said co-arbitrators shall appoint the chairman of the arbitral
tribunal.
2. In case of failure to appoint any member of the arbitral
tribunal , the ICC court of arbitration shall be the appointing
authority.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement on the date and year first above written.
The Escrow Agent shall be fully protected in acting on or
relying upon any written notice, direction, request,
instruction, waiver, consent, receipt or other document which
the Escrow bank in good faith believes to have been signed and
presented by the proper party or parties.
ESCROW AGENT
By: /s/ Amr Tharwat
Name: Amr Tharwat
Title: Group Head - Corporate Banking.
SELLERS
RIDGEWOOD NEAR EAST HOLDINGS LLC
By: /s/ Randall D. Holmes
Name: Randall D. Holmes
Title: President
RW EGYPTIAN HOLDINGS, LLC
By: /s/ Randall D. Holmes
Name: Randall D. Holmes
Title: President
FIRST PURCHASER
By: /s/ Horus Private Equity Fund III, LP By: ________________________
Name: Samer S. Yassa Name: ______________________
Title: Director Title: _____________________
SECOND PURCHASER
By: /s/ Zaki Yousif Girges
Name: Zaki Yousif Girges
Title: Manager
RIDGEWOOD EGYPT FOR INFRASTRUCTURE LLC
By: /s/ Zaki Yousif Girges
Name: Zaki Yousif Girges
Title: Mgn
MR. ZAKI GIRGES
Name: Zaki Yousif Girges
Signature: /s/ Zaki Yousif Girges
Annex A
List of Documents to be delivered to the Escrow Agent
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1- The Minutes of the Extraordinary General Shareholders Meeting approving
the transfer of the First Purchaser Shares from the Sellers to the
Second Purchaser Shares, duly ratified by the General Authority for
Investment and Free Zones substantially in the form attached herewith as
Annex (C).
2- Original Ledger of Ownership of Quotas of the Company evidencing the
transfer of the First Purchaser Shares from the Sellers to the First
Purchaser and the Second Purchaser Shares to the Second Purchaser as
signed by the manager of the Company and stamped with the Company's
seal.
3- A Certificate from the General Counsel of the Sellers to the effect that
the sale of the First Purchaser Shares and the Second Purchaser Shares
has been approved by the Sellers' shareholders substantially in the form
attached herewith as Annex (D).
Annex B
Form of Escrow Agent Certificate
Dear Sirs,
Re.: Escrow Agent Certificate
Reference is made to the Escrow Agreement dated June, 2008 signed by the
Sellers, the Purchasers and the Company (the "Escrow Agreement").
Capitalized terms used herein shall have the same meaning ascribed to
them in the Escrow Agreement.
In accordance with the Escrow Agreement:
(i) This certificate is the "Escrow Agent Certificate" referred to in Annex B
of the Escrow Agreement;.
(ii) Together with this Escrow Certificate, the Company hereby makes delivery
to the Escrow Agent of the documents described in Annex A to the Escrow
Agreement;
(iii) The Purchasers, the Sellers and the Company hereby confirm that all of
the completion conditions of the Sale and Purchase Agreement have been
satisfied or waived and that the Escrow Agent is hereby authorized and
divested as follows:
(a) To deliver the Purchase Price to the Sellers as provided in
Section 3.2 (i) of the Escrow Agreement.
(b) To deliver the Second Purchaser Payment to the Second Purchaser as
provided in Section 3.2 (ii) of the Escrow Agreement;
(c) To make delivery of the documents described in Annex A of the
Escrow Agreement to the First Purchaser.
(d) To the extent that there are any funds remaining in the Escrow
account after giving effect to the deliveries of funds to the
Sellers and the Second Purchaser in Clauses (iii)(a) and (b)
above, the Escrow Agent is authorized to deliver such remaining
funds to the First Purchaser as contemplated in Section 3.2 of the
Escrow Agreement.
(e) Upon the performance by the Escrow Agent of the actions described
in clauses (iii)(a), (b) (c) and (d) above of this Escrow Agent
Certificate, the Escrow Agent shall have fully discharged it
obligations under the Escrow Agreement
Very truly yours,
The First Purchaser: _________________________________
The Second Purchaser: _________________________________
The Sellers: _________________________________
The Company: _________________________________
Annex C
Form of the Extraordinary General Shareholders Meeting
Minutes of Meeting
of the Extraordinary General Shareholder Meeting
Of Ridgewood Egypt for Infrastructure Company
A Limited Liability Company
Convened on _________
Upon the invitation sent by Mr. Zaki Yousif Girges, in his as the Manager of
the Company to all the shareholders, the General Authority for Investment and
Free Zones and the Company's Auditor on ___________, the Extraordinary General
Shareholders Meeting of Ridgewood Egypt for Infrastructure Company, a limited
liability company convened on _________ at ____ (hours) at the premises of the
Company located at 165 Orouba Street, Nozha Station, Heliopolis, Cairo to review
the following Agenda:
1. Amend Article (5) of the Articles of Incorporation of the Company.
2. Any new matter arises during the Meeting.
The Meeting was attended by:
- - Mr. _______________, on behalf of the General Authority for Investment and
Free Zones.
- - Mr. ________________, on behalf of PriceWaterhouse Coopers, by virtue of an
authorization dated _________.
- - Mr. ________________, on behalf of Ridgewood Near East Holdings, by virtue
of an authorization dated _______.
- - Mr. _________________, on behalf of RW Egyptian Holdings, by virtue of an
authorization dated _________.
Percentage of attendance is 100%.
The Meeting was presided by the Manager of the Company and Mr. _______________,
has been appointed as secretary of the Meeting and Messrs. ______________ and
______ ___________ have been appointed as vote supervisors.
The appointments have been approved.
The Chairman of the Meeting opened the Meeting according to the Agenda and the
following have been discussed:
- - Whereas, RW Egyptian Holdings and Ridgewood Near East Holdings have
purchased the entire shares on January 19, 2001, thus they become the
actual owners of the shares.
- - Whereas the Extraordinary General Shareholders Meeting of the Company
approved the amendment of Article (5) of the Articles of Incorporation of
the Company to prove that the two companies become shareholders in the
Company, which was ratified by the General Authority for Investment and
Free Zones on May 10, 2001.
- - Whereas, the security entities have objected to the names of the two
shareholders and as the two shareholders have sold their shares in the
Company to _______ ________ ________ and Mariridge for Infrastructure
Company, SAE, therefore the Extraordinary General Shareholders Meeting has
unanimously approved the following resolutions:
Resolution I
Approve the amendment of Article (5) of the Articles of Incorporation of the
Company to read as follows:
Article (5) Before Amendment
The capital of the Company has been set at L.E 2,000,000 (two million Egyptian
pounds) divided into (20000) shares of a respective value of L.E 100 (one
Hundred Egyptian pounds) each. All shares are cash shares and they are divided
as follows:
- ----------------------------------------------------------------
Name & No. of Value Currency %
nationality Shares
- ----------------------------------------------------------------
Zaki Yousif 200 20,000 EGP 1%
Girges -
Egyptian
- ----------------------------------------------------------------
Hussein 19800 1,980,000 EGP 99%
Mohamed
Kortam -
Egyptian
- ----------------------------------------------------------------
TOTAL 20000 2,000,000 EGP 100%
- ----------------------------------------------------------------
Article (5) After Amendment
The capital of the Company has been set at L.E 2,000,000 (two million Egyptian
Pounds) divided into (20000) shares of a respective value of L.E 100 (one
Hundred Egyptian Pounds) each. All shares are cash shares and they are divided
as follows:
- ----------------------------------------------------------------
Name & No. of Value Currency %
nationality Shares
- ----------------------------------------------------------------
- ----------- 17000 1,700,000 EGP 85%
- ----------------------------------------------------------------
Mariridge for 3000 300,000 EGP 15%
Infrastructure
- ----------------------------------------------------------------
TOTAL 20000 2,000,000 EGP 100%
- ----------------------------------------------------------------
As there was no other matter opened for discussion, the Extraordinary General
Shareholders Meeting was adjourned at ___ (hours).
The Extraordinary General Shareholders Meeting has authorized Messrs. Mohamed
Abdel Halim Shaker and Sherif Aly El Din Hassan, attorneys-at-law at Shalakany
Law Office, jointly and/or severally to carry out the necessary procedures
before the governmental and non-governmental entities, including without
limitation, the General Authority for Investment and Free Zones, the Notary
Public Offices to ratify the Extraordinary General Shareholders Meeting and
amend the Commercial Registration of the Company, as well as suspend any of the
legal procedures or withdraw the Minutes of the Extraordinary General
Shareholders Meeting before ratification from the General Authority for
Investment and Free Zones.
Vote Supervisors
Secretary
Company's Auditor
The Chairman of the Meeting
Annex D
The General Counsel's Certificate
To: Escrow Agent
Date: [____________]
Dear Sirs,
Certificate of General Counsel of Sellers
Escrow Agreement dated June __, 2008 between Ridgewood Near East Holdings, LLC,
a Delaware limited liability company ("Ridgewood Near East"), RW Egyptian
Holdings, LLC, a Delaware limited liability company ("RW" and, collectively with
Ridgewood Near East, the "Sellers"), Horus Private Equity Fund III, LP, (the
"First Purchaser"), Mariridge for Infrastructure Projects, an Egyptian joint
stock company (the "Second Purchaser" and, collectively with the First
Purchaser, the "Purchasers ")and Ridgewood for Infrastructure, an Egyptian
Limited Liability Company (the "Company").
Reference is made to the above mentioned escrow agreement (the "Escrow
Agreement") terms capitalized in this letter shall, unless the context requires
otherwise, have the same meaning as set out in the Escrow Agreement.
1, Daniel Gulino, hereby certify as follows:
(i) This Certificate is the "Certificate of General Counsel of the
Sellers" referred to in item 3 of Annex A of the Escrow Agreement;
(ii) I am the duly appointed Senior Vice President and General Counsel of
the Sellers; and
(iii) I hereby confirm that all necessary approvals of the Ridgewood
Electric Power Trust V, Ridgewood Power Growth Fund and the
Ridgewood Egypt Fund (and their affiliates) necessary to authorize
the Sellers to consummate the transactions contemplated by the Sale
and Purchase Agreement have been duly obtained in accordance with
the Declarations of Trust or other governing documents of each such
entity and in accordance with the Laws of the United State, the
State of Delaware and any other applicable law of any State in the
United States.
Yours faithfully
Name: _________________________________
Signature: _________________________________
For and on behalf of the Sellers