Exhibit 2.2
PRICE GUARANTEE AGREEMENT
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AGREEMENT made and entered into as of 6th January 1997, by and between UNITED
UTILITIES PLC, a company registered in England and Wales ("UU"), and UNITED
STATES FILTER CORPORATION, a Delaware corporation ("USF");
WITNESSETH:
WHEREAS, USF and UU entered into an Agreement dated as of 7 October 1996 ("the
Purchase Agreement"), pursuant to which USF has agreed to purchase from UU and
various affiliates certain assets comprising the Process Equipment Business
of UU in consideration of the Purchase Price (as defined in the Purchase
Agreement);
WHEREAS, the parties desire to enter into this Agreement in order for USF to
grant to UU certain rights with respect to the USF Shares, subject to the terms
and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the premises and of the mutual agreements
and covenants hereinafter set forth, USF and UU hereby agree as follows:
1 Definitions
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As used in this Agreement, the following capitalized terms shall have the
following meanings:
"Exchange Act" means the US Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, as in effect from time to time;
"Guaranteed Value" means (POUNDS)25,000,000 (twenty-five million pounds
sterling) in the aggregate for all of the USF Shares and means, on a per USF
Share basis, (POUNDS)25,000,000 divided by the number of USF Shares, plus in
each such case interest thereon at a rate per annum of 7% (computed daily,
without compounding) from December 28, 1996 to the earlier of the settlement
date for the sale of the last USF Share and the Termination Date, each date
inclusive, subject in any case to proportionate adjustment in the event of any
stock split, stock dividend, combination or similar recapitalization of the USF
Shares after the date hereof;
"Net Proceeds" means the cash proceeds received upon settlement of the sale of
any USF Shares (after deduction for agency fees and/or brokerage commissions
paid or discount suffered with respect to such sales) as deposited with Xxxxxx
Guaranty Bank, N.A., into an interest-bearing account in the name of UU,
together with the interest earned thereon, and as converted into pounds sterling
on the earlier of the settlement date for the sale of the last USF Share and the
Termination Date.
"SEC" means the US Securities and Exchange Commission;
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"Securities Act" means the US Securities Act of 1933, as amended, and the
rules and regulations thereunder, as in effect from time to time;
"Termination Date" means the date falling forty-five (45) days after the
Completion Date (as defined in the Purchase Agreement).
"USF Shares" shall have the meaning ascribed thereto in the Purchase
Agreement which shares are to be delivered by USF to UU on the date hereof
and any securities issued with respect to the USF Shares by reason of any
stock split, stock dividend, combination or similar recapitalization of the
USF Shares after the date hereof.
Unless the context otherwise requires:
(a) "or" is not exclusive;
(b) words in the singular include the plural and words in the plural include
the singular.
All other capitalized terms used herein shall have the meanings ascribed to
them in the Purchase Agreement unless a contrary or different meaning is
expressly provided herein.
2. Guaranteed value for shares sold
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If the aggregate Net Proceeds from the sale, in whole or in part, by UU of
the USF Shares effected on or before the Termination Date are less than the
Guaranteed Value for the USF Shares sold during such period, then USF shall,
within 5 business days after the Termination Date, pay to UU in
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immediately available funds an amount equal to the aggregate amount of such
deficiency.
3. Profit on sale of shares
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If the aggregate Net Proceeds from the sale, in whole or in part, by
UU of the USF Shares effected on or before the Termination Date are greater
than the Guaranteed Value for such USF Shares sold during such period, then
UU shall, within 5 business days after the Termination Date, pay to USF in
immediately available funds an amount equal to the aggregate amount of such
excess.
4. Investment Banking Firm
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Except as hereinafter provided, UU hereby agrees that any sales of the
USF Shares received by it under and pursuant to the Purchase Agreement
effected on or prior to the Termination Date will be made only through
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation ("DLJ"). Provided
that the Registration Statement is effective as of the Completion Date,
and is otherwise in conformity with the Securities Act, UU hereby covenants
and agrees with USF that:
(i) it shall not dispose of such shares in any manner which is disruptive
to the market for all shares of USF common stock, par value $0.01;
(ii) it shall dispose of the USF Shares only in agency sales or ordinary
brokerage transactions through such investment banking firm or broker
and only on the New York Stock Exchange; and
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(iii) it shall comply in all material respects with the Securities Act and
the Exchange Act in connection with the sale of the USF Shares;
provided, however, that notwithstanding the foregoing, UU's obligation to
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sell only through DLJ and in compliance with (i) above shall terminate on
the fortieth day after the Completion Date.
5. Miscellaneous
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5.1 Notices
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All notices, requests, claims, demands and other communications hereunder
shall be given in accordance with the provisions of Article 18 of the
Purchase Agreement.
5.2 Successors and Assigns
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This Agreement is solely for the benefit of, and binding upon, the parties
and their respective successors. Nothing herein shall be construed to
provide any rights to any other entity or individual. Neither this
Agreement nor any of the rights or obligations hereunder may be assigned by
any party.
5.3 Counterparts
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This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument.
5.4 Titles
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The titles, captions or headings of the Sections herein are for convenience
of reference only and are not intended to be
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a part of or to effect the meaning or interpretation of this Agreement.
5.5 Governing Law
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This Agreement shall be construed, interpreted and the rights of the
parties determined in accordance with English law and the parties hereby
submit to the non-exclusive jurisdiction of the English courts.
5.6 Invalidity
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In the event that any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by
law, such validity, illegality or unenforceability shall not affect
any other provision of the Agreement.
5.7 Entire Agreement - modifications and waivers
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This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and supersedes all agreements,
understandings, negotiations and discussions, whether oral or written, of
the parties. No supplement, modification or waiver of this Agreement shall
be binding unless executed in writing by the party to be bound thereby. No
waiver of any of the provisions of the Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar),
nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
UNITED STATES FILTER )
CORPORATION by: )
/s/ Xxxxxx X. Xxxxxxxx
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Name
Vice President
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Title
UNITED UTILITIES PLC )
by: )
/s/ Xxxx X. Xxxxxxx
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Name
Director
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Title
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