Exhibit 2.2
AGREEMENT AND AMENDMENT
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This Agreement and Amendment ("AGREEMENT") is made this 2nd day of
December, 1996, between Wheelabrator Technologies Inc., a Delaware corporation
("SELLER"), and United States Filter Corporation, a Delaware corporation
("PURCHASER").
RECITALS
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A. Seller and Purchaser are parties to that certain Amended and Restated
Purchase and Sale Agreement dated as of September 14, 1996 (the "SALE
AGREEMENT").
B. Seller and Purchaser wish to enter into this Agreement to (1) provide
for additional agreements regarding certain matters relating to the Sale
Agreement and (2) amend the Sale Agreement in certain respects.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree as follows:
1. Incorporation. Any capitalized term not otherwise defined in this
Agreement shall have the meaning given such term in the Sale Agreement. The
preamble and recitals set forth above are incorporated into and form a part of
this Agreement.
2. Alloy Castings; Darchet (Thailand). Prior to the Closing, Seller shall
cause the appropriate Subsidiaries to transfer or dividend to an entity
designated by Seller (a) ownership of beneficial title to all capital stock held
by such Subsidiaries in (i) Wheelabrator Alloy Castings Limited, a corporation
organized under the laws of India, and (ii) Darchet Industrial Water (Thailand)
Co. Ltd., a corporation organized under the laws of Thailand, (it being agreed
that legal title to all such capital stock described at Sections 2(a)(i) and
2(a)(ii) above shall thereafter be held by such Subsidiaries in trust for the
benefit of Seller and its Affiliates, until transfer of such legal title can be
effected), and (b) all rights of the plaintiffs in, under and to the following
actions: (i) Wheelabrator Water Technology (S) Pte. Ltd. vs. Darchet Industrial
Water (Thailand) Co., Ltd., Black Case No. Thor. Bor. 99/2539, and (ii) Darchet
Industrial Water Pte. Ltd. vs. Darchet Industrial Water (Thailand) Co., Ltd.,
Black Case No. 10519/2539 (items (b)(i) and (b)(ii) being referred to
collectively as the "DARCHET ACTIONS"). The term "Liabilities" shall not include
any liabilities of, or arising out of the ownership or operation of,
Wheelabrator Alloy Castings Limited or Darchet Industrial Water (Thailand) Co.,
Ltd., whether, absolute or contingent, known or unknown. All obligations and
liabilities of the plaintiffs under the Darchet Actions shall be deemed Retained
Claims for purposes of the Sale Agreement. The instruments of transfer,
assumption and trust necessary to effect the
matters contemplated herein shall be substantially in the same form as the other
instruments of transfer and assumption between Seller and Purchaser pursuant to
the Sale Agreement. After the Closing, Purchaser and its Affiliates shall
cooperate with Seller and its Affiliates to effect transfer to an entity
designated by Seller, any right, title or interest to the capital stock of
Wheelabrator Alloy Castings Limited and Darchet Industrial Water (Thailand) Co.
Ltd. The foregoing transfers shall be made without any representations or
warranties of any nature whatsoever. Seller shall be responsible for any
governmental filing fees or governmental approval costs relating to such
transfer of legal title. At closing, the parties shall enter into an agreement
governing the parties respective post-closing rights and obligations with
respect to the capital stock in Wheelabrator Alloy Castings Limited and Darchet
Industrial Water (Thailand) Co. Ltd., which agreement shall be on the same terms
as the Stock Retention Agreement.
3. Wheelabrator Canada. The capital stock of Wheelabrator Canada Inc., a
corporation organized under the laws of Ontario ("WCI"), shall be retained by an
Affiliate of Seller. Accordingly, the Sale Agreement is hereby amended as
follows:
(a) The fourth and fifth sentences of Section 2.1(d) of the Sale Agreement
are deleted. The following is inserted into the Sale Agreement as the new second
paragraph of Section 2.1(d):
"Prior to the Closing, Seller shall cause the following actions to be
taken, in the order set forth below, with respect to Wheelabrator Canada
Inc., a corporation organized under the laws of Ontario ("WCI"), and its
wholly owned subsidiary, MPF Engineered Filtered Products Inc., a
corporation organized under the laws of Ontario ("MPF"). (1) Wheelabrator
Water Technologies International Holdings Inc., a Delaware corporation
("WWTH"), shall transfer or dividend to an entity designated by Seller (A)
all of the capital stock in WCI owned by WWTH and (B) all right, title and
interest in that certain unsecured promissory note dated May 3, 1996, of
WCI in favor of WWTH in the principal amount of $15,000,000. (2) MPF shall
dividend to WCI all of MPF's cash on hand (the "MPF DIVIDEND"). (3) WCI
shall subscribe for shares in MPF in consideration of an amount payable in
cash equal to the then current retained earnings of MPF less the amount of
the MPF Dividend. (4) MPF shall issue to WCI shares of common stock, which
shares shall be deemed to be fully paid and non-assessable upon issuance.
(5) MPF shall issue a cash dividend to WCI in the amount of the
consideration referred to at item (3) above. Upon completion of steps (1)
through (5) above, prior to Closing, WCI shall, for consideration of the
issuance of shares in a newly incorporated Canadian entity ("WCI II,
INC."), transfer to WCI II, Inc., all of the MCS Assets and all of the
issued and outstanding capital stock of MPF. The "MCS ASSETS" shall mean
the assets used primarily in the operation of WCI's Material Cleaning
Systems Division
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but excluding, specifically, all capital stock owned in Glegg Industries
Inc., all rights and obligations under that certain Strategic Alliance
Agreement and other agreements entered into in connection with the
acquisition of the capital stock investment in Glegg Industries Inc., and
all of the assets used in the Wheelabrator Air Pollution Control business.
WCI II, Inc. shall assume all liabilities or obligations of, or claims
against, WCI relating to the operation, ownership or use of the MCS Assets.
The instruments of transfer and assumption necessary to effect the matters
contemplated above shall be substantially in the same form as the other
instruments of transfer between Seller and Purchaser pursuant to this
Agreement.
(b) The definition of "LIABILITIES" shall include all liabilities
(excluding all Retained Liabilities) of, or arising out of the ownership or
operation of, the MCS Assets, whether absolute or contingent, known or unknown,
including, without limitation, the liabilities, obligations and other matters
arising from the ownership, operation or use of the MCS Assets and described in
items (a) through (f) of the definition of "Liabilities" in Article I of the
Sale Agreement.
(c) The definition of "SUBSIDIARY" and "SUBSIDIARIES" shall (i) exclude
WCI, and (ii) include WCI II, Inc. WCI is hereby deleted from Schedule 1.4 to
the Sale Agreement.
4. The definition of "EXCLUDED ASSETS" include (i) the issued and
outstanding capital stock of WCI and that certain unsecured promissory note
dated May 3, 1996, of WCI in favor of WWTH in the principal amount of
$15,000,000, (ii) the assets of JFS (UK) Limited and the assets of any other
subsidiary or affiliate of Seller other than the Subsidiaries and WWTI and (iii)
the rights and obligations of JFS (UK) Limited under the UK Microfloc Contracts.
5. Welsh Water Claim. Prior to closing, Seller shall cause the
appropriate Subsidiaries to transfer or dividend to an entity designated by
Seller all rights of the plaintiffs in, under and to the action Xxxxxxx
Filtration Systems Limited and Xxxxxxxx Wheelabrator Ltd. vs. Dwr. Cymru. Cys.
(a/k/a Welsh Water Co.), case no. 1996 ORB 799. All obligations and liabilities
of the plaintiffs with respect to such action shall be deemed Retained Claims
for purposes of the Sale Agreement. Purchaser agrees that any payment, award or
right granted plaintiffs in such action is the sole property of Seller and its
Affiliates. After the Closing Purchaser shall cause the execution and delivery,
from time to time, of such documents as are reasonably requested by Seller to
evidence or perfect the assignment hereunder.
5. Closing Date. The Closing shall occur on December 2, 1996.
Accordingly, the Sale Agreement is hereby amended in the following respects:
(a) The definition of "Base Tangible Net Book Value" set forth in Article I
of the Sale Agreement is deleted in its entirety and replaced by the following:
""BASE TANGIBLE NET BOOK VALUE" means $113,600,000."
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(b) Section 2.3 of the Sale Agreement is amended by:
(i) deleting the first sentence thereof and replacing it with the
following:
"Within thirty (30) days following the Closing Date Seller shall
deliver to Purchaser a consolidated balance sheet for the Business
dated as of November 30, 1996 (the "Closing Balance Sheet")."
(ii) deleting the fourth sentence thereof and replacing it with:
"The Closing Balance Sheet shall not take into consideration any
events occurring after November 30, 1996."
(c) Section 9.1 of the Sale Agreement is deleted in its entirety and
replaced by the following:
"9.1 Closing. The Closing shall take place at the offices of Xxxxx,
Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 at
10:00 a.m. on or as of December 2, 1996 (the "CLOSING DATE")."
6. Stock Transfers. (a) At the Closing, the Shares shall be conveyed as
follows:
(i) the issued and outstanding capital stock of Xxxxxxx Filtration Systems
(France) S.A. shall be conveyed to USF France S.A.;
(ii) the issued and outstanding capital stock of Wheelabrator Technologies
(UK) Limited shall be conveyed to U.S. Filter/LaGrange, Inc.;
(iii) the issued and outstanding capital stock of Xxxxxxx Filtration
Systems (Ireland) Limited shall be conveyed to USF Euroholding S.A.;
(iv) the issued and outstanding capital stock of Xxxxxxx Filtration
Systems (Australia) Pty. Ltd. shall be conveyed to The Permutit Company Pty.
Ltd. (Australia);
(v) the issued and outstanding capital stock of Xxxxxxx Filtration Systems
(Japan) Ltd. shall be conveyed to USF Finance B.V. (Netherlands);
(vi) the issued and outstanding capital stock of Procesos y Systemas de
Separacion, S.A. shall be conveyed to USF Spain S.A.;
(vii) such issued and outstanding capital stock of Societe HPD S.A.
constituting, to Seller's knowledge, approximately 26.88% of such corporation's
issued and outstanding stock shall be conveyed to USF France S.A.;
(viii) the issued and outstanding capital stock of Wheelabrator Asia-
Pacific (Pte.) Ltd. shall be conveyed to U.S. Filter (Asia) Pte. Limited;
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(ix) the issued and outstanding capital stock of Wheelabrator Water
Technologies International Holdings Inc. shall be conveyed to IP Holding
Company;
(x) the issued and outstanding capital stock of Wheelabrator Clean Air
Systems Inc. shall be conveyed to U.S. Filter Wastewater Group, Inc.;
(xi) such issued and outstanding capital stock of Xxxxxxx Filtration
Systems (India) Limited constituting, to Seller's knowledge, approximately 60%
of such corporation's issued and outstanding stock shall be subject to the Stock
Retention Agreement; and
(xii) such issued and outstanding capital stock of HPD/Evatherm A.G.
constituting, to Seller's knowledge, approximately 20% of such corporation's
issued and outstanding stock shall be conveyed to USF Euroholding, S.A.
(b) In addition to the conveyance set forth at Section 6(a) above, the
following conveyances shall be effected at the Closing:
(i) immediately after the completion of the conveyance described at
Section 6(a)(ii) above:
(A) the issued and outstanding capital stock of Wheelabrator Xxxxxx
Xxxxxx X.X. shall be conveyed to Wheelabrator Technologies (UK) Limited,
and
(B) the issued and outstanding quota of Wheelabrator-Xxxxxx
(Maschinenfabriken) GmbH, with a nominal value of DM 2,999,200,
constituting, to Seller's knowledge, 74% of such corporation's issued and
outstanding capital stock, shall be conveyed to Wheelabrator Technologies
(UK) Limited;
(ii) the issued and outstanding capital stock of WCI II, Inc. shall be
conveyed to U.S. Filter/LaGrange, Inc.;
(iii) immediately after the completion of the conveyance described at
Section 6(a)(ix) above, the issued and outstanding capital stock of RWB Beheer
B.V. shall be conveyed to USF Euroholding S.A.;
(iv) immediately after the completion of the conveyance described at
Section 6(a)(ix) above, the issued and outstanding capital stock of Wheelabrator
Water Technologies (s) Pte. Ltd. shall be conveyed to U.S. Filter (Asia) Pte.
Limited.
(c) At the Closing, Purchaser shall cause each entity receiving stock from
Seller or its Affiliates to execute and deliver to Seller an agreement to be
bound by the disclaimers set forth at the end of Article III of the Sale
Agreement and Purchaser's representations and warranties set forth at Section
4.3 of the Sale Agreement. The delivery of such agreement shall be deemed to be
a closing delivery required by Section 9.3 of the Sale Agreement.
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7. Insurance Agreement. The Insurance Agreement in the form of Exhibit A to
this Agreement replaces and supersedes, in all respects, the form of such
agreement set forth on Exhibit A to the Sale Agreement. At the Closing, the
parties shall execute and deliver the Insurance Agreement in the form set forth
on Exhibit A to this Agreement.
8. Closing Documents. At the closing, the parties shall execute and deliver
the following:
(a) the Transition Services Agreement in the form of Exhibit B
hereto;
(b) the Escrow Agreement in the form of Exhibit C hereto (which shall
be the escrow agreement required by Section 2.2(b) of the Sale Agreement).
9. Construction. The Sale Agreement, as amended by this Agreement,
continues in full force and effect. If any provision of this Agreement is
inconsistent with the Sale Agreement, such provision of this Agreement shall
govern and control.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
WHEELABRATOR TECHNOLOGIES INC.
By:
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Name:
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Title:
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UNITED STATES FILTER CORPORATION
By:
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Name:
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Title:
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