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EXHIBIT 2.2
SUPPORT AGREEMENT
SUPPORT AGREEMENT (this "Agreement"), dated as of December 15, 2000, by
and between Atlantic Water Trust, a Delaware business trust ("AWT"), and Azurix
Corp., a Delaware corporation (the "Company").
WHEREAS, concurrently herewith, Enron Corp., an Oregon corporation
("Parent"), the Company and Enron BW Corp., a Delaware corporation and an
indirect subsidiary of Parent ("Merger Sub"), are entering into an Agreement and
Plan of Merger of even date herewith (the "Merger Agreement," which term for
purposes of this Agreement shall not include any amendment or waiver to such
Merger Agreement except for such amendments and waivers to which AWT shall have
consented in writing and such amendments and waivers not consented to by AWT
that do not adversely affect any rights or obligations of AWT), pursuant to
which Merger Sub shall be merged with and into the Company (the "Merger");
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement;
WHEREAS, as of the date hereof, AWT beneficially owns 78,536,532 Shares
(the "Owned Shares");
WHEREAS, as a condition and inducement to its willingness to enter into
the Merger Agreement, the Company has required that AWT agree, and AWT hereby
agrees, to enter into and deliver this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
Section 1. Agreement to Vote.
Section 1.1 Voting. Subject to Sections 1.2 and 2, AWT hereby agrees
that, during the time this Agreement is in effect, at any meeting of the
stockholders of the Company called for the purpose of considering the approval
and adoption of the Merger Agreement and the Merger, unless the Company
otherwise consents in writing, AWT shall vote the Owned Shares (other than any
Owned Shares transferred by AWT as permitted by Section 1.2) in favor of
approval and adoption of the Merger Agreement and the Merger.
Section 1.2 No Inconsistent Arrangements. AWT hereby covenants and
agrees that, except as contemplated by this Agreement or the Merger Agreement or
as contemplated by Sections 9.01 or 9.03 of the Atlantic Water Trust Amended and
Restated Trust Agreement, it shall not (a) transfer (which term shall include
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Owned Shares or any interest therein, (b)
enter into any contract, option or other agreement or understanding with respect
to any transfer of any or all of the Owned Shares or interest therein, or (c)
take any action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated hereby
or by the Merger Agreement or which would make any representation or warranty of
AWT hereunder untrue or incorrect.
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Section 1.3 Waiver of Appraisal Rights. AWT hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have.
Section 2. Expiration. This Agreement shall terminate in its entirety
on the termination of the Merger Agreement in accordance with its terms or upon
AWT's election at any time after May 31, 2001. In the event of the termination
of this Agreement, this Agreement shall forthwith become void and have no
effect, without any liability on the part of any party or its directors,
officers, employees, stockholders or affiliates; provided, however, that such
termination shall not relieve any party from liability for any breach of any
covenant of this Agreement or any breach of any representation or warranty of
this Agreement occurring before termination.
Section 3. Representation and Warranties of AWT. AWT hereby represents
and warrants to the Company as follows:
(a) Ownership of Shares. On the date hereof, the Owned Shares
are owned by AWT and, on the date hereof, the Owned Shares constitute
all of the Shares owned of record or beneficially by AWT.
(b) Power; Binding Agreement. AWT has the legal capacity,
power and authority to enter into and perform all of its obligations
under this Agreement. This Agreement has been duly authorized, executed
and delivered by AWT.
(c) No Conflict; Required Filings and Consents. None of the
execution and delivery of this Agreement by AWT, the consummation by
AWT of the transactions contemplated hereby, the compliance by AWT with
any of the provisions hereof, the execution and delivery of the Merger
Agreement, the consummation of the transactions contemplated by the
Merger Agreement or the compliance by any of the parties to the Merger
Agreement with any of the provisions thereof will result in a violation
or breach of or constitute a default (or an event which with notice or
lapse of time or both would become a default) under any contract,
agreement, or other instrument or obligation to which AWT or Xxxxxx
Water Trust, a Delaware business trust ("Xxxxxx"), is a party or by
which AWT or Xxxxxx or any of their respective properties may be bound
or affected including the respective trust agreements of AWT and
Xxxxxx, except for any of the foregoing that would not reasonably be
expected to prevent or materially delay consummation of the
transactions contemplated hereby.
(d) Information. None of the information supplied or to be
supplied by AWT for inclusion or incorporation by reference in (i) the
proxy statement (the "Proxy Statement") used in connection with the
solicitation of proxies in connection with the Merger and filed with
the Securities and Exchange Commission (the "SEC"), (ii) the Schedule
13E-3 (the "Schedule 13E-3") filed with the SEC in connection with the
Merger or (iii) any other document required to be filed with the SEC or
any other governmental entity in connection with the transactions
contemplated by the Merger Agreement will, at the respective times
filed with the SEC or such other governmental entity and, in addition,
in the case of the Proxy Statement, at the date it or any amendment or
supplement is mailed to stockholders, at the time of the Special
Meeting (as defined in the Merger Agreement) and at the effective time
of the Merger (the "Effective Time"), contain any untrue statement of a
material fact
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or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading, it being
understood that no representation is made by AWT with respect to
statements made therein based on information supplied by Parent or the
Company in writing specifically for inclusion in the Proxy Statement.
Section 4. Miscellaneous.
Section 4.1 Non-Survival of Representations and Warranties. The
representations and warranties made in this Agreement shall not survive beyond
the consummation of the Merger.
Section 4.2 Reasonable Best Efforts.
(a) AWT shall cooperate with the Company and use its
reasonable best efforts to make, or cause to be made, all filings
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this
Agreement, including but not limited to cooperation in the preparation
and filing of the Proxy Statement, the Schedule 13E-3, any required
filings or requests for additional information under applicable law, or
other foreign filings and any amendments to any thereof. In addition,
if at any time prior to the Effective Time any event or circumstance
relating to AWT should be discovered by AWT, which should be set forth
in an amendment to the Proxy Statement or the Schedule 13E-3, AWT will
promptly inform the Company of such event or circumstance.
(b) AWT will use its reasonable best efforts to obtain as
promptly as practicable all consents of any governmental entity or any
other person required in connection with the consummation of the
transactions contemplated by this Agreement.
Section 4.3 Entire Agreement; Assignment. This Agreement (including the
documents and the instruments referred to herein) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof and
thereof. Neither this Agreement nor any of the rights, interests or obligations
hereunder will be assigned by any of the parties hereto (whether by operation of
law or otherwise) without the prior written consent of each other party. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns.
Section 4.4 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto. Notwithstanding the foregoing, this
Agreement shall not be amended and no extension or waiver of any of the
obligations of AWT hereunder shall be effective without the approval of the
Special Committee.
Section 4.5 Notices. All notices, requests, claims, demands and other
communications hereunder must be in writing and shall be deemed to have been
given only when delivered in person, by overnight courier or facsimile to the
respective parties as follows:
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If to the Company:
Xxxxxxx X. Xxxxxxx, Xx.
Chairman of the Special Committee
c/o Capricorn Management, G.P.
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
copy to:
Xxxx X. Ale
Executive Director and General Counsel
Azurix Corp.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxx
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to AWT:
Corporate Trust Department
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
copy to:
Xxx X. Xxxxxx, Xx.
Enron Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above;
provided that notice of any change of address shall be effective only upon
receipt thereof.
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Section 4.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
Section 4.7 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
Section 4.8 Counterparts. This Agreement may be executed in two or more
counterparts, and by facsimile, each of which shall be deemed to be an original,
but all of which shall constitute one and the same agreement.
Section 4.9 Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
Section 4.10 Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
Section 4.11 Jurisdiction.
(a) Any legal action or proceeding with respect to this
Agreement or any matters arising out of or in connection with this
Agreement, and any action for enforcement of any judgment in respect
thereof, shall be brought, if at all, in the Court of Chancery of
Delaware or the courts of the United States of America for the District
of Delaware or, if no such court has jurisdiction, then any appropriate
state court in the State of Delaware and, by execution and delivery of
this Agreement, the Company and AWT each hereby accepts for itself and
in respect of its property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts and appellate courts
thereof for purposes of the foregoing matters. To the extent it does
not have a registered agent in the applicable jurisdiction, the Company
and AWT irrevocably consent to service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, or
by recognized international express carrier or delivery service, to the
Company or AWT at their respective addresses referred to in Section 4.5
hereof and to the attention of their respective Corporate Secretaries.
(b) The Company and AWT each hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement brought in the courts
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referred to above and hereby further irrevocably waives and agrees, to
the extent permitted by applicable law, not to plead or claim in any
such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum. Nothing herein shall affect
the right of any party hereto to serve process in any other manner
permitted by law.
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IN WITNESS WHEREOF, the Company and AWT have caused this Agreement to
be duly executed as of the day and year first above written.
AZURIX CORP.
By: /s/ XXXX X. XXXXXXXX, XX.
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Name: Xxxx X. Xxxxxxxx, Xx.
Title: President and Chief Executive Officer
ATLANTIC WATER TRUST
By: /s/ XXX X. XXXXXX, XX.
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Name: Xxx X. Xxxxxx, Xx.
Title: Director
