As filed with the Securities and Exchange Commission on October 6, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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United States Filter Corporation
(Exact name of registrant as specified in its charter)
Delaware 3589 33-0266015
(State or other (Primary (I.R.S. Employer
jurisdiction of Standard Identification
incorporation or Industrial No.)
organization) Classification
Code Number)
73-710 Fred Waring Drive, Suite 222
Palm Desert, California 92260
(619) 340-0098
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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Damian C. Georgino
Vice President, General Counsel and Secretary
United States Filter Corporation
73-710 Fred Waring Drive, Suite 222
Palm Desert, California 92260
(619) 340-0098
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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Copy to:
Janice C. Hartman
Kirkpatrick & Lockhart LLP
1500 Oliver Building
Pittsburgh, Pennsylvania 15222
(412) 355-6500
Approximate date of commencement of proposed sale to public:
From time to time after this registration statement becomes effective.
<PAGE>
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. /_/
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering./_/
If this Form is a post-effective amendment filed pursuant to Rule
426(c) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. /_/
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. /_/
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CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate Amount of
securities registered per share (1) offering price registration fee
to be registered (1)
<S> <C> <C> <C> <C>
Common stock, par value
$.01 per share . . 371,229 shares $ 23.3125 $ 8,654,276 $ 2,985
</TABLE>
(1) Estimated solely for the purpose of calculating the registration
fee; computed in accordance with Rule 457(c) on the basis of the
average of the high and low sales prices for the Common Stock on
October 4, 1995 as reported on the New York Stock Exchange
Composite Tape.
______________________________
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until this
registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE
ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED OCTOBER 6, 1995
371,229 Shares
United States Filter Corporation
Common Stock
(par value $.01 per share)
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This prospectus provides for the offering of up to an aggregate of
371,229 shares (the "Shares") of the Common Stock, par value $.01 per
share ("Common Stock"), of United States Filter Corporation (the
"Company"). The Shares were acquired by Anjou International Company (the
"Selling Stockholder") on October 1, 1995 in consideration of its sale to
the Company of all of the outstanding capital stock of Polymetrics, Inc.
pursuant to the terms of a Stock Purchase Agreement dated August 30, 1995,
as amended (the "Stock Purchase Agreement").
The Shares may be offered or sold by or for the account of the Selling
Stockholder from time to time or at one time, at prices and on terms to be
determined at the time of sale, to purchasers directly or by or through
brokers, dealers, underwriters or agents who may receive compensation in
the form of discounts, commissions or concessions. The Selling
Stockholder and any brokers, dealers, underwriters or agents that
participate in the distribution of the Shares may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), and any discounts, concessions and
commissions received by any such broker, dealer, underwriter or agent may
be deemed to be underwriting commissions or discounts under the Securities
Act. The Company will not receive any of the proceeds from any sale of
the Shares offered hereby. See "Use of Proceeds", "Selling Stockholder"
and "Plan of Distribution".
The Common Stock is listed on the New York Stock Exchange (the "NYSE")
and traded under the symbol "USF". The last reported sale price of the
Common Stock on the NYSE on October 5, 1995 was $23-1/8 per share.
---------------------
See "Risk Factors" beginning on page 3 for certain considerations
relevant to an investment in the Common Stock.
<PAGE>
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The date of this Prospectus is _____________________, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files periodic reports, proxy solicitation materials
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy solicitation materials and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices located
at Seven World Trade Center, Suite 1300, New York, New York 10048 and 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
materials can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Common Stock is listed on the NYSE. Such reports, proxy
solicitation materials and other information can also be inspected and
copied at the NYSE at 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits, referred to
as the "Registration Statement") under the Securities Act with respect to
the offering made hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain portions of
which are omitted in accordance with the rules and regulations of the
Commission. Such additional information may be obtained from the
Commission's principal office in Washington, D.C. as set forth above. For
further information, reference is hereby made to the Registration
Statement, including the exhibits filed as a part thereof or otherwise
incorporated herein. Statements made in this Prospectus as to the
contents of any documents referred to are not necessarily complete, and in
each instance reference is made to such exhibit for a more complete
description and each such statement is modified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File
No. 1-10728) pursuant to the Exchange Act are incorporated herein by
reference.
1. The Company's Annual Report on Form 10-K for the year ended March
31, 1995;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995;
3. The Company's Current Reports on Form 8-K dated April 3, 1995 (two
such Current Reports), May 3, 1995, May 4, 1995, as amended on Form
8-K/A dated October 6, 1995, June 12, 1995, June 27, 1995, July 13,
1995, August 11, 1995, September 7, 1995, September 18, 1995,
October 2, 1995 and October 5, 1995; and
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4. Description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, as the same may be amended.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering made by this
Prospectus shall be deemed to be incorporated by reference herein. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as modified or superseded, to constitute a
part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all of the documents that are incorporated herein
by reference, other than exhibits to such information (unless such
exhibits are specifically incorporated by reference into such documents).
Requests should be directed to the General Counsel of the Company at 73-
710 Fred Waring Drive, Suite 222, Palm Desert, California 92260 (telephone
(619) 340-0098).
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THE COMPANY
The Company is a leading global provider of industrial and commercial
water treatment systems and services, with an installed base of more than
90,000 systems in the United States, Europe, Latin America and the Far
East. The Company offers a single-source solution to its industrial,
commercial and municipal customers through what the Company believes to be
the industry's broadest range of cost-effective water treatment systems,
services and proven technologies. The Company capitalizes on its
substantial installed base to sell additional systems and utilizes its
global network of 124 sales and service facilities, including 12
manufacturing plants, to provide customers with ongoing service and
maintenance. In addition, the Company is a leading international provider
of service deionization ("SDI") and outsourced water services, including
operation of water purification and wastewater treatment systems at
customer sites.
The Company's principal executive offices are located at 73-710 Fred
Waring Drive, Suite 222, Palm Desert, California 92260, and its telephone
number is (619) 340-0098. References herein to the Company refer to
United States Filter Corporation and its subsidiaries, unless the context
requires otherwise.
RISK FACTORS
Prospective investors should carefully consider the following factors
relating to the business of the Company, together with the other
information and financial data included or incorporated by reference in
this Prospectus, before acquiring the Shares offered hereby.
Acquisition Strategy
In pursuit of its strategic objective of becoming the leading global
single-source provider of water treatment systems and services the Company
has, since 1991, acquired and successfully integrated more than 18 United
States based and international businesses with strong market positions and
substantial water treatment expertise. The Company's acquisition strategy
entails the potential risks inherent in assessing the value, strengths,
weaknesses, contingent or other liabilities and potential profitability of
acquisition candidates and in integrating the operations of acquired
companies. Although the Company generally has been successful in pursuing
these acquisitions, there can be no assurance that acquisition
opportunities will continue to be available, that the Company will have
access to the capital required to finance potential acquisitions, that the
Company will continue to acquire businesses or that any business acquired
will be integrated successfully or prove profitable.
The Company has made and expects it will continue to make acquisitions
and to obtain contracts in Europe, Latin America, the Far East and other
areas outside the United States. While these activities may provide
important opportunities for the Company to offer its products and services
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internationally, they also entail the risks associated with conducting
business internationally, including the risk of currency fluctuations and
social, political and economic instability.
Reliance on Key Personal
The Company's operations are dependent on the continued efforts of
senior management, in particular Richard J. Heckmann, its Chairman, Chief
Executive Officer and President. Should any of the senior managers be
unable to continue in their present roles, the Company's prospects could
be adversely affected.
Profitability of Fixed Price Contracts
A significant portion of the Company's revenues are generated under
fixed price contracts. To the extent that original cost estimates are
inaccurate, costs to complete increase, delivery schedules are delayed or
progress under a contract is otherwise impeded, revenue recognition and
profitability from a particular contract may be adversely affected. The
Company routinely records upward or downward adjustments with respect to
fixed price contracts due to changes in estimates of costs to complete
such contracts. There can be no assurance that future downward
adjustments will not be material.
Cyclicality of Capital Equipment Sales
The sale of capital equipment within the water treatment industry is
cyclical and influenced by various economic factors including interest
rates and general fluctuations of the business cycle. The Company's
revenues from capital equipment sales were approximately 60% of total
revenues for the fiscal year ended March 31, 1995 and 48% for the three
months ended June 30, 1995. While the Company sells capital equipment to
customers in diverse industries and in global markets, cyclicality of
capital equipment sales and instability of general economic conditions
could have an adverse effect on the Company's revenues and profitability.
Potential Environmental Risks
The Company's business and products may be significantly influenced by
the constantly changing body of environmental laws and regulations, which
require that certain environmental standards be met and impose liability
for the failure to comply with such standards. While the Company
endeavors at each of its facilities to assure compliance with
environmental laws and regulations, there can be no assurance that the
Company's operations or activities, or historical operations by others at
the Company's locations, will not result in civil or criminal enforcement
actions or private actions that could have a materially adverse effect on
the Company. In particular, the Company's activities as owner and
operator of a hazardous waste treatment and recovery facility are subject
to stringent laws and regulations and compliance reviews. Failure of this
facility to comply with those regulations could result in substantial
fines and the suspension or revocation of the facility's hazardous waste
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permit. In addition, to some extent, the liabilities and risks imposed by
such environmental laws on the Company's customers may adversely impact
demand for certain of the Company's products or services or impose greater
liabilities and risks on the Company, which could also have an adverse
effect on the Company's competitive or financial position.
Competition
The water purification and wastewater treatment industry is fragmented
and highly competitive. The Company competes with many United States
based and international companies in its global markets. The principal
methods of competition in the markets in which the Company competes are
technology, service, price, product specifications, customized design,
product knowledge and reputation, ability to obtain sufficient performance
bonds, timely delivery, the relative ease of system operation and
maintenance, and the prompt availability of replacement parts. In the
municipal contract bid process, pricing and ability to meet bid
specifications are the primary considerations. While no competitor is
considered dominant, there are competitors that are larger and have
significantly greater resources than the Company, which, among other
things, could be a competitive disadvantage to the Company in securing
certain projects.
Technological and Regulatory Change
The water purification and wastewater treatment business is
characterized by changing technology, competitively imposed process
standards and regulatory requirements, each of which influences the demand
for the Company's products and services. Changes in regulatory or
industrial requirements may render certain of the Company's purification
and treatment products and processes obsolete. Acceptance of new products
may also be affected by the adoption of new government regulations
requiring stricter standards. The Company's ability to anticipate changes
in technology and regulatory standards and to successfully develop and
introduce new and enhanced products on a timely basis will be a
significant factor in the Company's ability to grow and to remain
competitive. There can be no assurance that the Company will be able to
achieve the technological advances that may be necessary for it to remain
competitive or that certain of its products will not become obsolete. In
addition, the Company is subject to the risks generally associated with
new product introductions and applications, including lack of market
acceptance, delays in development or failure of products to operate
properly.
USE OF PROCEEDS
The Selling Stockholder will receive all of the net proceeds from any
sale of the Shares offered hereby, and none of such proceeds will be
available for use by the Company or otherwise for the Company's benefit.
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<PAGE>
SELLING STOCKHOLDER
The 371,229 Shares which may be offered pursuant to this Prospectus will
be offered by or for the account of the Selling Stockholder, which
acquired the Shares on October 1, 1995 pursuant to the Stock Purchase
Agreement. The Shares constitute all of the shares of Common Stock
beneficially owned by the Selling Stockholder and represented 1.5% of the
shares of Common Stock outstanding on October 3, 1995.
PLAN OF DISTRIBUTION
The Company and the Selling Stockholder have entered into a Share
Disposition Agreement dated October 1, 1995 (the "Share Disposition
Agreement"). Under the Share Disposition Agreement, the Company has
guaranteed, subject to certain conditions hereinafter described (the
"Guarantee"), that the aggregate net proceeds (after deducting any
brokers' commissions and fees) from the sale of all of the Shares in bona
fide third party transactions prior to the Termination Date (as defined
below) will not be less than an amount equal to the number of Shares sold
multiplied by 21.81944, subject to adjustment for stock splits, stock
dividends, combinations or similar recapitalizations (the "Guaranteed
Value"). The Guarantee is secured by a pledge of certificates of deposit
in the aggregate amount of $5 million in favor of the Selling Stockholder.
In the event that the closing price per share of the Common Stock for 15
consecutive trading days at any time prior to the Termination Date is more
than $2.00 per share above the Guaranteed Value per share, and the Selling
Stockholder has elected not to sell all of the Shares prior to the
twentieth business day after such fifteen-day trading period, the
Guarantee will automatically terminate. For purposes of the Share
Disposition Agreement, the "Termination Date" is the date that is 180 days
(such period to be extended under certain circumstances) after a shelf
registration statement filed by the Company with respect to the Shares
becomes effective.
The Share Disposition Agreement further provides that the Guarantee will
be effective as to Shares sold on the NYSE only when sold as part of the
execution of a sell order covering not less than 100,000 Shares and in
amounts on any given day not greater than 25% of the average daily trading
volume for the Common Stock during the four calendar weeks immediately
prior to the sale ("Volume Limit"). In addition, as to Shares sold on the
NYSE through Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"),
the Volume Limit may be increased on any day when, in DLJ's judgment,
additional Shares may be sold without disrupting the market for the Common
Stock.
In the event that the Selling Stockholder wishes to sell Shares other
than on the NYSE at less than the Guaranteed Value, the Guarantee will be
effective only if the Selling Stockholder complies with certain procedures
set forth in the Share Disposition Agreement, which require the giving of
notice to the Company and the sale of the identified Shares to a
substitute purchaser (which may be the Company) at a price higher than
that specified in such notice.
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The Guarantee is not applicable to sales of Shares to any affiliate of
the Selling Stockholder, any disposition of Shares for consideration other
than cash or a promissory note or to any transaction in violation of the
Securities Act (unless such violation is the result of actions by the
Company).
Shares offered hereby may be sold from time to time by or for the
account of the Selling Stockholder on one or more exchanges or otherwise;
directly to purchasers in negotiated transactions; by or through brokers
or dealers in ordinary brokerage transactions or transactions in which
the broker solicits purchasers; in block trades in which the broker or
dealer will attempt to sell Shares as agent but may position and resell a
portion of the block as principal; in transactions in which a broker or
dealer purchases as principal for resale for its own account; through
underwriters or agents; or in any combination of the foregoing methods.
Shares may be sold at a fixed offering price, which may be changed, at
the prevailing market price at the time of sale, at prices related to such
prevailing market price or at negotiated prices. Any brokers, dealers,
underwriters or agents may arrange for others to participate in any
such transaction and may receive compensation in the form of discounts,
commissions or concessions from Selling Stockholders and/or the
purchasers of Shares. The proceeds to the Selling Stockholder from any
sale of Shares will be net of any such compensation, except as described
below, and of any expenses to be borne by the Selling Stockholder.
If required at the time that a particular offer of Shares is made, a
supplement to this Prospectus will be delivered that describes any
material arrangements for the distribution of Shares and the terms of the
offering, including, without limitation, the names of any underwriters,
brokers, dealers or agents and any discounts, commissions or concessions
and other items constituting compensation from the Selling Stockholder or
otherwise. The Company may agree to indemnify any such brokers, dealers,
underwriters, or agents against certain civil liabilities, including
liabilities under the Securities Act. The Company and the Selling
Stockholder are obligated to indemnity each other against certain civil
liabilities arising under the Securities Act.
The Selling Stockholder and any brokers, dealers, underwriters or agents
that participate with the Selling Stockholder in the distribution of
Shares may be deemed to be "underwriters" within the meaning of the
Securities Act, in which event any discounts, commissions or concessions
received by any such brokers, dealers, underwriters or agents and any
profit on the resale of the Shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
The Company has informed the Selling Stockholder that the provisions of
Rules 10b-6 and 10b-7 under the Exchange Act may apply to its sales of
Shares and has furnished the Selling Stockholder with a copy of these
rules. The Company also has advised the Selling Stockholder of the
requirement for delivery of a prospectus in connection with any sale of
the Shares.
Any Shares covered by this Prospectus which qualify for sale pursuant to
Rule 144 under the Securities Act may be sold under Rule 144 or Rule 144A
rather than pursuant to this Prospectus. There is no assurance that the
Selling Stockholder will sell any or all of the Shares. The Selling
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Stockholder may transfer, devise or gift such Shares by other means not
described herein.
The Company will pay all of the expenses, including, but not limited to,
fees and expenses of compliance with states securities or "blue sky" laws,
incident to the registration of the Shares, other than certain
underwriting discounts and selling commissions and fees and expenses, if
any, of counsel or other advisors retained by the Selling Stockholder.
VALIDITY OF COMMON STOCK
The validity of the Shares will be passed upon for the Company by Damian
C. Georgino, Vice President, General Counsel and Secretary of the Company.
Mr. Georgino presently holds 100 shares of the Company's Common Stock
and options granted under the Company's 1991 Employee Stock Option
Plan to purchase an aggregate of 10,000 shares of Common Stock.
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The consolidated financial statements of United States Filter
Corporation and its subsidiaries as of March 31, 1994 and 1995 and for
each of the three years in the period ended March 31, 1995 have been
incorporated herein by reference in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, which report is
incorporated herein by reference, and upon the authority of said firm as
experts in accounting and auditing.
The financial statements of Arrowhead Industrial Water, Inc. as of
December 31, 1993 and 1994 and for each of the two years in the period
ended December 31, 1994 have been incorporated herein by reference in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, which report is incorporated herein by reference, and
upon the authority of said firm as experts in accounting and auditing.
The financial statements of Continental H2O Services, Inc. and
Evansville Water Corporation d/b/a Interlake Water Systems as of December
31, 1994 and for the year then ended have been incorporated herein by
reference in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, which report is incorporated
herein by reference, and upon the authority of said firm as experts in
accounting and auditing.
The financial statements of Polymetrics, Inc. and subsidiaries as of
December 31, 1994 and for the year then ended have been incorporated
herein by reference in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, which report is incorporated
herein by reference, and upon the authority of said firm as experts in
accounting and auditing.
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<TABLE>
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<S> <C>
No person has been authorized to give any
information or to make any representations other than
those contained in this Prospectus, and, if given or
made, such information or representations must not be 371,229 Shares
relied upon as having been authorized. This Prospectus
does not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the UNITED STATES FILTER CORPORATION
securities to which it relates or an offer to sell or the
solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is Common Stock
unlawful. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances,
create any implication that there has been no change in
the affairs of the Company since the date hereof or that
the information contained herein is correct as of any
time subsequent to its date.
_____________
TABLE OF CONTENTS ----------------
Page
PROSPECTUS
Available Information . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference . . . 2 ----------------
The Company . . . . . . . . . . . . . . . . . . . . . . 3
Risk Factors . . . . . . . . . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . . . . . 5
Selling Stockholder . . . . . . . . . . . . . . . . . . 5
Plan of Distribution . . . . . . . . . . . . . . . . . 5
Validity of Common Stock . . . . . . . . . . . . . . . 6
Independent Certified Public Accountants . . . . . . . 6
___________, 1995
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses to be paid by the Company in connection with the
distribution of the securities being registered, other than underwriting
discounts and commissions, which will be borne by the Selling Stockholder,
are as follows:
Securities and Exchange Commission Filing Fee . . . . . . $ 2,985
*Accounting Fees and Expenses . . . . . . . . . . . . . . 1,000
*Legal Fees and Expenses . . . . . . . . . . . . . . . . 3,000
*Printing Expenses . . . . . . . . . . . . . . . . . . . 500
*Miscellaneous Expenses . . . . . . . . . . . . . . . . . 2,515
-------
Total $10,000
_____________________
*Estimated
Item 15. Indemnification of Directors and Officers.
The Certificate of Incorporation and the By-laws of the Company provide
for the indemnification of directors and officers to the fullest extent
permitted by the General Corporation Law of the State of Delaware, the
state of incorporation of the Company.
Section 145 of the General Corporation Law of the State of Delaware
authorizes indemnification when a person is made a party or is threatened
to be made a party to any proceeding by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation
or is or was serving as a director, officer, employee or agent of another
enterprise, at the request of the corporation, and if such person acted in
good faith and in a manner reasonably believed by him or her to be in, or
not opposed to, the best interests of the corporation. With respect to
any criminal proceeding, such person must have had no reasonable cause to
believe that his or her conduct was unlawful. If it is determined that
the conduct of such person meets these standards, he or she may be
indemnified for expenses incurred (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him or her in connection with such proceeding.
If such a proceeding is brought by or in the right of the corporation
(i.e., a derivative suit), such person may be indemnified against expenses
actually and reasonably incurred if he or she acted in good faith and in a
manner reasonably believed by him or her to be in, or not opposed to, the
best interests of the corporation. There can be no indemnification with
respect to any matter as to which such person is adjudged to be liable to
the corporation; however, a court may, even in such case, allow such
indemnification to such person for such expenses as the court deems
proper.
Where such person is successful in any such proceeding, he or she is
entitled to be indemnified against expenses actually and reasonably
incurred by him or her. In all other cases, indemnification is made by
the corporation upon determination by it that indemnification of such
person is proper because such person has met the applicable standard of
conduct.
The Company maintains an errors and omissions liability policy for the
benefit of its officers and directors, which may cover certain liabilities
of such individuals to the Company.
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Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits. The following exhibits are filed as part of this
registration statement:
Exhibit
Number Description
[S] [C]
5.01 Opinion of Damian C. Georgino as to the legality of
the securities being registered
23.01 Consent of Damian C. Georgino (included in Exhibit
5.01)
23.02 Consents of KPMG Peat Marwick LLP
24.01 Powers of Attorney (included on signature page of this
registration statement)
99.01 Share Disposition Agreement dated as of October 1,
1995 between the registrant and Anjou International
Company
99.02 Registration and Transfer Agreement dated as of
October 1, 1995 between the registrant and Anjou
International Company
99.03 Pledge Agreement dated as of October 1, 1995 between
registrant and Anjou International Company
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
II-2
<PAGE>
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Palm Desert, State of
California, on October 6, 1995.
United States Filter Corporation
By: /s/ Richard J. Heckmann
---------------------------------------
Richard J. Heckmann
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kevin L. Spence and Damian C.
Georgino, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documentation in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done in about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
Chairman of the Board, President October 6, 1995
/s/ Richard J. Heckmann and Chief Executive Officer
Richard J. Heckmann (Principal Executive Officer) and
a Director
Vice President and Chief Financial October 6, 1995
/s/ Kevin L. Spence Officer (Principal Financial and
Kevin L. Spence Accounting Officer)
Executive Vice President and a October 6, 1995
/s/ Michael J. Reardon Director
Michael J. Reardon
<PAGE>
Signature Capacity Date
--------- -------- ----
Senior Vice President and a October 6, 1995
/s/ Tim L. Traff Director
Tim L. Traff
Director October 6, 1995
/s/ James R. Bullock
James R. Bullock
Director October 6, 1995
/s/ James E. Clark
James E. Clark
Director October 6, 1995
/s/ John L. Diederich
John L. Diederich
Director October 6, 1995
/s/ J. Atwood Ives
J. Atwood Ives
Director October 6, 1995
/s/ Arthur B. Laffer
Arthur B. Laffer
Director October 6, 1995
/s/ Alfred E. Osborne
Alfred E. Osborne
Director October 6, 1995
/s/ C. Howard Wilkins, Jr.
C. Howard Wilkins, Jr.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Sequential
Exhibit Page
Number Description Number
<S> <C> <C>
5.01 Opinion of Damian C. Georgino as to the legality of the
securities being registered
23.01 Consents of Damian C. Georgino (included in Exhibit
5.01)
23.02 Consents of KPMG Peat Marwick LLP
24.01 Powers of Attorney (included on signature page of this
registration statement)
99.01 Share Disposition Agreement dated as of October 1, 1995
between the registrant and Anjou International Company
99.02 Registration and Transfer Agreement dated as of
October 1, 1995 between the registrant and Anjou
International Company
99.03 Pledge Agreement dated as of October 1, 1995 between
the registrant and Anjou International Company
</TABLE>
Exhibit 5.01
October 6, 1995
United States Filter Corporation
73-710 Fred Waring Drive, Suite 222
Palm Desert, California 92260
Ladies and Gentlemen:
I am Vice President, Secretary and General Counsel to United
States Filter Corporation, a Delaware corporation (the "Company"), and have
acted as counsel to the Company in connection with the Registration
Statement on Form S-3 (the "Registration Statement"), filed by the Company
on October 6, 1995 with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, with respect to an aggregate of up
to 371,229 shares (the "Selling Stockholder's Shares") of the Company's
Common Stock, par value $.01 per share, that may be offered or sold from
time to time by the selling stockholder identified in the Registration
Statement (the "Selling Stockholder").
I am familiar with the Registration Statement and have reviewed
the Company's Certificate of Incorporation and By-laws, each as amended and
restated. I have also examined such other public and corporate documents,
certificates, instruments and corporate records, and such questions of law,
as I have deemed necessary for purposes of expressing an opinion on the
matters hereinafter set forth. In all examinations of documents,
instruments and other papers, I have assumed the genuineness of all
signatures on original and certified documents and the conformity to
original and certified documents of all copies submitted to me as
conformed, photostatic or other copies.
On the basis of the foregoing, I am of the opinion that the
Selling Stockholder's Shares have been validly issued and are fully paid
and non-assessable.
I consent to the filing of this opinion as Exhibit 5.01 to the
Registration Statement and to the use of my name in the Prospectus forming
a part thereof under the caption "Validity of Common Stock."
Yours truly,
/s/ Damian C. Georgino
Exhibit 23.02
ACCOUNTANTS' CONSENT
---------------------
To the Board of Directors and Shareholders
United States Filter Corporation:
We consent to incorporation by reference in the Registration
Statements on Form S-3 of United States Filter Corporation of our
report dated June 1, 1995, relating to the consolidated balance
sheets of United States Filter Corporation as of March 31, 1994
and 1995, and the related consolidated statements of operations,
shareholders' equity, and cash flows for each of the years in the
three-year period ended March 31, 1995 and to the reference of
our firm under the heading "Independent Certified Public
Accountants" in the prospectus.
KPMG Peat Marwick LLP
Orange County, California
October 6, 1995
<PAGE>
ACCOUNTANTS' CONSENT
--------------------
To the Board of Directors and Shareholders
United States Filter Corporation:
We consent to incorporation by reference in the Registration
Statement on Form S-3 of United States Filter Corporation of our
report dated September 29, 1995, relating to the statements of
assets acquired and liabilities assumed of Arrowhead Industrial
Water, Inc. as of December 31, 1994 and 1993 and the related
statements of revenues and expenses for the years then ended and
of our report dated June 29, 1995 relating to the combined
balance sheet of Continental H20 Services, Inc. and Evansville
Water Corporation d/b/a Interlake Water Systems as of December
31, 1994 and the related combined statements of operations,
stockholders' equity and cash flows for the year then ended and
to the reference of our firm under the heading "Independent
Certified Public Accountants" in the prospectus.
KPMG Peat Marwick LLP
Chicago, Illinois
October 6, 1995
<PAGE>
ACCOUNTANTS' CONSENT
--------------------
To the Board of Directors and Shareholders
United States Filter Corporation:
We consent to incorporation by reference in the Registration
Statement on Form S-3 of United States Filter Corporation of our
report dated August 11, 1995, relating to the consolidated
balance sheet of Polymetrics, Inc. and subsidiaries as of
December 31, 1994, and the related consolidated statements of
operations, stockholder's equity and cash flows for the year then
ended and to the reference of our firm under the heading
"Independent Certified Public Accountants" in the prospectus.
KPMG Peat Marwick LLP
San Francisco, California
October 6, 1995
Exhibit 99.01
SHARE DISPOSITION AGREEMENT
This SHARE DISPOSITION AGREEMENT (this "AGREEMENT")
made and entered into as of October 1, 1995, by and between ANJOU
INTERNATIONAL COMPANY, a Delaware corporation (the "SELLER"), and
UNITED STATES FILTER CORPORATION, a Delaware corporation (the
"PURCHASER");
W I T N E S S E T H:
WHEREAS, the Purchaser and the Seller entered into a
Stock Purchase Agreement dated as of August 30, 1995 (the "STOCK
PURCHASE AGREEMENT"), pursuant to which the Purchaser has agreed
to purchase from the Seller all of the outstanding capital stock
of Polymetrics, Inc., a California corporation, in consideration
for (a) 50,000,000 Dollars in cash, and (b) delivery to Seller on
the date hereof of 371,229 shares (the "USF SHARES") of the
Purchaser's common stock, par value .01 cent per share
("PURCHASER COMMON STOCK");
WHEREAS, concurrently herewith, the Purchaser and the
Seller are entering into a Registration and Transfer Agreement
(the "REGISTRATION AGREEMENT") pursuant to which the Purchaser
has agreed to file with the U.S. Securities and Exchange
Commission and maintain in effect for a specified period a
registration statement (the "REGISTRATION STATEMENT") with
respect to the USF Shares.
WHEREAS, the parties desire to enter into this
Agreement in order to grant to the Seller 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, the
Purchaser and the Seller hereby agree as follows:
SECTION 1.01. DEFINITIONS. As used in this Agreement,
the following capitalized terms shall have the following
meanings:
"BUSINESS DAY" means any day that is not a Saturday, a
Sunday or other day on which banks are required or authorized by
law to be closed in the City of New York.
"EXCHANGE ACT" means the U.S. Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder, as
in effect from time to time.
"GUARANTEED VALUE" means 21.81944 Dollars per USF
Share, as adjusted by reason of any Stock Event.
"SHELF REGISTRATION EFFECTIVE DATE" means the date that
the shelf registration to be filed with the SEC under the
Registration Agreement becomes effective.
"SEC" means the U.S. Securities and Exchange
Commission.
"SECURITIES ACT" means the U.S. Securities Act of 1933,
as amended and the rules and regulations thereunder, as in effect
from time to time.
"STOCK EVENT" means any stock split, stock dividend,
combination or similar recapitalization of the USF Shares after
the date hereof.
"TERMINATION DATE" means the date 180 days after the
Shelf Registration Effective Date; PROVIDED, HOWEVER, that the
Termination Date shall be extended by one day for each day that
the Seller is not permitted to sell USF Shares under the
Registration Statement pursuant to the terms of Sections 11(b) or
12 of the Registration Agreement.
"USF SHARES" means the 371,229 shares of Purchaser
Common Stock delivered by the Purchaser to the Seller on the date
hereof and any securities issued with respect to the USF Shares
by reason of any Stock Event.
Unless the context otherwise requires: (i) "or" is not
exclusive; and (ii) words in the singular include the plural and
words in the plural include the singular.
SECTION 1.02. GUARANTEED VALUE FOR SHARES SOLD.
(a)If the aggregate net proceeds (after deducting from the gross
proceeds thereof any brokerage commissions paid by the Seller,
but excluding any income taxes payable by the Seller on the sale
of such USF Share) from the sale by the Seller of USF Shares
effected on or before the Termination Date are less than the
aggregate Guaranteed Value for such USF Shares, then the
Purchaser shall, within five Business Days thereafter, pay to the
Seller immediately available funds equal to the amount of such
deficiency.
(b) At any time prior to the Termination Date, if (i)
the closing price for USF Shares for 15 consecutive trading days
(the "SPECIFIED TRADING PERIOD") is more than 2.00 Dollars per
share above the Guaranteed Value, so long as the Shelf
Registration Effective Date shall have occurred prior to the end
of the Specified Trading Period, and (ii) the Seller does not
sell all of the USF Shares prior to the 20th Business Day after
the last day of the Specified Trading Period, then the
Purchaser's obligations under Section 1.02(a) shall automatically
terminate.
SECTION 1.03. DISPOSITION PROCEDURES. Notwithstanding
the foregoing:
(a) If the Seller desires to sell any USF Shares
on the NYSE using any broker other than Donaldson, Lufkin &
Jenrette ("DLJ"), then the Purchaser's obligations under Section
1.02 shall be effective only if the Seller sells at least 100,000
USF Shares on the NYSE and the resulting sale or sales occur only
in amounts not greater on any given day than 25 percent of the
average daily trading volume for Purchaser Common Stock during
the four calendar weeks immediately prior to such sale or sales.
The Purchaser acknowledges and agrees that not all 100,000 USF
Shares must be sold on the same trading day in order to comply
with this clause (a), but rather such USF Shares may be sold over
any number of trading days so long as all such USF Shares were
placed in the hands of a broker at the same time for orderly sale
on the NYSE.
(b) If the Seller desires to sell any USF Shares
on the NYSE using DLJ, then the Purchaser's obligations under
Section 1.02 shall be effective only if the Seller sells at least
100,000 USF Shares on the NYSE and the resulting sale or sales
occur only in amounts not greater on any given day than 25
percent of the average daily trading volume for Purchaser Common
Stock during the four calendar weeks immediately prior to such
sale or sales; provided, however, that if DLJ believes that a
greater number of USF Shares may be sold on any given day without
adversely affecting the price of or otherwise disrupting the
market for Purchaser Common Stock, then such greater number may
be sold. The Purchaser acknowledges and agrees that not all
100,000 USF Shares must be sold on the same trading day in order
to comply with this clause (b), but rather such USF Shares may be
sold over any number of trading days so long as all such USF
Shares were placed in the hands of DLJ at the same time for
orderly sale on the NYSE.
(c) If the Seller desires to sell the USF Shares not
on the NYSE at a price below the Guaranteed Value, then the
Seller must give to the Purchaser prior written notice (the
"Seller Sale Notice") of its intention to sell not less than
100,000 USF Shares at a price and to the person or persons
specified in the Seller Sale Notice. If the Purchaser provides
to the Seller written notice (the "Purchaser Response Notice")
within one business day after receipt by the Purchaser of the
Seller Sale Notice identifying a proposed substitute purchaser or
purchasers (collectively, a "Substitute Purchaser") for all USF
Shares proposed to be sold by the Seller in the Seller Sale
Notice at or above the price specified in the Seller Sale Notice,
then the Seller shall sell all such USF Shares to either such
Substitute Purchaser or the Purchaser at or above the price
specified in the Seller Sale Notice prior to the third Business
Day after receipt by the Seller of the Purchaser Response Notice.
If neither such Substitute Purchaser nor the Purchaser purchases
such USF Shares prior to such third Business Day at or above the
price specified in the Seller Sale Notice, then the Seller may
sell all such USF Shares to the person or persons named in and at
or above the price specified in the Seller Sale Notice prior to
the sixth Business Day after receipt by the Seller of the
Purchaser Response Notice. If the Seller does not sell all such
USF Shares to such person or persons at or above such price prior
to such sixth Business Day, then prior to any sale by the Seller
of such USF Shares (other than sales governed by clauses (a) or
(b) of this Section 1.03), a new Seller Sale Notice must first be
delivered to the Purchaser and the provisions of this clause (c)
must again be complied with in full. If the Seller sells such
USF Shares to such Substitute Purchaser, the Purchaser or to the
person or persons named in and at the price specified in the
Seller Sale Notice, then the Purchaser's obligations under
Section 1.02 shall apply to such transaction or transactions.
(d) The Purchaser shall have no obligation under
Section 1.02 with respect to any sale of USF Shares (i) to any
Affiliate of the Seller, (ii) in connection with any transaction
involving any consideration other than payment of cash for the
USF Shares or a promissory note or notes requiring payment of
cash, (ii) in connection with any transaction in violation of
clauses (a), (b) or (c) of this Section 1.03, or (iv) in
connection with any transaction that is in violation of the
Securities Act or the terms of the Registration Agreement.
SECTION 1.04. SECURITY FOR THE PURCHASER'S OBLIGATIONS
UNDER THIS AGREEMENT. The Purchaser's obligations to the Seller
under this Agreement are secured by a Pledge Agreement dated the
date hereof between the parties hereto.
SECTION 1.05. MISCELLANEOUS. (a) NOTICES. All
notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by cable, by telecopy, by
telegram, by telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at
the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this
Section 1.05):
(i) if to the Seller:
Christian G. Farman
Vice-President
Chief Financial Officer
Anjou International Company
1105 North Market Street
Suite 1300
P.O. Box 8985
Wilmington, Delaware 19899
(ii) if to the Purchaser:
United States Filter Corporation
73-710 Fred Waring Drive
Suite 222
Palm Desert, California 92260
Attention: Chief Executive Officer
and separately to the General Counsel
Telecopier: (619) 341-9368
(b)SUCCESSORS AND ASSIGNS. 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.
(c)COUNTERPARTS. 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.
(d)TITLES. The titles, captions or headings of the
Sections herein are for convenience of reference only and are not
intended to be a part of or to affect the meaning or
interpretation of this Agreement.
(e)GOVERNING LAW. This Agreement shall be construed,
interpreted and the rights of the parties determined in
accordance with the laws of the State of New York (without
reference to the choice of law provisions of New York law).
(f)INVALIDITY. 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 invalidity,
illegality or unenforceability shall not affect any other
provision of this Agreement.
(g)ENTIRE AGREEMENT; MODIFICATIONS AND WAIVERS. This
Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and supersedes
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 this 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.
(h)RULE 144. Upon the request of the Seller, the
Purchaser will deliver to the Seller a written statement as to
whether it is in compliance with rule 144(c)(1) under the
Securities Act and copies of such documents filed by the
Purchaser with the SEC pursuant to the Exchange Act as the Seller
may reasonably request.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first
written above.
UNITED STATES FILTER CORPORATION
By: /s/ Damian C. Georgino
----------------------------
Name: Damian C. Georgino
Title: Vice President
ANJOU INTERNATIONAL COMPANY
By: /s/ Claudio Elia
----------------------------
Name: Claudio Elia
Title: Chairman and Chief
Executive Officer
Exhibit 99.02
REGISTRATION AND TRANSFER AGREEMENT
This Registration and Transfer Agreement ("Agreement") is entered into
as of October 1, 1995 by and between United States Filter Corporation, a
Delaware corporation (the "Company"), and Anjou International Company, a
Delaware corporation, with reference to certain shares of Common Stock,
$.01 par value (the "Common Stock"), of the Company.
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"CGE AFFILIATE" means any direct or indirect wholly owned subsidiary
of Compagnie Generale des Eaux.
"COMMISSION" means the U.S. Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"COMMON SHARES" means the 371,229 shares of Common Stock issued
pursuant to the Stock Purchase Agreement dated as of August 30, 1995
between the Company and the Purchaser as that number shall be adjusted for
adjustments to the purchase price pursuant thereto and for stock splits,
stock dividends, combinations or similar recapitalizations on or after the
date hereof.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"HOLDER" means the Purchaser and any permitted assignee or transferee
of the Purchaser.
"PURCHASER" means Anjou International Company, a Delaware corporation,
and its successors by operation of law.
"REGISTRABLE SECURITIES" means the Common Shares; PROVIDED, HOWEVER,
that Common Shares shall be treated as Registrable Securities only if and
so long as they have not been (i) sold in a completed public distribution
or a completed public securities transaction, or (ii) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof so that all transfer restrictions
and restrictive legends with respect thereto are removed upon the
consummation of such sale.
"REGISTER", "REGISTERED" and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement pursuant to the
Securities Act and the declaration or ordering of the effectiveness of such
registration statement by the Commission.
"REGISTRATION EXPENSES" means all expenses incurred by the Company in
complying with Sections 5 and 6 hereof, including, without limitation, all
registration, listing, qualification and filing fees, printing fees,
transfer agent and registrar fees, fees and disbursements of counsel and
experts for the Company and blue sky fees and expenses incident to or
required by any such registration (but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company).
"RESTRICTED SECURITIES" shall mean the Common Shares of the Company
required to bear the legend set forth in paragraph (a) of Section 3 hereof.
"RULE 144" shall mean Rule 144 promulgated by the Commission under the
Securities Act, as in effect at the time, or any successor rule or
regulation.
"SECURITIES ACT" shall mean the U.S. Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities sold by
the Purchaser and all fees and disbursements of counsel for the Purchaser
in connection therewith.
2. RESTRICTIONS ON TRANSFERABILITY. The Common Shares may be sold,
assigned, transferred or pledged only in accordance with the conditions
specified in this Agreement. Except for sales pursuant to an effective
registration statement under the Securities Act or pursuant to an exemption
from such registration under Rule 144 or Regulation S, each Holder will
cause any proposed purchaser, assignee, transferee or pledgee of Common
Shares to agree to take and hold such Common Shares subject to the
provisions of this Agreement, including, without limitation, the
restrictions contained in Section 12 hereof, as if they applied by their
terms to all Holders in their individual capacities, and shall furnish the
Company with copies of all transfer documents.
3. RESTRICTIVE LEGENDS.
(a) Each certificate or instrument representing Common Shares or any
securities issued in respect of the Common Shares upon any stock split,
stock dividend, combination or similar recapitalization, shall (unless
otherwise permitted by the provisions of Section 4 below) bear the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAW. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
PLEDGED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES
AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT OF
1933.
(b) Each certificate or instrument representing Common Shares shall
also bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF AN AGREEMENT BETWEEN THE HOLDER HEREOF AND THE
CORPORATION WHICH INCLUDES RESTRICTIONS ON CERTAIN SALES OF THE SECURITIES.
COPIES OF THE AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF UNITED STATES FILTER CORPORATION.
(c) Each Holder consents to the Company's making a notation on its
records and giving instructions to any transfer agent of the Common Shares
in order to implement the restrictions on transfer established in this
Agreement. The legend placed on any certificate pursuant to Section 3(a)
and any notations or instructions with respect to the Common Shares
represented by such certificate will be promptly removed, and the Company
will promptly (i.e., in sufficient time to permit such Holder to settle any
such sale three business days after the applicable trade date) issue a
certificate without such legend to the Holder of such Common Shares (i) if
such Common Shares are registered under the Securities Act (but only in
connection with the actual sale of such Common Shares) and a prospectus
meeting the requirements of Section 10 of the Securities Act is available,
or (ii) if the Holder thereof satisfies the requirements of Rule 144(k)
and, where reasonably determined necessary by the Company, provides the
Company with a written opinion of legal counsel for the Holder of the
Common Shares, both such counsel and such opinion being reasonably
satisfactory to the Company, to the effect that (A) the Holder meets the
requirements of Rule 144(k) or (B) a public sale, transfer or assignment of
the Common Shares may be made without registration under the Securities
Act.
4. NOTICE OF PROPOSED TRANSFERS. The Holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply
in all respects with the provisions of this Section 4. Prior to any
proposed sale, assignment, transfer or pledge of any Restricted Securities,
unless there is in effect a registration statement under the Securities Act
covering the proposed transfer, the Holder thereof shall give written
notice to the Company of such Holder's intention to effect such transfer,
sale, assignment or pledge. Each such notice shall describe the manner and
circumstances of the proposed transfer, sale, assignment or pledge in
sufficient detail, and shall be accompanied at such Holder's expense if
requested by the Company by either (i) such written opinion of legal
counsel who is, and whose legal opinion shall be, reasonably satisfactory
to the Company (it being agreed that Shearman & Sterling shall be
satisfactory), addressed to the Company, certificates and other information
as the Company may reasonably require to confirm that the transfer may be
effected without registration under the Securities Act or (ii) a "no
action" letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the
staff of the Commission that enforcement action be taken with respect
thereto, whereupon the Holder of such Restricted Securities shall be
entitled to transfer such Restricted Securities in the manner contemplated
by such opinion or "no action" letter. The Company will not require such a
legal opinion or "no action" letter in any transaction which complies with
Rule 144 or in any transfer to one or more partners of the transferor (if
the transferor is a partnership) or to an affiliated corporation (if the
transferor is a corporation). Each certificate evidencing the Restricted
Securities transferred as above provided shall bear, except if such
transfer is made pursuant to Rule 144, the appropriate restrictive legend
set forth in Section 3(a) above, except that such certificate shall not
bear such restrictive legend if in the opinion of counsel for such Holder
and the Company such legend is not required in order to establish
compliance with any provisions of the Securities Act. So long as such
restrictive legend shall be required to remain on any such certificates,
the transfer of the Restricted Securities represented thereby shall be
conditioned upon the transferee thereof becoming a party hereto, except
that such transferee shall have no rights under Sections 5 or 6 hereof.
5. SHELF REGISTRATION OF REGISTRABLE SECURITIES. The Company shall file
a shelf registration statement on Form S-3 (or successor form) under the
Securities Act with the Commission with respect to the Registrable
Securities as expeditiously as reasonably possible following the date of
this Agreement (but in any case, within ninety (90) days after the date
hereof) and keep such registration statement effective until the date 30
business days after the date that the Purchaser no longer holds at least
100,000 Common Shares, as adjusted for stock splits, stock dividends,
combinations or similar recapitalizations. The Company may terminate such
shelf registration on or at any time after the date two years after the
date hereof, or such earlier date which concludes the holding period for
the Common Shares as may be specified in Rule 144 as then in effect. If at
any time the Purchaser desires to sell all of the Registrable Securities
then held by it pursuant to such shelf registration statement in an
underwritten or best efforts offering involving a proposed aggregate
offering price of at least $6,000,000, the Purchaser shall have the right
to request Donaldson, Lufkin & Jenrette to administer the offering, and the
Company shall enter into underwriting or distribution agreements with the
underwriter(s) or distributor(s) of such offering, which agreements shall
contain such representations, warranties and covenants by the Company, and
such other terms and conditions and indemnity and contribution provisions
as are contained in the form of underwriting or distribution agreement
customarily used in connection with similar offerings by the underwriters
or distributors selected for such offering and take such other actions as
the Holders or the managing underwriter or distributor, if any, reasonably
require in order to expedite or facilitate the disposition of such
Registrable Securities. The Purchaser shall pay all Selling Expenses
incurred in connection with such offering.
6. COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. Subject to Section 11(a) hereof, if, at
any time or from time to time, the Company shall determine to register any
of its Common Stock, either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights, other than a registration relating solely to employee benefit plans
or a registration relating solely to a Securities Act Rule 145 transaction
or otherwise effected on SEC Form S-4, the Company will (i) promptly give
to the Purchaser written notice thereof, and (ii) include in such
registration (and any related qualification under blue sky laws or other
compliance), and (subject to this Section 6) in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests made by the Purchaser within 30 days after its receipt of such
written notice from the Company; provided, however, that in no event shall
the Purchaser have the right, unless the Company or the security holders
exercising their demand registration rights, if applicable, otherwise
agree, to include in such registration Registrable Securities amounting to
more than 10 percent of the total number (or total value, according to the
respective offering prices) of all securities to be included in such
registration.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Purchaser as a part of the written notice given
pursuant to Section 6(a)(i). In such event the right of the Purchaser to
registration pursuant to this Section 6 shall be conditioned upon the
Purchaser's participation in such underwriting and the inclusion of
Registrable Securities in the underwriting to the extent provided herein.
The Purchaser shall (together with the Company and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company (or the holders who have
demanded such registration). Notwithstanding any other provision of this
Section 6, if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the
managing underwriter may limit the Registrable Securities to be included in
such registration. The Company shall so advise the Purchaser and the other
holders distributing their securities through such underwriting pursuant to
piggyback registration rights similar to this Section 6, and the number of
shares of Registrable Securities and other securities that may be included
in the registration and underwriting by the Purchaser and such other
holders shall be reduced by the number of shares determined by the managing
underwriter not to be included in such registration, such cutback to be
allocated among the Purchaser and other holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by
the Purchaser and other securities held by such other holders. If the
Purchaser disapproves of the terms of any such underwriting, it may elect
to withdraw therefrom by written notice to the Company and the managing
underwriter.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 6 prior to the effectiveness of such registration whether or not
the Purchaser has elected to include securities in such registration.
7. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration pursuant to Sections 5 or 6 shall be borne
by the Company. All Selling Expenses relating to securities registered on
behalf of the Purchaser shall be borne by the Purchaser.
8. INDEMNIFICATION.
(a) The Company will indemnify the Purchaser, each of its officers,
directors, partners, employees and agents and each person controlling the
Purchaser within the meaning of Section 15 of the Securities Act against
all expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or
any amendment or supplement thereto, incident to any registration,
qualification or compliance effected pursuant to this Agreement, or based
on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances in which they were made, not misleading,
or any violation by the Company of any rule or regulation promulgated under
the Securities Act or any other federal, state or common law rule or
regulation applicable to the Company in connection with any such
registration, qualification or compliance, and the Company will reimburse
the Purchaser, each of its officers, directors, partners, employees and
agents and each person controlling the Purchaser for any legal and any
other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
as incurred, provided that the Company will not be liable in any such case
to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Purchaser or
controlling person expressly for use therein.
(b) The Purchaser will indemnify the Company, each of its directors
and officers, underwriters, and each person who controls the Company within
the meaning of Section 15 of the Securities Act, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out
of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse the
Company, such directors, officers, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, as incurred, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by the Purchaser expressly for
use therein.
(c) Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of any Indemnified Party. Each
party entitled to indemnification under this Section 8 (the "Indemnified
Party") shall give notice to the party required to provide indemnification
(the "Indemnifying Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Agreement unless the failure to give such notice is materially prejudicial
to an Indemnifying Party's ability to defend such action. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with
the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
Notwithstanding anything to the contrary herein, any Indemnified Party
shall have the right to employ separate counsel to represent such
Indemnified Party, if, in such Indemnified Party's reasonable judgment
(based on advice of counsel) and subject to the reasonable concurrence of
the Indemnifying Party, a conflict of interest between such Indemnifying
Party and such Indemnified Party exists with respect to such claim or
litigation or the Indemnified Party has defenses to such claim or
litigation that differ from those of the Indemnifying Party (the fees and
expenses of such counsel, in either such case, are to be borne by the
Indemnifying Party). In the event the Indemnifying Party exercises its
right to assume the defense against such claim or in such litigation as
provided above, the Indemnified Party shall cooperate with the Indemnifying
Party in such defense and make available to the Indemnifying Party, at the
Indemnifying Party's expense, all pertinent records, materials and
information in its possession or under its control relating thereto as are
reasonably required by the Indemnifying Party. Similarly, in the event the
Indemnified Party is, directly or indirectly, conducting the defense
against such claim or in such litigation, the Indemnifying Party shall
cooperate with the Indemnified Party in such defense and make available to
the Indemnified Party all such records, materials and information in the
Indemnifying Party's possession or under the Indemnifying Party's control
relating thereto as are reasonably required by the Indemnified Party.
(d) If the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party in respect of any expenses, claims,
losses, damages or liabilities referred to in this Section 8 by reasons
other than those set forth in subparagraphs (a) or (b) above, then the
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such expenses, claims, losses, damages or
liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and the Indemnified Party in connection
with the actions or inaction that resulted in such expenses, claims,
losses, damages or liabilities as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party on the one
hand and Indemnified Party on the other hand shall be determined by
reference to, among other things, whether any action (or inaction) in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by such Indemnifying Party or
Indemnified Party, and the parties' relative knowledge, intent, access to
information and opportunity to correct or prevent such action (or
inaction). The parties agree that it would not be just and equitable if
contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to above. In any case, (A)
the Purchaser will not be required to contribute any amount in excess of
the proceeds received by it from all such Registrable Securities offered by
it pursuant to such registration statement; and (B) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
9. OBLIGATIONS OF THE COMPANY. The Company shall:
(a) As expeditiously as reasonably possible, prepare and file with
the Commission the registration statement referred to in Section 5 hereof
and use its diligent best efforts to cause such registration statement to
become effective and to keep such registration statement effective for the
period provided in Section 5 hereof.
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and file all reports under the
Exchange Act as may be necessary (i) to update and keep such registration
statement effective as provided in Section 9(a) above, (ii) to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement and (iii) to reflect a
modification in the manner of distribution of the Registrable Securities.
Notwithstanding anything else to the contrary contained herein, the Company
shall not be required to disclose in any prospectus prepared pursuant to
Section 5 hereof any confidential information concerning pending events,
transactions or conditions not otherwise required to be disclosed by
applicable securities laws.
(c) Furnish to the Purchaser such numbers of copies of the
registration statement, each amendment thereto and of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as it may reasonably request
in order to facilitate the disposition of Registrable Securities owned by
it.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities laws as
shall be reasonably requested by the Purchaser, provided that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process
in any such states or jurisdictions unless it is already subject to such
jurisdiction.
(e) Promptly notify the Purchaser, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of
the happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which the prospectus is
used.
(f) During reasonable business hours make available for inspection by
the Purchaser, any underwriter or distributor participating in any
disposition pursuant to a registration statement, and any attorney,
accountant or other similar professional advisor retained by the Purchaser
or underwriter or distributor (collectively, the "Inspectors"), all
pertinent financial, corporate and other records and documents
(collectively, the "Records"), and all pertinent real and personal property
of the Company, as shall be reasonably necessary to enable such Inspectors
to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such Inspector in connection with such registration
statement.
10. INFORMATION BY PURCHASER. The Purchaser shall furnish to the Company
such information regarding itself, the Registrable Securities held by it
and the distribution proposed by the Purchaser as the Company may request
in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
11. SECURITIES LAW COMPLIANCE.
(a) The Purchaser covenants that it will comply with the prospectus
delivery requirements of the Securities Act with respect to any
registration statement filed pursuant to Section 5 of this Agreement or in
which Registrable Securities held by it are included pursuant to Section 6
of this Agreement. The Purchaser agrees to make customary representations
and warranties to the Company and the underwriters or distributors, if any,
in form, substance and scope as are customarily made as to ownership of
stock by selling stockholders in underwritten public offerings, but the
Purchaser shall not be required to make any representation or warranty as
to the accuracy or completeness of the registration statement (except as to
written information furnished to the Company by the Purchaser expressly for
use therein).
(b) The Purchaser agrees that, immediately upon receipt of a
notification as referred to in subparagraph (e) of Section 9, it will
refrain from selling Registrable Securities under the registration
statement filed pursuant to Section 5 of this Agreement or in which
Registrable Securities held by it are included pursuant to Section 6 of
this Agreement until (i) subsequently notified by the Company that the
registration statement is current or (ii) receipt of a favorable opinion of
counsel as hereinbelow provided. The Company agrees that it will consult
with the Purchaser following the giving of any such notification, and that
in the event the Purchaser is of the view that its securities could be sold
in compliance with the Securities Act and the Exchange Act without
disclosure of the nonpublic information which is the subject of the
notification, the parties hereto agree to be bound by an opinion of
Kirkpatrick & Lockhart LLP or other counsel reasonably satisfactory both to
the Purchaser and to the Company as to whether such sales can be made
without violation of the Securities Act or the Exchange Act.
12. STANDOFF AGREEMENT. The Purchaser agrees in connection with any
registration of the Company's securities that, upon request of the
underwriters managing any underwritten offering of the Company's
securities, not to sell, make any short sale of, loan, grant any option for
the purchase of, or otherwise dispose of any Registrable Securities (other
than those included in such registration), except in a private sale or
transfer, without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed
180 days) from the effective date of such registration as may be requested
by the Company or such managing underwriters.
13. RULE 144 REQUIREMENTS. The Company agrees to:
(a) comply with the requirements of Rule 144(c) with respect to
current public information about the Company;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to the Purchaser upon request (i) a written statement by
the Company as to its compliance with the requirements of Rule 144(c), and
the reporting requirements of the Securities Act and the Exchange Act, (ii)
a copy of the most recent annual or quarterly report of the Company, and
(iii) such other reports and documents of the Company as the Purchaser may
reasonably request to avail itself of any similar rule or regulation of the
Commission allowing itself to sell any such securities without
registration.
14. INVESTMENT REPRESENTATION. The Purchaser represents and warrants to
the Company that it is acquiring the Common Shares for investment only and
not with a view to or in connection with any distribution of the Common
Shares.
15. AMENDMENT. Any provision of this Agreement may be amended and the
observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Purchaser. Any amendment or waiver effected
in accordance with this Section shall be binding upon each Holder of any
Registrable Securities then outstanding, each future Holder of all such
Registrable Securities, and the Company.
16. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if delivered by hand, courier service, United States mail or by facsimile,
addressed as follows:
if to the Seller:
Christian G. Farman
Vice-President
Chief Financial Officer
Anjou International Company
1105 North Market Street
Suite 1300
P.O. Box 8985
Wilmington, Delaware 19899
(ii) if to the Purchaser:
United States Filter Corporation
73-710 Fred Waring Drive
Suite 222
Palm Desert, California 92260
Attention: Chief Executive Officer
and separately to the General Counsel
Telecopier: 619-341-9368
or to such other address of a party of which such party has given notice to
the other parties pursuant to this Section.
17. TRANSFERABILITY. Notwithstanding any provision contained in this
Agreement to the contrary, the Purchaser's rights and benefits under
Sections 5 and 6 hereof are rights and benefits personal to the Purchaser
and any CGE Affiliate and may not be assigned or transferred to or held for
the benefit of any other person.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws (other than those with respect to choice of law)
of the State of Delaware. Each of the parties hereto agrees that all
claims in any action or proceeding arising out of or related to this
Agreement may be heard and determined in any Delaware state court or
federal court sitting in the State of Delaware.
19. SEVERABILITY. The provisions of this Agreement are severable, and in
the event that any one or more provisions are deemed illegal or
unenforceable, the remaining provisions shall remain in full force and
effect.
20. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
UNITED STATES FILTER CORPORATION
By: /s/ Damian C. Georgino
------------------------
ANJOU INTERNATIONAL COMPANY
By: /s/ Claudio Elia
------------------------
Exhibit 99.03
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of October 1,
1995, by and between UNITED STATES FILTER CORPORATION, a Delaware
corporation (hereinafter called the "COMPANY"), and ANJOU INTERNATIONAL
COMPANY, a Delaware corporation (hereinafter called the "SECURED PARTY");
WITNESSETH THAT:
WHEREAS, the Company and the Secured Party are parties to that
certain Share Disposition Agreement dated as of the date hereof (the "Share
Disposition Agreement"); and
WHEREAS, the Company desires to secure its obligations to the
Secured Party under the Share Disposition Agreement by granting to the
Secured Party a first priority, perfected security interest in certificates
of deposit in the aggregate amount of $5 million issued by The First
National Bank of Boston, pursuant to the terms and subject to the
conditions of this Agreement; and
WHEREAS, the execution and delivery of this Agreement by the
Company is a condition precedent to the agreement by the Secured Party to
enter into the Share Disposition Agreement;
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt of which is hereby acknowledged by the Company,
and in order to induce the Secured Party to enter into the Share
Disposition Agreement, the parties hereto covenant and agree as follows:
1. CERTAIN DEFINITIONS. All capitalized words and terms not otherwise
defined herein that are defined in the Share Disposition Agreement are
herein used as therein defined. In addition to other words and terms
defined elsewhere in this Agreement, words and terms that are defined in
the UCC are used herein as defined in the UCC except where the context
otherwise requires, and the following words and terms shall have the
following meanings, respectively:
"AGREEMENT" means this Pledge Agreement, as it may from time to time
be amended, modified or supplemented.
"CERTIFICATES OF DEPOSIT" means the five certificates of deposit in
substantially the form attached hereto as Exhibit A issued by the First
National Bank of Boston in the aggregate amount of 5 million dollars and
any renewals, substitutions and replacements thereof.
"COLLATERAL" means (a) the Certificates of Deposit and any
Certificates of Deposit issued in renewal, substitution or replacement
thereof in substantially the form thereof (collectively, the "CD"), (b) all
rights and privileges pertaining to the CD, and (c) all proceeds from the
sale, transfer, exchange, redemption or other disposition of, or received,
receivable or otherwise distributed in respect of the CD; PROVIDED,
HOWEVER, that all interest payable on the CD shall not be "Collateral".
"COMPANY OBLIGATIONS" means the obligations of the Company to pay to
the Secured Party any deficiency referred to in Section 1.02 of the Share
Disposition Agreement in accordance with the terms and subject to the
conditions set forth in the Share Disposition Agreement.
"GOVERNMENTAL AUTHORITY" means any government, any governmental
entity, department, commission, board, agency or instrumentality, and any
court, tribunal, or judicial or arbitral body, whether federal, state,
local or foreign.
"EVENT OF DEFAULT" shall mean the failure by the Company to pay the
Company Obligations when due.
"LAW" means any applicable U.S. federal, state, municipal, local or
foreign statute, law, ordinance, rule, regulation or order of any
Governmental Authority or principle of common law.
"UCC" mean the Uniform Commercial Code (or any successor statue
thereto) as in effect in the State of New York.
2. GRANT OF SECURITY INTEREST. The Company hereby agrees that the
Secured Party shall have, and hereby grants to and creates in favor of the
Secured Party, a continuing first priority security interest in and to any
and all of the Collateral as security for the full and timely payment by
the Company of the Company Obligations and performance by the Company of
the Company Obligations.
3. RELEASE OF COLLATERAL. So long as no Event of Default has occurred
and is continuing, as and when the Secured Party sells USF Shares (any such
date, a "Sale Date"), if after giving effect to such sale the Release
Amount (as defined below) shall exceed the aggregate face amount of one or
more Certificates of Deposit then held by the Secured Party pursuant hereto
(as reasonably determined by the Secured Party), the Secured Party shall
promptly return to the Company such Certificate or Certificates of Deposit,
and such returned Certificate or Certificates shall be released from the
security interest hereunder; provided, that (i) the aggregate face amount
of such returned Certificates of Deposit shall not exceed the Release
Amount and (ii) after giving effect to such return the aggregate face
amount of Certificates of Deposit then held by the Secured Party shall not
be less than an amount equal to $5,000,000 minus the aggregate Release
Amounts through and including such Sale Date. For purposes of this
Section, "Release Amount" shall mean with respect to any Sale Date an
amount equal to (x) $5,000,000 times (y) a fraction, the numerator of which
shall equal the number of USF Shares that shall have been sold by the
Secured Party on the Sale Date and the denominator of which shall equal the
aggregate amount of all USF Shares owned by the Secured Party on the date
of this Agreement.
4. CERTIFICATE. Prior to or upon the execution and delivery of this
Agreement, the Company has delivered to the Secured Party in the State of
New York certificates representing the Certificates of Deposit for the
purpose of perfecting the Secured Party's security interest therein. So
long as no Event of Default shall have occurred, the Company shall have the
right to exercise all rights with respect to the Collateral. All interest
on the CD shall accrue for the benefit of and shall be paid directly to the
Company. If at any time or from time to time any certificate of deposit
included in the Collateral matures prior to the Termination Date, and
provided the Company Obligations shall not have been satisfied, then the
Company shall purchase additional certificates of deposit of equivalent
face amounts issued by The First National Bank of Boston and shall deliver
to the Secured Party on or before the date of such maturity certificates
representing such certificates of deposit, and such additional certificates
of deposit shall be included in and shall be part of the Collateral for all
purposes of this Agreement.
5. TITLE TO COLLATERAL. The Company represents and warrants to the
Secured Party that it has and will have at all times good and marketable
title to the Collateral, free and clear of all liens other than the lien
created hereby and will defend such title against the claims and demands of
all persons whomsoever. The Company covenants and agrees that it will take
any and all steps necessary or desirable to preserve its rights with
respect to the Collateral against any other party. The Company covenants
and agrees that it will not take any action that would result in an
alteration or impairment of the Collateral, the perfection or priority of
the security interest granted hereunder or of this Agreement.
6. TAXES AND CHARGES. The Company covenants to pay and discharge all
taxes, levies and other impositions levied on the Collateral (except to the
extent that such taxes, levies and other impositions shall not then be due
or shall be contested in good faith by appropriate proceedings diligently
conducted).
7. PRESERVATION AND PROTECTION OF SECURITY INTEREST. (a) The Company
will faithfully preserve and protect the Secured Party's security interest
in the Collateral and will from time to time at the reasonable request of
the Secured Party file or record, or cause to be filed or recorded, such
instruments, documents and notices, including, without limitation,
financing statements and continuation statements, that the Secured Party
believes are necessary to protect and preserve its first priority perfected
security interest in the Collateral.
(b) The Company hereby authorizes the Secured Party to file one or
more financing or continuation statements, and amendments thereto, relating
to all or any part of the Collateral without the signature of the Company
where permitted by law. A photocopy or other reproduction of this
Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by
law.
8. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. The Company hereby
irrevocably appoints the Secured Party the Company's attorney-in-fact, with
full authority in the place and stead of the Company and in the name of the
Company or otherwise, from time to time in the Secured Party's discretion,
to take any action and to execute any instrument that the Secured Party may
deem necessary or advisable to protect the Collateral and the Secured
Party's first priority security interest therein, including, without
limitation:
(a) to ask for, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral,
(b) to receive, indorse and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) above, and
(c) to file any claims or take any action or institute any
proceedings that the Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
the Secured Party with respect to any of the Collateral.
9. SECURED PARTY MAY PERFORM. If the Company fails to perform any
agreement contained herein, the Secured Party may itself perform, or cause
performance of, such agreement.
10. THE SECURED PARTY'S DUTIES. The powers conferred on the Secured Party
hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the
safe custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Secured Party shall have no
duty as to any Collateral, as to ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not the Secured Party has or is
deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral.
11. REMEDIES. If any Event of Default shall have occurred and be
continuing:
(a) The Secured Party may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party upon
default under the Uniform Commercial Code in effect in the State of New
York at such time (the "N.Y. UNIFORM COMMERCIAL CODE") (whether or not the
N.Y. Uniform Commercial Code applies to the affected Collateral) and
without notice except as specified below sell the Collateral or any part
thereof in one or more parcels at public or private sale, at the Secured
Party's offices or elsewhere, for cash, on credit or for future delivery,
and upon such other terms as the Secured Party may deem commercially
reasonable. The Company agrees that, to the extent notice of sale shall be
required by law, at least ten days' notice to the Company of the time and
place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Secured Party shall not
be obligated to make any sale of Collateral regardless of notice of sale
having been given. The Secured Party may adjourn any public or private
sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(b) All cash proceeds received by the Secured Party in respect of any
sale of, collection from, or other realization upon all or any part of the
Collateral may, in the reasonable discretion of the Secured Party, be held
by the Secured Party as collateral for, and/or then or at any reasonable
time thereafter applied in accordance with the N.Y. Uniform Commercial
Code.
(c) The Secured Party may exercise any and all rights and remedies of
the Company in respect of the Collateral.
(d) All payments received by the Company in respect of the Collateral
shall be received in trust for the benefit of the Secured Party, shall be
segregated from other funds of the Company and shall be forthwith paid over
to the Secured Party in the same form as so received (with any necessary
indorsement).
12. MODIFICATIONS, AMENDMENTS OR WAIVERS. The Secured Party and the
Company may from time to time enter into written agreements amending,
supplementing or modifying any provision of this Agreement, and the Secured
Party may grant written waivers or consents to a departure from the due
performance of the obligations of the Company hereunder.
13. NO IMPLIED WAIVERS; CUMULATIVE REMEDIES; WRITING REQUIRED. No delay
or failure of the Secured Party in exercising any right, power or remedy
hereunder shall affect or operate as a waiver thereof; nor shall any single
or partial exercise thereof or any abandonment or discontinuance of steps
to enforce such a right, power or remedy preclude any further exercise
thereof or of any other right, power or remedy. The rights and remedies of
the Secured Party hereunder are cumulative and not exclusive of any rights
or remedies which it might otherwise have. Any waiver, permit, consent or
approval of any kind or character on the part of the Secured Party of any
breach or default under this Agreement or any such waiver of any provision
or condition of this Agreement must be in writing and shall be effective
only to the extent in such writing specifically set forth.
14. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by cable, by telecopy, by telegram,
by telex or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or
at such other address for a party as shall be specified in a notice given
in accordance with this Section):
(a) if to the Secured Party:
Christian G. Farman
Vice-President
Chief Financial Officer
Anjou International Company
1105 North Market Street
Suite 1300
P.O. Box 8985
Wilmington, Delaware 19899
(b) if to the Company:
United States Filter Corporation
73-710 Fred Waring Drive
Suite 222
Palm Desert, California 92260
Attention: Chief Executive Officer
and separately to the General Counsel
Telecopier: (619) 341-9368
15. SURVIVAL. All representations, warranties, covenants and agreements
of the Company contained herein or made in connection herewith shall
survive the execution and delivery of this Agreement and shall continue in
full force and effect so long as the Company Obligations are outstanding.
16. GOVERNING LAW; VENUE. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO AND THERETO, SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCLUDING (TO
THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE
THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK. THE COMPANY AGREES THAT ANY LEGAL SUIT, ACTION, OR PROCEEDING
ARISING OUT OF THIS AGREEMENT MAY BE INSTITUTED IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH JURISDICTION.
17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Secured Party, the Company and their respective
successors and permitted assigns, except that the Company may not assign or
transfer its rights hereunder or any interest herein or delegate its duties
hereunder, and the Secured Party may assign its rights hereunder or any
interest herein or delegate its duties hereunder to any permitted assignee
of the Share Disposition Agreement and to no other person.
18. SEVERABILITY. If any term, provision, or restriction of this
Agreement is held to be invalid, void or unenforceable in any way in any
jurisdiction, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect in
such jurisdiction and shall in no way be affected, impaired or invalidated,
and such invalidity, voidness or unenforceability shall not affect the
validity and enforceability of such provision, covenant, or restriction in
any other jurisdiction.
19. PRIOR UNDERSTANDINGS. This Agreement supersedes all prior
understandings and agreements, whether written or oral, among the parties
hereto relating to the transactions provided for herein and therein.
20. CONTINUING SECURITY INTEREST. This Agreement shall create a
continuing security interest in the Collateral and shall remain in full
force and effect until the earlier of payment in full in cash (or, if the
parties mutually agree, consideration other than cash) of the Company
Obligations and the termination of the Company Obligations pursuant to the
Share Disposition Agreement, be binding upon the Company, its successors
and assigns and inure, together with the rights and remedies of the
Secured Party hereunder, to the benefit of the Secured Party. Upon earlier
of the payment in full in cash (or, if the parties mutually agree,
consideration other than cash) of the Company Obligations and the
termination of the Company Obligations pursuant to the Share Disposition
Agreement, the pledge, assignment and security interest granted hereby
shall terminate and all rights to the Collateral shall revert to the
Company. Upon any such termination, the Secured Party will return the
Collateral to the Company then in the Secured Party's possession, and the
Secured Party will execute and deliver to the Company such documents as the
Company shall reasonably request to evidence such termination.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute one and the same instrument.
22. CONSTRUCTION. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular the
plural and the part the whole and "or" has the inclusive meaning. The
words "hereof", "herein", "hereunder" and similar terms in this Agreement
refer to this Agreement as a whole and not to any particular provision of
this Agreement. The section and other headings contained in this Agreement
are for reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation thereof in any
respect. Section and subsection references are references to this
Agreement unless otherwise specified.
WITNESS the due execution of this Pledge Agreement as of the day
and year first above written.
UNITED STATES FILTER
CORPORATION
By: /s/ Damian C. Georgino
-----------------------
Name: Damian C. Georgino
Title: Vice President
ANJOU INTERNATIONAL COMPANY
By: /s/ Claudio Elia
-----------------------
Name: Claudio Elia
Title: Chairman and Chief
Executive Officer
