<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 8, 1996
REGISTRATION NO. 33-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
UNITED STATES FILTER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 3589 33-0266015
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL CLASSIFICATION IDENTIFICATION NO.)
INCORPORATION OR CODE NUMBER)
ORGANIZATION)
40-004 COOK STREET
PALM DESERT, CALIFORNIA 92211
(619) 340-0098
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
DAMIAN C. GEORGINO
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
UNITED STATES FILTER CORPORATION
40-004 COOK STREET
PALM DESERT, CALIFORNIA 92211
(619) 340-0098
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
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.
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 462(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. [_]
----------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common stock, par value
$.01 per share........ 114,994 shares $33.6875 $3,873,860.375 $1,336
</TABLE>
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(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 July 5, 1996 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 JULY 8, 1996
PROSPECTUS
JULY , 1996
114,994 SHARES
[LOGO OF U.S. FILTER]
UNITED STATES FILTER CORPORATION
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
-----------
This prospectus provides for the offering of up to an aggregate of 114,994
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 John Hancock Capital Growth Fund II Limited Partnership and John
Hancock Capital Growth Fund III Limited Partnership (the "Selling
Stockholders") on May 31, 1996, pursuant to the terms of an Agreement and Plan
of Merger dated April 15, 1996 (the "Purchase Agreement"). The Shares were
issued as partial consideration for the repayment of debt owed by the Company's
newly acquired subsidiary, Zimpro Environmental, Inc. ("Zimpro"), to the
Selling Stockholders.
The Shares may be offered or sold by or for the account of the Selling
Stockholders from time to time or at one time on the New York Stock Exchange
(the "NYSE") or otherwise, at prices and on terms to be determined at the time
of sale, to purchasers directly or by Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ") who may receive compensation in the form of discounts,
commissions or concessions. The Selling Stockholders and DLJ may be deemed to
be "underwriters" within the meaning of the United States Securities Act of
1933, as amended (the "Securities Act"), and any discounts, concessions and
commissions received by DLJ 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 Stockholders" and "Plan of Distribution."
The Common Stock is listed on the NYSE and traded under the symbol "USF." The
last reported sale price of the Common Stock on the NYSE on July 5, 1996 was
$33.75 per share.
-----------
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR CERTAIN CONSIDERATIONS RELEVANT TO
AN INVESTMENT IN THE COMMON STOCK.
-----------
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.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the United
States 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 United States 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 Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511.
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 Commission maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. Such reports, proxy and information
statements and other information may be found on the Commission's site
address, http://www.sec.gov. 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 with the Commission by the Company (File No.
1-10728) pursuant to the Exchange Act are incorporated by reference: The
Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1996;
the Company's Current Reports on Form 8-K dated May 31, 1996 as amended on
Form 8-K/A dated June 28, 1996, June 10, 1996 and June 27, 1996; and
description of the Company's Common Stock contained in Registration Statement
on Form 8-A of the Company, as the same may be amended.
All documents and reports subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after 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 subsequently filed document which is or is 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 so
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 Vice President, General Counsel and Secretary, United States
Filter Corporation, 40-004 Cook Street, Palm Desert, California 92211
(telephone (619) 340-0098).
2
<PAGE>
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 100,000
systems worldwide. 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 more than 125 sales and service facilities, including 21
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 40-004 Cook Street,
Palm Desert, California 92211, 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 25 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.
INTERNATIONAL TRANSACTIONS
The Company has made and expects it will continue to make acquisitions and
to obtain contracts in Europe, Asia and Latin America and other areas outside
the United States. While these activities may provide important opportunities
for the Company to offer its products and services internationally, they also
entail the risks associated with conducting business internationally,
including the risk of currency fluctuations, slower payment of invoices and
possible social, political and economic instability.
RELIANCE ON KEY PERSONNEL
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
3
<PAGE>
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 49% for the fiscal year ended March 31, 1996. 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 that regard, allegations have been
made by federal and state environmental regulatory authorities of multiple
violations by a wholly owned subsidiary of the Company with respect to
applicable wastewater pretreatment standards at a Connecticut in exchange
regeneration facility acquired by the Company in October 1995 from Anjou
International Company ("Anjou"). A grand jury investigation is pending which is
believed to relate to the same conditions that were the subject of the
allegations. The Company has rights of indemnification from Anjou which may be
available with respect to these matters. 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 permit. In addition,
to some extent, the liabilities and risks imposed by 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 U.S. Filter'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
4
<PAGE>
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.
SHARES ELIGIBLE FOR FUTURE SALE
The market price of the Common Stock could be adversely affected by the
availability for sale of shares held on June 21, 1996 by security holders of
the Company, including (i) up to 2,702,729 shares which may be delivered by
Laidlaw Inc. or its affiliates ("Laidlaw"), at Laidlaw's option in lieu of
cash, at maturity pursuant to the terms of 5 3/4% Exchangeable Notes due 2000
of Laidlaw (the amount of shares or cash delivered or paid to be dependent
within certain limits upon the value of the Common Stock at maturity), (ii)
2,925,611 shares issuable upon conversion of convertible debentures of the
Company at a conversion price of $20.50 per share of Common Stock and
5,090,909 shares issuable upon conversion of convertible notes of the Company
at a conversion price of $27.50 per share of Common Stock that are currently
registered for sale under the Securities Act pursuant to two shelf
registration statements, (iii) 1,813,079 outstanding shares that are currently
registered for sale under the Securities Act pursuant to a shelf registration
statement, (iv) 332,036 outstanding shares that are covered by a shelf
registration statement filed under the Securities Act, and (v) 1,905,074
shares which are subject to agreements pursuant to which the holders have
certain rights to request the Company to register the sale of such holders'
Common Stock under the Securities Act and, subject to certain conditions, to
include certain percentages of such shares in other registration statements
filed by the Company (1,320,000 of which shares also may be sold from time to
time by the holder thereof pursuant to Rule 144 under the Securities Act). In
addition, the Company has registered for sale under the Securities Act or
filed shelf registration statements with respect to 3,242,772 shares which may
be issuable by the Company from time to time in connection with acquisitions
of businesses or assets from third parties.
USE OF PROCEEDS
The Selling Stockholders 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.
SELLING STOCKHOLDERS
The Shares which may be offered from time to time pursuant to this
Prospectus include 8,668 Shares offered for the account of John Hancock
Capital Growth Fund II Limited Partnership ("Fund II") and 106,326 Shares
offered for the account of John Hancock Capital Growth Fund III Limited
Partnership ("Fund III"). Funds II and III acquired an aggregate of 26,313 and
322,710 Shares (including the Shares offered hereby), respectively, on May 31,
1996 under the terms of the Purchase Agreement. The aggregate number of Shares
owned by each of Funds II and III prior to the offering described in this
Prospectus and the aggregate number of Shares that would be owned by each of
them if all the shares offered hereby were disposed of constitute less than 1%
of the outstanding Common Stock as of June 21, 1996.
Pursuant to the Purchase Agreement, the Company acquired by merger all of
the outstanding voting securities of Zimpro. Prior to such merger, the Selling
Stockholders were significant shareholders and creditors of Zimpro and had
certain contractual and other rights with respect to their share and debt
holdings in Zimpro. Other than as described herein, neither of the Selling
Stockholders has, or within the past three years has had, any position, office
or other material relationship with the Company or any of its predecessors or
affiliates.
5
<PAGE>
PLAN OF DISTRIBUTION
Shares offered hereby may be sold from time to time or at one time by or for
the account of the Selling Stockholders on the NYSE; directly to purchasers in
negotiated transactions; by or through DLJ in ordinary brokerage transactions
or transactions in which DLJ solicits purchasers; in block trades in which DLJ
will attempt to sell Shares as agent but may position and resell a portion of
the block as principal; in transactions in which DLJ purchases as principal
for resale for its own account; or in any combination of the foregoing
methods. The Shares will not be sold pursuant to an underwritten offering.
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. DLJ may arrange for others to
participate in any such transaction and may receive compensation in the form
of discounts, commissions or concessions. The Company will bear the cost of
any such compensation. The proceeds to the Selling Stockholders from any sale
of Shares will be net of any expenses to be borne by the Selling Stockholders.
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, any discounts, commissions or concessions and
other items constituting compensation. The Company may agree to indemnify DLJ
against certain civil liabilities, including liabilities under the Securities
Act. The Company and the Selling Stockholders are obligated to indemnify each
other against certain civil liabilities arising under the Securities Act.
The Selling Stockholders and DLJ may be deemed to be "underwriters" within
the meaning of the Securities Act, in which event any discounts, commissions
or concessions received by DLJ and any profit on the resale of the Shares
purchased by DLJ may be deemed to be underwriting commissions or discounts
under the Securities Act.
The Company has informed the Selling Stockholders 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 Stockholders with a copy of these rules. The
Company also has advised the Selling Stockholders 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 rather than
pursuant to this Prospectus. There is no assurance that the Selling
Stockholders will sell any or all of the Shares. The Selling Stockholders may
transfer, devise or gift such Shares by other means not described herein.
The Company will pay all registration, qualification and filing fees, fees
and disbursements of counsel for the Company, accounting fees incident to this
Prospectus, "blue sky fees" and expenses, printing and marketing expenses,
fees and disbursements of counsel to the Selling Stockholders up to a maximum
of $5,000 and all selling commissions payable to DLJ in connection with any
sale of the Shares.
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 15,000 shares of Common Stock.
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The consolidated financial statements of United States Filter Corporation
and its subsidiaries as of March 31, 1995 and 1996 and for each of the three
years in the period ended March 31, 1996 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.
6
<PAGE>
The consolidated financial statements of Davis Water & Waste Industries,
Inc. incorporated in this Prospectus by reference to the audited historical
financial statements included in United States Filter Corporation's Form 8-K
dated June 27, 1996 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
The consolidated financial statements of Zimpro Environmental, Inc. as of
December 31, 1995 and 1994 and for each of the three years in the period ended
December 31, 1995 incorporated herein by reference, have been audited by Ernst
& Young LLP, independent auditors, as set forth in their report thereon
incorporated by reference elsewhere herein, and are included in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
7
<PAGE>
===============================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRE-
SENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE 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 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
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 INFOR-
MATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
-----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
The Company................................................................ 3
Risk Factors............................................................... 3
Use of Proceeds............................................................ 5
Selling Stockholders....................................................... 5
Plan of Distribution....................................................... 6
Validity of Common Stock................................................... 6
Independent Certified Public Accountants................................... 6
</TABLE>
===============================================================================
===============================================================================
114,994 SHARES
[LOGO OF U.S. FILTER]
UNITED STATES FILTER
CORPORATION
COMMON STOCK
-----------------
PROSPECTUS
-----------------
, 1996
===============================================================================
<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 Stockholders,
are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee..................... $ 1,336
*Accounting Fees and Expenses..................................... 4,000
*Legal Fees and Expenses.......................................... 5,000
*Printing Expenses................................................ 9,895
*Miscellaneous Expenses........................................... 1,769
Total........................................................... $22,000
</TABLE>
- --------
* 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.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The following exhibits are filed as part of this registration
statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- ----------------------------------------------------------------------
<C> <S>
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 Consent of KPMG Peat Marwick LLP
23.03 Consent of Price Waterhouse LLP
23.04 Consent of Ernst & Young LLP
24.01 Powers of Attorney (included on signature page of this registration
statement)
99.01 Transfer and Registration Rights Agreement, dated as of May 31, 1996,
among the registrant, John Hancock Capital Growth Fund IIB Limited
Partnership, John Hancock Capital Growth Fund III Limited Partnership,
Carl C. Landegger as Trustee for the 1990 Family Trust and The Black
Clawson Company
99.02 Hancock Debt Repayment Shares Letter Agreement, dated as of May 31,
1996, among registrant, John Hancock Capital Growth Fund II Limited
Partnership and John Hancock Capital Growth Fund III Limited
Partnership
</TABLE>
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 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.
II-2
<PAGE>
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 July 8, 1996.
United States Filter Corporation
/s/ Richard J. Heckmann
By: _________________________________
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 or 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.
SIGNATURE CAPACITY DATE
/s/ Richard J. Heckmann Chairman of the July 8, 1996
- ------------------------------------- Board, President and
RICHARD J. HECKMANN Chief Executive
Officer (Principal
Executive Officer)
and a Director
/s/ Kevin L. Spence Vice President and July 8, 1996
- ------------------------------------- Chief Financial
KEVIN L. SPENCE Officer (Principal
Financial and
Accounting Officer)
/s/ Michael J. Reardon Executive Vice July 8, 1996
- ------------------------------------- President and a
MICHAEL J. REARDON Director
<PAGE>
SIGNATURE CAPACITY DATE
/s/ Tim L. Traff Senior Vice July 8, 1996
- ------------------------------------- President and a
TIM L. TRAFF Director
/s/ James E. Clark Director July 8, 1996
- -------------------------------------
JAMES E. CLARK
/s/ John L. Diederich Director July 8, 1996
- -------------------------------------
JOHN L. DIEDERICH
/s/ Robert S. Hillas Director July 8, 1996
- -------------------------------------
ROBERT S. HILLAS
/s/ Arthur B. Laffer Director July 8, 1996
- -------------------------------------
ARTHUR B. LAFFER
/s/ Alfred E. Osborne, Jr. Director July 8, 1996
- -------------------------------------
ALFRED E. OSBORNE, JR.
/s/ J. Danforth Quayle Director July 8, 1996
- -------------------------------------
J. DANFORTH QUAYLE
/s/ C. Howard Wilkins, Jr. Director July 8, 1996
- -------------------------------------
C. HOWARD WILKINS, JR.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
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 Consent of KPMG Peat Marwick LLP
23.03 Consent of Price Waterhouse LLP
23.04 Consent of Ernst & Young LLP
24.01 Powers of Attorney (included on signature page of this
registration statement)
99.01 Transfer and Registration Rights Agreement, dated as of May 31,
1996, among the registrant, John Hancock Capital Growth Fund
IIB Limited Partnership, John Hancock Capital Growth Fund III
Limited Partnership, Carl C. Landegger as Trustee for the 1990
Family Trust and The Black Clawson Company
99.02 Hancock Debt Repayment Shares Letter Agreement, dated as of May
31, 1996, among registrant, John Hancock Capital Growth Fund II
Limited Partnership and John Hancock Capital Growth Fund III
Limited Partnership
</TABLE>
<PAGE>
EXHIBIT 5.01
July 8, 1996
United States Filter Corporation
40-004 Cook Street
Palm Desert, California 92211
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary 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 July , 1996 with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, with respect to an aggregate of up to 114,994 shares (the "Selling
Stockholders' 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
stockholders identified in the Registration Statement (the "Selling
Stockholders").
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
Stockholders' 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
<PAGE>
EXHIBIT 23.02
INDEPENDENT AUDITORS' 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 June 7, 1996,
relating to the consolidated balance sheets of United States Filter
Corporation as of March 31, 1995 and 1996 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, 1996 and to the reference to
our firm under the heading "Independent Certified Public Accountants" in the
prospectus.
KPMG Peat Marwick LLP
Orange County, California
July 3, 1996
<PAGE>
EXHIBIT 23.03
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of United States
Filter Corporation of our report dated June 13, 1996, relating to the
consolidated financial statements of Davis Water & Waste Industries, Inc.,
which appears in the Current Report on Form 8-K of United States Filter
Corporation dated June 27, 1996. We also consent to the reference to us under
the heading "Independent Certified Public Accountants" in such Prospectus.
Price Waterhouse LLP
Atlanta, Georgia
June 28, 1996
<PAGE>
EXHIBIT 23.04
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Independent
Certified Public Accountants" in the Registration Statement (Form S-3) and
related Prospectus of United States Filter Corporation for the registration of
114,994 shares of its common stock and to the incorporation by reference
therein of our report dated February 8, 1996, except for Notes 4 and 10, as to
which the date is May 10, 1996, with respect to the consolidated financial
statements of Zimpro Environmental, Inc. included in the Current Report on
Form 8-K of United States Filter Corporation dated May 31, 1996, filed with
the Securities and Exchange Commission.
Ernst & Young LLP
Minneapolis, Minnesota
July 3, 1996
<PAGE>
EXHIBIT 99.01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TRANSFER AND REGISTRATION AGREEMENT
AMONG
UNITED STATES FILTER CORPORATION,
JOHN HANCOCK CAPITAL GROWTH FUND IIB LIMITED PARTNERSHIP,
JOHN HANCOCK CAPITAL GROWTH FUND III LIMITED PARTNERSHIP,
CARL C. LANDEGGER, TRUSTEE
AND
THE BLACK CLAWSON COMPANY
DATED AS OF
MAY 31, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TRANSFER AND REGISTRATION AGREEMENT
AMONG
UNITED STATES FILTER CORPORATION,
JOHN HANCOCK CAPITAL GROWTH FUND IIB LIMITED PARTNERSHIP,
JOHN HANCOCK CAPITAL GROWTH FUND III LIMITED PARTNERSHIP,
CARL C. LANDEGGER, TRUSTEE
AND
THE BLACK CLAWSON COMPANY
DATED AS OF
MAY 31, 1996
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
1. Certain Definitions............................................................. 3
2. Restrictions on Transferability................................................. 4
3. Restrictive Legends............................................................. 4
4. Notice of Proposed Transfers.................................................... 4
5. Demand Registration............................................................. 5
6. Plan of Distribution............................................................ 6
7. Company Registration............................................................ 6
8. Expenses of Registration........................................................ 7
9. Indemnification................................................................. 7
10. Obligations of the Company...................................................... 8
11. Information by Holder........................................................... 9
12. Securities Law Compliance....................................................... 9
13. Standoff Agreement.............................................................. 10
14. Rule 144 Requirements........................................................... 10
15. Amendment of Registration Rights................................................ 10
16. Investment Representation....................................................... 10
17. Notices, etc.................................................................... 10
18. Entire Agreement Severability................................................... 11
19. Governing Law................................................................... 11
20. Counterparts.................................................................... 11
</TABLE>
2
<PAGE>
TRANSFER AND REGISTRATION AGREEMENT
This Transfer, Registration and Other Rights Agreement ("Agreement") is
entered into as of May 31, 1996 among United States Filter Corporation, a
Delaware corporation (the "Company"), John Hancock Capital Growth Management,
Inc., in its capacity as general partner of Capital Growth Partners Limited
Partnership, the general partner of John Hancock Capital Growth Fund II
Limited Partnership for the benefit of its Class B Limited Partners ("Hancock
Fund IIB"), and as general partner of Gramercy Hill Partners Limited
Partnership, the general partner of John Hancock Capital Growth Fund III
Limited Partnership ("Hancock Fund III"); Carl C. Landegger, as trustee under
the Agreement dated as of September 12, 1990 creating the 1990 Family Trust,
an inter vivos trust formed under the laws of the State of New York (the
"Trust"); and The Black Clawson Company, an Ohio corporation ("Black
Clawson"), 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:
"Commission" shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act.
"Exchange Act" shall mean the United States 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.
"Holders" shall mean Hancock Fund IIB, Hancock Fund III, the Trust and
Black Clawson, provided that the term "Holders" shall include (i) the
general and limited partners of Hancock Fund IIB and Hancock Fund III to
the extent that Shares are distributed by Hancock Fund IIB and Hancock Fund
III to such general and limited partners, and (ii) the beneficiaries of the
Trust to the extent that Shares are distributed by the Trust to its
beneficiaries.
"Initiating Holders" shall mean any person or persons who in the
aggregate are Holders of at least 150,000 Registrable Shares.
"Merger Agreement" shall mean the Agreement and Plan of Merger dated as
of April 15, 1996 by and among the parties hereto, U.S. Filter/Zimpro
Acquisition Corp., a Wisconsin corporation and Landegger Environmental
Holdings, Inc., a Delaware corporation.
"Restricted Shares" shall mean the shares of the Company required to bear
the legend set forth in paragraph (a) of Section 3 hereof.
"Registrable Shares" shall mean the Shares; provided, however, that
Shares shall be treated as Registrable Shares only if and so long as they
have not been (i) sold in a public distribution or a 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.
The terms "register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all registration, qualification and
filing fees, fees and disbursements of counsel for the Company, accounting
fees incident to any such registration and blue sky fees and expenses and,
in the event of an underwritten offering involving the original issuance of
shares by the Company, shall include printing expenses and marketing
expenses.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act, as
such Rule shall be in effect at the time, and any successor thereto.
"Securities Act" shall mean the United States 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.
3
<PAGE>
"Selling and Distribution Expenses" shall mean all costs and expenses
applicable to a registration, other than Registration Expenses, including
without limitation, underwriting discounts, selling commissions and stock
transfer taxes applicable to the Shares registered by the Holders, fees and
disbursements of counsel for the Holders, printing expenses and marketing
expenses.
"Shares" shall mean the 585,074 shares of Common Stock issued to or for
the benefit of the Holders on the date hereof, as that number shall be
adjusted for indemnification pursuant to the Merger Agreement, and any
shares of Common Stock issued in respect thereof in connection with stock
splits, stock dividends or distributions, or combinations or similar
recapitalizations, on or after the date hereof.
2. Restrictions on Transferability. The Shares may be sold, assigned,
transferred or pledged only in accordance with the conditions specified in
this Agreement, which conditions are intended to ensure compliance with the
provisions of the Securities Act.
3. Restrictive Legends.
(a) Each certificate representing Shares shall (unless otherwise permitted
by subsection (c) of this Section 3 or Section 4) be stamped with the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. 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
SAID ACT.
(b) Each certificate representing Shares shall also be stamped with the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF AN AGREEMENT BETWEEN CERTAIN STOCKHOLDERS 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 THE CORPORATION.
(c) Each Holder consents to the Company's making a notation on its records
and giving instructions to any transfer agent of the 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 Shares represented by such certificate will
be promptly removed, and the Company will promptly issue a certificate without
such legend to the Holder of such Shares (i) if such Shares are registered
under the Securities Act (but only in connection with the actual sale of such
securities) and a prospectus meeting the requirements of Section 10 of the
Securities Act is available, (ii) if the Holder thereof satisfies the
requirements of Rule 144(k) and, where reasonably determined necessary by the
Company, provides the Company with an opinion of counsel for the Holder of the
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 Shares may be made
without registration or (iii) if the Holder effects a sale pursuant to
Rule 144.
4. Notice of Proposed Transfers. The holder of each certificate representing
Restricted Shares 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 Shares, unless there is in effect a
registration statement under the Securities Act covering the proposed
transfer, the Holder thereof shall notify the Company in writing of such
Holder's intention to effect such transfer, sale, assignment or pledge and the
intended manner and circumstances thereof in reasonable detail. If requested
by the Company, any such notice shall be accompanied
4
<PAGE>
at such Holder's expense by a written opinion of legal counsel who is, and
whose legal opinion shall be, reasonably satisfactory to the Company,
addressed to the Company, to the effect that the proposed transfer of
Restricted Shares may be effected without registration under the Securities
Act, and by such certificates and other information as the Company may
reasonably require to confirm such opinion, whereupon the Holder of such
Restricted Shares shall be entitled to transfer such Restricted Shares in the
manner contemplated by such opinion, subject to Section 18. Each certificate
evidencing the Restricted Shares 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 Shares 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 unless the
transferee is a Holder).
5. Demand Registration. In case the Company shall receive a written request
from any Initiating Holders that the Company effect a registration with
respect to Registrable Shares, the Company will:
(i) promptly give written notice of the proposed registration to all
other Holders; and
(ii) use its best efforts to file a registration statement (on Form S-3
or successor form, provided, however, that if the Company is not then
eligible to file a registration statement on Form S-3, it shall use its
best efforts to file on any other Form for which it is then eligible, in
which case all Registration Expenses (other than registration and filing
fees) in excess of $10,000 in the aggregate shall be deemed to be Selling
and Distribution Expenses) with the Commission within 90 days (120 days in
the case of a registration statement other than on Form S-3 or successor
form) after the Initiating Holder's request and to effect such registration
(including, without limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualification under applicable blue
sky or other state securities laws and appropriate compliance with
applicable regulations issued under the Securities Act) as would permit or
facilitate the sale and distribution of such Registrable Shares as are
specified in such request, together with all Registrable Shares of any
Holder or Holders joining in such request as are specified in a written
request received by the Company within 30 days after receipt of such
written notice from the Company, provided, however, that if more than
234,029 Registrable Shares are specified in the aggregate in all such
requests made in respect of an Initiating Holder's request in accordance
with Section 5(B)(I), the number of Registrable Shares included in the
registration shall nonetheless be limited to 234,029 and the reduction
shall be allocated among the Initiating Holders and the other Holders
joining in such request in proportion, as nearly as practicable, to the
respective numbers of Registrable Shares such Holders had requested to be
included in such registration; and
Provided further, however, that the Company shall not be obligated to
take any action to effect any such registration, qualification or
compliance pursuant to this Section 5:
(A) In any particular jurisdiction in which the Company would be required
to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance except
as may be required by the Securities Act;
(B) Unless an Initiating Holders' request is made under one of the
following circumstances:
(I) such request is received by the Company during the period
commencing six months after the date hereof and ending twelve months
after the date hereof (the "First Window") and the Company has not
previously effected a registration pursuant to a request received
during the First Window; or
(II) such request is received by the Company during the period
commencing twelve months after the date hereof and ending twenty-four
months after the date hereof (the "Second Window"), the Company has not
previously effected a registration pursuant to a request received
during the Second Window and the holding period for the shares as may
be then specified in Rule 144 has not expired; provided, however, the
Holders may make an aggregate of two registration requests during the
Second Window if: (x) a registration requested during the First Window
was not effected by reason of
5
<PAGE>
subsection (C) or (D) below, and (y) in the case where the First Window
registration request was not effected by reason of subsection (C)
below, the registration statement referred to therein did not include
all Registrable Shares which were requested to be so included or
Registrable Shares were not entitled to be so included.
(C) During the period starting with the date 60 days prior to the filing
of, and ending on a date 120 days following the effective date of, a
registration statement filed by the Company (I) for a primary or secondary
underwritten offering or (II) in circumstances where the investment banking
firm participating in the distribution of the shares covered by such
registration statement in its sole discretion determines that marketing
factors require a delay in taking action to effect a registration of
Registrable Shares (other than with respect to a registration statement
relating to a Rule 145 or other business combination transaction, an
offering solely to employees and/or directors or any other registration
which is not appropriate for the registration of Registrable Shares).
(D) At any time when the Holders would be required to refrain from
selling Registrable Shares pursuant to Section 12(b).
6. Plan of Distribution.
(a) The distribution of Registrable Shares pursuant to a registration under
Section 5 shall be effected, whether from time to time or at one time, only
(i) by or through such investment banking firm or firms as may be designated
by the Company at the time the applicable registration statement is filed,
acting in such capacity (as broker, dealer, principal or otherwise), and
receiving such compensation, as may be agreed by the Holders and such
investment banking firm or firms, or (ii) in private transactions as to which
the Company shall have been given at least two business days' prior written
notice describing the terms of the proposed transaction(s), unless the Company
shall have identified prior to the expiration of such two-day period a
substitute purchaser for all of the Registrable Shares identified in such
notice on terms at least as favorable to the Holders as the terms specified in
such notice, in which event such Registrable Shares shall be sold to such
substitute purchaser (which may be the Company).
(b) The Holders shall not be entitled to effect a distribution under Section
5 by means of an underwritten offering.
(c) The Holders shall be entitled to exclude from any registration effected
pursuant to Section 5 any shares of Common Stock other than Registrable Shares
if the investment banking firm or firms designated under subsection (a) hereof
determines that marketing factors require a limitation of the number of shares
to be included in such registration.
(d) The Company hereby represents and warrants that it has no agreement,
undertaking or other arrangement granting to any third party the right
(whether demand, piggyback or otherwise) to require the Company to register
any class of shares of its capital stock, outstanding as of the date of this
Agreement, except as disclosed on Schedule 6(d).
7. Company Registration.
(a) Notice of Registration. 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, for distribution pursuant to an
underwritten offering, the Company will (i) promptly give to each Holder
written notice thereof, and (ii) include in such registration (and any related
qualification under blue sky laws or other compliance), subject to Section
7(b) and Section 18, all the Registrable Shares specified in a written request
or requests made by any Holder within 30 days after its receipt of such
written notice from the Company.
(b) Underwriting. The right of any Holder to registration pursuant to this
Section 7 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of Registrable Shares in the underwriting to
the extent provided herein. All Holders proposing to distribute all or a
portion of their Shares through such
6
<PAGE>
underwriting shall (together with the Company and the other holders
distributing shares of Common Stock through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company (or by the Holders who have
demanded such registration). Notwithstanding any other provision of this
Section 7, if the managing underwriter in its sole discretion determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the Registrable Shares to be
included in such registration. The Company shall so advise all Holders and the
other holders distributing their securities through such underwriting pursuant
to piggyback registration rights similar to this Section 7, and the number of
Registrable Shares that may be included in the registration and underwriting
by such Holders 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 all Holders and such other
holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Shares held by such Holders and by such other holders. If any
Holder 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 7
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration.
8. Expenses of Registration. All Registration Expenses incurred in
connection with any registration pursuant to Sections 5 or 7 shall be borne by
the Company. All other Selling and Distribution Expenses relating to
securities registered on behalf of the Holders shall be borne by the Holders
of the Registrable Shares included in such registration pro rata on the basis
of the number of Shares so registered.
9. Indemnification.
(a) The Company will indemnify each Holder, each of its officers, directors,
partners, employees and agents and each person controlling such Holder within
the meaning of Section 15 of the Securities Act, with respect to which
registration, qualification or compliance has been effected pursuant to this
Agreement, 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 such
registration, qualification or compliance, 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 each such Holder, each of its officers,
directors, employees and agents and each person controlling such Holder for
any legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability
or action, 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 any written
information furnished to the Company pursuant to an instrument duly executed
by such Holder or controlling person and stated to be specifically for use
therein.
(b) Each Holder will, if Registrable Shares held by such Holder are included
in the securities as to which such registration, qualification or compliance
is being effected, indemnify the Company, each of its directors and officers,
each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers and directors and each person
controlling such Holder 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
7
<PAGE>
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
Holders, such directors, officers, persons, 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,
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 any written information furnished to
the Company pursuant to an instrument duly executed by such Holder and stated
to be specifically for use therein.
(c) Each party entitled to indemnification under this Section 9 (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, but only to
the extent that, the failure to give such notice is actually 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.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which any Holder of
Registrable Securities exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 9 provides for indemnification in such case, then, the
Company and such Holder will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that such Holder is responsible for the portion
represented by the percentage that the public offering price of its
Registrable Shares offered by the registration statement bears to the public
offering price of all Shares offered by such registration statement; and the
Company is responsible for the remaining portion not payable by any other
Holder or holder; provided, however, that, in any such case, (A) no such
Holder will be required to contribute any amount in excess of the public
offering price of all such Registrable Shares 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.
10. Obligations of the Company. Whenever required under this Agreement to
use its best efforts to effect the registration of any Registrable Shares, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration statement with
respect to such Registrable Shares, and use its best efforts to cause such
registration statement to become effective and to keep such registration
statement effective for up to 90 days; provided, however, that such period
shall be extended by the number of days during such 90-day period (i) from
and including the date of the giving of any notice pursuant to Section
10(f) to and including the date specified in Section 12(b)(i) or (ii), as
the case may be, and (ii) comprising any standoff period specified pursuant
to Section 13 unless all Registrable Shares requested to be included in the
registration invoking such standoff have been so included. No day included
within both subsections (i) and (ii) above shall be counted more than once.
(b) Prepare and file with the Commission such amendments and supplements
to such registration statement as may be necessary (i) to update and keep
such registration statement effective as provided in
8
<PAGE>
Section 10(a) above, (ii) to comply with the provisions of the Securities
Act with respect to the disposition of all Shares covered by such
registration statement and (iii) to reflect a modification in the manner of
distribution of the Registrable Shares. Notwithstanding anything else to
the contrary contained herein, the Company shall not be required to
disclose in any amendment or supplement to a registration statement (x) any
confidential information concerning any matter which is the subject of a
notice given under Section 10(f) as to which the Company has a bona fide
interest in withholding disclosure, or (y) historical financial statements
or pro forma financial information required by Regulation S-X of the
Commission in connection with a business acquisition or disposition prior
to the date when such information would otherwise be required to be filed
with the Commission (including extensions pursuant to Item 7(a)(4) of Form
8-K).
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Shares owned by them.
(d) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or blue sky laws
of such jurisdictions as shall be reasonably requested by the Holders,
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.
(e) In the event of any underwritten public offering contemplated by
Section 7, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of
such offering. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement, 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, and, except where the
Company has a bona fide interest in withholding disclosure or the time
period for filing with the Commission information referred to in Section
10(b)(y) has not expired, promptly prepare and furnish to such Holders a
supplement or amendment to such prospectus so that such prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
11. Information by Holder. The Holder or Holders of Registrable Shares
included in any registration shall furnish to the Company such information
regarding such Holders, the Registrable Shares held by them and the
distribution proposed by such Holder or Holders 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.
12. Securities Law Compliance.
(a) The Holder or Holders of Registrable Shares included in any registration
pursuant to this Agreement covenant that they will comply with the Securities
Act and with the Exchange Act with respect to any such registration,
recognizing that the Company may notify such Holder or Holders in accordance
with Section 10(f) that the registration statement is not then current.
(b) The Holders agree that, immediately upon receipt of a notification
pursuant to Section 10(f), they will refrain from selling Registrable Shares
under a registration statement filed pursuant to Section 5 of this Agreement
until (i) subsequently notified by the Company that the registration is
current or (ii) receipt of a favorable opinion of counsel as hereinbelow
provided. The Company agrees that it will consult with the Holders or, at any
Holder's request, counsel for such Holder, following the giving of any such
notification, and that in the event the Holders (or their counsel) of a
majority of the Registrable Shares then the subject of an effective
registration are of the view that the Registrable Shares subject to such
registration 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
9
<PAGE>
other counsel reasonably satisfactory both to the Holders of a majority of the
Registrable Shares then the subject of an effective registration and the
Company as to whether such sales can be made without violation of the
Securities Act or the Exchange Act.
13. Standoff Agreement. The Holders agree in connection with any
registration of the Company's securities that, during a period of three years
from the date of this Transfer and Registration Agreement, 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 Shares (other than those included
in such registration), without the prior written consent of the Company or
such underwriters, as the case may be, for such period of time (not to exceed
120 days) from the effective date of such registration as may be requested by
the Company or such managing underwriters; provided, however, that this
Section 13 shall be of no force and effect at such time as the Holders shall
hold in the aggregate less than 50,000 Shares.
14. Rule 144 Requirements. The Company agrees to:
(a) 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
(b) furnish to any Holder of Registrable Securities upon request (i) a
written statement by the Company as to its compliance with the requirements
of said 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 such Holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing itself to sell any
such securities without registration.
15. Amendment of Registration Rights. 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 Holders of not less than eighty
percent of the Registrable Shares then outstanding and held by the Holders.
Any amendment or waiver effected in accordance with this Section 15 shall be
binding upon each Holder of any Registrable Shares then outstanding, each
future holder of any Shares who is a party to this Agreement, and the Company.
16. Investment Representation. Each Holder hereby confirms and represents
and warrants to the Company that such Holder is acquiring the Shares for
investment only and not with a view to or in connection with any resale or
distribution of the Shares.
17. Notices, etc. 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 (return receipt
requested) or by facsimile, addressed as follows:
(a) if to Hancock Fund IIB, Hancock Fund III, the Trust or Black Clawson,
to their addresses or facsimile numbers identified below their respective
signature lines
(b) if to the Holders to whom a distribution referred to in clause (i) or
(ii) of the definition of "Holders" set forth in Section 1 has been made,
to the addresses or facsimile numbers identified below for the Holder from
whom the Holder in question received such distribution
(c) if to the Company, to:
United States Filter Corporation
40-004 Cook Street
Palm Desert, CA 92211
FAX No. (612) 341-9368
Attn: Chief Executive Officer
with a copy to: General Counsel
or to such other address or facsimile number of a party of which such party
has given notice to the other parties pursuant to this Section.
10
<PAGE>
18. Entire Agreement; Severability. This Agreement and the Merger Agreement
together with the Schedules and Exhibits thereto set forth all of the
provisions, covenants, agreements, conditions and undertakings among the
parties hereto with respect to the subject matter hereof. Notwithstanding
anything to the contrary provided in this Agreement, in no event shall any
rights provided herein supersede the representations regarding "pooling of
interests" set forth in Section 9.06 of the Merger Agreement nor the
restrictions set forth in the Zimpro Affiliate Agreements as defined in the
Merger Agreement. 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.
19. 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.
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.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
11
<PAGE>
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
--------------------------------
Damian C. Georgino
Vice President, General Counsel
and Secretary
JOHN HANCOCK CAPITAL GROWTH Fund IIB
LIMITED PARTNERSHIP
By: /s/ K. Deane Reade, Jr.
--------------------------------
Name: K. Deane Reade, Jr.
------------------------------
Vice President
Title:
------------------------------
JOHN HANCOCK CAPITAL GROWTH Fund III
LIMITED PARTNERSHIP
By: /s/ K. Deane Reade, Jr.
------------------------------
Name: K. Deane Reade, Jr.
------------------------------
Title: Vice President
------------------------------
1990 FAMILY TRUST
By: /s/ Carl C. Landegger
------------------------------
Name: Carl C. Landegger
------------------------------
Title: Trustee
------------------------------
THE BLACK CLAWSON COMPANY
By: /s/ Carl C. Landegger
------------------------------
Name: Carl C. Landegger
------------------------------
Title: Chairman
------------------------------
12
<PAGE>
SCHEDULE 6(D)
1. Transfer and Registration Agreement between United States Filter
Corporation and Alcoa Securities Corporation dated as of December 31, 1991
2. Transfer, Registration and Other Rights Agreement among United States
Filter Corporation, Warburg, Pincus Capital Company, L.P. and Certain
Individual Stockholders of United States Filter Corporation dated as of July
8, 1994
3. Transfer, Registration and Other Rights Agreement among United States
Filter Corporation, Laidlaw International Investments (Luxembourg) S.A.,
Laidlaw Investments (Barbados) Ltd., Marfit, S.p.A., Laidlaw, Inc. and Ing.
Gilberto Cominetta dated as of August 31, 1994
4. Option and Registration Rights Agreement among United States Filter
Corporation, Florence E. Stockdale, James Timothy Stockdale, William E.
Stockdale III, John Christopher Stockdale, Melody S. Williamson and Katharine
S. Price dated as of August 10, 1995
13
<PAGE>
EXHIBIT 99.02
United States Filter Corporation
40-004 Cook Street
Palm Desert, California 92211
May 31, 1996
John Hancock Capital Growth Fund II Limited Partnership
John Hancock Capital Growth Fund III Limited Partnership
One Madison Avenue, Suite 25A
New York, New York 10022
Re: Agreement and Plan of Merger dated as of April 15, 1996 among United
States Filter Corporation, U.S. Filter/Zimpro Acquisition Corp., Landegger
Environmental Holdings, Inc., John Hancock Capital Growth Fund II Limited
Partnership, John Hancock Capital Growth Fund III Limited Partnership,
Carl C. Landegger, Trustee and Black Clawson Company
Gentlemen:
Section 3.06 of the above referenced agreement (the "Agreement"), provides
for the delivery by the Surviving Corporation of the Hancock Debt Repayment
Shares under the S-4 Shelf Registration Statement (as such terms are defined
in the Agreement). Because the S-4 Shelf Registration Statement is not on the
date hereof current, USF, the Surviving Corporation and the Hancock Fund
hereby agree that the Surviving Corporation shall on the date hereof deliver
to the Hancock Fund the Hancock Debt Repayment Shares in a privately placed
transaction exempt from the registration requirements of the Securities Act of
1933 (the "Securities Act") in lieu of issuance under the S-4 Shelf
Registration Statement contemplated in the Agreement.
USF also hereby agrees to provide you with the registration rights specified
herein relating to the Hancock Debt Repayment Shares. Unless otherwise defined
herein, capitalized terms used and not defined herein shall have the meaning
specified in the Agreement.
1. USF shall, as expeditiously as possible, subject to paragraph 6 below,
use its best efforts to effect the registration under the Securities
Act on Form S-3 (the "Registration Statement") of the Hancock Debt
Repayment Shares. The Registration Statement shall not be subject to
the right of USF to cause the filing or effectiveness of the
Registration Statement to be deferred on account of any other
registration rights or on account of any offering of USF Common Shares
for cash by USF. USF warrants and represents that no person or entity
has registration rights which are inconsistent with the foregoing
provision and covenants that it will not, prior to the expiration of
the period specified in paragraph 4 below, grant any such inconsistent
registration rights. The Hancock Fund shall not be required to suspend
sales of the Hancock Debt Repayment Shares in connection with any
underwritten offering of USF Common Shares by USF or otherwise. The
Hancock Fund has been advised that USF currently expects to register
USF Common Shares on Form S-4 as part of a business combination
transaction in the near future; in the event that such business
combination transaction proceeds as expected, USF and the Hancock Fund
agree that USF shall use its best efforts to register the disposition
of the Hancock Debt Repayment Shares contemporaneously with the
registration of such USF Common Shares on such Form S-4.
2. USF shall bear all registration, qualification and filing fees, fees
and disbursements of counsel for USF, accounting fees incident to any
such registration, blue sky fees and expenses, printing and marketing
expenses, fees and disbursements of counsel to the Hancock Fund or any
permitted transferee under
1
<PAGE>
paragraph 8 up to a maximum of $5,000 and all selling commissions in
connection with any sale of the Hancock Debt Repayment Shares pursuant
to paragraph 3(i). The Hancock Fund or any permitted transferee under
paragraph 8 shall bear all stock transfer taxes applicable to the
disposition of the Hancock Debt Repayment Shares.
3. The distribution of the Hancock Debt Repayment Shares pursuant to the
Registration Statement shall be effected, whether from time to time or
at one time, only (i) by or through such investment banking firm or
firms as may be designated by USF at the time the Registration
Statement is filed, acting in such capacity (as broker, dealer,
principal or otherwise), and receiving such compensation, as may be
agreed by the Hancock Fund or any permitted transferee under paragraph
8 and such investment banking firm or firms, or (ii) in private
transactions as to which USF shall have been given at least two
business days' prior written notice describing the terms of the
proposed transaction(s), unless USF shall have identified prior to the
expiration of such two-day period a substitute purchaser for all of the
Hancock Debt Repayment Shares identified in such notice on terms at
least as favorable to the seller as the terms specified in such notice,
in which event such Hancock Debt Repayment Shares shall be sold to such
substitute purchaser (which may be USF). Neither the Hancock Fund nor
any permitted transferee under paragraph 8 shall be entitled to effect
a distribution of the Hancock Debt Repayment Shares by means of an
underwritten offering. USF shall give the Hancock Fund or any permitted
transferee under paragraph 8 at least ten (10) business days' written
notice prior to the initial filing of the Registration Statement. The
Hancock Fund or any permitted transferee under paragraph 8 shall advise
USF in writing, within five (5) business days' of receipt of such
notice, of the terms of its compensation arrangements with the
designated investment banking firm or firms and the capacity or
capacities in which they will act, and any other information required
of it for inclusion in the Registration Statement.
4. USF shall maintain the effectiveness of the Registration Statement
until the earlier of (i) the disposition by the Hancock Fund or
permitted transferees under paragraph 8 of all of the Hancock Debt
Repayment Shares or (ii) the day after all of the following shall have
been true on each of 60 days (which need not be consecutive): (a) the
Registration Statement shall have been effective and (b) the prospectus
included in the Registration Statement shall have been current for
purposes of the methods of disposition of the Hancock Debt Repayment
Shares set forth in the Registration Statement and (c) the Hancock Fund
shall have had (or would have had) the ability to sell the Hancock Debt
Repayment Shares under the applicable Zimpro Affiliate Pooling
Agreements.
5. USF shall use its best efforts to register and qualify the Hancock Debt
Repayment Shares covered by the Registration Statement under such other
securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the Hancock Fund or any permitted transferee
under paragraph 8. USF shall provide the Hancock Fund or any permitted
transferee under paragraph 8 with such number of copies of the then-
current prospectus as shall be reasonably requested by it.
6. USF shall promptly prepare and file all such amendments and supplements
to the Registration Statement and the prospectus included therein as
may be necessary (i) to update and keep effective the Registration
Statement and keep current the prospectus included therein, (ii) to
comply with the provisions of the Securities Act with respect to the
disposition of the Hancock Debt Repayment Shares and (iii) to reflect
any modification in the manner of distribution of the Hancock Debt
Repayment Shares specified by the Hancock Fund or any permitted
transferee under paragraph 8 in accordance with paragraph 3.
Notwithstanding anything else to the contrary contained herein, USF
shall not be required to disclose in any amendment or supplement to the
Registration Statement (x) any confidential information concerning any
matter as to which USF has a bona fide interest in withholding
disclosure, or (y) historical financial statements or pro forma
financial information required by Regulation S-X in connection with a
business acquisition or disposition prior to the date when such
information would otherwise be required to be filed with the Securities
and Exchange Commission (including extensions pursuant to Item 7(a)(4)
of Form 8-K); provided, however, that USF may avail itself of clause
(x) above only on one occasion and for a period of 20 days. USF also
shall not be required to file the
2
<PAGE>
Registration Statement at any time when it would not be obligated to
disclose information referenced in (x) or (y) of the preceding sentence.
7. The Hancock Fund and any transferee permitted by paragraph 8 agrees
that, immediately upon receipt of notification from USF that the
Registration Statement and the prospectus included therein are not
current by reason of clauses (x) or (y) of paragraph 6, they will
refrain from selling Hancock Debt Repayment Shares under the
Registration Statement until (i) subsequently notified by USF that the
Registration Statement is current or (ii) receipt of a favorable
opinion of counsel as provided in Section 12(b) of the Transfer and
Registration Agreement (the "Transfer and Registration Agreement")
dated as of May 31, 1996 among USF, the Hancock Fund, Carl C.
Landegger, Trustee and The Black Clawson Company after consultation
with the Hancock Fund or its counsel as provided in such Section 12(b).
The period provided for in paragraph 4(ii) shall not include any day on
which sales are suspended pursuant to the foregoing.
8. The Hancock Fund shall have the right to transfer the Hancock Debt
Repayment Shares in a valid private sale exempt from applicable
securities laws (as determined by counsel reasonably acceptable to USF)
and, provided that such sale involves the sale of all of the Hancock
Debt Repayment Shares, the registration rights provided for in this
letter agreement shall be transferred to such transferee. The Hancock
Fund shall also have the right to distribute the Hancock Debt Repayment
Shares to their general and limited partners in transactions exempt
from applicable securities laws and the registration rights provided
for in this letter agreement shall inure to the benefit of such
partners, provided that the Hancock Fund shall remain responsible to
transmit all information required for inclusion in the Registration
Statement. The foregoing rights of the Hancock Fund shall be
conditioned upon the transferee or transferees agreeing to be bound by
the provisions of this letter agreement. No such transferee shall have
any further rights under this paragraph 8.
9. USF, the Hancock Fund and any transferee permitted by paragraph 8 shall
have indemnification rights, one against the other, on terms identical
to the indemnification rights between USF and each Holder (as those
terms are defined), as set forth in the Transfer and Registration
Agreement.
10. The Hancock Fund acknowledges that the Hancock Debt Repayment Shares
have been issued to it in a transaction exempt from the registration
requirements of the Securities Act under section 4(2) thereof and,
until and unless registered in accordance with the foregoing, the
Hancock Debt Repayment Shares are "restricted securities" within the
meaning of Rule 144 thereunder. The Hancock Fund is acquiring the
Hancock Debt Repayment Shares for its own account and without any
present intention of engaging in a distribution of the same. The
Hancock Fund, USF and any permitted transferee under paragraph 8 agree
to the placement of a legend on the certificate(s) representing the
Hancock Debt Repayment Shares to the effect set forth in paragraph (a)
of Section 3 of the Transfer and Registration Agreement and to the
removal of the same under the circumstances set forth in paragraph (c)
of Section 3 of such Transfer and Registration Agreement.
11. The parties agree that the provisions of Section 9.10(c) of the
Agreement are no longer applicable to transfers of the Hancock Debt
Repayment Shares.
12. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware. Notices shall be made and
interpreted in accordance with Section 13.02 of the Agreement.
3
<PAGE>
Please sign below to indicate your agreement to the foregoing terms.
UNITED STATES FILTER CORPORATION
By: /s/ Damian C. Georgino
---------------------------------
Name: Damian C. Georgino
Title: Vice President, General
Counsel and Secretary
ZIMPRO ENVIRONMENTAL, INC.
By: /s/ Damian C. Georgino
---------------------------------
Name: Damian C. Georgino
Title: Vice President, General
Counsel and Secretary
AGREED:
JOHN HANCOCK CAPITAL GROWTH
MANAGEMENT, INC., AS GENERAL PARTNER
OF CAPITAL GROWTH PARTNERS LIMITED
PARTNERSHIP, THE GENERAL PARTNER OF
JOHN HANCOCK CAPITAL GROWTH FUND II
LIMITED PARTNERSHIP
By: /s/ K. Deane Reade, Jr.
-------------------------------
Name: K. Deane Reade, Jr.
Title: Vice President
JOHN HANCOCK CAPITAL GROWTH
MANAGEMENT, INC., AS GENERAL PARTNER
OF GRAMERCY HILL PARTNERS LIMITED
PARTNERSHIP, THE GENERAL PARTNER OF
JOHN HANCOCK CAPITAL GROWTH FUND III
LIMITED PARTNERSHIP
By: /s/ K. Deane Reade, Jr.
-------------------------------
Name: K. Deane Reade, Jr.
Title: Vice President
4
