SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D**
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
United States Filter Corporation
(Name of Issuer)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
911843209
(Cusip Number)
W. Robert Cotham
201 Main Street, Suite 2600
Fort Worth, Texas 76102
(817) 390-8400
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 17, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
**The total number of shares reported herein is 8,000,000 shares, which
constitutes approximately 9.05% of the total number of shares outstanding.
All ownership percentages set forth herein assume that there are 88,377,604
shares outstanding, which number gives effect to the proposed issuance of
8,000,000 shares of Common Stock to the Sellers.
<PAGE>
1. Name of Reporting Person:
Lee M. Bass
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 5,856,000
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 5,856,000
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
5,856,000
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 6.6%
14. Type of Reporting Person: IN
<PAGE>
1. Name of Reporting Person:
Fine Line Inc.
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 1,484,800(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 1,484,800(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,484,800
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 1.7%
14. Type of Reporting Person: CO
- ----------
(1) Power is exercised by its sole shareholder, E.P. Bass.
<PAGE>
1. Name of Reporting Person:
E. P. Bass
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 1,484,800(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 1,484,800(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,484,800(1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 1.7%
14. Type of Reporting Person: IN
- --------------
(1) Solely in his capacity as the sole shareholder of Fine Line Inc.
<PAGE>
1. Name of Reporting Person:
Ardon E. Moore
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 148,480
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 148,480
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
148,480
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 0.2%
14. Type of Reporting Person: IN
<PAGE>
1. Name of Reporting Person:
William P. Hallman, Jr.
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 74,240
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 74,240
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
74,240
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: IN
<PAGE>
1. Name of Reporting Person:
Peter Sterling
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 74,240
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 74,240
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
74,240
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: IN
<PAGE>
1. Name of Reporting Person:
Jason Michael Taylor Grantor Trust
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 37,120(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 37,120(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
37,120
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: 00 - Trust
- ----------
(1) Power is exercised by its trustee, Annette B. Taylor
<PAGE>
1. Name of Reporting Person:
Rhonda Leigh Taylor Grantor Trust
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 37,120(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 37,120(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
37,120
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: 00 - Trust
- ----------
(1) Power is exercised by its trustee, Annette B. Taylor
<PAGE>
1. Name of Reporting Person:
Annette B. Taylor
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 74,240(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 74,240(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
74,240(1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: IN
- ----------
(1) Solely in her capacity as the trustee of the Jason Michael Taylor
Grantor Trust with respect to 37,120 shares of the Common Stock and
solely in her capacity as the trustee of the Rhonda Lee Taylor Grantor
Trust with respect to 37,120 shares of the Common Stock.
<PAGE>
Pursuant to Rule 13d-2(a) of Regulation 13D-G of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Act"), the undersigned hereby amend their Schedule 13D Statement dated
August 13, 1997 (the "Schedule 13D") relating to the Common Stock, par
value $0.01 per share, of United States Filter Corporation. Unless
otherwise indicated, all defined terms shall have the meanings ascribed to
them in the Schedule 13D.
Item 1. SECURITY AND ISSUER.
No material change.
Item 2. IDENTITY AND BACKGROUND.
Item 2 is hereby amended and restated in its entirety to read as
follows:
(a) Pursuant to Rules 13d-1(f)(1)-(2) of Regulation 13D-G of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Act"), the undersigned hereby file this Schedule 13D
Statement on behalf of Lee M. Bass ("LMB"), Fine Line Inc., a Texas
corporation ("Fine Line"), E.P. Bass ("EPB"), Ardon E. Moore ("AEM"),
William P. Hallman, Jr. ("WPH"), Peter Sterling ("PS"), Jason Michael
Taylor Grantor Trust, a trust established under the laws of the State of
Texas ("JMT Trust"), Rhonda Leigh Taylor Grantor Trust, a trust established
under the laws of the State of Texas ("RLT Trust") and Annette B. Taylor
("ABT"). LMB, Fine Line, EPB, AEM, WPH, PS, JMT Trust, RLT Trust and ABT
are sometimes hereinafter collectively referred to as the "Reporting
Persons." The Reporting Persons are making this single, joint filing
because they may be deemed to constitute a "group" within the meaning of
Section 13(d)(3) of the Act, although neither the fact of this filing nor
anything contained herein shall be deemed to be an admission by the
Reporting Persons that such a group exists.
As a result of the transactions described in Item 5(c), Western Farm &
Cattle Company, California Land & Cattle Company, N.N. Investors, L.P., ST
Ranch GenPar, Inc. and FW Ranch Partners, L.P. shall no longer be
considered Reporting Persons for purposes of this and all future amendments
to the Schedule 13D.
(b)-(c)
LMB
LMB's business address is 201 Main Street, Suite 3200, Fort Worth,
Texas 76102, and his present principal occupation or employment at such
address is serving as President of Lee M. Bass, Inc. ("LMB, Inc.").
LMB, Inc. is a Texas corporation. LMB, Inc.'s principal businesses
are the ownership and operation of oil and gas properties (through BEPCO),
the ownership and operation of gas processing plants and carbon black
plants (through various partnerships), farming and ranching, investing in
marketable securities and real estate investment and development. The
principal business address of LMB, Inc., which also serves as its principal
office, is 201 Main Street, Suite 2700, Fort Worth, Texas 76102.
BEPCO is a Texas corporation, the principal business of which is oil
exploration and drilling and producing hydrocarbons. The principal address
of BEPCO, which also serves as its principal office, is 201 Main Street,
Suite 2700, Fort Worth, Texas 76102.
Fine Line
Fine Line is a Texas corporation, the principal business of which is
serving as the sole shareholder of Thru Line Inc., a Texas corporation
("Thru Line"). The principal business address of Fine Line, which also
serves as its principal office, is 201 Main Street, Suite 2700, Fort Worth,
Texas 76102. Pursuant to Instruction C to Schedule 13D of the Act, the
name, business or residence address, and principal occupation or employment
of each director, executive officer and controlling person of Fine Line are
as follows:
Residence or Principal Occupation
Name Business or Employment
EPB 201 Main Street President of Thru Line
Suite 2700,
Fort Worth, Texas 76102
WPH 201 Main Street, Member of the
Suite 2500, law firm of Kelly,
Fort Worth, Texas 76102 Hart & Hallman, P.C.
Martin Bowen 201 Main Street, Vice President/
Suite 2700, CFO of Thru Line
Fort Worth, Texas 76102
W. R. Cotham 201 Main Street, Vice President/
Suite 2600, Controller of
Fort Worth, Texas 76102 BEPCO
Thru Line's principal businesses are the ownership and operation of
oil and gas properties (through BEPCO), the ownership and operation of gas
processing plants and carbon black plants (through various partnerships),
farming and ranching, investing in marketable securities and real estate
investment and development. The principal business address of Thru Line,
which also serves as its principal office, is 201 Main Street, Suite 2700,
Fort Worth, Texas 76102.
EPB
See above.
AEM
AEM's business address is 201 Main Street, Suite 3200, Fort Worth,
Texas 76102, and his present principal occupation or employment at such
address is serving as Vice President of LMB, Inc.
WPH
See above.
PS
PS's business address is 201 Main Street, Suite 3200, Fort Worth,
Texas 76102, and his present principal occupation or employment at such
address is serving as Vice President and Chief Financial Officer of LMB,
Inc.
JMT Trust
JMT Trust is a trust existing under the laws of the State of Texas.
The address of JMT Trust is 201 Main Street, Suite 3200, Fort Worth, Texas
76102. Pursuant to Instruction C to Schedule 13D of the Act, information
with respect to its Trustee, ABT, is set forth below.
RLT Trust
RLT Trust is a trust existing under the laws of the State of Texas.
The address of RLT Trust is 201 Main Street, Suite 3200, Fort Worth, Texas
76102. Pursuant to Instruction C to Schedule 13D of the Act, information
with respect to its Trustee, ABT, is set forth below.
ABT
ABT's residence address is 4149 Ranier Court, Fort Worth, Texas
76109, and she is not presently employed.
(d) None of the entities or persons identified in this Item 2 has,
during the last five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
(e) None of the entities or persons identified in this Item 2 has,
during the last five years, been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
(f) All of the natural persons identified in this Item 2 are citizens
of the United States of America.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is hereby amended and restated in its entirety to read as
follows:
None of the Reporting Persons expended any funds to acquire any shares
of the Common Stock. All shares of the Common Stock reported herein were
acquired by partnerships (collectively, the "Sellers") of which the
Reporting Persons, other than EPB and ABT, are partners in exchange for
certain partnership interests. See Items 5(c) and 6 herein.
Item 4. PURPOSE OF TRANSACTION.
No material change.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
Paragraphs (a) - (c) of Item 5 are hereby amended and restated in
their entireties to read as follows:
(a)
LMB
The aggregate number of shares of Common Stock that LMB owns
beneficially, pursuant to Rule 13d-3 of the Act, is 5,856,000, which
constitutes approximately 6.6% of the outstanding shares of Common Stock.
Fine Line
The aggregate number of shares of Common Stock that Fine Line owns
beneficially, pursuant to Rule 13d-3 of the Act, is 1,484,800, which
constitutes approximately 1.7% of the outstanding shares of Common Stock.
EPB
Because of his position as the sole shareholder of Fine Line, EPB may,
pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of
1,484,800 shares of the Common Stock, which constitutes approximately 1.7%
of the outstanding shares of the Common Stock.
AEM
The aggregate number of shares of Common Stock that AEM owns
beneficially, pursuant to Rule 13d-3 of the Act, is 148,480, which
constitutes approximately 0.2% of the outstanding shares of Common Stock.
WPH
The aggregate number of shares of Common Stock that WPH owns
beneficially, pursuant to Rule 13d-3 of the Act, is 74,240, which
constitutes less than 0.1% of the outstanding shares of Common Stock.
PS
The aggregate number of shares of Common Stock that PS owns
beneficially, pursuant to Rule 13d-3 of the Act, is 74,240, which
constitutes less than 0.1% of the outstanding shares of Common Stock.
JMT Trust
The aggregate number of shares of Common Stock that JMT Trust owns
beneficially, pursuant to Rule 13d-3 of the Act, is 37,120, which
constitutes less than 0.1% of the outstanding shares of Common Stock.
RLT Trust
The aggregate number of shares of Common Stock that RLT Trust owns
beneficially, pursuant to Rule 13d-3 of the Act, is 37,120, which
constitutes less than 0.1% of the outstanding shares of Common Stock.
ABT
Because of her positions as the trustee of each of the JMT Trust and
the RLT Trust, ABT may, pursuant to Rule 13d-3 of the Act, be deemed to be
the beneficial owner of an aggregate of 74,240 shares of Common Stock,
which constitutes less than 0.1% of the outstanding shares of Common Stock.
In addition, the Sellers beneficially own Warrants to purchase
1,200,000 shares of Common Stock; however, such Warrants are not presently
exercisable within 60 days and therefore the shares of Common Stock which
may be acquired upon exercise thereof are not reported herein. See Item 6.
To the best knowledge of the Reporting Persons, other than as set
forth herein, none of the persons named in Item 2 herein is the beneficial
owner of any shares of Common Stock.
(b)
LMB
LMB has the sole power to vote or to direct the vote and to dispose or
to direct the disposition of 5,856,000 shares of Common Stock.
Fine Line
Acting through its sole shareholder, EPB, Fine Line has the sole power
to vote or to direct the vote and to dispose or to direct the disposition
of 1,484,800 shares of Common Stock.
EPB
In his capacity as the sole shareholder of Fine Line, EPB has the sole
power to vote or direct the vote and to dispose or to direct the
disposition of 1,484,800 shares of Common Stock.
AEM
AEM has the sole power to vote or to direct the vote and to dispose or
to direct the disposition of 148,480 shares of Common Stock.
WPH
WPH has the sole power to vote or to direct the vote and to dispose or
to direct the disposition of 74,240 shares of Common Stock.
PS
PS has the sole power to vote or to direct the vote and to dispose or
to direct the disposition of 74,240 shares of Common Stock.
JMT Trust
Acting through its sole trustee, ABT, JMT Trust has the sole power to
vote or to direct the vote and to dispose or to direct the disposition of
37,120 shares of Common Stock.
RLT Trust
Acting through its sole trustee, ABT, RLT Trust has the sole power to
vote or to direct the vote and to dispose or to direct the disposition of
37,120 shares of Common Stock.
ABT
In her capacities as the sole trustee of each of the JMT Trust and the
RLT Trust, ABT has the sole power to vote or to direct the vote and to
dispose or to direct the disposition of an aggregate of 74,240 shares of
Common Stock.
(c) On September 17, 1997, the Issuer and the Sellers consummated the
transactions contemplated by the Acquisition Agreement and, in connection
therewith, the Issuer issued to the Sellers an aggregate of (i) 8,000,000
shares of Common Stock and (ii) Warrants to purchase 1,200,000 shares of
Common Stock. The Sellers immediately distributed the 8,000,000 shares of
Common Stock to their partners according to each partner's sharing
percentage, and each partner distributed such shares to its shareholders.
All of the Reporting Persons, other than EPB and ABT, are partners of the
Sellers (or shareholders of such partners), and all of the shares of Common
Stock reported herein as beneficially owned by such Reporting Persons were
acquired by them pursuant to such distributions.
Other than as set forth above, none of the Reporting Persons has
purchased or sold any shares of Common Stock in the previous 60 days.
(d)-(e) No material change.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby partially amended by adding at the end thereof the
following:
On September 17, 1997, the Sellers and the Issuer entered into the
Governance Agreement. The description of the Governance Agreement included
herein is not, and does not purport to be, complete and is qualified in its
entirety by reference to the Governance Agreement, a copy of which is
attached hereto as Exhibit 99.4.
The Governance Agreement provides, that, so long as Sellers and
certain permitted transferees of Sellers and their respective Affiliates
continue to own collectively at least 5% of the Issuer's outstanding Common
Stock, the Issuer will use its best efforts to nominate Sellers' designee
as a Class I Director and cause him to be elected at the Issuer's Annual
Meeting of Stockholders held in 2000 and at each subsequent Annual Meeting
where Class I Directors are elected. Pursuant to the Governance Agreement,
the Sellers may designate a person to fill any vacancy on the Issuer's
Board caused by cessation to serve for any reason of Sellers' designee.
The Governance Agreement also provides that, so long as Sellers and certain
permitted transferees and their respective Affiliates continue to own
collectively at least 7 1/2% of the Issuer's outstanding Common Stock, the
next vacancy caused by the cessation to serve of a non-employee director of
the Issuer will be filled with a person satisfactory to Sellers. Pursuant
to the Governance Agreement, the Sellers have designated, and Issuer's
Board of Directors has elected, Ardon E. Moore to serve as a Class I
director of the Issuer.
The Governance Agreement grants certain registration rights to the
Sellers with respect to the Common Stock acquired pursuant to the
Acquisition Agreement and upon exercise of the Warrants. The Sellers have
certain rights to piggyback on registration statements filed during the
four-year period commencing at the Closing by the Issuer to cover the sale
in underwritten offerings of securities to be sold by the Issuer or by
other stockholders. In addition, the Sellers have the right to cause the
Issuer to effect two demand registrations of at least 2,000,000 shares at
any time during the four-year period commencing 29 months after the
Closing.
The Governance Agreement also provides that if the Sellers sell their
shares of Common Stock except in a registered public offering or pursuant
to Rule 144 or to certain permitted transferees, the Issuer will have a
right of first refusal (to be exercised within one business day and closed
within 15 days) to purchase the shares at the same price and on the same
terms as a third party offer.
On September 17, 1997, the Issuer, the Sellers and LMB, Fine Line,
AEM, WPH, PS, JMT Trust, RLT Trust, John Cardwell and Jeffery Hart entered
into a Transferred Securities Agreement (the "Transfer Agreement"). The
description of the Transfer Agreement that follows is not, and does not
purport to be complete and is qualified in its entirety by reference to the
Transfer Agreement, a copy of which is attached hereto as Exhibit 99.5.
The Transfer Agreement provides that each of the Transferees (as defined in
the Transfer Agreement) agrees to be bound by, and shall have the benefits
of, the Governance Agreement to the same extent as the Sellers, and that
each Transferee designates AEM to act as its representative and agent in
accordance with Section 7.9 of the Governance Agreement.
Except as set forth herein or in the Exhibits filed herewith, there
are no contracts, arrangements, understandings or relationships with
respect to the shares of the Common Stock owned by the Reporting Persons.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 99.1--Agreement pursuant to Rule 13d-1(f)(1)(iii).
Exhibit 99.2--Agreement for Sale and Purchase of Partnership Interests
dated as of August 3, 1997 by and among Sellers and the Issuer (previously
filed).
Exhibit 99.3--Confidential Agreement dated July 2, 1997 between the
Issuer and Western Farms, L.P. (previously filed)
Exhibit 99.4--Transfer, Registration Rights and Governance Agreement
dated as of September 17, 1997 by and among Sellers and the Issuer.
Exhibit 99.5--Transferred Securities Agreement dated as of September
17, 1997 by and among the Issuer, the Sellers, LMB, Fine Line, AEM, WPH,
PS, JMT Trust, RLT Trust, John Cardwell and Jeffery Hart.
<PAGE>
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
DATED: September 17, 1997
LEE M. BASS
By: /s/ William P. Hallman, Jr.
William P. Hallman, Jr.,
Attorney-in-Fact (1)
FINE LINE, INC.
By: /s/ William P. Hallman, Jr.
William P. Hallman, Jr.,
Vice President
E.P. BASS
By: /s/ William P. Hallman, Jr.
William P. Hallman, Jr.,
Attorney-in-Fact (2)
/s/ Ardon E. Moore
ARDON E. MOORE
/s/ William P. Hallman, Jr.
WILLIAM P. HALLMAN, J.R.
/s/ Peter Sterling
Peter Sterling
JASON MICHAEL TAYLOR GRANTOR TRUST
By: /s/ Annette B. Taylor
Annette B. Taylor, Trustee
RHONDA LEIGH TAYLOR GRANTOR TRUST
By: /s/ Annette B. Taylor
Annette B. Taylor, Trustee
/s/ Annette B. Taylor
ANNETTE B. TAYLOR
(1) A Power of Attorney authorizing William P. Hallman, Jr. to act on
behalf of Lee M. Bass previously has been filed with the Securities
and Exchange Commission.
(2) A Power of Attorney authorizing William P. Hallman, Jr. to act on
behalf of E.P. Bass previously has been filed with the Securities
and Exchange Commission.
<PAGE>
EXHIBIT INDEX
Exhibit 99.1--Agreement pursuant to Rule 13d-1(f)(1)(iii).
Exhibit 99.2--Agreement for Sale and Purchase of Partnership
Interests dated as of August 3, 1997 by and between Sellers and the Issuer
(previously filed).
Exhibit 99.3--Confidentiality Agreement dated July 2, 1997 between
the Issuer and Western Farms, L.P. (previously filed)
Exhibit 99.4--Transfer, Registration Rights and Governance
Agreement dated as of September 17, 1997 by and among Sellers and the
Issuer.
Exhibit 99.5--Transferred Securities Agreement dated as of
September 17, 1997 by and among the Issuer, the Sellers, LMB, Fine Line,
AEM, WPH, PS, JMT Trust, RLT Trust, John Cardwell and Jeffery Hart.
Exhibit 99.1
1. Joint Filing. Pursuant to Rule 13d-1(f)(1)(iii) of Regulation
13D-G of the General Rules and Regulations of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended, the
undersigned agrees that the statement to which this Exhibit is attached is
filed on behalf of each of them in the capacities set forth below.
2. Power of Attorney. Know all persons by these presents
that the each person whose signature appears below constitutes and appoints
W. Robert Cotham, Mark L. Hart, Jr. and William P. Hallman, Jr., and each
of them, as his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign any and
all amendments to the Schedule 13D, and any reports filed pursuant to
Section 16 of the Securities Exchange Act of 1934, filed on behalf of each
of them with respect to their beneficial ownership of United States Filter
Corporation and to file the same, with all exhibits thereto and all
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as such person might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or such person or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
LEE M. BASS
By: /s/ William P. Hallman, Jr.
William P. Hallman, Jr.,
Attorney-in-Fact (1)
FINE LINE, INC.
By: /s/ William P. Hallman, Jr.
William P. Hallman, Jr.,
Vice President
E.P. BASS
By: /s/ William P. Hallman, Jr.
William P. Hallman, Jr.,
Attorney-in-Fact (2)
/s/ Ardon E. Moore
ARDON E. MOORE
/s/ William P. Hallman, Jr.
WILLIAM P. HALLMAN, J.R.
/s/ Peter Sterling
Peter Sterling
JASON MICHAEL TAYLOR GRANTOR TRUST
By: /s/ Annette B. Taylor
Annette B. Taylor, Trustee
RHONDA LEIGH TAYLOR GRANTOR TRUST
By: /s/ Annette B. Taylor
Annette B. Taylor, Trustee
/s/ Annette B. Taylor
ANNETTE B. TAYLOR
(1) A Power of Attorney authorizing William P. Hallman, Jr. to act on
behalf of Lee M. Bass previously has been filed with the Securities
and Exchange Commission.
(2) A Power of Attorney authorizing William P. Hallman, Jr. to act on
behalf of E.P. Bass previously has been filed with the Securities
and Exchange Commission.
Exhibit 99.4
Transfer, Registration Rights and Governance Agreement
by and among
United States Filter Corporation,
Western Farm & Cattle Company,
N.N. Investors, L.P.,
California Land & Cattle Company,
ST Ranch GenPar, Inc.,
and
FW Ranch Partners, L.P.
dated as of
September 17, 1997
<PAGE>
Transfer, Registration Rights and Governance Agreement
by and among
United States Filter Corporation,
Western Farm & Cattle Company,
N.N. Investors, L.P.,
California Land & Cattle Company,
ST Ranch GenPar, Inc.,
and
FW Ranch Partners, L.P.
dated as of
September 17, 1997
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Certain Definitions. . . . . . . . . . . .. . . . . 2
ARTICLE II REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . 4
Section 2.1. Representations and Warranties of the Company. . . . 4
Section 2.2. Representations and Warranties of Western Farm
& Cattle. . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.3. Representations and Warranties of N.N. Investors. . . 5
Section 2.4. Representations and Warranties of CLCC. . . . . . . . 5
Section 2.5. Representations and Warranties of GenPar. . . . . . . 6
Section 2.6. Representations and Warranties of FW Ranch. . . . . . 6
ARTICLE III STANDSTILL. . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.1. Acquisition of Company Securities. . . . . . . . . . .6
Section 3.2. Further Restrictions on Holders Conduct. . . . . . . 7
Section 3.3. Publicity. . . . . . . . . . . . . . . . . . . . . . .8
ARTICLE IV GOVERNANCE. . . . . . . . . . . . . . . . . . . . . . 8
Section 4.1. Voting. . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.2. Director Designated by the Holders. . . . . . . . . . 9
Section 4.3. Additional Non-Employee Directors. . . . . . . . . . 10
ARTICLE V RESTRICTIONS ON TRANSFERABILITY. . . . . . . . . . . . 10
Section 5.1. Restrictions on Transferability. . . . . . . . . . . 10
Section 5.2. Notice of Proposed Transfers. . . . . . . . . . . . .11
Section 5.3. Right of First Refusal. . . . . . . . . . . . . . . .11
Section 5.4. Restrictive Legends. . . . . . . . . . . . . . . . . 12
ARTICLE VI REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . 13
Section 6.1. Demand Registration. . . . . . . . . . . . . . . . . 13
Section 6.2. Company Registration. . . . . . . . . . . . . . . . .14
Section 6.3. Expenses of Registration. . . . . . . . . . . . . . .15
Section 6.4. Plan of Distribution. . . . . . . . . . . . . . . . .15
Section 6.5. Indemnification. . . . . . . . . . . . . . . . . . . 16
Section 6.6. Obligations of the Company. . . . . . . . . . . . . .18
Section 6.7. Securities Law Compliance. . . . . . . . . . . . . . 19
Section 6.8. Standoff Agreement. . . . . . . . . . . . . . . . . .19
ARTICLE VII MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . 20
Section 7.1. Termination. . . . . . . . . . . . . . . . . . . . . 20
Section 7.2. Rule 144 Requirements. . . . . . . . . . . . . . . . 20
Section 7.3. Amendment. . . . . . . . . . . . . . . . . . . . . . 20
Section 7.4. Investment Representation. . . . . . . . . . . . . . 20
Section 7.5. Notices, etc.. . . . . . . . . . . . . . . . . . . . 20
Section 7.6. Entire Agreement; Severability. . . . . . . . . . . .21
Section 7.7. Governing Law. . . . . . . . . . . . . . . . . . . . 21
Section 7.8. Counterparts. . . . . . . . . . . . . . . . . . . . .21
Section 7.9. Holders Representative. . . . . . . . . . . . . . . 21
<PAGE>
TRANSFER, REGISTRATION RIGHTS AND GOVERNANCE AGREEMENT
This Transfer, Registration Rights and Governance Agreement
( Agreement ) is entered into as of September 17, 1997 by and among United
States Filter Corporation, a Delaware corporation (the Company ), Western
Farm & Cattle Company, a California corporation ( Western Farm & Cattle ),
California Land & Cattle Company, a Delaware corporation ( CLCC ), N.N.
Investors, L.P., a Delaware limited partnership ( N.N. Investors ), ST
Ranch GenPar, Inc., a Texas corporation ( GenPar ), and FW Ranch, L.P., a
Texas limited partnership ( FW Ranch ), with reference to certain shares of
Common Stock, $.01 par value, of the Company (the Common Stock ).
WHEREAS, Western Farm & Cattle, CLCC, N.N. Investors, GenPar, FW Ranch
and the Company have entered into an Agreement for Sale and Purchase of
Partnership Interests dated as of August 3, 1997 (the Acquisition
Agreement ) pursuant to which, among other things, (i) GenPar, the sole
general partner of FW Ranchlands, L.P., a Texas limited partnership
( FWRLP ), assigned to the Company and the Company acquired from GenPar, a
1% general partner interest in FWRLP (the FWRLP GP Interest ), (ii) FW
Ranch, the sole limited partner of FWRLP, assigned to the Company, and the
Company acquired from FW Ranch, a 99% limited partner interest in FWRLP
(the FWRLP LP Interest ), (iii) Western Farm & Cattle, the sole general
partner of Western Farms, L.P., a California limited partnership ( WFLP ),
assigned to the Company, and the Company acquired from Western Farm &
Cattle, a 1% general partner interest in WFLP ( WFLP GP Interest ), (iv)
CLCC, the sole general partner of and the holder of a 1% general partner
interest (the California Farms GP Interest ) in California Farms, L.P., a
Delaware limited partnership ( California Farms ), assigned to the Company,
and the Company acquired from CLCC, the California Farms GP Interest, (v)
N.N. Investors, the sole limited partner of and the holder of a 99% limited
partner interest (the California Farms LP Interest ) in California Farms,
assigned to the Company, and the Company will acquire from N.N. Investors,
the California Farms LP Interest, and (vi) the Company issued to Western
Farm & Cattle, CLCC, N.N. Investors, GenPar and FW Ranch, as consideration
for the WFLP GP Interest, the California Farms GP Interest, the California
Farms LP Interest, the FWRLP GP Interest and the FWRLP LP Interest, an
aggregate of 8,000,000 shares of Common Stock, subject to adjustment as
provided therein, and 1,200,000 warrants to purchase shares of Common Stock
(the Warrants );
WHEREAS, in connection with the transactions contemplated by the
Acquisition Agreement, the Company, Western Farm & Cattle, CLCC, N.N.
Investors, GenPar, and FW Ranch desire to set forth certain agreements
among them with respect to the governance of the Company and the
transferability and registration of the Shares (as defined below) and the
shares of Common Stock issuable upon exercise of the Warrants ( Warrant
Shares );
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Definitions. As used in this Agreement,
the following terms shall have the following respective meanings:
Affiliate shall mean any Person (a) more than 50% of any class
of the outstanding voting securities of which is owned, directly or
indirectly, by one or more Holders and/or one or more Affiliates, or
(b) over which one or more Holders is otherwise able to exert actual
control; provided, however, that, for purposes of clause (b) of this
definition, actual control shall be determined solely based on whether
the Holder has in fact the ability to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise.
Beneficially Own or Beneficial Ownership with respect to any
securities shall mean beneficial ownership of such securities (as
determined pursuant to Rule 13d-3 promulgated under the Exchange Act).
Board of Directors shall mean the Board of Directors of the
Company.
Commission shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act or the Exchange Act.
Common Stock Equivalent shall mean (a) shares of any class of
capital stock, other than Common Stock, of the Company which are then
entitled to vote generally in the election of directors and (b) any
warrant, option, convertible security or other similar right to
acquire the Common Stock or shares of any other class of capital stock
of the Company which are then entitled to vote generally in the
election of directors.
Exchange Act shall mean the United States Securities Exchange
Act of 1934, as amended, or any federal statute enacted in replacement
thereof, all as the same shall be in effect at the time.
Holder Designee shall have the meaning specified in Section 4.2
hereof.
Holders shall mean Western Farm & Cattle, N.N. Investors, CLCC,
GenPar and FW Ranch, and shall also include all permitted transferees
of Registrable Shares, provided that such transferees agree to be
bound by the terms of this Agreement and such transfer is made in
compliance with this Agreement and applicable law.
Person shall mean any individual, partnership, joint venture,
limited liability company, corporation, trust, unincorporated
organization, government or department or agency of a government.
Registrable Shares shall mean the Shares and the Warrant
Shares, if issued; provided, however, that Shares and Warrant Shares,
if any, shall be treated as Registrable Shares only if and so long as
they have not been sold (x) in a public distribution or a public
securities transaction, or (y) 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 rules and regulations
promulgated thereunder, and the declaration or ordering of the
effectiveness of such registration statement.
Registration Expenses shall mean all registration,
qualification and filing fees (including N.A.S.D. filing fees), fees
and disbursements of counsel for the Company, accounting fees incident
to any such registration and blue sky fees and 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.
Rule 145 shall mean Rule 145 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 federal statute enacted in replacement
thereof, all as the same shall be in effect at the time.
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 retained by them, printing expenses and marketing expenses.
Shares shall mean the shares of Common Stock issued to or for
the benefit of the Holders pursuant to the Acquisition Agreement
(other than the Warrant Shares), and any shares of Common Stock issued
in respect thereof or into which the Shares shall be converted in
connection with stock splits, reverse stock splits, stock dividends or
distributions, or combinations or similar recapitalization, on or
after the date hereof.
Standstill Termination Date shall mean the date that is 29
months after the date of this Agreement.
13D Group shall mean any group of Persons acquiring, holding,
voting or disposing of any Common Stock or Common Stock Equivalents
which would be required under Section 13(d) of the Exchange Act and
the rules and regulations thereunder to file a statement on Schedule
13D with the Commission as a person within the meaning of Section
13(d)(3) of the Exchange Act.
Transfer shall mean any sale, transfer or other disposition
(but not a pledge or encumbrance) to any Person other than another
Holder, and to Transfer shall mean to sell, transfer or otherwise
dispose of (but not to pledge or encumber) to any Person other than
another Holder.
Warrant Shares shall mean the shares of Common Stock, if any,
issued upon exercise of the Warrants.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company.
The Company represents and warrants to Western Farm & Cattle, N.N.
Investors, CLCC, GenPar and FW Ranch as of the date hereof as follows:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by the
Company and all necessary and appropriate action has been taken by the
Company to execute and deliver this Agreement and to perform its
obligations hereunder.
(c) This Agreement has been duly executed and delivered by the
Company and, assuming due authorization and valid execution and delivery by
Western Farm & Cattle, N.N. Investors, CLCC, GenPar and FW Ranch, this
Agreement is a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to (i) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and other
similar laws now or hereafter in effect relating to or affecting creditors
rights generally and (ii) general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
Section 2.2. Representations and Warranties of Western Farm &
Cattle. Western Farm & Cattle represents and warrants to the Company as of
the date hereof as follows:
(a) Western Farm & Cattle has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of California and has corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by
Western Farm & Cattle and all necessary and appropriate action has been
taken by Western Farm & Cattle to execute and deliver this Agreement and to
perform its obligations hereunder.
(c) This Agreement has been duly executed and delivered by
Western Farm & Cattle and, assuming due authorization and valid execution
and delivery by the Company, CLCC, N.N. Investors, GenPar and FW Ranch,
this Agreement is a valid and binding obligation of Western Farm & Cattle,
enforceable in accordance with its terms, subject to (i) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and other
similar laws now or hereafter in effect relating to or affecting creditors
rights generally and (ii) general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
Section 2.3. Representations and Warranties of N.N. Investors.
N.N. Investors represents and warrants to the Company as of the date hereof
as follows:
(a) N.N. Investors has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the
State of Delaware and has all requisite power and authority to enter into
this Agreement and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by N.N.
Investors and all necessary and appropriate action has been taken by N.N.
Investors to execute and deliver this Agreement and to perform its
obligations hereunder.
(c) This Agreement has been duly executed and delivered by N.N.
Investors and, assuming due authorization and valid execution and delivery
by the Company, Western Farm & Cattle, CLCC, GenPar and FW Ranch, this
Agreement is a valid and binding obligation of N.N. Investors, enforceable
in accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors rights generally
and (ii) general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
Section 2.4. Representations and Warranties of CLCC. CLCC
represents and warrants to the Company as of the date hereof as follows:
(a) CLCC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has all requisite power and authority to enter into this Agreement and to
carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by CLCC
and all necessary and appropriate action has been taken by CLCC to execute
and deliver this Agreement and to perform its obligations hereunder.
(c) This Agreement has been duly executed and delivered by CLCC
and, assuming due authorization and valid execution and delivery by the
Company, Western Farm & Cattle, N.N. Investors, GenPar and FW Ranch, this
Agreement is a valid and binding obligation of CLCC, enforceable in
accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors rights generally
and (ii) general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
Section 2.5. Representations and Warranties of GenPar. GenPar
represents and warrants to the Company as of the date hereof as follows:
(a) GenPar has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Texas and has
corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder.
(b) This Agreement has been duly and validly authorized by
GenPar and all necessary and appropriate action has been taken by GenPar to
execute and deliver this Agreement and to perform its obligations
hereunder.
(c) This Agreement has been duly executed and delivered by
GenPar and, assuming due authorization and valid execution and delivery by
the Company, Western Farm & Cattle, CLCC, N.N. Investors and FW Ranch, this
Agreement is a valid and binding obligation of GenPar, enforceable in
accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors rights generally
and (ii) general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
Section 2.6. Representations and Warranties of FW Ranch. FW
Ranch represents and warrants to the Company as of the date hereof as
follows:
(a) FW Ranch has been duly organized and is validly existing as
a limited partnership in good standing under the laws of the State of Texas
and has all requisite power and authority to enter into this Agreement and
to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by FW
Ranch and all necessary and appropriate action has been taken by FW Ranch
to execute and deliver this Agreement and to perform its obligations
hereunder.
(c) This Agreement has been duly executed and delivered by FW
Ranch and, assuming due authorization and valid execution and delivery by
the Company, Western Farm & Cattle, CLCC, N.N. Investors and GenPar, this
Agreement is a valid and binding obligation of FW Ranch, enforceable in
accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors rights generally
and (ii) general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
ARTICLE III
STANDSTILL
Section 3.1. Acquisition of Company Securities. Each Holder
agrees with the Company that, without the prior approval of a majority of
the members of the Board of Directors at a duly convened meeting thereof or
of all of the Company s directors by written consent thereto, prior to the
Standstill Termination Date such Holder will not, and will cause each of
its Affiliates not to, singly or as part of a partnership, limited
partnership, syndicate or other 13D Group, directly or indirectly, (i)
acquire Beneficial Ownership of any Common Stock or Common Stock
Equivalents (other than pursuant to (A) exercise of any Warrant, (B) the
receipt of any dividends payable in Common Stock or Common Stock
Equivalents or (C) an acquisition as a result of which the Holders and
their Affiliates would not Beneficially Own Common Stock or Common Stock
Equivalents representing in the aggregate more than 25.0% of the
outstanding Common Stock and Common Stock Equivalents) or (ii) commence an
unsolicited tender offer or exchange offer for all or any portion of the
Common Stock or any class of Common Stock Equivalent not owned by the
Holders or any unsolicited offer to the Company to purchase all or
substantially all of the assets of the Company; provided, however, that the
foregoing restrictions shall cease to apply if a bona fide offer, tender
offer or exchange offer is made by any Person (other than the Company, any
Holder or any Affiliate of any Holder) to purchase outstanding shares of
Common Stock or any Common Stock Equivalent representing 50% or more of the
Common Stock or any class of Common Stock Equivalent and such offer is not
accepted or rejected by the Company within five days after it is made; and
provided, further, that (a) the $25,000,000 aggregate principal amount of
the 4.5% Convertible Subordinated Debentures due December 15, 2001 of the
Company Beneficially Owned by McVeigh & Co., L.P. on the date of this
Agreement (and any shares of Common Stock issuable upon conversion thereof)
shall not be counted for purposes of determining compliance with the
limitations of this Section 3.1 and (b) McVeigh & Co., L.P., for its own
account or for its client accounts (which may include affiliates or
associates of the Holders), is permitted to engage in arbitrage and related
trading in the equity and debt securities of the Company in the ordinary
course of business, provided that no confidential information has been
disclosed to any person directing such trading or executing any order with
respect thereto, such activity is in compliance with applicable federal
securities laws and McVeigh is not a member of any 13D Group with the
Holders.
Section 3.2. Further Restrictions on Holders Conduct. Prior
to the Standstill Termination Date, the Holders agree that they shall not,
and they shall cause each of their Affiliates not to:
(a) in any manner acquire, agree to acquire or make any proposal
to acquire, directly or indirectly, any securities or property of the
Company or any of its subsidiaries other than in a manner consistent with
the terms of this Agreement;
(b) deposit (either before or after the date of the execution of
this Agreement) any Common Stock or Common Stock Equivalent in a voting
trust or subject any Common Stock or Common Stock Equivalent to any similar
arrangement or proxy with respect to the voting of such Common Stock or
Common Stock Equivalents if the effect of any such arrangement or proxy
would result in a violation by any Holder of the terms of this Agreement;
(c) make, or in any way participate, directly or indirectly, in
any solicitation of proxies, or become a Participant in a
solicitation (as such terms are used in Regulation 14A promulgated under
the Exchange Act) to vote, or to seek to advise or influence any person to
vote against any proposal or director nominee recommended to the
stockholders of the Company or any of its subsidiaries by at least a
majority of the members of the Board of Directors; provided, however, that
the restriction of this Section 3.2(c) shall not apply: (i)(A) during any
proxy solicitation from a Person other than the Company pursuant to which
such Person seeks to take any action which, if successful, and when
combined with all other actions previously taken by such Person, would
result in a change in control of the Company (including, without
limitation, by means of electing or replacing directors of the Company),
(B) during any offer, tender offer or exchange offer for 50% or more of the
Common Stock or any class of Common Stock Equivalent or 50% or more of the
consolidated assets of the Company, and (C) with respect to any proposal by
the Company which would result in any other Person or 13D Group
Beneficially Owning 50% or more of the Common Stock or any class of Common
Stock Equivalent or 50% or more of the consolidated assets of the Company;
and (ii) regarding any matter with respect to which the Holders and their
Affiliates are not bound by the terms of this Agreement to vote in
accordance with the recommendation of the Board of Directors;
(d) form, join or in any way participate in a 13D Group other
than in a manner consistent with the terms of this Agreement; or
(e) cooperate or agree with any third party who has contacted
any Holder or, to any Holder s knowledge, any Affiliate of such Holder in
connection with any of the foregoing.
Section 3.3. Publicity. The Company and each Holder shall,
and each Holder shall cause each of its Affiliates to, prior to the
issuance of any press release or other public announcement or communication
relating to the execution or performance of this Agreement or to the
transactions contemplated hereby, consult with each other and use their
best efforts to coordinate the issuance of such press release, public
announcement or communication.
ARTICLE IV
GOVERNANCE
Section 4.1. Voting. Until the Standstill Termination Date,
each Holder, as a holder of shares of Common Stock and Common Stock
Equivalents, agrees that:
(a) such Holder shall, and shall cause each of its Affiliates
to, be present, in person or by proxy, at all meetings of stockholders of
the Company so that all Common Stock and Common Stock Equivalents having
voting rights directly or indirectly owned by such Holder and its
Affiliates may be counted for the purpose of determining the presence of a
quorum at such meetings; and
(b) such Holder shall, and shall cause each of its Affiliates
to, on any matter submitted to a vote of the Company s stockholders (other
than (i) the sale of all or substantially all of the assets of the Company,
(ii) any merger or acquisition transaction in which the Company is not the
surviving corporation or the parent of the surviving corporation (unless
the holders of the Company s Common Stock immediately prior to such
transaction continue to own 80% or more of the outstanding voting stock of
the surviving corporation or its parent) or involving the issuance by the
Company of shares of Common Stock representing 20% or more of the
outstanding Common Stock and Common Stock Equivalents, (iii) any amendment
of the certificate of incorporation or by-laws of the Company that would
adversely affect the rights of the Holders or (iv) the dissolution or
liquidation of the Company), vote or cause to be voted all Common Stock and
Common Stock Equivalents having voting rights with respect to such matter
directly or indirectly owned by such Holder and its Affiliates as
recommended by a majority of the members of the Board of Directors.
Section 4.2. Director Designated by the Holders. For so long
as Western Farm & Cattle, CLCC, N.N. Investors, GenPar and FW Ranch, the
direct and indirect partners of N.N. Investors and FW Ranch and their
respective Affiliates collectively own at least 5% of the outstanding
Common Stock:
(a) the Board of Directors shall elect as a Class I Director of
the Company (to serve until the next succeeding annual meeting of
stockholders of the Company at which Class I Directors are to be elected)
on the date of the Closing, one person designated by the Holders (the
Holder Designee, which term shall include any person designated by the
Holders to succeed any Class I Director designated by the Holders pursuant
to this Section 4.2) in writing to the Company at least seven days prior to
the date of the Closing. In the event of a vacancy caused by the
disqualification, removal, resignation or other cessation of service of the
Holder Designee from the Board of Directors, the Board of Directors shall
elect as a Class I Director of the Company (to serve until the Company s
next succeeding annual meeting of stockholders at which Class I Directors
are to be elected) a Holder Designee designated in writing to the Company
at least fifteen days prior to the date of a regular meeting of the Board
of Directors.
(b) At the first annual meeting of stockholders of the Company
following the Closing at which Class I Directors are to be elected and at
each subsequent annual meeting of stockholders of the Company at which
(i) the term of the Holder Designee is to expire or (ii) a vacancy caused
by the disqualification, removal, resignation or other cessation of service
of the Holder Designee is to be filled, the Company shall cause the Holder
Designee or a successor Holder Designee to be included in the slate of
nominees recommended by the Board of Directors to the Company s
stockholders for election as directors and shall use all reasonable efforts
to cause the election of such Holder Designee or successor Holder Designee
to the Board of Directors, including soliciting proxies in favor of the
election of such person.
(c) The Holders shall provide notice in writing at least 90 days
prior to any annual meeting of the Company s stockholders at which Class I
Directors are to be elected indicating the name of the Holder Designee and
all information required by Regulation 14A and Schedule 14A promulgated
under the Exchange Act with respect to such Holder Designee.
(d) In the event that the Holder Designee cannot attend any
meeting of the Board of Directors, the Holders shall be entitled to
designate a person to attend such meeting in a non-voting capacity at the
Board of Directors invitation. The Company shall give the Holders no less
than seven (7) days notice of any such meeting; provided, however, that if
the Company is unable, for good cause, to give seven (7) days notice with
respect to any meeting of its Board of Directors at which the Board of
Directors considers and/or acts upon any important corporate action, the
Company may give such lesser notice as is reasonably practicable, except
that such notice shall in all circumstances be at least two (2) full
business days. Any Holder Designee may participate telephonically in any
meeting of the Board of Directors.
(e) The Holders shall consult with the Company in connection
with the identity of any proposed Holder Designee, but the Company shall
not have the right to object to any Holder Designee unless such person
either (i) is a director or officer of a direct competitor of the Company
or (ii) has engaged in any adverse conduct that would require disclosure
under Item 7 of Schedule 14A promulgated under the Exchange Act. In any
such case, the Holders agree to withdraw such proposed person and nominate
a replacement therefor (which replacement shall be subject to the
requirements of this Section 4.2(e)). Any such objection by the Company
must be made no later than one month after the Holders first inform the
Company of the identity of the proposed Holder Designee; provided, however,
that the Company shall in all cases notify the Holders of any such
objection sufficiently in advance of the date on which proxy materials are
mailed by the Company in connection with such election of directors to
enable the Holders to propose an alternate Holder Designee pursuant to and
in accordance with the terms of this Agreement.
Section 4.3. Additional Non-Employee Directors. If, at any
time while Western Farm & Cattle, N.N. Investors, CLCC, GenPar and FW
Ranch, the direct and indirect partners of N.N. Investors and FW Ranch and
their respective Affiliates continue to own at least 7 1/2% of the outstanding
Common Stock, a vacancy shall occur in the Board of Directors as the result
of the cessation to serve of a non-employee director (other than by reason
of the death, disqualification, resignation, removal or other cessation of
service of a Holder Designee, which vacancy shall be filled with a
successor Holder Designee pursuant to Section 4.2(a)), such vacancy shall
be filled by the Board of Directors only by a person satisfactory to the
Holders.
ARTICLE V
RESTRICTIONS ON TRANSFERABILITY
Section 5.1. Restrictions on Transferability.
(a) The Shares may be Transferred only in accordance with the
conditions specified in this Agreement, which conditions are intended to
ensure compliance with the provisions of the Securities Act.
(b) The Holders shall not Transfer any Shares except for:
(i) Transfers of Shares in a registered public offering
pursuant to Article VI of this Agreement;
(ii) Transfers of Shares pursuant to Rule 144;
(iii) Transfers of Shares pursuant to any offer made by
the Company or any of its Affiliates;
(iv) Transfers of Shares to any direct or indirect partner
of any Holder or any Affiliate thereof; provided,
however, that any such transferee shall agree with the
Company in writing prior to each such Transfer to be
bound by the terms of this Agreement for the rest of
its duration;
(v) Transfers by will or the laws of descent and
distribution, Transfers by an individual to a spouse or
children or Transfers to trusts for the benefit of a
Holder s spouse and/or children; provided, however,
that any such transferee shall agree prior to (or as a
condition of) such transfer to be bound by the terms of
this Agreement for the rest of its duration; and
(vi) any other Transfers of Shares after a refusal by the
Company to purchase such Shares (by either lapse of
time or written notice) in accordance with Section 5.3
hereof.
Section 5.2. Notice of Proposed Transfers. The Holder of each
certificate representing Shares by acceptance thereof agrees to comply in
all respects with the provisions of this Agreement. Prior to any proposed
Transfer of any Shares, unless there is in effect a registration statement
under the Securities Act covering the proposed Transfer or the Transfer is
pursuant to Rule 144 and covers fewer than 500,000 shares, the Holder
thereof shall notify the Company in writing of such Holder s intention to
effect such Transfer and the intended manner and circumstances thereof in
reasonable detail. If requested by the Company, any such notice shall be
accompanied 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
may be effected without registration of the applicable Shares 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 Shares shall be entitled to Transfer such Shares in the
manner contemplated by such opinion. Each certificate evidencing Shares
Transferred as above provided shall bear, except if such transfer is made
pursuant to Rule 144, the appropriate restrictive legends set forth in
Section 5.4(a) and (b) hereof, except that such certificate shall not bear
such restrictive legends if in the opinion of counsel for such Holder and
the Company the restrictive legend set forth in Section 5.4(a) hereof 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 any Shares represented
thereby (excluding, however, a Transfer pursuant to the realization by any
pledgee (other than the Company) upon Shares pledged with it) shall be
conditioned upon the transferee thereof becoming a party hereto.
Section 5.3. Right of First Refusal. In the event that, during
the existence of this Agreement, any Holder shall desire to Transfer any
Shares under circumstances other than those referred to in
Section 5.1(b)(i), (ii), (iii), (iv) and (v) hereof:
(a) the notice given by such Holder to the Company pursuant to
Section 5.2 hereof shall specify the number of Shares to be sold, the
prospective purchasers thereof and the price and terms and conditions of
such sale, and offering to sell such Shares to the Company (or its
designee) at such price and on like terms and conditions.
(b) the Company shall have the right to accept or reject any
offer pursuant to subsection (a) as promptly as practicable but in all
events within the time period of one business day. Such time period shall
run from, and not include, the date of delivery of the notice of such offer
pursuant to subsection (a) above. If the Company shall accept such offer
within the applicable time period specified above, then the Company shall
purchase the Shares specified in the notice given pursuant to subsection
(a) above as promptly as is reasonably practicable, but in no event after
the later of (i) the 15th day following such acceptance and (ii) the third
day following receipt of all required governmental approvals.
(c) If the Company (i) shall reject such offer in writing, (ii)
shall not within the applicable time period after receipt of the notice
given by such Holder pursuant to subsection (a) above, accept such offer in
writing with respect to all the Shares specified in such notice or (iii)
shall fail to purchase such Shares within the time period specified in
subsection (b) above, then such Holder shall be free to enter into any
agreement to sell such Shares to the prospective purchaser, at a price
equal to or above the minimum price and on the terms and conditions
specified in the notice delivered to the Company pursuant to subsection (a)
above.
(d) Any sale of Shares by any Holder pursuant to subsection (c)
above must be consummated within 30 days of the earlier of receipt of a
written rejection from the Company or the expiration of the applicable time
period allotted the Company for the rejection or consummation of the offer
to sell such Shares by such Holder.
(e) Each Holder that has determined to make (or commenced
negotiations to make) a Transfer (other than under the circumstances
referred to in Section 5.1(b)(i), (ii), (iii), (iv) and (v) hereof) shall
give notice to the Company of such fact at the earliest practicable time.
Section 5.4. Restrictive Legends.
(a) Each certificate representing Shares which are Registrable
Shares shall (unless otherwise permitted by subsection (d) of this Section
5.4 or Section 5.2 hereof) 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 OR TRANSFERRED
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 which are Registrable
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 COMPANY WHICH
INCLUDES RESTRICTIONS ON CERTAIN SALES OF THE
SECURITIES. COPIES OF THE AGREEMENT MAY BE OBTAINED
UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.
(c) Each certificate representing Shares which are Registrable
Shares shall be stamped with such other legends, if any, as are required by
applicable federal or state law.
(d) 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 5.4(a)
hereof 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 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.
ARTICLE VI
REGISTRATION RIGHTS
Section 6.1. Demand Registration. At any time or from time
to time during the four year period commencing 29 months after the date of
this Agreement, one or more Holders may on two separate occasions require
the Company, by delivery to the Company of a notice in writing (a
Demand ), to cause no fewer than 2,000,000 Registrable Shares held by such
Holder or Holders to be registered for sale to the public under the
Securities Act. Upon receipt of such a notice, the Company will use its
best efforts to file a registration statement (on Form S-3 or successor
form) with the Commission promptly (but not more than 30 days) after such
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 under the Securities
Act) as would permit or facilitate the sale and distribution of such
Registrable Shares as are specified in such request in the manner of
distribution specified therein, together with all Registrable Shares of any
Holder or Holders joining in such request as are specified in written
requests received by the Company within 15 days after receipt of such
Demand; provided, however, that the Company shall not be obligated to take
any action to effect any such registration, qualification or compliance
pursuant to this Section 6.1:
(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) 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 (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); or
(c) at any time when the Holders would be required to refrain
from selling Registrable Shares pursuant to Section 6.7(b) hereof.
In the event that any Holder seeks to require the Company to effect the
registration of Shares at a time when the Company is not obligated to
effect such registration pursuant to clause (b) or (c) of the immediately
preceding sentence, such Holder shall be entitled to require the Company to
effect the registration of Shares as soon as the conditions specified in
such clauses (b) and (c) cease to apply. If at the time of receipt of a
Demand pursuant to this Section 6.1 there shall be any public offering of
Common Stock contemplated by the Company to occur within the following 90
days or in progress, then, upon receipt of such Demand, the Company shall
notify the Holders of such public offering, advising them that they may
elect to withdraw such Demand and participate in such public offering
pursuant to Section 6.2. Such withdrawn Demand shall not count toward the
two registrations provided by this Section 6.1.
Section 6.2. 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 for 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 the blue sky laws or
other compliance), subject to Section 6.2(b) hereof, all the Registrable
Shares specified in a written request made by any Holder within 30 days
after its receipt of such written notice from the Company. Such
registration shall not constitute a demand registration described under
Section 6.1 hereof.
(b) Underwriting. If the registration pursuant to this Section
6.2 hereof is an underwritten offering, the right of any Holder to such
registration shall be conditioned upon such Holder s participation in such
underwriting and the inclusion of Shares in the underwriting to the extent
provided herein. All Holders proposing to distribute all or a portion of
their Shares through such 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), and shall provide to
the Company upon written request such information referenced in Section
6.1(b) hereof as may be specified in such request. Notwithstanding any
other provision of this Section 6.2, 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 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 the rights of the Holders under this Section 6.2, and the number of
Shares that may be included in the registration and underwriting by such
Holders, the Company 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 reduction to be allocated among the Holders, the Company
and such other holders in proportion, as nearly as practicable, to the
respective amounts of shares proposed to be registered by such Holders, by
the Company 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 under this Section 6.2
prior to the effectiveness of such registration whether or not any Holder
has elected to include securities in such registration.
Section 6.3. Expenses of Registration. All Registration
Expenses incurred in connection with any registration pursuant to Sections
6.1 or 6.2 hereof 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 Shares included in such
registration, other selling stockholders and the Company pro rata on the
basis of the number of shares of Common Stock so registered.
Section 6.4. Plan of Distribution.
(a) The distribution of Registrable Shares pursuant to a
registration under Section 6.1 shall be effected only by or through such
investment banking firm or firms as may be designated by the Holders and as
are reasonably satisfactory to the Company in connection with the filing of
the applicable registration statement, acting in such capacity (as broker,
dealer, principal or otherwise), and receiving such compensation, as may be
agreed by the Holders of the Shares to be distributed and such investment
banking firm or firms.
(b) The Company shall give the Holder or Holders of Registrable
Shares to be included in any registration statement at least ten (10) days
written notice prior to the filing of a registration statement pursuant to
Section 6.1 hereof. Such Holder or Holders shall advise the Company in
writing within five (5) days of receipt of such notice of the terms of its
or their compensation arrangements with the designated investment banking
firm or firms, the capacity in which such firm or firms will act, the
distribution proposed by such Holder or Holders and such information
regarding such Holder or Holders and the shares of Common Stock held by
them as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
(c) The Holders shall be entitled to exclude from any
registration effected pursuant to Section 6.1 hereof 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 6.4(d).
Section 6.5. 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, however, 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 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 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 expense 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
6.5 (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, but 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, 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 be unreasonably withheld), and the
Indemnified Party may participate in such defense at such party s expense;
provided, however, that if the Indemnified Party determines in good faith
that a conflict of interest exists and that therefore it is advisable for
such Indemnified Party or parties to be represented by separate counsel or
that, upon written advice and legal opinion of counsel, there may be sound
legal defenses available to it or them which are different from or in
addition to those available to the Indemnifying Party, then the
Indemnifying Party shall not be entitled to assume such defense and the
Indemnified Parties shall be entitled to counsel at the Indemnifying
Party s expense. If an Indemnifying Party is not so entitled to assume the
defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph,
the Indemnifying Party will pay the reasonable fees and expenses of counsel
of the Indemnified Party. 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
Shares exercising rights under this Agreement, or any controlling person of
any such Holder, makes a claim for indemnification pursuant to this Section
6.5 but 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 6.5 provides for indemnification in such case, 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 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 Holder or other
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 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.
Section 6.6. 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, except in the
case of a firm commitment underwriting, to keep such registration statement
effective for the period required by the Holders up to 180 days.
(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
Section 6.6(a) hereof, (ii) to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Shares covered by
such registration statement and (iii) to reflect a modification in the
manner of distribution of such 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 or otherwise (x) any confidential information concerning any
matter which is the subject of a notice given under Section 6.6(f) hereof
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 any
prospectus included in such registration statement, including any
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 such Registrable Shares owned by
them.
(d) Use its best efforts to register and qualify the Registrable
Shares covered by such registration statement under such other securities
or blue sky laws of such jurisdictions as shall be reasonably requested by
the Holders whose Registrable Shares have been included in such
registration statement, 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 6.1 hereof, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the
managing underwriter of such offering and participate with such managing
underwriter in road shows and other customary marketing activities. 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, or upon 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 for a period
not to exceed 180 days in each instance where the Company has a bona fide
corporate interest in withholding disclosure or the time period for filing
with the Commission information referred to in Section 6.6(b)(y) hereof has
not expired, promptly prepare and furnish to such Holders a supplement or
amendment to such prospectus, or otherwise update such prospectus through
the filing of a Current Report on Form 8-K or otherwise, 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.
Section 6.7. 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 6.6(f) hereof that the registration
statement is not then current.
(b) The Holders agree that, immediately upon receipt of a
notification pursuant to Section 6.6(f) hereof, they will refrain from
selling Registrable Shares under a registration statement filed pursuant to
Section 6.1 hereof 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 and, at the Holders request, counsel for the Holders following the
giving of such notification, and that in the event the Holders (or their
counsel) is of the view that the 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 counsel
reasonably satisfactory to the Holders and the Company as to whether such
sales can be made without violation of the Securities Act or the Exchange
Act.
Section 6.8. Standoff Agreement. The Holders agree in
connection with any registration of the Company s securities, which
include, without limitation, Shares to be sold by the Holders, 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.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Termination. This Agreement shall terminate upon
the tenth anniversary of the date hereof; provided, however, that this
Agreement shall terminate earlier upon the occurrence of any of the
following:
(a) any third party acquires Common Stock or Common Stock
Equivalents representing 50% or more of the outstanding Common Stock;
(b) the Company agrees to merge with and into any entity, if the
Company will not be the surviving entity in such merger; or
(c) Holders, the direct and indirect partners of N.N. Investors
and FW Ranch and their Affiliates shall cease to own at least 5% of the
outstanding Common Stock.
Section 7.2. 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 the rules and regulations
promulgated thereunder; and
(b) furnish to any Holder of Registrable Shares upon request
(i) a written statement by the Company as to its compliance with the
requirements of Rule 144(c), and the reporting requirements of the
Securities Act and the Exchange Act and the rules and regulations
promulgated thereunder, (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 such Holder to sell
any such securities without registration.
Section 7.3. Amendment. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with
the written consent of the Company and 66-2/3% in interest of the Holders.
Any amendment or waiver effected in accordance with this Section 7.3 shall
be binding upon each Holder of any Shares then outstanding, each future
holder of any Shares who is a party to this Agreement, and the Company.
Section 7.4. 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.
Section 7.5. 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 Western Farm & Cattle, N.N. Investors, CLCC, GenPar or
FW Ranch, to:
Western Farm & Cattle Company
201 Main Street, Suite 3200
Fort Worth, Texas 76102
Fax: 817-390-8751
Attn: Ardon Moore
with a copy to:
F. Richard Bernasek
Kelly, Hart & Hallman
201 Main Street, Suite 2500
Fort Worth, Texas 76102
Fax: 817-878-9280
(b) if to the Company, to:
United States Filter Corporation
40-004 Cook Street
Palm Desert, CA 92211
Fax No. (760) 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.
Section 7.6. Entire Agreement; Severability. This Agreement
and the Acquisition 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. 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.
Section 7.7. 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.
Section 7.8. 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.
Section 7.9. Holders Representative.
(a) Creation. The Holders do hereby, for themselves and their
personal representatives and other successors, constitute and appoint a
representative, initially Ardon Moore (the Representative ), as their
agent and attorney-in-fact to give and receive all notices and consents
under this Agreement. The Representative will advise the other Holders of
notices and other communications received by him hereunder.
(b) Replacement. In the event of the death, physical or mental
incapacity or resignation of the Representative, the Holders shall promptly
appoint a substitute or substitutes and shall advise the Company thereof.
As between the Representative and the Holders, the Representative shall not
be liable for, and shall be indemnified by the Holders against, any good
faith error of judgment on his part or any other act done or omitted by him
in good faith in connection with his duties as the Representative, except
for gross negligence or willful misconduct.
(c) Company Reliance. The Company shall be entitled to rely
exclusively upon any communications given by the Representative on behalf
of all Holders, and shall not be liable for any action taken or not taken
in reliance upon the Representative. The Company shall be entitled to
disregard any notices or communications given or made by the Holders unless
given or made through the Representative.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
UNITED STATES FILTER CORPORATION
By: /s/ Michael E. Hulme
Name: Michael E. Hulme
Title: Attorney-in-Fact for
Richard J. Heckmann
WESTERN FARM & CATTLE COMPANY
By: /s/ Ardon E. Moore
Name: Ardon E. Moore
Title: President
N.N. INVESTORS, L.P.
By: California Land & Cattle
Company,
its General Partner
By: /s/ Ardon E. Moore
Name: Ardon E. Moore
Title: President
CALIFORNIA LAND & CATTLE COMPANY
By: /s/ Ardon E. Moore
Name: Ardon E. Moore
Title: President
ST RANCH GENPAR, INC.
By: /s/ Ardon E. Moore
Name: Ardon E. Moore
Title: President
FW RANCH PARTNERS, L.P.
By: ST Ranch GenPar, Inc.,
its General Partner
By: /s/ Ardon E. Moore
Name: Ardon E. Moore
Title: President
<PAGE>
Schedule 6.4(d)
Transfer and Registration Agreement between United States Filter
Corporation and Alcoa Securities Corporation dated as of December 31, 1991.
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.
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, as modified and amended.
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.
Transfer and Registration Agreement among United States Filter Corporation,
CGW Southeast Partners II, L.P., Harry K. Hornish, Mickey Jordan and
Mechelle S. Slaughter, dated as of October 25, 1996.
Exhibit 99.5
TRANSFERRED SECURITIES AGREEMENT
TRANSFERRED SECURITIES AGREEMENT, dated as of September 17, 1997 (this
"Agreement"), by and among United States Filter Corporation, a Delaware
corporation (the "Company"), Western Farm & Cattle Company, a California
corporation ("Western Farm & Cattle"), California Land & Cattle Company, a
Delaware corporation ("CLCC"), N.N. Investors, L.P., a Delaware limited
partnership ("N.N. Investors"), ST Ranch GenPar, Inc., a Texas corporation
("GenPar"), FW Ranch, L.P., a Texas limited partnership ("FW Ranch")
(Western Farm & Cattle, CLCC, N.N. Investors, GenPar and FW Ranch being
referred to herein, collectively, as the "Transferors"), Lee M. Bass
("LMB"), Fine Line Inc., a Texas corporation ("Fine Line"), Ardon Moore
("AM"), William P. Hallman, Jr. ("WPH"), Peter Sterling ("PS"), Jason
Michael Taylor Grantor Trust ("J Trust"), Rhonda Leigh Taylor Grantor Trust
("R Trust"), John A. Cardwell ("JC") and Jeffery L. Hart ("JH") (LMB, Fine
Line, AM, WPH, PS, J Trust, R Trust, JC and JH being referred to herein,
collectively as the "Transferees").
A. The Company and the Transferors are parties to a Transfer,
Registration Rights and Governance Agreement (the "Governance Agreement"),
dated as of September 17, 1997, pursuant to which each of the Transferors
and their permitted assigns has a right to transfer Shares and Warrants (as
defined in the Governance Agreement) to the Transferees, so long as each
such Transferee executes an agreement embodying the terms specified herein.
B. The Transferors wish to transfer Shares to the Transferees in the
number and class specified in Exhibit A hereto (the "Transferred
Securities"), and the Transferees have agreed to execute this Agreement.
Accordingly, for due and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Governance Agreement. Terms used in this Agreement
that are defined in the Governance Agreement shall have the meaning
ascribed thereto in the Governance Agreement.
Section 1.2. Other Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth:
"Agreement": as defined in the preamble to this Agreement.
"Governance Agreement": as defined in the recitals of this
Agreement.
"Transferee": as defined in the preamble to this Agreement.
"Transferor": as defined in the preamble to this Agreement.
"Transferred Securities": as defined in the recitals of this
Agreement.
ARTICLE II
AGREEMENT TO BE BOUND
Section 2.1. Agreement to be Bound. Each Transferee hereby agrees
to be bound by the provisions of the Governance Agreement to the same
extent as the Transferors. Each Transferee shall be a Holder within the
meaning of the Governance Agreement. All Shares, Warrants and Warrant
Shares held by any Transferee shall be treated for purposes of determining
rights and responsibilities under this Agreement and the Governance
Agreement as if they were held by a Holder.
Section 2.2. Representative. Each Transferee hereby designates
Ardon Moore to act as its representative and agent in accordance with
Section 7.9 of the Governance Agreement.
ARTICLE III
GENERAL PROVISIONS
Section 3.1 Notices. Any notice required to be given hereunder shall
be sufficient if in writing, and sent by facsimile transmission and by
courier service (with proof of service), hand delivery or certified or
registered mail (return receipt requested and first-class postage prepaid),
addressed as follows:
If to any Transferee to:
201 Main Street, Suite 3200
Fort Worth, Texas 76102
Fax: 817-390-8751
Attention: Ardon Moore
If to the Company or any Transferor, to:
The address set forth for such Person
in the Governance Agreement
or to such other address as any party shall specify by written notice so
given, and such notice shall be deemed to have been delivered as of the
date so telecommunicated, personally delivered or mailed.
Section 3.2. Entire Agreement. This Agreement, the Governance
Agreement, the exhibits and schedules thereto and any certificate delivered
by the parties in connection therewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede
all prior agreements and understandings (oral and written) among the
parties with respect thereto.
Section 3.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware
(without regard to conflict of law principles, which would require the
application of the laws of any other State). Each of the parties hereto
agrees that any legal action or proceeding with respect to this Agreement
may be brought in the Courts of the State of Delaware or the United States
District Court located in the State of Delaware.
Section 3.4. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a
number of copies of this Agreement, each of which may be signed by less
than all of the parties hereto, but together with all such copies are
signed by all of the parties hereto. This Agreement shall become effective
when executed by all parties hereto.
Section 3.5. Headings. Headings of the Articles and Sections of
this Agreement are for the convenience of the parties only and shall be
given no substantive or interpretive effect whatsoever.
Section 3.6. Interpretation. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, "including" shall mean including, without
limitation, and words denoting any gender shall include all genders and
words denoting natural persons shall include corporations and partnerships
and vice versa.
Section 3.7. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or otherwise affecting the validity
or enforceability of any of the terms or provisions of this Agreement in
any other jurisdiction. If any provision of this Agreement is so broad as
to be unenforceable, the provision shall be interpreted to be only so broad
as is enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
UNITED STATES FILTER CORPORATION
By: /s/ Michael E. Hulme
Name: Michael E. Hulme
Title: Attorney-in-Fact for
Richard J. Heckmann
WESTERN FARM & CATTLE COMPANY
By: /s/ Ardon E. Moore
Name: Ardon E. Moore
Title: President
N.N. INVESTORS, L.P.
By: California Land & Cattle Company,
its General Partner
By: /s/ Ardon E. Moore
Name:Ardon E. Moore
Title: President
CALIFORNIA LAND & CATTLE COMPANY
By: /s/ Ardon E. Moore
Name: Ardon E. Moore
Title: President
ST RANCH GENPAR, INC.
By: /s/ Ardon E. Moore
Name: Ardon E. Moore
Title: President
FW RANCH PARTNERS, L.P.
By: ST Ranch GenPar, Inc.,
its General Partner
By: /s/ Ardon E. Moore
Name: Ardon E. Moore
Title: President
/s/ Lee M. Bass
Lee M. Bass
FINE LINE INC.
By: W. R. Cotham
Name: W. R. Cotham
Title: Vice President
/s/ Ardon Moore
ARDON MOORE
/s/ William P. Hallman, Jr.
WILLIAM P. HALLMAN, JR.
/s/ Peter Sterling
PETER STERLING
JASON MICHAEL TAYLOR GRANTOR TRUST
By: /s/ Annette B. Taylor
Name: Annette B. Taylor
Title: Trustee
RHONDA LEIGH TAYLOR GRANTOR TRUST
By: /s/ Annette B. Taylor
Name: Annette B. Taylor
Title: Trustee
/s/ John A. Cardwell
JOHN A. CARDWELL
/s/ Jeffery L. Hart
JEFFERY L. HART
<PAGE>
Exhibit A to Transferred Securities Agreement
Transferor Transferee
Western Farm & Cattle Company None
(0 Shares)
N.N. Investors, L.P. (7,349,760 shares) - California Land & Cattle
Company (73,498)
- Lee M. Bass (5,568,000)
- Western Flow Line Inc.,
d/b/a Flow Line Inc.(1)
(1,484,800)
- William P. Hallman, Jr. (371)
- Peter Sterling (74,240)
- Ardon E. Moore (74,611)
- Jason Michael Taylor Grantor
Trust(37,120)
- Rhonda Leigh Taylor Grantor
Trust (37,120)
California Land & Cattle Company
(74,240 shares, plus 73,498 shares
from N.N. Investors) - Ardon E. Moore(73,869)
- William P. Hallman,
Jr.(73,869)
FW Ranch Partners, L.P.
(570,240 shares) - ST Ranch Genpar, Inc.(5,702)
- Lee M. Bass (276,538)
- John A. Cardwell (216,000)
- Jeffery L. Hart (72,000)
ST Ranch Genpar, Inc. (5,760
shares, plus 5,702 shares from
FW Ranch) - Lee M. Bass (11,462)
- -------------
(1) Western Flow Line Inc. (d/b/a/ Flow Line Inc.) transferred 1,484,000
shares to Fine Line Inc.
<PAGE>
Total Shares held by each Transferee
at September 17, 1997
Holder Shares
- ------- ------
Lee M. Bass 5,856,000
John A. Cardwell 216,000
Jeffery L. Hart 72,000
Fine Line Inc. 1,484,800
William P. Hallman, Jr. 74,240
Peter Sterling 74,240
Ardon E. Moore 148,480
Jason Michael Taylor Grantor Trust 37,120
Rhonda Leigh Taylor Grantor Trust 37,120
