<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 16, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------
UNITED STATES FILTER CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 3589 33-0266015
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Identification Number)
Incorporation or Classification Code
Organization) Number)
40-004 COOK STREET
PALM DESERT, CALIFORNIA 92211
(760) 340-0098
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------
DAMIAN C. GEORGINO
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL
AND CORPORATE SECRETARY
UNITED STATES FILTER CORPORATION
40-004 COOK STREET
PALM DESERT, CALIFORNIA 92211
(760) 340-0098
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------
Copy to:
JANICE C. HARTMAN
KIRKPATRICK & LOCKHART LLP
1500 OLIVER BUILDING
PITTSBURGH, PENNSYLVANIA 15222
(412) 355-6500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: From time to time after this registration statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SECURITY(1) OFFERING PRICE(1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
6.375% Exchange Remarketable or
Redeemable Securities due
May 15, 2011.................. $500,000,000 100% $500,000,000 $147,500
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6.50% Exchange Remarketable or
Redeemable Securities due
May 15, 2013.................. $400,000,000 100% $400,000,000 $118,000
</TABLE>
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(1) Estimated solely for the purpose of calculating the registration fee;
computed in accordance with Rule 457 under the U.S. Securities Act of
1933, as amended.
-----------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 16, 1998
PROSPECTUS
OFFERS TO EXCHANGE
$500,000,000 6.375% EXCHANGE REMARKETABLE OR REDEEMABLE SECURITIES (ROARSSM)
DUE 2011 (REMARKETING DATE MAY 15, 2001) AND $400,000,000 6.50% EXCHANGE
REMARKETABLE OR REDEEMABLE SECURITIES (ROARS/SM/) DUE 2013 (REMARKETING DATE
MAY 15, 2003)
UNITED STATES FILTER CORPORATION
THE EXCHANGE OFFERS WILL EXPIRE AT P.M., NEW YORK CITY TIME, ON , 1998,
UNLESS EXTENDED.
-----------
United States Filter Corporation, a Delaware corporation (the "Company"), is
hereby offering (the "Exchange Offers"), upon the terms and subject to the
conditions set forth in this Prospectus and the accompanying Letters of
Transmittal (the "Letters of Transmittal"), to exchange an aggregate principal
amount of up to $500,000,000 of its 6.375% Exchange Remarketable or Redeemable
Securities (ROARS/SM/) due May 15, 2011 (the "Exchange 6.375% ROARS") for its
6.375% ROARS due May 15, 2011 (the "Private 6.375% ROARS" and, with the
Exchange 6.375% ROARS, the "6.375% ROARS") and an aggregate principal amount of
up to $400,000,000 of its 6.50% Exchange ROARS due May 15, 2013 (the "Exchange
6.50% ROARS" and, with the Exchange 6.375% ROARS, the "Exchange ROARS") for its
6.50% ROARS due May 15, 2013 (the "Private 6.50% ROARS" and, with the Exchange
6.50% ROARS, the "6.50% ROARS" and, with the Private 6.375% ROARS, the "Private
ROARS"), which exchange has been registered under the U.S. Securities Act of
1933, as amended (the "Securities Act"), pursuant to a registration statement
of which this Prospectus is a part. The Private ROARS were issued on May 19,
1998 (the "Closing Date"). The forms and terms of the Exchange ROARS and the
corresponding Private ROARS are identical in all material respects except that
(i) the exchange has been registered under the Securities Act and, therefore,
the Exchange ROARS will not bear legends restricting the transfer thereof; (ii)
the Exchange ROARS will not provide for any Liquidated Damages (as defined
herein); and (iii) the holders of Exchange ROARS (other than certain broker-
dealers) will not be entitled to any rights that holders ("Holders") of the
Private ROARS have under the Registration Rights Agreement (as defined herein),
certain of which rights will terminate upon consummation of the Exchange
Offers. The Exchange ROARS will evidence the same indebtedness as the
corresponding Private ROARS (which they will replace) and will be entitled to
the benefits of an indenture and a supplemental indenture, each dated as of May
19, 1998, governing the Private ROARS and the Exchange ROARS (together, the
"Indenture"). The Private ROARS and the Exchange ROARS are sometimes referred
to herein collectively as the "ROARS." See "The Exchange Offers" and
"Description of the ROARS."
Upon the terms and subject to the conditions set forth herein and in the
applicable Letter of Transmittal, the Company will accept for exchange any and
all validly tendered Private ROARS not withdrawn prior to p.m., New York City
time, on , 1998 from any holder; provided, that such holder (i) is not an
affiliate of the Company; (ii) is not a broker-
(Continued on following page)
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SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR CERTAIN CONSIDERATIONS RELEVANT TO
HOLDERS WHO ARE CONSIDERING WHETHER TO TENDER THEIR PRIVATE ROARS FOR EXCHANGE
ROARS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
THE DATE OF THIS PROSPECTUS IS , 1998.
/SM/ Service Mark of NationsBanc Montgomery Securities LLC
<PAGE>
dealer tendering Private ROARS acquired directly from the Company to resell
pursuant to Rule 144A or any other available exemption under the Securities
Act; (iii) acquires the Exchange ROARS in the ordinary course of such holder's
business; and (iv) has no arrangements or understandings with any person to
participate in a distribution, within the meaning of the Securities Act, of
Exchange ROARS. The Exchange Offers are not conditioned upon any minimum
principal amount of Private ROARS being tendered for exchange. Private ROARS
may be tendered only in integral multiples of $1,000. In the event that the
Company terminates the Exchange Offers and does not accept for exchange any
Private ROARS, the Company will promptly return all previously tendered
Private ROARS to the holders thereof.
Prior to the Exchange Offers, there has been no public market for the
Exchange ROARS. The Company does not intend to list the Exchange ROARS on any
securities exchange or to seek approval for quotation through any automated
quotation system. There can be no assurances that an active market for the
Exchange ROARS will develop. To the extent that a market for the Exchange
ROARS does develop, the market value of the Exchange ROARS will depend on many
factors, including, among other things, prevailing interest rates, the
Company's operating results, and the market for similar securities. Such
factors might cause the Exchange ROARS, to the extent that they are traded, to
trade at a significant discount to face value. See "Risk Factors--Absence of
Public Market for the Exchange ROARS."
The Exchange ROARS are being offered hereunder in order to satisfy certain
obligations of the Company under the Registration Rights Agreement. See "Risk
Factors--Consequences of Failure to Exchange and Requirements for Transfer of
Exchange ROARS" for a discussion of the Company's belief, based on existing
interpretations by the staff (the "Staff") of the U.S. Securities and Exchange
Commission (the "Commission") as set forth in no-action letters issued to
third parties, as to the transferability of the Exchange ROARS upon
satisfaction of certain conditions. Each broker-dealer that receives Exchange
ROARS for its own account in exchange for Private ROARS, where such Private
ROARS were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange ROARS. Each Letter
of Transmittal states that by so acknowledging and by delivering a prospectus,
a broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used for a period of 60 days following
the applicable Expiration Date (as defined herein) by a broker-dealer in
connection with resales of Exchange ROARS received in exchange for Private
ROARS acquired by such broker-dealer as a result of market-making activities
or other trading activities. See "Plan of Distribution."
The Company will not receive any proceeds from, and has agreed to bear the
expenses of, the Exchange Offers. No underwriter is being used in connection
with the Exchange Offers.
On May 15, 2001 (the "6.375% ROARS Remarketing Date") and May 15, 2003 (the
"6.50% ROARS Remarketing Date" and, with the 6.375% ROARS Remarketing Date,
each a "Remarketing Date"), the applicable series of ROARS will either be (i)
mandatorily tendered to and purchased by NationsBanc Montgomery Securities LLC
("NationsBanc") or its successor as Remarketing Dealer (the "Remarketing
Dealer"), in which case the Remarketing Dealer will pay 100% of the principal
amount of such series of ROARS and the Company will pay accrued interest, if
any, thereon to the applicable Remarketing Date, or (ii) redeemed by the
Company at 100% of the principal amount of such series of ROARS plus accrued
interest, if any, thereon to such Remarketing Date.
THE EXCHANGE OFFERS ARE NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF PRIVATE ROARS IN ANY JURISDICTION IN
WHICH THE EXCHANGE OFFERS OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE
WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
This Prospectus and the documents incorporated herein by reference contain
statements which constitute forward-looking statements within the meaning of
the U.S. Private Securities Litigation Reform Act of 1995. These statements
can be identified by the use of forward-looking terminology such as
"believes," "contemplates," "expects," "may," "will," "could," "should,"
"would," "anticipates," or "continues" or the negatives thereof or other
variations thereon or comparable terminology. These statements are based on
the intent, belief or expectation of the Company as of the date of the
document in which such statements appear. Prospective holders of the Exchange
ROARS are cautioned that any such forward-looking statements are not
guarantees of future performance and may involve risks and uncertainties which
are outside the control of the Company. Actual results may vary materially
from the forward-looking statements contained in such documents as a result of
changes in United States or international economic conditions, governmental
regulations and other factors, including the factors set forth under "Risk
Factors." The Company expressly disclaims any obligation or understanding to
release publicly any updates or revisions to any forward-looking statement
contained herein or in any such document to reflect any change in the
Company's expectations with regard thereto or any change in events, conditions
or circumstances on which any such statements are based.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files periodic reports, proxy solicitation materials and
other information with the Commission. Such reports, proxy solicitation
materials and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's Regional
Offices located at Seven World Trade Center, Suite 1300, New York, New York
10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such materials can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, upon payment of prescribed rates. The Commission maintains a Web site
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. Such
reports, proxy and information statements and other information may be found
on the Commission's site address, http://www.sec.gov. The common stock, par
value $.01 per share (the "Common Stock"), of the Company is listed on The New
York Stock Exchange (the "NYSE"). The Company's reports, proxy solicitation
materials and other information can also be inspected and copied at the NYSE
at 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form
S-4 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act with respect to the
Exchange Offers. This Prospectus does not contain all of the information set
forth in the Registration Statement, certain portions of which are omitted in
accordance with the rules and regulations of the Commission. Such additional
information may be obtained from the Commission's principal office in
Washington, D.C. as set forth above. For further information, reference is
hereby made to the Registration Statement, including the exhibits filed as a
part thereof or otherwise incorporated therein. Statements made in this
Prospectus as to the contents of any documents referred to are not necessarily
complete, and in each instance reference is made to the applicable exhibit for
a more complete description and each such statement is modified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company (File No. 1-10728) with the
Commission pursuant to the Exchange Act are incorporated herein by reference:
the Company's Annual Report on Form 10-K for the fiscal year ended March 31,
1998; the Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1998; the Company's Current Reports on Form 8-K dated May 12, 1998, May
19, 1998, June 15, 1998 and August 14, 1998; and the Company's Current Reports
on Form 8-K/A dated May 12, 1998 and May 14, 1998 (amending the Current Report
on Form 8-K dated January 16, 1998), May 14, 1998 (amending the Current Report
on Form 8-K dated May 12, 1998) and August 17, 1998 (amending the Current
Report on Form 8-K dated August 14, 1998).
All documents and reports filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of
the Registration Statement and prior to effectiveness of the Registration
Statement and after the date of this Prospectus and prior to the termination
of the offers made by or pursuant to this Prospectus shall be deemed to be
incorporated by reference herein. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS (OTHER THAN THE EXHIBITS TO SUCH
DOCUMENTS, UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE
INTO SUCH DOCUMENTS) ARE AVAILABLE, WITHOUT CHARGE, UPON THE WRITTEN OR ORAL
REQUEST OF A PERSON TO WHOM A COPY OF THIS PROSPECTUS IS DELIVERED, BY SENDING
SUCH A REQUEST TO THE GENERAL COUNSEL, UNITED STATES FILTER CORPORATION, 40-
004 COOK STREET, PALM DESERT, CALIFORNIA 92211 (TELEPHONE (760) 340-0098). IN
ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE
BY , 1998.
2
<PAGE>
RISK FACTORS
Prospective holders of Exchange ROARS should consider carefully all of the
information set forth or incorporated by reference in this Prospectus and, in
particular, should evaluate the considerations set forth below before making a
decision whether to tender their Private ROARS in the Exchange Offers.
CONSEQUENCES OF FAILURE TO EXCHANGE AND REQUIREMENTS FOR TRANSFER OF EXCHANGE
ROARS
Holders of Private ROARS who do not exchange their Private ROARS for
corresponding Exchange ROARS pursuant to the Exchange Offers will continue to
be subject to the provisions in the Indenture regarding transfer and exchange
of Private ROARS and the restrictions on transfer of Private ROARS set forth
in the legend thereon as a consequence of the issuance of the Private ROARS
pursuant to exemptions from, or in transactions not subject to, the
registration requirements of the Securities Act and applicable state
securities laws. The Company does not currently anticipate that it will
register the sale or other disposition of Private ROARS under the Securities
Act except to the extent required by the Registration Rights Agreement. See
"Description of the ROARS--Registration Rights."
Based on existing interpretations by the Staff as set forth in no-action
letters issued to third parties, subject to the limitations described in the
immediately following sentence, the Company believes that Exchange ROARS
issued pursuant to the Exchange Offers in exchange for Private ROARS may be
offered for resale, resold and otherwise transferred by the holders thereof
(other than holders who are broker-dealers) without further compliance with
the registration and prospectus delivery provisions of the Securities Act.
However, any Holder of Private ROARS who is an affiliate of the Company within
the meaning of Rule 405 under the Securities Act (an "Affiliate") or who
intends to participate in the Exchange Offers for the purpose of distributing
(as defined for purposes of the Securities Act) Exchange ROARS or any broker-
dealer who purchased Private ROARS from the Company to resell pursuant to Rule
144A under the Securities Act ("Rule 144A") or any other available exemption
under the Securities Act, (i) will not be able to rely on the interpretations
of the Staff set forth in those no-action letters; (ii) will not be entitled
to tender Private ROARS in the Exchange Offers; and (iii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any sale or transfer unless such sale or transfer is made
pursuant to an exemption from such requirements. The Company does not intend
to request that the Commission consider, and the Commission has not
considered, the Exchange Offers in the context of a request for a no-action
letter, and there can be no assurances that the Staff would make a
determination with respect to the Exchange Offers similar to the ones it has
made in such other circumstances.
Each Holder of Private ROARS who wishes to exchange Private ROARS for
Exchange ROARS in the Exchange Offers will be required to represent that (i)
it is not an Affiliate of the Company; (ii) it is not a broker-dealer
tendering Private ROARS acquired directly from the Company to resell pursuant
to Rule 144A or any other available exemption under the Securities Act; (iii)
the Exchange ROARS to be received by it will be acquired in the ordinary
course of its business; and (iv) it has no arrangements or understandings with
any person to participate in a distribution, within the meaning of the
Securities Act, of Exchange ROARS. Each broker-dealer that receives Exchange
ROARS for its own account in exchange for Private ROARS, where such Private
ROARS were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange ROARS. See "Plan
of Distribution." The Letters of Transmittal state that, by so acknowledging
and by delivering a prospectus, a broker-dealer will not be deemed to admit
that it is an "underwriter" within the meaning of the Securities Act. This
Prospectus, as it may be amended or supplemented from time to time, may be
used for a period of 60 days following the applicable Expiration Date by a
broker-dealer in connection with resales of Exchange ROARS received in
exchange for Private ROARS acquired by such broker-dealer as a result of
market-making activities or other trading activities. See "Plan of
Distribution." The information set forth above concerning certain
interpretations of and positions taken by the Staff is not intended to
constitute legal advice, and Holders of Private ROARS who are considering
tendering them in the Exchange Offers should consult their own legal advisors
with respect to such matters.
3
<PAGE>
ABSENCE OF PUBLIC MARKET FOR THE EXCHANGE ROARS
There is no public market for the Exchange ROARS and there can be no
assurances that a market will develop for the Exchange ROARS, of the ability
of the holders of Exchange ROARS to sell their Exchange ROARS or of the prices
at which holders would be able to sell their Exchange ROARS. Future trading
prices of the Exchange ROARS will depend on many factors, including, among
other things, prevailing interest rates, the Company's operating results and
the market for similar securities. The Company has been advised by
NationsBanc, Donaldson, Lufkin & Jenrette Securities Corporation, and Salomon
Brothers Inc (the "Initial Purchasers") that they intend to make a market in
the Exchange ROARS. However they are not obligated to do so and may
discontinue such market-making at any time without notice. Therefore, no
assurance can be given as to the liquidity of any trading market for the
Exchange ROARS.
EXCHANGE OFFER PROCEDURES
Delivery of Exchange ROARS in exchange for corresponding Private ROARS
tendered and accepted for exchange pursuant to the Exchange Offers will be
made only after timely receipt by the Exchange Agent (as defined herein) of
(i) a Book-Entry Confirmation (as defined herein) evidencing the tender of
such Private ROARS through the Automated Tender Offer Program ("ATOP") of The
Depository Trust Company ("DTC") or (ii) certificates representing such
Private ROARS, a properly completed and duly executed Letter of Transmittal,
with any required signature guarantees, and all other required documents. See
"The Exchange Offers--Procedures for Tendering Private ROARS." Therefore,
Holders of Private ROARS desiring to tender such Private ROARS in exchange for
corresponding Exchange ROARS should allow sufficient time to ensure timely
delivery. The Company is under no duty to give notification of defects or
irregularities with respect to tenders of Private ROARS for exchange. Private
ROARS that are not tendered or that are tendered but not accepted by the
Company for exchange will, following consummation of the Exchange Offers,
continue to be subject to the existing restrictions upon transfer thereof
under the Securities Act and, upon consummation of the Exchange Offers,
certain registration rights under the Registration Rights Agreement will
terminate.
ACQUISITION STRATEGY
In pursuit of its strategic objective of becoming the leading global single-
source provider of water and wastewater treatment systems and services, the
Company has, since 1991, acquired more than 150 United States based and
international businesses. The Company plans to continue to pursue acquisitions
that expand the segments of the water and wastewater treatment and water-
related industries in which it participates, complement its technologies,
products or services, broaden its customer base and geographic areas served
and/or expand its global distribution network, as well as acquisitions which
provide opportunities to further and implement the Company's one-stop-shop
approach in terms of technology, distribution or service. The Company's
acquisition strategy entails the potential risks inherent in assessing the
value, strengths, weaknesses, contingent or other liabilities and potential
profitability of acquisition candidates and in integrating the operations of
acquired companies. In addition, the Company's acquisition of Memtec Limited
("Memtec") was accomplished through an unsolicited tender offer, and the
Company could make other such acquisitions. The level of risk associated with
such acquisitions is generally greater because frequently they are
accomplished, as was the case with the acquisition of Memtec, without the
customary representations or due diligence typical of negotiated transactions.
Although the Company generally has been successful in pursuing acquisitions,
there can be no assurance that acquisition opportunities will continue to be
available, that the Company will have access to the capital required to
finance potential acquisitions, that the Company will continue to acquire
businesses or that any business acquired will be integrated successfully or
prove profitable.
INTERNATIONAL TRANSACTIONS
The Company has made and expects it will continue to make acquisitions and
expects to obtain contracts in markets outside the United States. While these
activities may provide important opportunities for the Company
4
<PAGE>
to offer its products and services internationally, they also entail the risks
associated with conducting business internationally, including the risk of
currency fluctuations, slower payment of invoices, the lack in some
jurisdictions of well-developed legal systems, nationalization and possible
social, political and economic instability. In particular, the Company has
significant operations in Asia and Latin America which have been and may in
the future be adversely affected by current economic conditions in those
regions. While the full impact of this economic instability cannot be
predicted, it could have a material adverse effect on the Company's revenues
and profitability.
RELIANCE ON KEY PERSONNEL
The operations of the Company are dependent on the continued efforts of
senior management, in particular Richard J. Heckmann, the Company's Chairman
of the Board, President and Chief Executive Officer. The Company has entered
into various agreements and compensation arrangements with members of its
senior management, including Mr. Heckmann, designed to encourage their
retention. There can be no assurance, however, that members of the Company's
senior management will continue in their present roles, and should any of the
Company's senior managers be unable or choose not to do so, the Company's
prospects could be adversely affected.
PROFITABILITY OF FIXED PRICE CONTRACTS
A significant portion of the Company's revenues are generated under fixed
price contracts. To the extent that original cost estimates are inaccurate,
scheduled deliveries are delayed or progress under a contract is otherwise
impeded, revenue recognition and profitability from a particular contract may
be adversely affected. The Company routinely records upward or downward
adjustments with respect to fixed price contracts due to changes in estimates
of costs to complete such contracts. There can be no assurance that future
downward adjustments will not be material.
CYCLICALITY, SEASONALITY AND POSSIBLE EARNINGS FLUCTUATIONS
The sale of capital equipment within the water treatment industry is
cyclical and influenced by various economic factors including interest rates
and general fluctuations of the business cycle. A significant portion of the
Company's revenues are derived from capital equipment sales. While the Company
sells capital equipment to customers in diverse industries and in global
markets, cyclicality of capital equipment sales and instability of general
economic conditions, including those currently unfolding in Asian and certain
other markets, could have a material adverse effect on the Company's revenues
and profitability.
The sale of water and wastewater distribution equipment and supplies is also
cyclical and influenced by various economic factors including interest rates,
land development and housing construction industry cycles. Sales of such
equipment and supplies are also subject to seasonal fluctuation in temperate
climates. The sale of water and wastewater distribution equipment and supplies
is a significant component of the Company's business. Cyclicality and
seasonality of water and wastewater distribution equipment and supplies sales
could have a material adverse effect on the Company's revenues and
profitability.
The Company's high-purity process piping systems have been sold principally
to companies in the semiconductor and, to a lesser extent, pharmaceutical and
biotechnology industries, and sales of those systems are critically dependent
on these industries. The success of customers and potential customers for
high-purity process piping systems is linked to economic conditions in these
respective industries, which in turn are each subject to intense competitive
pressure and are affected by overall economic conditions. The semiconductor
industry in particular has historically been, and will likely continue to be,
cyclical in nature and vulnerable to general downturns in the economy. The
semiconductor and pharmaceutical industries also represent significant markets
for the Company's water and wastewater treatment systems. Downturns in these
industries could have a material adverse effect on the Company's revenues and
profitability.
5
<PAGE>
Operating results from the sale of high-purity process piping systems also
can be expected to fluctuate significantly as a result of the limited pool of
existing and potential customers for these systems, the timing of new
contracts, possible deferrals or cancellations of existing contracts and the
evolving and unpredictable nature of the markets for high-purity process
piping systems.
As a result of these and other factors, the Company's operating results may
be subject to quarterly or annual fluctuations. There can be no assurance that
at any given time the Company's operating results will meet or exceed stock
market analysts' expectations.
POTENTIAL ENVIRONMENTAL RISKS
The Company's business and products may be significantly influenced by the
constantly changing body of environmental laws and regulations, which require
that certain environmental standards be met and impose liability for the
failure to comply with such standards. The Company is also subject to inherent
risks associated with environmental conditions at facilities owned, and the
state of compliance with environmental laws by businesses acquired, by the
Company. While the Company endeavors at each of its facilities to assure
compliance with environmental laws and regulations, there can be no assurance
that the Company's operations or activities, or historical operations by
others at the Company's locations, will not result in cleanup obligations,
civil or criminal enforcement actions or private actions that could have a
material adverse effect on the Company.
In that regard, at a Connecticut ion exchange resin regeneration facility
(the "South Windsor Facility") operated by a wholly owned subsidiary of the
Company (the "South Windsor Subsidiary"), acquired by the Company in October
1995 from Anjou International Company ("Anjou"), U.S. federal and state
environmental regulatory authorities have issued certain notices of violation
alleging multiple violations of applicable wastewater pretreatment standards.
The South Windsor Subsidiary reached an agreement with the U.S. Attorney's
Office and the U.S. Environmental Protection Agency ("USEPA") to settle all
agency claims and investigations relating to this matter by entering into a
plea agreement pursuant to which the South Windsor Subsidiary will plead
guilty to a single violation of the Clean Water Act. The settlement includes a
payment of $1.36 million, including a criminal penalty of $1.0 million, and
annual environmental compliance audits at the South Windsor Facility for five
years. The Company believes that this settlement will conclude this matter in
its entirety; however, the settlement does not include a formal release of all
liabilities in this regard. The Company has certain rights of indemnification
from Anjou which may be available with respect to this matter pursuant to the
laws of the state of New York or the Stock Purchase Agreement dated as of
August 30, 1995 among the Company, Anjou and Polymetrics, Inc.
In 1995, Culligan Water Technologies, Inc., a wholly owned subsidiary of the
Company ("Culligan"), purchased an equity interest in Anvil Holdings, Inc.
("Anvil"). As a result of this transaction, Culligan assumed certain
environmental liabilities associated with soil and groundwater contamination
at Anvil Knitwear's Asheville Dyeing and Finishing Plant (the "Plant") in
Swannanoa, North Carolina. Since 1990, Culligan and Anvil have delineated and
monitored the contamination pursuant to an Administrative Consent Order
entered into with the North Carolina Department of Environment, Health and
Natural Resources related to the closure of an underground storage tank at the
site. Groundwater testing at the Plant and at two adjoining properties has
shown levels of a cleaning solvent believed to be from the Plant that are
above action levels under state guidelines. The Company has begun remediation
of the contamination. The Company currently estimates that the costs of future
site remediation will range from $1.0 million to $1.8 million and that it has
sufficient reserves for the site cleanup. The Company anticipates that the
potential costs of further monitoring and corrective measures to address the
groundwater problem under applicable laws will not have a material adverse
effect on the financial position or the results of operations of the Company.
However, because the full extent of the required cleanup has not been
determined, there can be no assurance that this matter will not have a
material adverse effect on the Company's financial position or results of
operations.
The Company's activities as owner and operator of certain hazardous waste
treatment and recovery facilities are subject to stringent laws and
regulations and compliance reviews. Failure of these facilities to comply with
6
<PAGE>
those regulations could result in substantial fines and the suspension or
revocation of the facility's hazardous waste permit. The Company serves as
contract operator of various municipal and industrial wastewater collection
and treatment facilities, which were developed and are owned by governmental
or private entities. The Company also operates other facilities, including
service deionization centers and manufacturing facilities, that discharge
wastewater in connection with routine operations. Under certain service
contracts and applicable environmental laws, the Company as operator of such
facilities may incur certain liabilities in the event those facilities
experience malfunctions or discharge wastewater which does not meet applicable
permit limits and regulatory requirements. In some cases, the potential for
such liabilities depends upon design or operational conditions over which the
Company has limited, if any, control.
Certain of the Company's facilities contain or in the past contained
underground storage tanks which may have caused soil or groundwater
contamination. At one site formerly owned by Culligan, the Company is
investigating, and has taken certain actions to correct, contamination that
may have resulted from a former underground storage tank. Based on the amount
of contamination believed to have been present when the tank was removed, and
the probability that some of the contamination may have originated from nearby
properties, the Company believes, although there can be no assurance, that
this matter will not have a material adverse effect on the Company's financial
position or results of operations.
In other matters, the Company has been notified by the USEPA that it is a
potentially responsible party under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA") at certain sites to which
the Company or its predecessors allegedly sent waste in the past. It is
possible that the Company could receive other such notices under CERCLA or
analogous state laws in the future. Based on sites which are currently known
to the Company that may require remediation, the Company does not believe that
its liability, if any, relating to such sites will be material. However, there
can be no assurance that such matters will not be material. In addition, to
some extent, the liabilities and risks imposed by environmental laws on the
Company's customers may adversely impact demand for certain of the Company's
products or services or impose greater liabilities and risks on the Company,
which could also have an adverse effect on the Company's competitive and
financial position.
COMPETITION
All of the markets in which the Company competes are highly competitive, and
most are fragmented, with numerous regional and local participants. There are
competitors of the Company in certain markets that are divisions or
subsidiaries of companies that have significantly greater resources than the
Company. The Company's process water treatment business competes in the United
States and internationally principally on the basis of product quality and
specifications, technology, reliability, price, customized design and
technical qualifications, reputation and prompt availability of local service.
The Company's wastewater treatment business competes in the United States and
internationally largely on the basis of the same factors, except that pricing
considerations can be predominant among competitors that have sufficient
technical qualifications, particularly in the municipal contract bid process.
The Company's filtration and separation business competes in the United States
and internationally principally on the basis of price, technical expertise,
product quality and responsiveness to customer needs, including service and
technical support. The Company's industrial products and services business
competes in the United States and internationally principally on the basis of
quality, service and price. In connection with the marketing of waterworks
distribution equipment and supplies, the Company competes not only with a
large number of independent wholesalers and with other distribution chains
similar to the Company, but also with manufacturers who sell directly to
customers. The principal methods of competition for the Company's waterworks
distribution business include prompt local service capability, product
knowledge by the sales force and service branch management, and price. The
Company's consumer products business competes with companies with national
distribution networks, businesses with regional scope, and local product
assemblers or service companies, as well as retail outlets. The Company
believes that there are thousands of participants in the residential water
business. The consumer products business competes principally on the basis of
price, product quality and "taste," service, distribution capabilities,
geographic presence and reputation. Competitive
7
<PAGE>
pressures, including those described above, and other factors could cause the
Company to lose market share or could result in significant price erosion,
either of which could have a material adverse effect upon the Company's
financial position, results of operations and cash flows.
POTENTIAL RISKS RELATED TO WATER RIGHTS AND WATER TRANSFERS
The Company owns more than 47,000 acres of agricultural land (the
"Properties"), situated in the Southwestern United States, the substantial
majority of which are in Imperial County, California (the "IID Properties")
located within the Imperial Irrigation District (the "IID"). Substantially all
of the Properties are currently leased to third party agricultural tenants,
including prior owners of the Properties. The Company acquired the Properties
with appurtenant water rights, and is actively seeking to acquire additional
properties with water rights, primarily in the Southwestern and Western United
States. The Company may seek in the future to transfer water attributable to
water rights appurtenant to the Properties, particularly the IID Properties
(the "IID Water"). However, since the IID holds title to all of the water
rights within the IID in trust for the landowners, the IID would control the
timing and terms of any transfers of IID Water by the Company. The
circumstances under which transfers of water can be made and the profitability
of any transfers are subject to significant uncertainties, including
hydrologic risks of variable water supplies, risks presented by allocations of
water under existing and prospective priorities, and risks of adverse changes
to or interpretations of U.S. federal, state and local laws, regulations and
policies. Transfers of IID Water attributable to water rights appurtenant to
the IID Properties (the "IID Water Rights") are subject to additional
uncertainties. Allocations of Colorado River water, which is the source of all
water deliveries to the IID Properties, are subject to limitations under
complex international treaties, interstate compacts, U.S. federal and state
laws and regulations, and contractual arrangements and, in times of drought,
water deliveries could be curtailed by the U.S. government. Further, any
transfers of IID Water would require the approval of the U.S. Secretary of the
Interior. Even if a transfer were approved, other California water districts
and users could assert claims adverse to the IID Water Rights, including but
not limited to claims that the IID has failed to satisfy U.S. federal law and
California constitutional requirements that IID Water must be put to
reasonable and beneficial use. A finding that the IID's water use is
unreasonable or nonbeneficial could adversely impact title to the IID Water
Rights and the ability to transfer IID Water. Water transferred by the IID to
metropolitan areas of Southern California, such as San Diego, currently would
be transported through aqueducts owned or controlled by the Metropolitan Water
District, a quasi-governmental agency (the "MWD"). The transportation cost for
any transfer of IID Water and the volume of water which the MWD can be
required to transport at any time are subject to California laws of uncertain
application, some aspects of which are currently in litigation. The
uncertainties associated with water rights could have a material adverse
effect on the Company's future profitability.
TECHNOLOGICAL AND REGULATORY RISKS
Portions of the water and wastewater treatment business are characterized by
changing technology, competitively imposed process standards and regulatory
requirements, each of which influences the demand for the Company's products
and services. Changes in regulatory or industrial requirements may render
certain of the Company's treatment products and processes obsolete. Acceptance
of new products may also be affected by the adoption of new government
regulations requiring stricter standards. The Company's ability to anticipate
changes in technological and regulatory standards and to develop successfully
and introduce new and enhanced products on a timely basis will be a
significant factor in the Company's ability to grow and to remain competitive.
There can be no assurance that the Company will be able to achieve the
technological advances that may be necessary for it to remain competitive or
that certain of its products will not become obsolete. In addition, the
Company is subject to the risks generally associated with new product
introductions and applications, including lack of market acceptance, delays in
development or failure of products to operate properly. The market growth
potential of acquired in-process research and development is subject to
certain risks, including costs to develop and commercialize such products, the
cost and feasibility of production of products utilizing the applicable
technologies, introduction of competing technologies and market acceptance of
the products and technologies involved.
8
<PAGE>
There can be no assurance that the Company's existing or any future
trademarks or patents will be enforceable or will provide substantial
protection from competition or be of commercial benefit to the Company. In
addition, the laws of certain non-United States countries may not protect
proprietary rights to the same extent as do the laws of the United States.
Successful challenges to certain of the Company's patents or trademarks could
materially adversely affect its competitive and financial position.
MUNICIPAL WATER AND WASTEWATER BUSINESS
A significant percentage of the Company's revenues is derived from municipal
customers. While municipalities represent an important part of the water and
wastewater treatment industry, contractor selection processes and funding for
projects in the municipal sector entail certain additional risks not typically
encountered with industrial customers. Competition for selection of a
municipal contractor typically occurs through a formal bidding process which
can require the commitment of resources and greater lead times than industrial
projects. In addition, this segment is dependent upon the availability of
funding at the local level, which may be the subject of increasing pressure as
local governments are expected to bear a greater share of the cost of public
services.
YEAR 2000 RISKS
The Year 2000 issue concerns the potential exposures related to the
automated generation of business and financial misinformation resulting from
the application of computer programs which have been written using six digits
(e.g., 12/31/99), rather than eight (e.g., 12/31/1999), to define the
applicable year of business transactions. The Company is currently identifying
which of its information technology ("IT") and non-IT systems will be affected
by Year 2000 issues. Most of the Company's IT systems with Year 2000 issues
have been modified to address those issues. The Company has also commenced
identification and assessment of its non-IT systems, which include, among
other things, components found in water and wastewater treatment plants and
process water treatment systems operated and/or owned under contract by the
Company and in the Company's hazardous waste treatment facilities, as well as
components of equipment in the Company's manufacturing facilities.
The Company's Year 2000 compliance program consists of three phases:
identification and assessment; remediation; and testing. For any given system,
the phases occur in sequential order, from identification and assessment of
Year 2000 problems, to remediation, and, finally, to testing the Company's
solutions. However, as the Company acquires additional businesses, each IT and
non-IT system of the acquired business must be independently identified and
assessed. As a result, all three phases of the Company's Year 2000 compliance
program may be occurring simultaneously as they relate to different systems,
with varying timetables to completion, depending upon the system and the date
when a particular business was acquired by the Company.
The Company has completed the identification and assessment of most of its
IT systems, and those systems have been modified to address Year 2000
problems. The Company will continue to assess the IT systems of businesses
that it has recently acquired and that it may acquire in the future. The
Company is in the identification and assessment phase with respect to all non-
IT systems, which is projected to continue until September 1999 for currently-
owned businesses. All phases are expected to be completed by mid-1999,
although there can be no assurance that all phases for all businesses will be
completed by that date. In particular, there can be no assurance that acquired
businesses will be Year 2000 compliant, although the Company currently has a
policy that requires an acquisition candidate to represent that such business
is Year 2000 compliant and the Company reviews the Year 2000 status of
acquisition candidates to the extent feasible prior to completing an
acquisition. In addition to its internal systems, the Company has begun to
assess the level of Year 2000 problems associated with various suppliers,
customers and creditors of the Company. To test the Year 2000 compliance
status of its suppliers, the Company plans to submit hypothetical orders to
its suppliers dated after December 31, 1999 requesting
9
<PAGE>
confirmation that the orders have been correctly processed. The Company's
costs to date for its Year 2000 compliance program, excluding the salaries of
its employees, has not been material. Although the Company has not completed
its assessment, it does not currently believe that the future costs associated
with its Year 2000 compliance program will be material.
The Company is currently unable to determine its most reasonably likely
worst case Year 2000 scenario, as it has not identified and assessed all of
its systems, particularly its non-IT systems. As the Company completes its
identification and assessment of internal and third-party systems, it expects
to develop contingency plans for various worst case scenarios. The Company
expects to have such contingency plans in place by September 1999. A failure
to address Year 2000 issues successfully could have a material adverse effect
on the Company's business, financial condition or results of operations.
THE COMPANY
The Company is a leading global provider of industrial, municipal,
commercial and consumer water and wastewater treatment systems, products and
services, with an installed base of systems that the Company believes is one
of the largest worldwide. The Company offers a single-source solution to its
customers through what the Company believes is the industry's broadest range
of cost-effective systems, products, services and proven technologies. In
addition, the Company markets a broad line of waterworks distribution products
and services. The Company has one of the industry's largest networks of sales
and service and distribution facilities through approximately 1,500 locations,
including over 600 franchised dealerships, and approximately 850 Company-owned
or leased facilities, including manufacturing plants. The Company capitalizes
on its large installed base, extensive distribution network and manufacturing
capabilities to provide customers with ongoing local service and maintenance.
The Company is a leading provider of outsourced water services, including the
operation of water and wastewater treatment systems at customer sites. In
addition, the Company is actively involved in the development of privatization
initiatives for municipal water treatment facilities throughout the world and,
specifically, in the Unites States, Mexico and Canada. The Company also owns a
significant amount of properties with appurtenant water rights in the Western
and Southwestern United States, substantially all of which are leased to
agricultural tenants.
The Company's principal executive offices are located at 40-004 Cook Street,
Palm Desert, California 92211 and its telephone number is (760) 340-0098. In
this Prospectus, references to the Company mean United States Filter
Corporation and its subsidiaries, unless the context requires otherwise.
Since 1991, the Company has acquired more than 150 United States based and
international businesses. These acquisitions have enabled the Company to
expand significantly the segments of the water and wastewater treatment
industry and water-related industries in which it participates, to complement
its technologies, products or services, to enter into additional geographic
areas and serve additional industries, municipalities, governmental and other
customers and to expand its installed base, service network, range of products
and technologies and global distribution network. The Company intends to
actively seek additional acquisitions that enhance its geographic network,
customer base, and range of product offerings, technologies, markets and
industries served, or that provide opportunities to implement the Company's
one-stop-shop approach in terms of technology, distribution or service.
Kinetics. Effective December 31, 1997, the Company acquired The Kinetics
Group, Inc. ("Kinetics") in exchange for 5,803,803 shares of Common Stock.
Kinetics is a leading United States manufacturer and supplier of sophisticated
high-purity process piping systems for the handling of gases, water and
chemicals. Such systems are provided primarily to the microelectronics,
pharmaceutical and biotechnology industries, and are critical to these
operations. For its fiscal year ended September 30, 1997, Kinetics' revenues
were $387.8 million.
10
<PAGE>
Memtec. The Company completed the acquisition of Memtec in December 1997 for
a total cash purchase price of $397.2 million. Memtec designs and manufactures
large volume membrane-based systems featuring Memtec's proprietary
microfiltration technology. It also designs and manufactures an extensive
range of products and systems worldwide that are used in the filtration of
liquid and gas streams in a wide variety of industrial, municipal and
commercial applications. For its fiscal year ended June 30, 1997, Memtec's
revenues were $243.6 million.
Culligan. On June 15, 1998, the Company acquired Culligan, a leading
manufacturer and distributor of water purification and treatment products and
services for consumer, commercial and industrial applications. Products and
services offered by Culligan range from those designed to solve residential
water problems, such as filters for tap water and household water softeners,
to equipment and services for commercial and industrial customers, such as
ultrafiltration and microfiltration products. Culligan also offers
desalination systems and portable deionization services designed for
commercial and industrial applications. In addition, Culligan sells and
licenses dealers to sell five-gallon bottled water under the Culligan
trademark. Culligan has been an active participant in the water purification
and treatment industry since 1936, and its Culligan(R), Everpure(R), Ametek(R)
and Bruner(R) brands are among the most recognized in the industry. For its
fiscal year ended January 31, 1998, Culligan's revenues were $505.7 million.
Bass Properties. In September 1997, the Company acquired the Properties
(including appurtenant water rights) in the Western and Southwestern United
States from interests principally owned by affiliates of certain members of
the Bass family of Fort Worth, Texas. The Properties were acquired in exchange
for 8,000,000 shares of Common Stock and non-transferable warrants to purchase
1,200,000 shares of Common Stock. The substantial majority of the Properties
are located in Imperial County, California within the Imperial Irrigation
District, and substantially all of the Properties are currently leased to
agricultural tenants.
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
Exchange ROARS offered hereby. In consideration for issuing the Exchange ROARS
as described in this Prospectus, the Company will receive tendered Private
ROARS in like principal amount, the terms of which are identical in all
material respects to those of the Exchange ROARS. The Private ROARS
surrendered in exchange for the Exchange ROARS will be retired and canceled
and cannot be reissued. Accordingly, the issuance of the Exchange ROARS will
not result in any change in the indebtedness of the Company.
11
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data of the Company set forth below are
derived from the Company's audited consolidated financial statements and
related notes thereto except as noted. Each fiscal year of the Company is
ended March 31. The financial data as of and for the three months ended June
30, 1997 and 1998 are derived from unaudited consolidated financial statements
of the Company which, in the opinion of the Company, reflect all adjustments
(consisting principally of normal, recurring amounts) necessary for the fair
statement of the financial position and results of operations for the periods
presented and are not necessarily indicative of the results for any other
interim period or for the full fiscal year. The selected consolidated
financial data should be read in conjunction with and is qualified in its
entirety by the Company's consolidated financial statements and related notes
thereto and other financial information incorporated herein by reference.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED MARCH 31,(1) JUNE 30,(1)
-------------------------------------------------------- ----------------------
1994(2) 1995(3) 1996(4) 1997(5) 1998(6) 1997(7) 1998(8)
-------- ---------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT
OF OPERATIONS DATA:
Revenues................ $884,782 $1,110,816 $1,395,247 $2,135,424 $3,740,324 $ 792,936 $1,119,331
Cost of sales........... 648,737 814,663 1,005,336 1,582,196 2,740,787 597,573 788,169
-------- ---------- ---------- ---------- ---------- ---------- ----------
Gross Profit........... 236,045 296,153 389,911 553,228 999,537 195,363 331,162
Selling, general and
administrative
expenses............... 228,047 262,985 326,912 447,644 725,249 154,250 223,164
Purchased in-process
research and
development............ -- -- -- -- 355,308 -- 3,558
Merger, restructuring,
acquisition and other
related charges........ -- 5,917 -- 5,581 150,582 -- 257,920
-------- ---------- ---------- ---------- ---------- ---------- ----------
228,047 268,902 326,912 453,225 1,231,139 154,250 484,642
-------- ---------- ---------- ---------- ---------- ---------- ----------
Operating income
(loss)................ 7,998 27,251 62,999 100,003 (231,602) 41,113 (153,480)
Other income (expenses):
Interest expense....... (18,185) (27,892) (28,706) (31,999) (63,790) (10,995) (25,648)
Interest and other
income................ (3,036) 3,448 10,366 11,334 38,212 32,593 4,127
-------- ---------- ---------- ---------- ---------- ---------- ----------
(21,221) (24,444) (18,340) (20,665) (25,578) 21,598 (21,521)
-------- ---------- ---------- ---------- ---------- ---------- ----------
Income (loss) before
income tax
expense (benefit)..... (13,223) 2,807 44,659 79,338 (257,180) 62,711 (175,001)
Income tax expense
(benefit).............. 2,070 14,582 35,239 30,945 48,221 23,416 (19,604)
-------- ---------- ---------- ---------- ---------- ---------- ----------
Net income (loss)...... $(15,293) $ (11,775) $ 9,420 $ 48,393 $ (305,401) $ 39,295 $ (155,397)
======== ========== ========== ========== ========== ========== ==========
PER COMMON SHARE
DATA:(9)
Basic:
Net income (loss)...... $ (0.26) $ (0.19) $ 0.11 $ 0.47 $ (2.18) $ 0.31 $ (0.98)
======== ========== ========== ========== ========== ========== ==========
Weighted average number
of common
shares outstanding.... 61,060 64,991 78,953 102,250 139,867 126,087 158,524
======== ========== ========== ========== ========== ========== ==========
Diluted:
Net income (loss)...... $ (0.26) $ (0.19) $ 0.11 $ 0.45 $ (2.18) $ 0.30 $ (0.98)
======== ========== ========== ========== ========== ========== ==========
Weighted average number
of common
shares outstanding.... 61,060 64,991 80,252 106,609 139,867 146,472 158,524
======== ========== ========== ========== ========== ========== ==========
CONSOLIDATED BALANCE
SHEET DATA
(END OF PERIOD):
Working capital......... $158,957 $ 155,683 $ 214,205 $ 594,575 $ 704,423 $ 589,824 $ 870,277
Total assets............ $761,241 $ 887,064 $1,295,886 $2,734,925 $4,465,445 $2,938,663 $4,688,255
Notes payable and long-
term debt, including
current portion........ $200,802 $ 200,685 $ 123,172 $ 134,711 $1,098,071 $ 145,422 $ 424,728
Convertible subordinated
debt................... $ 60,000 $ 105,000 $ 200,000 $ 554,000 $ 554,000 $ 554,000 $ 554,000
ROARS................... $ -- $ -- $ -- $ -- $ -- $ -- $ 900,000
Shareholders' equity.... $224,059 $ 248,792 $ 526,479 $1,219,470 $1,591,438 $1,368,616 $1,458,176
OTHER DATA:
EBITDA (10)............. $ 53,005 $ 102,177 $ 143,679 $ 183,840 $ 387,893 $ 68,158 $ 146,463
Ratio of earnings to
fixed charges(11)...... N/A 1.1x 2.4x 3.1x N/A 5.3x N/A
</TABLE>
12
<PAGE>
- --------
(1) The historical consolidated financial data for the fiscal years ended
March 31, 1994, 1995, 1996, 1997 and 1998 and for the three months ended
June 30, 1997 and 1998 have been restated to include the accounts and
operations of Culligan which was merged with the Company in June 1998 and
accounted for as a pooling of interests. Separate results of operations of
the Company and Culligan for the years ended March 31, 1994 through March
31, 1998 and for the three months ended June 30, 1997 and 1998 are
presented below:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
FISCAL YEAR ENDED MARCH 31, JUNE 30,
------------------------------------------------------- -------------------
1994(2) 1995(3) 1996(4) 1997(5) 1998(6) 1997(7) 1998(8)
-------- ---------- ---------- ---------- ---------- -------- ----------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
REVENUES
Company (as previously
reported).............. $620,709 $ 830,765 $1,090,745 $1,764,406 $3,234,580 $693,553 $1,119,331
Culligan................ 264,073 280,051 304,502 371,018 505,744 99,403 --
-------- ---------- ---------- ---------- ---------- -------- ----------
$884,782 $1,110,816 $1,395,247 $2,135,424 $3,740,324 $792,956 $1,119,331
======== ========== ========== ========== ========== ======== ==========
OPERATING INCOME (LOSS)
Company (as previously
reported).............. $ 3,999 $ 40,721 $ 61,385 $ 66,020 $ (235,209) $ 27,029 $ (153,480)
Culligan................ 3,999 (13,470) 1,614 33,983 3,607 14,084 --
-------- ---------- ---------- ---------- ---------- -------- ----------
$ 7,998 $ 27,251 $ 62,999 $ 100,003 $ (231,602) $ 41,113 $ (153,480)
======== ========== ========== ========== ========== ======== ==========
NET INCOME (LOSS)
Company (as previously
reported).............. $ (2,773) $ 24,621 $ 30,699 $ 32,508 $ (299,779) $ 12,703 $ (155,397)
Culligan................ (12,520) (36,396) (21,279) 15,885 (5,622) 26,592 --
-------- ---------- ---------- ---------- ---------- -------- ----------
$(15,293) $ (11,775) $ 9,420 $ 48,393 $ (305,401) $ 39,295 $ (155,397)
======== ========== ========== ========== ========== ======== ==========
NET INCOME (LOSS) PER COMMON
SHARE(7):
Basic:
As previously
reported............ $ (0.11) $ 0.68 $ 0.62 $ 0.51 $ (3.13) $ 0.15 $ --
As restated.......... $ (0.26) $ (0.19) $ 0.11 $ 0.47 $ (2.18) $ 0.31 $ (0.98)
Diluted:
As previously
reported............ $ (0.11) $ 0.66 $ 0.61 $ 0.49 $ (3.13) $ 0.15 $ --
As restated.......... $ (0.26) $ (0.19) $ 0.11 $ 0.45 $ (2.18) $ 0.30 $ (0.98)
</TABLE>
(2) The fiscal year ended March 31, 1994 includes four months of results of
Ionpure Technologies Corporation and IP Holding Company ("Ionpure"),
acquired December 1, 1993 and accounted for as a purchase. Selling,
general and administrative expenses for the year ended March 31, 1994
reflect four months of integration of Ionpure, certain charges totaling
$2.4 million related to the rationalization of certain wastewater
operations and the write-off of certain intangibles in the Company's
Continental Penfield subsidiary totaling $3.7 million. In addition, the
year ended March 31, 1994 includes a charge of $8.9 million to reflect a
plan to shutdown and reorganize certain operations of Davis Water & Waste
Industries, Inc. ("Davis"). Fiscal 1994 includes seven months of
operations of Culligan and five months of operations of its predecessor.
(3) The fiscal year ended March 31, 1995 includes the results of operations of
Smogless S.p.A., Crouzat S.A., Sation S.A., Seral Erich Alhauser GmbH and
the Cereflo ceramic product line from the dates of their respective
acquisitions, accounted for as purchases. Results for this period include
expenses incurred of $5.9 million related to a restructuring plan to
consolidate the production facilities and administrative functions of
certain Culligan operations in Europe.
(4) The fiscal year ended March 31, 1996 includes the results of operations of
The Permutit Company Limited and The Permutit Company Pty Ltd., Interlake
Water Systems, Arrowhead Industrial Water Inc. and Polymetrics Inc. from
the dates of their respective acquisitions, accounted for as purchases.
Selling, general and administrative expenses for the year ended March 31,
1996 includes charges totaling $3.2 million related to the write-down of
certain patents and equipment of Zimpro Environmental, Inc.
(5) The fiscal year ended March 31, 1997 includes the results of operations of
The Utility Supply Group, Inc., WaterPro Supplies Corporation, the Systems
and Manufacturing Group of Wheelabrator Technologies Inc. and the
businesses of the Process Equipment Division of United Utilities Plc from
the dates of their respective acquisitions, accounted for as purchases.
The year ended March 31, 1997 also includes merger expenses of $5.6
million, related to the acquisition of Davis, which was accounted for as a
pooling of
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interests. Costs of goods sold for the year ended March 31, 1997 includes
charges recorded by Kinetics totaling $26.0 million related to certain
unreimbursed project costs. Selling, general and administrative expenses for
the year ended March 31, 1997 includes charges totaling $6.8 million for
increases in Kinetics allowance for doubtful accounts, the write-off of
certain receivables, the write-down of certain assets and the establishment
of certain accruals.
(6) The fiscal year ended March 31, 1998 includes the results of operations for
Memtec from the date of its acquisition on December 9, 1997, accounted for
as a purchase. The year ended March 31, 1998 also includes a charge of
$299.5 million related to the acquisition from Memtec of certain in-process
research and development projects that had not reached technological
feasibility and that had no alternative future uses. Additionally the
Company recorded charges totaling $141.1 million related to a restructuring
plan that the Company implemented concurrent with the acquisitions of
Memtec and Kinetics. Cost of goods sold for the year ended March 31, 1998
includes charges recorded by Kinetics totaling $13.7 million related to
certain unreimbursed project costs. Selling, general and administrative
expenses for the year ended March 31, 1998 includes charges recorded by
Kinetics totaling $3.6 million related to increases in Kinetics allowance
for doubtful accounts, the write-off of certain receivables, the write down
of certain assets and the establishment of certain accruals. This period
also includes the results of the Water Filtration Business of Ametek, Inc.
(the "Water Filtration Business" or "Ametek") and Protean plc ("Protean")
from the date of their acquisitions on August 1, 1997 and December 2, 1997,
respectively, by Culligan accounted for as purchases. Culligan acquired
from Ametek and Protean certain in-process research and development
projects that had not reached technological feasibility and that had no
alternative future uses. The estimated market value of such in-process
research and development projects was approximately $55.8 million and was
expensed during fiscal 1998. The year ended March 31, 1998 also includes a
$31.1 million pre-tax gain recorded by Culligan on the sale of its
investment in Anvil Holdings, Inc. for total cash proceeds of $50.9
million. The gain is included in other income in the fiscal year ended
March 31, 1998. In addition, Culligan recorded charges totaling $9.5
million related to a restructuring plan that Culligan implemented
concurrent with its acquisition of Ametek.
(7) The three months ended June 30, 1997 includes a $31.1 million pre-tax gain
recorded by Culligan on the sale of its investment in Anvil Holdings, Inc.
for total cash proceeds of $50.9 million. The gain is included in other
income in the three months ended June 30, 1997.
(8) During the three months ended June 30, 1998, the Company recorded charges
totaling $257.9 million related to a restructuring plan that the Company
implemented concurrent with the acquisition of Culligan. Included in the
restructuring charges is approximately $49.2 million of merger expenses
incurred to consummate the Culligan transaction. In addition, the three
months ended June 30, 1998 includes a charge of $3.6 million for purchased
in-process research and development projects at the Analytical and Thermal
Division of Protean. These projects had not reached technological
feasibility and had no alternative future uses.
(9) Net income (loss) per common share amounts are computed in accordance with
SFAS 128 after dividends on the Series A Preferred Stock of $0.7 million
for the fiscal year ended March 31, 1994, $0.7 million for the fiscal year
ended March 1995 and $0.5 million for the fiscal year ended March 31, 1997.
The Series A Preferred Stock was converted into shares of Common Stock in
March 1996.
(10) EBITDA is defined as income before interest and taxes, excluding certain
nonrecurring items, plus depreciation and amortization. EBITDA data is
presented because such data is used by certain investors to determine the
Company's ability to meet debt service requirements. However, such
information should not be considered as an alternative to net income,
operating profit, cash flows from operations, or any other operating or
liquidity performance measure prescribed by generally accepted accounting
principles. The EBITDA measure presented by the Company may not be
comparable to similarly titled measures by other companies.
(11) In the ratio of earnings to fixed charges, earnings are computed by adding
"income (loss) before income tax expense (benefit)" to fixed charges.
Fixed charges are computed by adding interest expense to one-third of rent
expense, which is the portion of rent expense that the Company has
determined to be fixed in nature. For the fiscal years ended March 31,
1994 and 1998 as well as for the three months ended June 30, 1998,
earnings were inadequate to cover fixed charges.
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THE EXCHANGE OFFERS
PURPOSE OF THE EXCHANGE OFFERS
The Private ROARS were sold by the Company on the Closing Date to the
Initial Purchasers pursuant to a Purchase Agreement among the Company and the
Initial Purchasers, dated as of May 14, 1998 (the "Purchase Agreement"). The
Initial Purchasers subsequently sold the Private ROARS to "qualified
institutional buyers," as defined in Rule 144A, in reliance on Rule 144A. As a
condition to the sale of the Private ROARS, the Company and the Initial
Purchasers entered into a Registration Rights Agreement, dated as of May 19,
1998 (the "Registration Rights Agreement"). Pursuant to the Registration
Rights Agreement, the Company agreed that, unless the Exchange Offers were not
permitted by applicable law or Commission policy, it would file with the
Commission a registration statement under the Securities Act with respect to
the Exchange ROARS and use its reasonable efforts to cause such registration
statement to become effective under the Securities Act within 180 days after
the Closing Date. A copy of the Registration Rights Agreement has been filed
as an exhibit to the Registration Statement. The Registration Statement is
intended to satisfy certain of the Company's obligations under the
Registration Rights Agreement and the Purchase Agreement.
As of the date of this Prospectus, $500,000,000 aggregate principal amount
of the Private 6.375% ROARS and $400,000,000 aggregate principal amount of the
Private 6.50% ROARS are outstanding. This Prospectus, together with the
applicable Letter of Transmittal, is first being sent on or about , 1998
to all holders of Private ROARS known to the Company. The Company's obligation
to accept Private ROARS for exchange pursuant to the Exchange Offers are
subject to certain conditions as set forth below under "--Certain Conditions
to the Exchange Offers."
TERMS OF THE EXCHANGE OFFER
The Company is hereby offering Exchange ROARS in exchange for surrender of
the corresponding Private ROARS. The Company will keep the Exchange Offers
open for not less than 20 business days (or longer if required by applicable
law) after the date on which this Prospectus is mailed to the holders of the
Private ROARS. For each Private ROAR validly tendered to the Company pursuant
to the Exchange Offers and not withdrawn by the Holder thereof, the Holder of
such Private ROAR will receive a corresponding Exchange ROAR having a
principal amount equal to the principal amount of such surrendered Private
ROAR. The Exchange ROARS will bear interest from the most recent date to which
interest has been paid on the Private ROARS or, if no interest has been paid,
from May 19, 1998. Accordingly, if the relevant record date for interest
payment occurs after the consummation of either Exchange Offer, registered
holders of the applicable Exchange ROARS on such record date will receive
interest accruing from the most recent date to which interest has been paid
or, if no interest has been paid, from May 19, 1998. If, however, the relevant
record date for interest payment occurs prior to the consummation of either
Exchange Offer, registered holders of the applicable Private ROARS on such
record date will receive interest accruing from the most recent date to which
interest has been paid or, if no interest has been paid, from May 19, 1998.
Holders of Private ROARS whose Private ROARS are accepted for exchange will
not receive any payment in respect of accrued interest on such Private ROARS
otherwise payable on any interest payment date the record date for which
occurs at or after consummation of the Exchange Offers. The Exchange ROARS
evidence the same debt as the corresponding Private ROARS and are issued under
and are entitled to the same benefits under the Indenture as the Private
ROARS.
ACCEPTANCE OF PRIVATE ROARS FOR EXCHANGE; DELIVERY OF EXCHANGE ROARS
Upon the terms and subject to the conditions set forth in this Prospectus
and in the applicable Letter of Transmittal (including, if either Exchange
Offer is extended or amended, the terms and conditions of such Exchange Offer
as so extended or amended), the Company will accept for exchange, and will
exchange the corresponding Exchange ROARS for, all Private ROARS validly
tendered and not properly withdrawn prior to the applicable Expiration Date as
soon as practicable after such Expiration Date.
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For purposes of the Exchange Offers, the Company will be deemed to have
accepted for exchange Private ROARS validly tendered and not withdrawn as, if
and when the Company gives oral or written notice to the Exchange Agent of the
Company's acceptance of such Private ROARS for exchange pursuant to the
Exchange Offers. In all cases, delivery of Exchange ROARS for Private ROARS
accepted for exchange pursuant to the Exchange Offers will be made by the
Exchange Agent.
If any tendered Private ROARS are not accepted pursuant to the Exchange
Offers for any reason, or if certificates are submitted representing more
Private ROARS than are tendered, certificates representing unaccepted or
untendered Private ROARS will be returned, without expense to the tendering
Holder (or, in the case of Private ROARS delivered by book-entry transfer into
the Exchange Agent's account at DTC pursuant to the procedure set forth below,
such Private ROARS will be credited to an account maintained within DTC), as
promptly as practicable following the expiration, termination or withdrawal of
the Exchange Offers.
In all cases, delivery of the corresponding Exchange ROARS for the Private
ROARS accepted for exchange pursuant to the Exchange Offers will be made only
after timely receipt by the Exchange Agent of (i) certificates representing
such Private ROARS or timely confirmation (a "Book-Entry Confirmation") of the
book-entry transfer of such Private ROARS into the Exchange Agent's account at
DTC pursuant to the procedures set forth below; (ii) the appropriate Letter of
Transmittal, properly completed and duly executed, with any required signature
guarantees, or an Agent's Message (as defined herein) in connection with a
book-entry transfer; and (iii) any other documents required by such Letter of
Transmittal.
The term "Agent's Message" means a message transmitted by DTC to, and
received by, the Exchange Agent and forming a part of a Book-Entry
Confirmation, which states that DTC has received an express acknowledgment
from the participant in DTC when tendering the Private ROARS which are the
subject of such Book-Entry Confirmation that such participant has received and
agrees to be bound by the terms of the applicable Letter of Transmittal and
that the Company may enforce such agreement against such participant.
PERIOD FOR TENDERING PRIVATE ROARS
Upon the terms and subject to the conditions set forth in this Prospectus
and in the applicable Letter of Transmittal (including, if either Exchange
Offer is extended or amended, the terms and conditions of such Exchange Offer
as so extended or amended), the Company will accept for exchange, and exchange
the corresponding Exchange ROARS for, all Private ROARS that are properly
tendered at or prior to the Expiration Date and not withdrawn as permitted
below. As used herein, the term "Expiration Date" means p.m., New York City
time, on , 1998; provided, however, that if the Company, in its sole
discretion, has extended the period of time for which either of the Exchange
Offers is open, the term "Expiration Date" means the latest time and date at
which the applicable Exchange Offer, as so extended, shall expire. If, at any
Expiration Date, the conditions to the Exchange Offers described below shall
not have been satisfied or waived, the Company reserves the right (but shall
not be obligated) to extend the Exchange Offers from time to time by giving
oral or written notice to the Exchange Agent. During any such extension, all
Private ROARS previously tendered and not withdrawn will remain subject to the
Exchange Offers, subject to the right of a tendering Holder to withdraw such
Holder's Private ROARS.
Subject to the applicable regulations of the Commission, the Company also
expressly reserves the right, in its sole discretion, at any time or from time
to time, to (i) terminate the Exchange Offers if any condition referred to
below has not been satisfied by any Expiration Date and return all tendered
Private ROARS; (ii) waive any condition; or (iii) except as set forth in the
Registration Rights Agreement, otherwise amend the Exchange Offers in any
respect, in each case, by giving oral or written notice of such termination,
waiver or amendment to the Exchange Agent.
Any such extension, termination or amendment will be followed as promptly as
practicable by public announcement thereof, and such announcement in the case
of an extension will be made no later than 9:00 am, New York City time, on the
next business day after the previously scheduled Expiration Date. Without
limiting
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<PAGE>
the manner in which the Company may choose to make any public announcement,
subject to applicable law, the Company shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a release to the Dow Jones News Service.
If the Company makes a material change in the terms of either of the
Exchange Offers, or if it waives a material condition to either of the
Exchange Offers, the Company will extend the applicable Exchange Offer and
disseminate additional tender offer materials to the extent required by Rule
14e-1 under the Exchange Act. The minimum period during which an offer must
remain open following material changes in the terms of that offer, other than
a change in price or a change in the percentage of securities sought, will
depend upon the facts and circumstances, including the materiality of the
changes. In the Commission's view, an offer should remain open for a minimum
of five business days from the date the material change is first published,
sent or given to securityholders, and, if material changes are made with
respect to information that approaches the significance of price and the
percentage of securities sought, a minimum of ten business days may be
required to allow for adequate dissemination and investor response. With
respect to a change in price, a minimum ten-business day period from the date
of such change is generally required under applicable Commission rules and
regulations to allow for adequate dissemination to securityholders. For
purposes of the Exchange Offers, a "business day" means any day other than a
Saturday, Sunday or a U.S. federal holiday and consists of the time period
from 12:01 a.m. through 12:00 midnight, New York City time.
PROCEDURES FOR TENDERING PRIVATE ROARS
The tender to the Company of Private ROARS by a Holder thereof as set forth
below and the acceptance thereof by the Company will constitute a binding
agreement between the tendering Holder and the Company upon the terms and
subject to the conditions set forth in this Prospectus and in the applicable
Letter of Transmittal.
Valid Tender of Shares. Except as set forth below, in order for Private
ROARS to be validly tendered pursuant to the Exchange Offers, either (i) the
applicable Letter of Transmittal, properly completed and duly executed,
together with any required signature guarantees, or an Agent's Message in
connection with a book-entry transfer of Private ROARS, and any other
documents required by the Letter of Transmittal must be received by the
Exchange Agent at one of its addresses set forth under "--Exchange Agent" at
or prior to the Expiration Date and certificates representing the tendered
Private ROARS must be received by the Exchange Agent or such Private ROARS
must be tendered pursuant to the procedure for book-entry transfer set forth
below and a Book-Entry Confirmation must be received by the Exchange Agent, in
each case at or prior to the Expiration Date, or (ii) the guaranteed delivery
procedures set forth below must be complied with.
A beneficial owner of Private ROARS that are held by or registered in the
name of a broker, dealer, commercial bank, trust company or other nominee or
custodian is urged to contact such entity promptly if such beneficial owner
wishes to participate in the Exchange Offers.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN SUCH DOCUMENTS ARE ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH
RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Book Entry Transfer. For purposes of the Exchange Offers, the Exchange Agent
will establish an account with respect to the Private ROARS at DTC within two
business days after the date of this Prospectus. Any tendering financial
institution that is a participant in DTC must make a book-entry delivery of
its Private ROARS by causing DTC to transfer such Private ROARS into the
Exchange Agent's account at DTC in accordance with ATOP. Such holder of
Private ROARS using ATOP should transmit its acceptance to DTC at or prior to
the Expiration Date or the guaranteed delivery procedures set forth below must
be complied with. DTC will verify
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<PAGE>
such acceptance, execute a book-entry transfer of the tendered Private ROARS
into the Exchange Agent's account at DTC and then send to the Exchange Agent a
Book-Entry Confirmation, including an Agent's Message.
Certificates. If the tender is not made through ATOP, certificates
representing Private ROARS, as well as the applicable Letter of Transmittal,
properly completed and duly executed, with any required signature guarantees,
and any other documents required by the Letter of Transmittal must be received
by the Exchange Agent at one of its addresses set forth under "--Exchange
Agent" at or prior to the Expiration Date in order for such tender to be
effective or the guaranteed delivery procedures set forth below must be
complied with.
If less than all of the Private ROARS owned by any Holder are being
tendered, a tendering Holder should fill in the amount of Private ROARS being
tendered in the appropriate box on the applicable Letter of Transmittal. The
entire amount of Private ROARS delivered to the Exchange Agent will be deemed
to have been tendered unless otherwise indicated.
Signature Guarantees. Signatures on a Letter of Transmittal must be
guaranteed unless the Private ROARS surrendered for exchange pursuant thereto
are tendered (i) by a registered holder of such Private ROARS who has not
completed the box entitled "Special Issuance Instructions" or "Special
Delivery Instructions" on such Letter of Transmittal or (ii) for the account
of a financial institution (including most commercial banks, savings and loan
associations, credit unions and brokerage houses) that is a participant in the
Securities Transfer Agents Medallion Program (each, an "Eligible Institution"
and, collectively, "Eligible Institutions"). In the event that signatures on a
Letter of Transmittal are required to be guaranteed, such guarantee must be by
an Eligible Institution. If the Private ROARS being tendered pursuant to a
Letter of Transmittal are registered in the name of a person other than the
signer of such Letter of Transmittal, the Private ROARS surrendered for
exchange therewith must be endorsed by, or be accompanied by a written
instrument or instruments of transfer or exchange, in satisfactory form as
determined by the Company, in its sole discretion, duly executed by, the
registered Holder with the signature thereon guaranteed by an Eligible
Institution.
Determination of Validity. All questions as to the form of documents, the
validity and eligibility (including time of receipt) of any tender and the
acceptance of Private ROARS tendered for exchange will be determined by the
Company, in its sole discretion, which determination shall be final and
binding on all parties. The Company reserves the absolute right to reject any
or all tenders of any particular Private ROARS not properly tendered or to not
accept any particular Private ROARS, the acceptance of which might, in the
judgment of the Company or its counsel, be unlawful. The Company also reserves
the absolute right to waive any defects or irregularities in tenders or
conditions of the Exchange Offers as to any particular Private ROARS either
before or after the Expiration Date (including the right to waive the
ineligibility of any Holder who seeks to tender Private ROARS in the Exchange
Offers). The Company's interpretation of the terms and conditions of the
Exchange Offers shall be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of Private ROARS must be
cured within such reasonable period of time as the Company shall determine.
Neither the Company, the Exchange Agent nor any other person shall be under
any duty to give notification of any defect or irregularity with respect to
any tender of Private ROARS, nor shall any of them incur any liability for
failure to give such notification.
If a Letter of Transmittal is signed by a person or persons other than the
registered holder or holders of the Private ROARS being tendered thereby, such
Private ROARS must be endorsed or accompanied by appropriate powers of
attorney, in either case signed exactly as the name or names of the registered
holder or holders that appear on such Private ROARS.
If a Letter of Transmittal or any Private ROARS or powers of attorney are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and, unless waived by
the Company, proper evidence satisfactory to the Company of their authority to
so act must be submitted.
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By tendering, a Holder of Private ROARS will represent to the Company that,
among other things, (i) it is not an Affiliate of the Company, (ii) the
Exchange ROARS to be received by it will be acquired in the ordinary course of
its business, and (iii) it has no arrangement with any person to participate
in a distribution of Exchange ROARS. If any Holder is an Affiliate of the
Company or intends to participate in the Exchange Offers for the purpose of
distributing Exchange ROARS or is a broker-dealer who purchased Private ROARS
from the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act, it (x) will not be able to rely on the
interpretations of the Staff referred to under "Risk Factors--Consequences of
Failure to Exchange and Requirements for Transfer of Exchange ROARS," (y) will
not be entitled to tender its Private ROARS in the Exchange Offers, and (z)
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any sale or transfer of its Private ROARS
unless such sale or transfer is made pursuant to an exemption from such
requirements. Each broker-dealer that receives Exchange ROARS for its own
account in exchange for Private ROARS, where such Private ROARS were acquired
by such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange ROARS. See "Plan of Distribution." Each
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
GUARANTEED DELIVERY PROCEDURES
If a registered holder of Private ROARS desires to tender such Private ROARS
and such Private ROARS are not immediately available, or time will not permit
such Holder's certificates for such Private ROARS or other required documents
to reach the Exchange Agent before the applicable Expiration Date, or the
procedure for book-entry transfer cannot be completed on a timely basis, a
tender may be effected if (i) the tender is made by or through an Eligible
Institution, (ii) prior to the applicable Expiration Date, the Exchange Agent
receives from such Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery, substantially in the form provided by the
Company by telegram, telex, facsimile transmission, mail or hand delivery,
setting forth the name and address of such holder of Private ROARS and the
amount of Private ROARS tendered, stating that the tender is being made
thereby and guaranteeing that within five NYSE trading days after the date of
execution of such Notice of Guaranteed Delivery, the certificates for all
physically tendered Private ROARS, in proper form for transfer, or a Book-
Entry Confirmation, as the case may be, and any other documents required by
the applicable Letter of Transmittal will be delivered by the Eligible
Institution to the Exchange Agent, and (iii) (a) such Book-Entry Confirmation
or (b) the certificates for all such physically tendered Private ROARS, in
proper form for transfer, and a duly executed applicable Letter of
Transmittal, with any required signature guarantees, and all other documents
required by such Letter of Transmittal, are received by the Exchange Agent
within five NYSE trading days after the date of execution of such Notice of
Guaranteed Delivery.
WITHDRAWAL RIGHTS
Tenders of Private ROARS may be withdrawn at any time prior to the
applicable Expiration Date. In order for a withdrawal to be effective, a
written notice of withdrawal by telegram, facsimile transmission (receipt
confirmed by telephone) or letter must be received by the Exchange Agent at
one of its addresses as set forth under "--Exchange Agent" at or prior to the
applicable Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Private ROARS to be withdrawn, identify
the Private ROARS to be withdrawn (including the series and the principal
amount of such Private ROARS), and, where certificates for Private ROARS have
been transmitted, specify the name in which such Private ROARS are registered,
if different from that of the withdrawing holder. If certificates for Private
ROARS have been delivered or otherwise identified to the Exchange Agent, then,
prior to the physical release of such certificates, the withdrawing holder
must also submit the certificate numbers of the particular certificates to be
withdrawn and the signatures on the notice of withdrawal must be guaranteed by
an Eligible Institution, unless such holder is an Eligible Institution. If
Private ROARS have been tendered pursuant to the procedure for book-entry
transfer described above, any notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawn Private ROARS
and otherwise comply with the procedures of DTC. All questions as to the form
and validity
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<PAGE>
(including time of receipt) of any such notice of withdrawal will be
determined by the Company, in its sole discretion, which determination shall
be final and binding on all parties. Neither the Company, the Exchange Agent
nor any other person shall be under any duty to give notification of any
defect or irregularity in any notice of withdrawal, nor shall any of them
incur any liability for failure to give such notification.
Withdrawals may not be rescinded. Any Private ROARS that are withdrawn will
be deemed not to have been validly tendered for exchange for purposes of the
Exchange Offers. Any Private ROARS which have been withdrawn for any reason
will be returned to the Holder thereof without cost to such Holder or, in the
case of Private ROARS tendered by book-entry transfer into the Exchange
Agent's account at DTC pursuant to the book-entry transfer procedure described
above, such Private ROARS will be credited to an account maintained with DTC
as soon as practicable after such withdrawal. Properly withdrawn Private ROARS
may be retendered by following one of the procedures described under "--
Procedures for Tendering Private ROARS" above at any time at or prior to the
applicable Expiration Date.
If, for any reason whatsoever, acceptance for exchange of any Private ROARS
tendered pursuant to the Exchange Offers is delayed, or the Company is unable
to accept for exchange tendered Private ROARS pursuant to the Exchange Offers,
then, without prejudice to the Company's rights set forth herein, the Exchange
Agent may, nevertheless, on behalf of the Company, retain tendered Private
ROARS and such Private ROARS may not be withdrawn except to the extent that
the tendering Holder is entitled to and duly exercises withdrawal rights as
described herein. Any such delay will be by an extension of the Exchange
Offers to the extent required by law.
CERTAIN CONDITIONS TO THE EXCHANGE OFFERS
Notwithstanding any other provisions of the applicable Exchange Offer, the
Company shall not be required to accept for exchange, or to issue Exchange
ROARS in exchange for, any applicable Private ROARS and may terminate such
Exchange Offer, if at any time before the acceptance of such Private ROARS for
exchange or the exchange of the applicable Exchange ROARS for such Private
ROARS, any of the following events shall occur:
(a) there shall be threatened, instituted or pending any action or
proceeding before, or any injunction, order or decree shall have been
issued by, any court or governmental agency or other regulatory or
administrative agency or commission with respect to such Exchange
Offer; or
(b) such acceptance or issuance would violate applicable law or any
applicable interpretation of the Staff; or
(c) there shall have occurred (i) any general suspension of trading in, or
general limitation on prices for, securities on any national securities
exchange or in the over-the-counter market, (ii) a declaration of a
banking moratorium or any suspension of payments in respect of banks in
the United States or any limitation by any governmental agency or
authority which adversely affects the extension of credit, or (iii) a
commencement of a war, armed hostilities or other similar international
calamity directly or indirectly involving the United States, or, in the
case of any of the foregoing existing at the time of the commencement
of the Exchange Offers, a material acceleration or worsening thereof;
or
(d) any change (or any development involving a prospective change) shall
have occurred or be threatened in the business, properties, assets,
liabilities, financial condition, operations, results of operations or
prospects of the Company taken as a whole that is or may be adverse to
the Company, or the Company shall have become aware of facts that have
or may have adverse significance with respect to the value of any of
the Private ROARS or the Exchange ROARS;
which, in the sole judgment of the Company in any case, and regardless of the
circumstances (including any action by the Company) giving rise to any event
described above, prohibits the Company from or makes it inadvisable for the
Company to proceed with either of the Exchange Offers and/or with such
acceptance for exchange or with such exchange.
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The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company regardless of the circumstances giving rise to any
such condition or may be waived by the Company in whole or in part at any time
and from time to time in its sole discretion. The failure by the Company at
any time to exercise any of the foregoing rights shall not be deemed a waiver
of any such right and each such right shall be deemed an ongoing right which
may be asserted at any time and from time to time.
In addition, the Company will not accept for exchange any Private ROARS
tendered, and no Exchange ROARS will be issued in exchange for any such
Private ROARS, if at such time any stop order shall be threatened or in effect
with respect to the Registration Statement or the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended (the "TIA").
EXCHANGE AGENT
The Bank of New York has been appointed as the exchange agent (the "Exchange
Agent") for the Exchange Offers. All executed Letters of Transmittal should be
directed to the Exchange Agent as set forth below. Questions and requests for
assistance, requests for additional copies of this Prospectus or of the
applicable Letter of Transmittal and requests for Notices of Guaranteed
Delivery should be directed to the Exchange Agent addressed as follows:
By Registered or By Hand Only: By Overnight Delivery:
Certified Mail:
The Bank of New York The Bank of New York The Bank of New York
55 Water Street, Room 55 Water Street, Room 55 Water Street, Room
234 234 234
New York, New York 10041 New York, New York 10041 New York, New York 10041
Attention: Lewis Padilla (United States Filter Attention: Lewis Padilla
(United States Filter Corporation,
Corporation, 6.375% and 6.50% Private (United States Filter
6.375% and 6.50% Private ROARS) Corporation,
ROARS) 6.375% and 6.50% Private
ROARS)
Facsimile Transmission:
(For Eligible Institutions Only)
(212) 638-7375
or
(212) 638-7380
To Confirm By Telephone or For
Information:
(212) 638-0458
DELIVERY OF LETTERS OF TRANSMITTAL OR OTHER REQUIRED DOCUMENTS TO AN ADDRESS
OTHER THAN ONE SET FORTH ABOVE OR VIA FACSIMILE TRANSMISSION TO A NUMBER OTHER
THAN ONE SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
FEES AND EXPENSES
The Company will not make any payment to brokers, dealers or others for
soliciting acceptance of the Exchange Offers. The Company will pay certain
other expenses to be incurred in connection with the Exchange Offers,
including the fees and expenses of the Exchange Agent, accounting fees and
certain legal fees.
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TRANSFER TAXES
Holders who tender their Private ROARS for exchange will not be obligated to
pay any transfer taxes in connection therewith, except that Holders who
instruct the Company to register Exchange ROARS in the name of, or request
that Private ROARS not tendered or not accepted in the Exchange Offers be
returned to, a person other than the registered tendering Holder will be
responsible for the payment of any applicable transfer tax thereon.
CONSEQUENCES OF FAILURE TO EXCHANGE AND REQUIREMENTS FOR TRANSFER OF EXCHANGE
ROARS
Holders of Private ROARS who do not exchange their Private ROARS for
corresponding Exchange ROARS pursuant to the Exchange Offers will continue to
be subject to the provisions in the Indenture regarding transfer and exchange
of Private ROARS and the restrictions on transfer of such Private ROARS set
forth in the legend thereon as a consequence of the issuance of the Private
ROARS pursuant to exemptions from, or in transactions not subject to, the
registration requirements of the Securities Act and applicable state
securities laws. In general, Private ROARS may not be offered or sold, unless
such transaction is registered under the Securities Act, except pursuant to an
exemption from, or in a transaction not subject to, the Securities Act and
applicable state securities laws. The Company does not currently anticipate
that it will register the sale or other disposition of Private ROARS under the
Securities Act except to the extent required by the Registration Rights
Agreement. See "Description of the ROARS--Registration Rights."
DESCRIPTION OF THE ROARS
GENERAL
The Private ROARS were issued and the Exchange ROARS will be issued pursuant
to an Indenture, dated as of May 19, 1998, between the Company and The Bank of
New York, as trustee (the "Trustee"), and a First Supplemental Indenture
thereto, dated as of May 19, 1998 (together, the "Indenture"), copies of which
are filed as exhibits to the Registration Statement of which this Prospectus
constitutes a part. Upon the effectiveness of the Registration Statement, the
Indenture will be subject to and governed by the TIA. Each of the 6.375% ROARS
and the 6.50% ROARS constitute a single series of Securities under the
Indenture and holders thereof are entitled to the benefit of the Indenture.
Accordingly, unless specifically stated to the contrary, the following
description applies equally to all ROARS. The following summary of certain
provisions of the Indenture and the ROARS does not purport to be complete and
such summary is subject to the detailed provisions of the Indenture to which
reference is hereby made for a full description of such provisions, including
the definition of certain terms used herein, and for other information
regarding the ROARS. Wherever particular sections or defined terms of the
Indenture are referred to, such sections and defined terms are incorporated
herein by reference as part of the statement made, and such statement is
qualified in its entirety by such reference. As used in this section of the
Prospectus, the term "Company" means United States Filter Corporation and not
any of its subsidiaries, unless otherwise expressly stated or the context
otherwise requires.
The 6.375% ROARS will mature on May 15, 2011 (the "6.375% ROARS Stated
Maturity Date") and are limited to $500,000,000 in aggregate principal amount.
The 6.50% ROARS will mature on May 15, 2013 (the "6.50% ROARS Stated Maturity
Date" and, together with the 6.375% ROARS Stated Maturity Date, each a "Stated
Maturity Date") and are limited to $400,000,000 in aggregate principal amount.
The Exchange ROARS will be general unsecured obligations of the Company and
will rank pari passu in right of payment with all other unsubordinated
indebtedness of the Company and will rank senior in right of payment to all
subordinated indebtedness of the Company. The secured indebtedness of the
Company to the extent of such security and all indebtedness and other
obligations (including trade payables) of the Company's subsidiaries will
effectively be structurally senior to the Exchange ROARS. As of June 30, 1998,
the Company had approximately $2.2 billion of outstanding indebtedness and the
Company's subsidiaries had approximately $109.3 million of outstanding
indebtedness, excluding $367.6 million of trade payables. As of such date,
approximately $554.0 million of the
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Company's outstanding indebtedness would have been subordinated in right of
payment to the Exchange ROARS. The Exchange ROARS will be issued in
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
All payments on the Exchange ROARS will be made in U.S. dollars. After the
Remarketing Date applicable to a series of ROARS, such series of ROARS will be
subject to the legal defeasance provisions of the Indenture.
On May 15, 2001 (the "6.375% ROARS Remarketing Date") and May 15, 2003 (the
"6.50% ROARS Remarketing Date" and, together with the 6.375% ROARS Remarketing
Date, each a "Remarketing Date"), each of the 6.375% ROARS and the 6.50%
ROARS, respectively, will either be (i) mandatorily tendered to and purchased
by NationsBanc or its successor as Remarketing Dealer (the "Remarketing
Dealer"), in which case the Remarketing Dealer will pay 100% of the principal
amount of the applicable series of ROARS (the "ROARS Purchase Price") and the
Company will pay accrued interest, if any, thereon to such Remarketing Date,
or (ii) redeemed by the Company at 100% of the principal amount of such series
of ROARS plus accrued interest, if any, thereon to such Remarketing Date.
INTEREST AND INTEREST PAYMENT DATES
The 6.375% ROARS and the 6.50% ROARS will bear interest at 6.375% and 6.50%
per annum, respectively, for the period from May 19, 1998 to the Remarketing
Date applicable to such series of ROARS. If a series of ROARS is purchased by
the Remarketing Dealer on the applicable Remarketing Date, on and after such
Remarketing Date such series of ROARS will bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures
described below (the "Interest Rate to Maturity"). See "--Interest Rate to
Maturity."
The ROARS will bear interest from May 19, 1998 payable semi-annually on May
15 and November 15 of each year (each, an "Interest Payment Date"), commencing
November 15, 1998, to the persons in whose names the ROARS are registered at
the close of business on the preceding May 1 and November 1, respectively
(whether or not a Business Day) (each, a "Regular Record Date"); provided,
however, that interest payable on the applicable Remarketing Date and on the
applicable Stated Maturity Date will be paid to the person to whom principal
is payable. Interest payments will be in the amount of interest accrued from
and including the next preceding Interest Payment Date (or from and including
May 19, 1998 if no interest has been paid or duly provided for with respect to
the ROARS) to but excluding the relevant Interest Payment Date, Remarketing
Date or Stated Maturity Date, as the case may be. Interest on the ROARS will
be computed on the basis of a 360-day year of twelve 30-day months. "Business
Day" means any day that is not a day on which banking institutions in New
York, New York are authorized or obligated by law or executive order to close.
INTEREST RATE TO MATURITY
The Interest Rate to Maturity of a series of ROARS purchased by the
Remarketing Dealer on the applicable Remarketing Date will be determined by
the Remarketing Dealer by 3:30 p.m., New York City time, on the third Business
Day immediately preceding such Remarketing Date (the "Determination Date") to
the nearest one hundred-thousandth (0.00001) of one percent per annum, and
will be equal to the sum of 5.6825% per annum in the case of the 6.375% ROARS
(the "6.375% ROARS Base Rate") and 5.6825% per annum in the case of the 6.50%
ROARS (the "6.50% ROARS Base Rate" and, together with the 6.375% ROARS Base
Rate, each a "Base Rate") and the Applicable Spread (as defined herein), which
will be based on the Dollar Price (as defined herein) of the applicable series
of ROARS. Under certain circumstances, the Interest Rate to Maturity for a
series of ROARS may be redetermined by the Remarketing Dealer after the
relevant Determination Date. See "--Remarketing Dealer."
For this purpose, the following terms have the following meanings:
"Applicable Spread" for a series of ROARS will be the lowest Bid, expressed
as a spread (in the form of a percentage or in basis points) above the Base
Rate for that series of ROARS, obtained by the Remarketing Dealer
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at 3:30 p.m., New York City time, on the relevant Determination Date from the
Bids quoted to the Remarketing Dealer by five Reference Corporate Dealers (as
defined herein). A "Bid" will be an irrevocable offer to purchase the total
aggregate outstanding principal amount of the applicable series of ROARS at
the relevant Dollar Price (as defined herein), assuming (i) an issue date that
is the Remarketing Date for such series of ROARS, with settlement on such date
without accrued interest, (ii) a maturity date that is the Stated Maturity
Date for such series of ROARS, and (iii) a stated annual interest rate equal
to the relevant Base Rate plus the spread bid by the applicable Reference
Corporate Dealer. If fewer than five Reference Corporate Dealers submit Bids
as described above, then the Applicable Spread will be the lowest such Bid
obtained as described above. The Interest Rate to Maturity for a series of
ROARS announced by the Remarketing Dealer, absent manifest error, will be
binding and conclusive upon the holders of beneficial interests in such series
of ROARS (the "Beneficial Owners"), the Company and the Trustee.
"Comparable Treasury Issues" for a series of ROARS means the U.S. Treasury
security or securities selected by the Remarketing Dealer as having an actual
or interpolated maturity or maturities comparable to the remaining term of
such series of ROARS.
"Comparable Treasury Price" for a series of ROARS means, with respect to the
applicable Remarketing Date, (i) the offer prices for the Comparable Treasury
Issues (expressed in each case as percentages of their principal amounts) at
12:00 noon, New York City time, on the applicable Determination Date, as set
forth on "Telerate Page 500" (or such other page as may replace Telerate Page
500); or (ii) if such page (or any successor page) is not displayed or does
not contain such offer prices on such Determination Date, (a) the average of
the Reference Treasury Dealer Quotations for such Remarketing Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(b) if the Remarketing Dealer obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations. "Telerate Page 500" means the display designated as "Telerate Page
500" on Dow Jones Markets (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer prices described
in clause (i) above as may replace Dow Jones Markets. "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury Dealer (as
defined herein) and the applicable Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as percentages of their
principal amounts) quoted in writing to the Remarketing Dealer by such
Reference Treasury Dealer by 3:30 p.m., New York City time, on the applicable
Determination Date.
"Dollar Price" means, with respect to each series of ROARS, the present
value, as of the applicable Remarketing Date, of the Remaining Scheduled
Payments (as defined herein) for such series of ROARS discounted to the
applicable Remarketing Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate (as defined herein).
"Reference Corporate Dealer" means five leading dealers of publicly traded
debt securities, including debt securities of the Company, which will be
selected by the Company. The Company will advise the Remarketing Dealer of its
selection of the Reference Corporate Dealers no later than five Business Days
prior to the applicable Remarketing Date. One of such Reference Corporate
Dealers selected by the Company will be NationsBanc if it then is the
Remarketing Dealer.
"Reference Treasury Dealer" means each of NationsBanc; Donaldson, Lufkin &
Jenrette Securities Corporation; Salomon Brothers Inc; Merrill Lynch, Pierce,
Fenner & Smith Incorporated and another dealer to be selected by the Company
and their respective successors; provided, that if any of the foregoing or
their affiliates ceases to be a primary U.S. Government securities dealer (a
"Primary Treasury Dealer"), the Remarketing Dealer will substitute therefor
another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to a series of ROARS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate applicable to such series, that would be due after
the applicable Remarketing Date to and including the applicable Stated
Maturity Date; provided, that if the applicable Remarketing Date is not an
Interest Payment Date with respect to such series of
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ROARS, the amount of the next succeeding scheduled interest payment thereon,
calculated at the Base Rate applicable to such series will be reduced by the
amount of interest accrued thereon, calculated at such Base Rate, to such
Remarketing Date.
"Treasury Rate" for a series of ROARS means, with respect to the applicable
Remarketing Date, the rate per annum equal to the semi-annual equivalent yield
to maturity or interpolated (on a day count basis) yield to maturity of the
Comparable Treasury Issues, assuming prices for the Comparable Treasury Issues
(expressed as percentages of their principal amounts) equal to the Comparable
Treasury Price for such Remarketing Date.
MANDATORY TENDER
If the Remarketing Dealer gives notice to the Company and the Trustee no
earlier than the tenth Business Day and no later than 4:00 p.m., New York City
time, on the fifth Business Day prior to the Remarketing Date applicable to a
series of ROARS of its intention to purchase such series of ROARS for
remarketing (the "Notification Date"), each of the ROARS in such series will
be automatically tendered, or deemed tendered, to the Remarketing Dealer for
purchase on such Remarketing Date, except in certain circumstances described
under "--Mandatory Redemption" or "--Optional Redemption." The applicable
ROARS Purchase Price will be paid by the Remarketing Dealer and the Company
will pay accrued interest, if any, on such series of ROARS to such Remarketing
Date. See "--Settlement."
If a series of ROARS is tendered for remarketing, the Remarketing Dealer
will sell the total aggregate principal amount of such series of ROARS on the
applicable Remarketing Date for the applicable Dollar Price to the Reference
Corporate Dealer providing the lowest Bid. If two or more Reference Corporate
Dealers provide the lowest Bid, the Remarketing Dealer will sell such series
of ROARS to such of those Reference Corporate Dealers as it determines in its
sole discretion.
If the Remarketing Dealer elects to remarket a series of ROARS, the
obligation of the Remarketing Dealer to purchase such series of ROARS on the
applicable Remarketing Date is subject to certain conditions set forth in the
Remarketing Agreement (as defined herein).
If for any reason the Remarketing Dealer does not purchase all of a series
of ROARS on the applicable Remarketing Date, the Company will be required to
redeem such series of ROARS at a price equal to the principal amount thereof
plus all accrued and unpaid interest, if any, on such series of ROARS to such
Remarketing Date. See "--Mandatory Redemption."
NOTIFICATION OF INTEREST RATE TO MATURITY
If the Remarketing Dealer has previously notified the Company and the
Trustee on the relevant Notification Date of its intention to purchase a
series of ROARS on the applicable Remarketing Date, the Remarketing Dealer
will notify the Company, the Trustee and DTC by telephone, confirmed in
writing, by 4:00 p.m., New York City time, on the applicable Determination
Date of the Interest Rate to Maturity for such series of ROARS.
MANDATORY REDEMPTION
The Company will be required to redeem a series of ROARS as a whole on the
applicable Remarketing Date at a price equal to 100% of the aggregate
principal amount of such series of ROARS plus all accrued and unpaid interest,
if any, on such series of ROARS to the applicable Remarketing Date in the
event that (i) the Remarketing Dealer for any reason does not notify the
Company of the Interest Rate to Maturity by 4:00 p.m., New York City time, on
the applicable Determination Date; (ii) prior to such Remarketing Date, the
Remarketing Dealer has resigned and no successor has been appointed on or
before such Determination Date; (iii) at any time after the Remarketing Dealer
elects on the applicable Notification Date to remarket such series of ROARS,
the Remarketing Dealer elects to terminate the Remarketing Agreement in
accordance with the terms thereof; (iv) the Remarketing Dealer does not give
notice to the Company and the Trustee on such Notification Date of its
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intention to purchase such series of ROARS for remarketing on such Remarketing
Date; (v) the Remarketing Dealer for any reason does not deliver the
applicable ROARS Purchase Price to the Trustee by 2:00 p.m., New York City
time, on the Business Day immediately preceding such Remarketing Date or does
not purchase all of such series of ROARS by 2:00 p.m., New York City time, on
such Remarketing Date; or (vi) the Company for any reason fails to redeem such
series of ROARS following its election to effect such redemption as described
under "--Optional Redemption." In any such case, payment will be made by the
Company to the participant in DTC (each a "Participant") of each Beneficial
Owner of the applicable series of ROARS, by book-entry through DTC by the
close of business on the applicable Remarketing Date, against delivery through
DTC of such Beneficial Owner's ROARS.
OPTIONAL REDEMPTION
Except in the limited circumstances described below, the ROARS are not
subject to redemption at the option of the Company. If the Remarketing Dealer
elects to remarket a series of ROARS, the Company will notify the Remarketing
Dealer and the Trustee, not later than 4:00 p.m., New York City time, on the
Business Day immediately preceding the applicable Determination Date, if the
Company irrevocably elects to exercise its right to redeem such series of
ROARS, in whole, on the applicable Remarketing Date. If the Company so elects
to redeem a series of ROARS, the Company will redeem such series of ROARS as a
whole on the applicable Remarketing Date at a price equal to 100% of the
aggregate principal amount of such series of ROARS plus all accrued and unpaid
interest, if any, on such series of ROARS to such Remarketing Date. In any
such case, payment will be made by the Company to the Participant of each
Beneficial Owner of the applicable series of ROARS, by book-entry through DTC
by the close of business on the applicable Remarketing Date, against delivery
through DTC of such Beneficial Owner's ROARS.
SETTLEMENT
If a series of ROARS is automatically tendered, or deemed tendered, to the
Remarketing Dealer for purchase on the applicable Remarketing Date, all of
such series of ROARS will be delivered automatically to the account of the
Trustee, by book-entry through DTC pending payment of the purchase price
therefor, on such Remarketing Date. The Remarketing Dealer will, not later
than 2:00 p.m., New York City time, on the Business Day immediately preceding
the applicable Remarketing Date, pay to the Trustee the ROARS Purchase Price
for such series of ROARS. On such Remarketing Date, the Remarketing Dealer
will cause the Trustee to make payment to the Participant of each Beneficial
Owner of such series of ROARS, by book-entry through DTC by the close of
business on such Remarketing Date, against delivery through DTC of such
Beneficial Owner's ROARS, of the ROARS Purchase Price for such series of
ROARS. If the Remarketing Dealer does not purchase all of such series of ROARS
on such Remarketing Date, it will be the obligation of the Company to make or
cause to be made such payment for such series of ROARS as described under "--
Mandatory Redemption." In any case, the Company will make or cause the Trustee
to make payment of any interest due on such Remarketing Date to each
Beneficial Owner of a series of ROARS by book-entry through DTC by the close
of business on such Remarketing Date.
The transactions described above will be executed on each Remarketing Date
through DTC in accordance with the procedures of DTC, and the accounts of the
respective Participants will be debited and credited and the ROARS delivered
by book-entry as necessary to effect such transactions.
All payments of principal and interest in respect of the ROARS in book-entry
form will be made in immediately available funds. Each series of ROARS will
trade in DTC's Same-Day Funds Settlement System until the applicable Stated
Maturity Date or Remarketing Date, as the case may be, or until such series of
ROARS is issued in definitive form, and secondary market trading activity in
the ROARS will therefore be required by DTC to settle in immediately available
funds.
The tender and settlement procedures described above, including provisions
for payment to selling Beneficial Owners of tendered ROARS or for payment by
the purchasers of ROARS in the remarketing, may be
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modified to the extent required by DTC or, if the book-entry system is no
longer available for the ROARS at the time of the remarketing, to the extent
required to facilitate the tendering and remarketing of ROARS in certificated
form. In addition, the Remarketing Dealer may modify the settlement procedures
described above in order to facilitate the settlement process.
As long as DTC or its nominee holds a certificate representing any ROARS in
the book-entry system of DTC, no certificates for such ROARS will be delivered
by any selling Beneficial Owner to reflect any transfer of such ROARS effected
in the remarketing. In addition, under the terms of the ROARS and the
Remarketing Agreement, the Company has agreed that (i) it will use its best
efforts to maintain the ROARS in book-entry form with DTC or any successor
thereto and to appoint a successor depository to the extent necessary to
maintain the ROARS in book-entry form, and (ii) it will waive any
discretionary right it otherwise has under the Indenture to cause the ROARS to
be issued in certificated form.
For further information with respect to transfers and settlement through
DTC, see "--Book-Entry System."
REMARKETING DEALER
On May 19, 1998, the Company and the Remarketing Dealer entered into a
remarketing agreement (the "Remarketing Agreement"). The Remarketing Dealer
will not receive any fees or reimbursement of expenses from the Company in
connection with the remarketing, except under certain circumstances. The
aggregate price paid to the Company by the Initial Purchasers for the purchase
of the Private ROARS included an amount paid by the Remarketing Dealer for its
right to remarket the ROARS.
The Company has agreed to indemnify the Remarketing Dealer against certain
liabilities, including liabilities under the Securities Act, arising out of or
in connection with its duties under the Remarketing Agreement.
If the Remarketing Dealer elects to remarket a series of ROARS, the
obligation of the Remarketing Dealer to purchase such series of ROARS will be
subject to several conditions precedent set forth in the Remarketing
Agreement. In addition, upon the occurrence of certain events after the
Remarketing Dealer elects to remarket a series of ROARS, the Remarketing
Dealer will have the right to terminate the Remarketing Agreement or terminate
its obligation to purchase such series of ROARS, or, until 2:00 p.m., New York
City time, on the Business Day immediately preceding the applicable
Remarketing Date, to redetermine the applicable Interest Rate to Maturity.
No Beneficial Owner of any ROARS will have any rights or claims under the
Remarketing Agreement or against the Company or the Remarketing Dealer as a
result of the Remarketing Dealer not purchasing such ROARS.
The Remarketing Agreement provides that the Remarketing Dealer may resign at
any time as Remarketing Dealer, such resignation to be effective ten Business
Days after the delivery to the Company and the Trustee of notice of such
resignation. In such case, the Company has no obligation to appoint a
successor Remarketing Dealer. The Remarketing Dealer, in its individual or any
other capacity, may buy, sell, hold, and deal in any of the ROARS. The
Remarketing Dealer may exercise any vote or join in any action that any
Beneficial Owner of ROARS may be entitled to exercise or take as if it did not
act in any capacity under the Remarketing Agreement. The Remarketing Dealer,
in its individual capacity, either as principal or agent, may engage in or
have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity under the Remarketing Agreement.
As long as the Remarketing Agreement is in effect, the Company will not
acquire ROARS prior to the applicable remarketing thereof by the Remarketing
Dealer, other than in connection with the fulfillment of its obligation to
redeem a series of ROARS or the exercise of its right to redeem a series of
ROARS on a Remarketing Date or in the Exchange Offers. After the applicable
Remarketing Date or termination of the
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Remarketing Agreement prior thereto, the Company may at any time purchase any
ROARS of the applicable series at any price in the open market or otherwise.
The ROARS so purchased by the Company may, at its discretion, be held, resold
or surrendered to the Trustee for cancellation.
PAYMENT AND PAYMENT AGENTS
Principal of and interest on the Exchange ROARS will be payable, subject to
any applicable laws and regulations, at the offices of such paying agents as
the Company may designate from time to time pursuant to the Indenture ("Paying
Agents"), except that, at the option of the Company, payment of any interest
may be made by check mailed to the address of the person entitled thereto as
such address appears in the Security Register.
The Company has designated the Corporate Trust Office of the Trustee in New
York, New York as the Paying Agent and as the place where the Exchange ROARS
may be presented for payment. The Company may at any time designate one or
more additional Paying Agents or rescind the designation of any Paying Agent
or approve a change in the office through which any Paying Agent acts, except
that the Company will be required to maintain a Paying Agent in each Place of
Payment.
Notwithstanding the foregoing, payment of principal and interest on Book-
Entry Securities will be made in accordance with the arrangements from time to
time in place between the Paying Agent and DTC or its nominee as holder. See
"--Book-Entry System."
Any payment due on any day that is not a Business Day need not be made on
such day, but may be made on the next succeeding Business Day, with the same
force and effect as if made on the due date, and no interest will be payable
on the date of payment for the period from and after such due date.
BOOK-ENTRY SYSTEM
The Exchange ROARS will be issued only in fully registered form without
coupons and will be a "Registered Security" under the Indenture. The Exchange
ROARS will be issued in fully registered book-entry form, will be a "Book-
Entry Security" under the Indenture and will be represented by one or more
fully registered Global Securities deposited with or on behalf of DTC and
registered in the name of DTC or its nominee. Interests in the Global
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to its Participants'
interests) and the Participants (with respect to Beneficial Owners). So long
as DTC or its nominee is the registered owner of a Global Security, such
registered owner will be considered the sole owner or holder of the Exchange
ROARS represented by such Global Security for all purposes under the
Indenture. Except as otherwise provided below, Beneficial Owners will not be
entitled to have any of the individual Exchange ROARS represented by a Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of any such Exchange ROARS in definitive form, and will not
be considered the owners or holders thereof under the Indenture.
DTC has advised the Company as follows: DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code as in effect in the State of New York, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act; DTC
holds securities deposited by Participants with DTC, and facilities the
clearance and settlement of securities transactions among Participants in such
securities through electronic book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of security certificates;
Participants include securities brokers and dealers (including one or more of
the Initial Purchasers), banks, trust companies, clearing corporations, and
certain other organizations, some of which (and/or their representatives) have
ownership interests in DTC; indirect access to DTC's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a
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custodial relationship with a Participant, either directly or indirectly; and
the rules applicable to DTC and Participants are on file with the Commission.
The Indenture provides that if at any time the depository for a series of
ROARS is unwilling, unable or ineligible to continue to serve as such, the
Company will appoint a successor depository with respect to such series of
ROARS. If a successor depository is not appointed by the Company by the
effective date of the resignation of such depository, the Company will issue
individual certificated ROARS in exchange for the Global Security or Global
Securities representing such ROARS. In addition, the Indenture provides that
the Company may not at any time determine not to have any such ROARS
represented by one or more Global Securities. Under the terms of the Exchange
ROARS and the Remarketing Agreement, the Company has agreed that it will use
its best efforts to maintain the Exchange ROARS in book-entry form with DTC or
any successor thereto and to appoint a successor depository to the extent
necessary to maintain the Exchange ROARS in book-entry form.
Payments of principal of and interest on a series of ROARS represented by a
Global Security registered in the name of DTC or its nominee will be made to
DTC or its nominee, as the case may be, as the registered owner of the Global
Security representing such series of ROARS. None of the Company, the Trustee,
any Paying Agent or the Security Registrar for such series of ROARS will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Global
Security for such series of ROARS or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests. The Exchange
ROARS may be transferred or exchanged only though a Participant in DTC.
CERTAIN COVENANTS
The Indenture will contain, among others, the following covenants:
Limitation on Liens. The Company will, and will cause each of its
Subsidiaries to, promptly secure (on the basis set forth below) the Company's
obligations under the ROARS in the event that the Company or such Subsidiary
creates, incurs or suffers to exist a Lien of any nature whatsoever, other
than a Permitted Lien, on any property of the Company or any Subsidiary of the
Company (including Capital Stock of any such Subsidiary), whether owned at the
Closing Date or thereafter acquired, which secures Indebtedness that ranks
pari passu with or is subordinated to the ROARS. In the event such Lien
secures Indebtedness that ranks pari passu with the ROARS, the ROARS will be
secured on an equal and ratable basis with the obligation so secured until
such time as such obligation is no longer secured by such Lien. In the event
such Lien secures Indebtedness that ranks subordinate to the ROARS, the ROARS
will be secured on a basis senior to the obligation so secured to the same
extent as the ROARS rank senior in right of payment to such subordinated
Indebtedness, until such time as such obligation is no longer secured by such
Lien.
Limitation on Affiliate Transactions. The Company will not, and will not
permit any Subsidiary of the Company to, enter into or permit to exist any
transaction or series of related transactions (including the purchase, sale,
lease or exchange of any property, employee compensation arrangements or the
rendering of any service) with any Affiliate of the Company (an "Affiliate
Transaction") unless the terms thereof (i) are materially no less favorable to
the Company or such Subsidiary than those that could be obtained at the time
of such transaction in arm's-length dealings with a Person who is not such an
Affiliate, (ii) if such Affiliate Transaction (or series of related Affiliate
Transactions) involve aggregate payments in an amount in excess of $10,000,000
in any one year, (x) comply with the terms described in clause (i) and (y)
have been approved by a majority of the disinterested members of the Board of
Directors and (iii) if such Affiliate Transaction (or series of related
Affiliate Transactions) involve aggregate payments in an amount in excess of
$20,000,000 in any one year, (x) comply with the terms described in clause
(ii) and (y) have been determined by a nationally recognized investment
banking, accounting or qualified appraisal firm to be fair, from a financial
standpoint, to the Company and its Subsidiaries.
The provisions described in the immediately preceding paragraph will not
prohibit (i) any issuance of securities or any payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of,
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employment arrangements, stock option and stock ownership plans and other
stock-based employee compensation in the ordinary course of business and
approved by the Board of Directors; (ii) the grant of stock options or similar
rights to employees, officers and directors of the Company or any Subsidiary
of the Company in the ordinary course of business and pursuant to plans
approved by the Board of Directors; (iii) loans or advances to employees,
officers or directors in the ordinary course of business of the Company and
its Subsidiaries; (iv) fees, compensation or employee benefit arrangements
paid to and indemnity provided for the benefit of directors, officers or
employees of the Company or any Subsidiary of the Company in the ordinary
course of business; (v) any Affiliate Transaction between the Company and a
Subsidiary or Joint Venture of the Company or between any such Subsidiaries or
Joint Ventures (so long as the other stockholders of any such participating
Subsidiaries or Joint Ventures which are not wholly owned Subsidiaries of the
Company are not themselves Affiliates of the Company); and (vi) any
transactions effected pursuant to agreements in effect on the Closing Date;
provided, that such transactions are effected pursuant to the terms of such
agreements as in effect on the Closing Date.
Merger, Consolidation and Sale of Assets. The Company will not, in a single
transaction or series of related transactions, consolidate or merge with or
into any Person, or sell, assign, transfer, lease, convey or otherwise dispose
of (or cause or permit any Subsidiary of the Company to sell, assign,
transfer, lease, convey or otherwise dispose of) all or substantially all of
the Company's assets (determined on a consolidated basis for the Company and
the Company's Subsidiaries) to any Person, unless: (i) either (a) the Company
is the surviving or continuing corporation or (b) the Person (if other than
the Company) formed by such consolidation or into which the Company is merged
or the Person which acquires by sale, assignment, transfer, lease, conveyance
or other disposition all or substantially all of the Company's assets (the
"Surviving Entity") (x) is a corporation organized and validly existing under
the laws of the United States or any state thereof or the District of Columbia
and (y) expressly assumes, by supplemental indenture (in form and substance
satisfactory to the Trustee) executed and delivered to the Trustee, the due
and punctual payment of the principal of and interest on all of the ROARS and
the performance of every covenant of the ROARS, the Indenture, the Remarketing
Agreement and the Registration Rights Agreement on the part of the Company to
be performed or observed; (ii) immediately after giving effect to such
transaction and the assumption described in clause (i)(b)(y) above, the
Company or such Surviving Entity, as the case may be, has a Consolidated Net
Worth equal to at least 90% of the Consolidated Net Worth of the Company
immediately prior to such transaction; (iii) immediately before and
immediately after giving effect to such transaction and the assumption
described in clause (i)(b)(y) above, no Default or Event of Default has
occurred and is continuing; and (iv) the Company or the Surviving Entity has
delivered to the Trustee an officers' certificate and an opinion of counsel,
each stating that such consolidation, merger, sale, assignment, transfer,
lease, conveyance or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with the applicable provisions of the Indenture and that all conditions
precedent in the Indenture relating to such transaction have been satisfied.
For purposes of the foregoing description, the transfer (by lease,
assignment, sale or otherwise in a single transaction or series of
transactions) of all or substantially all of the assets of one or more
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the assets of the Company, will be deemed to be the
transfer of all or substantially all of the assets of the Company.
The Indenture provides that, upon any consolidation, combination or merger
or any transfer of all or substantially all of the assets of the Company in
accordance with the covenant described above, in which the Company is not the
continuing corporation, the Surviving Entity formed by such consolidation or
into which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made will succeed to, and be
substituted for, and may exercise every right and power of, the Company under
the Indenture and the ROARS with the same effect as if such Surviving Entity
had been named as such.
This covenant would not apply to any recapitalization transaction, a change
of control of the Company or a highly leveraged transaction unless such
transaction or change of control were structured to include a merger or
consolidation or sale, assignment, transfer, lease, conveyance or other
disposition of the Company's assets substantially as an entirety. There are no
covenants or other provisions in the Indenture providing for a "put" or
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increased interest or that would otherwise afford holders of ROARS protection
in the event of a recapitalization transaction, a change of control of the
Company or a highly leveraged transaction.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to the
ROARS of either series: (i) failure to pay interest payable on any ROARS of
such series when due, continued for 30 days; (ii) failure to pay principal on
any ROARS of such series when due; (iii) failure to perform any other covenant
of the Company in the Indenture, continued for 60 days, after written notice
as provided in the Indenture; (iv) (x) the Company or any Subsidiary of the
Company fails to pay any of its Indebtedness under one or more agreements or
instruments evidencing an aggregate principal amount of Indebtedness equal to
at least $25,000,000 (or its equivalent in any other currency or currencies)
as and when that Indebtedness becomes due and payable, after the expiration of
any applicable grace period, or (y) any other event occurs which, under one or
more agreements or instruments evidencing Indebtedness of the Company or any
Subsidiary of the Company, obligates the Company or such Subsidiary to pay an
aggregate principal amount of Indebtedness equal to at least $25,000,000 (or
its equivalent in any other currency or currencies) prior to the date on which
it otherwise would have become due and payable; and (v) certain events of
voluntary or involuntary bankruptcy, insolvency or reorganization with respect
to the Company. If an Event of Default (other than an Event of Default
described in clause (v) above) occurs and is continuing, either the Trustee or
the holders of at least 25% in principal amount of the outstanding ROARS of
such series by notice as provided in the Indenture may declare the principal
amount of all of the ROARS of such series to be due and payable immediately.
However, at any time after a declaration of acceleration with respect to the
ROARS of either series has been made, but before a judgment or decree based on
such acceleration has been obtained, the holders of a majority in principal
amount of the outstanding ROARS of such series may, under certain
circumstances, rescind and annul such acceleration. If an Event of Default
described in clause (v) above occurs, all unpaid principal of and accrued
interest on the outstanding ROARS will ipso facto become and be immediately
due and payable without any declaration or other act on the part of the
Trustee or any holder. For information as to waiver of defaults, see "--
Modification and Waiver."
The Indenture provides that, subject to the duty of the Trustee during an
Event of Default to act with the required standard of care, the Trustee will
be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the holders, unless such
holders shall have offered to the Trustee reasonable security or indemnity.
Subject to certain provisions, including those requiring security or
indemnification of the Trustee, the holders of a majority in principal amount
of the outstanding ROARS of either series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the ROARS of such series.
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of its obligations under the Indenture
and as to any default in such performance.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that the Company, at its option after the Remarketing
Date for a series of ROARS, (a) will be deemed to have been discharged from
any and all obligations in respect of the ROARS of such series (except for
certain obligations to register the transfer of or exchange ROARS, to replace
stolen, lost, destroyed or mutilated ROARS upon satisfaction of certain
requirements (including, without limitation, providing such security or
indemnity as the Trustee or the Company may require), to maintain paying
agencies and to hold certain moneys in trust for payment); or (b) need not
comply with certain restrictive covenants of the Indenture (including those
described under "--Certain Covenants"), in each case, if the Company deposits,
in trust with the Trustee, money in U.S. dollars or U.S. Government
Obligations that, through the scheduled payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an
amount or a combination thereof, in each case sufficient to pay all the
principal of and interest on the ROARS of such series on the dates such
payments are due in accordance with the terms of the Indenture and the ROARS
of such series.
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In the case of a discharge as described in clause (a) above, the Company is
required to deliver to the Trustee an opinion of counsel to the effect that
(i) the holders of the ROARS of the applicable series will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of the
exercise of the option set forth in clause (a) above and will be subject to
U.S. federal income tax on the same amounts and in the same manner and at the
same times as would have been the case if such option had not been exercised;
and (ii) either (A) the Company has received from, or there has been published
by, the U.S. Internal Revenue Service ("IRS") a ruling to that effect, or (B)
since the date of the Indenture, there has been a change in the applicable
U.S. federal income tax law. In the case of an election as described in clause
(b) above, the Company is required to deliver to the Trustee an opinion of
counsel to the effect that the holders of the ROARS of the applicable series
will not recognize income, gain or loss for U.S. federal income tax purposes
as a result of the exercise of the option set forth in clause (b) above.
SATISFACTION AND DISCHARGE
The Indenture will be discharged and will cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of
ROARS as expressly provided for in the Indenture) as to all outstanding ROARS
of either series when (i) either (a) all the ROARS of such series theretofore
authenticated and delivered (except lost, stolen or destroyed ROARS which have
been replaced or paid and ROARS for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter been repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation, or (b) all ROARS of such series not
theretofore delivered to the Trustee for cancellation have become due and
payable or will become due and payable at their stated maturity within one
year and the Company has irrevocably deposited or caused to be deposited with
the Trustee funds in trust in an amount sufficient to pay and discharge the
entire Indebtedness on such ROARS not theretofore delivered to the Trustee for
cancellation, including the principal of and interest on such ROARS to the
date of deposit or to the maturity thereof; (ii) the Company has paid all
other sums payable under the Indenture by the Company in respect of the
outstanding ROARS of such series; and (iii) the Company has delivered to the
Trustee an officers' certificate and an opinion of counsel satisfactory to the
Trustee, each stating that all conditions precedent under the Indenture
relating to the satisfaction and discharge of the Indenture in respect of the
ROARS of such series have been complied with.
MODIFICATION AND WAIVER
From time to time the Company and the Trustee may, without the consent of
the holders, amend, waive or supplement the Indenture or the ROARS for certain
specified purposes, including, among other things, curing ambiguities, defects
or inconsistencies, or making any other provisions with respect to matters or
questions arising under the Indenture, or making any change that does not
adversely affect the interests of any holder in any material respect. Other
modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the holders of not less than a majority in
principal amount of the outstanding ROARS of each series affected thereby;
provided, that no such modification or amendment may, without the consent of
the holder of each outstanding ROARS affected thereby: (a) change the stated
maturity of the principal of, or any installment of principal of, or interest
on, any ROARS in a manner other than as contemplated by the Remarketing
Agreement; (b) reduce the principal amount of or the rate of interest on any
ROARS except as contemplated by the Remarketing Agreement or the Indenture;
(c) change the place or currency of payment of principal of or interest on any
ROARS; (d) impair the right to institute suit for the enforcement of any
payment on or with respect to any ROARS; (e) reduce the percentage in
principal amount of outstanding ROARS, the consent of the holders of which is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults; or (f) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in the Indenture.
The holders of not less than a majority in principal amount of the
outstanding ROARS of either series may on behalf of the holders of all ROARS
of such series waive compliance by the Company with certain covenants of the
Indenture. The holders of not less than a majority in principal amount of the
outstanding ROARS of either
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series may on behalf of the holders of all ROARS of such series waive any past
default under the Indenture, except a default in the payment of the principal
of or interest on any ROARS or in respect of a provision which under the
Indenture cannot be modified or amended without the consent of the holder of
each outstanding ROARS affected.
GOVERNING LAW AND SERVICE OF PROCESS
The Indenture and the ROARS will be governed by the laws of the State of New
York. The Company will appoint The Bank of New York as its authorized agent
upon which process may be served in any action or proceeding arising out of or
based upon the Indenture or the ROARS which may be instituted in any Federal
or state court having subject matter jurisdiction in the Borough of Manhattan,
The City of New York, New York and has irrevocably submitted to the
jurisdiction of such courts in any such action or proceeding.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indenture. Reference
is made to the Indenture for the definitions of other capitalized terms used
herein but not defined herein.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means, at the
time of determination, the present value (discounted at the interest rate
implicit in such transaction in accordance with GAAP) of the total obligations
of the lessee for rental payments during the remaining term of the lease
included in such Sale/Leaseback Transaction (including any period for which
such lease has been extended).
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board with respect
to the Indenture and the Securities.
"Capital Lease Obligation" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented
by such obligation shall be the capitalized amount of such obligation
determined in accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such
equity.
"Consolidated Net Worth" of any Person means the stockholders' equity of
such Person, determined on a consolidated basis in accordance with GAAP, less
(without duplication) amounts attributable to Disqualified Capital Stock of
such Person.
"Consolidated Tangible Assets" means Total Assets less the sum of (a) the
total book value of all assets of the Company and its Subsidiaries properly
classified as intangible assets under GAAP, including such items as goodwill,
the purchase price of acquired assets in excess of the fair market value
thereof, trademarks, trade names, service marks, customer lists, brand names,
copyrights, patents and licenses, and rights with respect to the foregoing,
and (b) all amounts representing any write-up in the book value of any assets
of the Company or its Subsidiaries resulting from a revaluation thereof
subsequent to the date of the Company's then most recent audited financial
statements.
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"Convertible Notes" means the 6% Convertible Subordinated Notes due 2005 of
the Company and the 4 1/2% Convertible Subordinated Notes due 2001 of the
Company.
"Currency Agreement" means, with respect to any Person, any foreign exchange
contract, currency swap agreement or other similar agreement to which such
Person is a party or of which such Person is a beneficiary.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Disqualified Capital Stock" means, with respect to any Person, Capital
Stock of such Person that, by its terms or by the terms of any security into
which it is convertible or exchangeable or for which it is exercisable, is, or
upon the happening of an event or the passage of time or both would be,
required to be redeemed or repurchased (including at the option of the holder
thereof) by such Person or any of its Subsidiaries, in whole or in part, on or
prior to the Stated Maturity Date of the applicable series of ROARS.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as are in effect from time to time.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Agreement or Currency Agreement.
"Incur" means issue, assume, guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary of another Person
(whether by merger, consolidation, acquisition or otherwise) will be deemed to
be Incurred by such Person at the time it becomes such a Subsidiary; provided,
further, however, that in the case of a discount security, neither the accrual
of interest nor the accretion of original issue discount will be considered an
Incurrence of Indebtedness, but the entire face amount of such security will
be deemed Incurred upon the issuance of such security. The term "Incurrence"
when used as a noun will have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication), (i) the principal of and premium (if any)
in respect of (A) indebtedness of such Person for money borrowed, and (B)
indebtedness evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person and all Attributable Debt in
respect of Sale/Leaseback Transactions entered into by such Person; (iii) the
amount of all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Capital Stock or, with
respect to any Subsidiary of such Person, any Preferred Stock (but excluding,
in each case, any accrued dividends); and (iv) all obligations of the types
referred to in clauses (i) and (iii) of other Persons and all dividends of
other Persons for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise. The amount of Indebtedness of any Person at any date will be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations as described above at
such date; provided, however, that the amount outstanding at any time of any
Indebtedness issued with original issue discount will be deemed to be the face
amount of such Indebtedness less the remaining unamortized portion of the
original issue discount of such Indebtedness at such time as determined in
conformity with GAAP.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement or other financial agreement or arrangement designed to
protect the Company or any Subsidiary of the Company against fluctuations in
interest rates.
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"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided,
however, that, as to any such arrangement in corporate form, such corporation
will not, as to any Person of which such corporation is a Subsidiary, be
considered to be a Joint Venture to which such Person is a party.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Permitted Liens" means any (i) Liens arising by reason of (x) operation of
law in favor of carriers, warehousemen, landlords, mechanics, materialmen,
laborers, employees or suppliers in existence for less than 120 days or for
more than 120 days which are not yet delinquent or are being contested in good
faith by negotiations or by appropriate proceedings which suspend the
collection thereof or (y) any interest or title of a lessor under any lease;
(ii) Liens in favor of the Company; (iii) Liens on property of a Person
existing at the time such Person is acquired by, merged into or consolidated
with the Company or any Subsidiary of the Company; provided, that such Liens
were not incurred in contemplation of such acquisition, merger or
consolidation and do not extend to any assets other than those of the Person
acquired by, merged into or consolidated with the Company or any such
Subsidiary; (iv) Liens on property existing at the time of acquisition thereof
by the Company or any Subsidiary of the Company; provided, that such Liens
were not incurred in contemplation of such acquisition; (v) Liens existing on
the date of the Indenture; (vi) Liens to secure taxes, assessments and other
government charges or claims for labor, material or supplies (x) in respect of
obligations which are not overdue or (y) which are currently being contested
in good faith by appropriate proceedings if the Company has set aside on its
books adequate reserves with respect thereto, if required, and if no
proceedings have been commenced to foreclose any such Lien; (vii) deposits or
pledges made in connection with, or to secure payment of, workers'
compensation, unemployment insurance, old age pensions or other social
security obligations; (viii) Liens in respect of judgments or awards which
have been in force for less than the applicable period for taking an appeal,
so long as execution is not levied thereunder, or in respect of which the
Company or one of its Subsidiaries, as the case may be, at the time in good
faith is prosecuting an appeal or proceedings for review and in respect of
which the Company and its Subsidiaries have maintained reserves in an amount
satisfactory to the Company; (ix) encumbrances consisting of easements, rights
of way, zoning restrictions, restrictions on the use of real property, defects
and irregularities in the title thereto, landlord's or lessor's Liens under
leases to which the Company or any Subsidiary of the Company is a party, and
other minor liens or encumbrances none of which in the opinion of the Company
or such Subsidiary interferes materially with the use of the property affected
in the ordinary conduct of the business of the Company or such Subsidiary and
which encumbrances do not individually or in the aggregate have a material
adverse effect on the business of the Company and its Subsidiaries on a
consolidated basis; (x) Liens securing Indebtedness in respect of performance
bonds, bankers' acceptances, and surety or appeal bonds entered into by the
Company or its Subsidiaries in the ordinary course of their business; (xi)
Liens securing Hedging Obligations consisting of Interest Rate Agreements and
Currency Agreements entered into in the ordinary course of business and not
for the purpose of speculation; (xii) Liens securing Indebtedness arising from
the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business; provided,
that such Indebtedness is extinguished within five business days of
Incurrence; (xiii) Liens securing Indebtedness of the Company and its
Subsidiaries arising from agreements providing for indemnification, adjustment
of purchase price or similar obligations, in any case Incurred in connection
with the disposition of any assets of the Company or any such Subsidiary
(other than guarantees of Indebtedness Incurred by any Person acquiring all or
any portion of such assets for the purpose of financing such acquisition), in
a principal amount not to exceed the gross proceeds actually received by the
Company or any such Subsidiary in connection with such disposition; and (xiv)
Liens securing Indebtedness in an aggregate principal amount together with all
Liens securing other Indebtedness of the Company and its Subsidiaries
outstanding on the date of such Incurrence (other than Liens described in
clauses (i) through (xiii) above) not exceeding 15% of Consolidated Tangible
Assets.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
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"Preferred Stock," as applied to the Capital Stock of any corporation or the
equity securities of any trust, means Capital Stock of any class or classes
(however designated) which is preferred as to the payment of dividends or
distributions or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such corporation or trust over
shares of Capital Stock of any other class of such corporation or trust.
"Principal" of any Indebtedness (including a ROARS) means the principal of
such Indebtedness plus the premium, if any, payable on such Indebtedness which
is due or overdue or is to become due at the relevant time.
"Sale/Leaseback Transaction" means an arrangement relating to property now
owned or hereafter acquired whereby the Company or one of its Subsidiaries
transfers such property to a Person and the Company or such Subsidiary leases
it from such Person.
"Stated Maturity" means, with respect to any instrument, the date specified
in such instrument as the fixed date on which the final payment of principal
of such instrument is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the
repurchase, redemption or repayment of such instrument at the option of the
holder thereof upon the happening of any contingency unless such contingency
has occurred).
"Subsidiary" means, in respect of any Person, any corporation, association,
partnership or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i)
such Person, (ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person.
"Total Assets" means the total consolidated assets of the Company and its
Subsidiaries, as shown on the most recent balance sheet (excluding the
footnotes thereto) of the Company.
REGISTRATION RIGHTS
Pursuant to the Registration Rights Agreement, the Company has agreed, for
the benefit of the Holders of the Private ROARS, at the Company's cost, to (i)
use its reasonable best efforts to cause the Registration Statement to be
declared effective under the Securities Act within 180 days after the Closing
Date (the "Effective Date"); and (ii) commence the Exchange Offers and use its
reasonable best efforts to issue the Exchange ROARS on or prior to the date
(the "Consummation Date") that is 35 days immediately following the date that
the Registration Statement shall have been declared effective. Upon the
Registration Statement being declared effective, the Company will offer the
Exchange ROARS in exchange for surrender of then-outstanding Private ROARS.
The Company will keep the Exchange Offers open for not less than 20 business
days (or longer if required by applicable law) after the date on which notice
of the Exchange Offers is mailed to the Holders. For each Private ROARS
accepted pursuant to an Exchange Offer, the Holder of such Private ROARS will
receive an Exchange ROARS having a principal amount equal to that of the
surrendered Private ROARS. Interest on each Exchange ROARS will accrue from
the last interest payment date to which interest was paid on the Private ROARS
surrendered in exchange therefor or, if no interest has been paid on such
Private ROARS, from May 19, 1998.
Under existing interpretations of the Staff, the Exchange ROARS would in
general be freely tradable after the consummation of the Exchange Offers
without further registration under the Securities Act. However, any Holder of
Private ROARS who is an Affiliate of the Company or who intends to participate
in an Exchange Offer for the purpose of distributing Exchange ROARS (i) will
not be able to rely on those interpretations of the Staff; (ii) will not be
entitled to tender its Private ROARS in the Exchange Offers; and (iii) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any sale or transfer of those Private ROARS
unless such sale or transfer is made pursuant to an exemption from such
requirements.
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<PAGE>
Each Holder which wishes to exchange its Private ROARS for Exchange ROARS
pursuant to the Exchange Offers will be required to represent that (i) it is
not an Affiliate of the Company, (ii) it is not a broker-dealer tendering
Private ROARS acquired directly from the Company, (iii) the Exchange ROARS to
be received by it will be acquired in the ordinary course of its business, and
(iv) it has no arrangement with any person to participate in a distribution of
Exchange ROARS. In addition, in connection with any resales of Exchange ROARS,
any broker-dealer (a "Participating Broker-Dealer") who acquired Private ROARS
for its own account as a result of market-making or other trading activities
must deliver a prospectus meeting the requirements of the Securities Act. The
Commission has taken the position that Participating Broker-Dealers may
fulfill their prospectus delivery requirements with respect to Exchange ROARS
(other than resale of an unsold allotment from the original sale of the
Private ROARS) with this Prospectus. Under the Registration Rights Agreement,
the Company is required to allow Participating Broker-Dealers and other
persons, if any, subject to similar prospectus delivery requirements, to use
this Prospectus in connection with the resale of Exchange ROARS for a period
of 60 days after the Expiration Date.
In the event that (x) the Company reasonably determines that changes in law
or the applicable interpretations of the Staff do not permit it to effect the
Exchange Offers; or (y) the Exchange Offers are not consummated within 215
calendar days after the Closing Date; or (z) upon the request of any Initial
Purchaser with respect to any Private ROARS held by it, if such Initial
Purchaser is not permitted pursuant to applicable law or applicable
interpretations of the Staff to participate in the Exchange Offers and thereby
receive Exchange ROARS, the Company will promptly notify the relevant Holders
of the Private ROARS and will, at its cost, (a) cause to be filed with the
Commission a registration statement (a "Shelf Registration Statement")
relating to those Private ROARS covering resales of those Private ROARS; (b)
use its reasonable best efforts to cause the Shelf Registration Statement to
be declared effective under the Securities Act as soon as practicable; and (c)
use its reasonable best efforts to keep the Shelf Registration Statement
effective until two years after the Closing Date or until all Private ROARS
eligible to be sold thereunder have been so sold or cease to be outstanding.
The Company will provide to each relevant Holder copies of the prospectus
which is a part of the Shelf Registration Statement, notify each such Holder
when the Shelf Registration Statement has become effective and take certain
other actions as required to permit unrestricted resales of the relevant
Private ROARS. A Holder that sells Private ROARS pursuant to the Shelf
Registration Statement generally will be required to be named as a selling
securityholder in the related prospectus and to deliver a prospectus to
purchasers, will be subject to certain of the civil liability provisions under
the Securities Act in connection with such sales, and will be bound by the
provisions of the Registration Rights Agreement which are applicable to such a
Holder (including certain indemnification obligations). In addition, such a
Holder of Private ROARS will be required to deliver information to be used in
connection with the Shelf Registration Statement in order to have such
Holder's Private ROARS included in the Shelf Registration Statement and to
benefit from the provisions described in the following paragraph.
In the event that, with respect to either series of Private ROARS, either
(i) the Registration Statement is not declared effective by the Commission by
the Effective Date or the Exchange Offer for such series is not consummated on
or prior to the Consummation Date (unless changes in law or the applicable
interpretations of the Staff do not permit the Company to effect the Exchange
Offers, in which case the provisions described in clause (ii) shall apply); or
(ii) the Shelf Registration Statement with respect to the Private ROARS of
such series that is required to be filed as described in clause (x), (y) or
(z) of the preceding paragraph is not declared effective (or shall thereafter
cease to be effective, subject to certain exceptions, prior to the earlier of
the second anniversary of the Closing Date and the date on which all relevant
Private ROARS have been sold thereunder) on or prior to the later of the 215th
calendar day after the Closing Date and the 60th calendar day after the
publication of the change in law or interpretation, the interest rate accruing
on the Private ROARS of the series affected thereby will be increased by 0.50%
per annum for the first 90 days following the Effective Date or the
Consummation Date, as applicable, in the case of the provisions described in
clause (i) above, or following such 215th or 60th calendar day, as applicable,
in the case of the provisions described in clause (ii) above, and will be
increased by an additional 0.50% per annum after the end of such period,
except under the circumstances described in the succeeding sentence
("Liquidated Damages"). Upon (x) the declaration of the effectiveness of the
Registration Statement after the Effective Date or the consummation of the
applicable Exchange Offer after
37
<PAGE>
the Consummation Date, as applicable; or (y) the effectiveness of the Shelf
Registration Statement after the 215th or 60th calendar day, as applicable (or
if the Shelf Registration Statement ceased to be effective as described above,
after the Shelf Registration Statement again becomes effective subject to
certain specified exceptions), any such increase in the interest rate will
cease to be effective. In the case of either series of Private ROARS, the
aggregate amount of Liquidated Damages pursuant to the provisions described
above will in no event exceed 1.00% per annum.
This summary of certain provisions of the Registration Rights Agreement does
not purport to be complete and such summary is subject to the detailed
provisions of the Registration Rights Agreement to which reference is hereby
made for a full description of such provisions. A copy of the Registration
Rights Agreement is filed as an exhibit to the Registration Statement of which
this Prospectus constitutes a part. See "Available Information."
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion of certain potential United States
Federal income tax consequences associated with the exchange of Private ROARS
for Exchange ROARS and the acquisition and disposition of Exchange ROARS by a
holder who holds Exchange ROARS as "capital assets" (generally, property held
for investment). This discussion is based upon the United States Federal
income tax laws, regulations, rulings and decisions now in effect, which are
subject to change, possibly retroactively. This discussion does not cover all
aspects of Federal income taxation that may be relevant to holders, in light
of their specific circumstances, particularly holders subject to special tax
treatment (such as insurance companies, financial institutions, tax exempt
organizations or foreign persons, except to the extent described below).
Prospective holders of Exchange ROARS are urged to consult their tax advisors
regarding the United States Federal income tax consequences of acquiring,
holding and disposing of Exchange ROARS, as well as any tax consequences that
may arise under the laws of any foreign, state, local or other taxing
jurisdiction.
For purposes of this discussion, a "U.S. holder" means a holder of Exchange
ROARS that is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in the United States or under
the laws of the United States or of any political subdivision thereof, an
estate whose income is includible in gross income for United States Federal
income tax purposes regardless of its source, or a trust whose administration
is subject to the primary supervision of a United States court and which has
one or more United States fiduciaries who have the authority to control all
substantial decisions of the trust. A "Non-U.S. holder" means a beneficial
owner of Exchange ROARS who is not a U.S. holder.
U.S. HOLDERS
Exchange of ROARS. There will be no Federal income tax consequences to a
holder exchanging Private ROARS for Exchange ROARS pursuant to the Exchange
Offers, and such a holder will have the same adjusted tax basis and holding
period in the Exchange ROARS as it had in the Private ROARS immediately before
the exchange.
Disposition of Exchange ROARS. In general, the holder of an Exchange ROARS
will recognize gain or loss upon the sale, redemption, retirement or other
disposition of that Exchange ROARS measured by the difference between the
amount of cash and the fair market value of property received (except to the
extent attributable to the payment of accrued interest) and the holder's
adjusted tax basis in that Exchange ROARS. Subject to the market discount
rules discussed below, the gain or loss on the sale or other disposition of an
Exchange ROARS should be long-term capital gain or loss; provided, that the
holder has a holding period for that Exchange ROARS (which would include the
holding period of the exchanged Private ROARS) of more than one year. In the
case of a U.S. holder who is an individual, any capital gain recognized on the
sale or other disposition of an Exchange ROARS generally will be subject to a
maximum U.S. Federal income tax rate of (i)
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<PAGE>
28 percent if such U.S. holder's holding period is more than one year and not
more than 18 months and (ii) 20 percent if such U.S. holder's holding period
exceeds 18 months.
Market Discount on Resale. Holders, other than purchasers of Private ROARS
in the original offering, should be aware that the resale of Exchange ROARS
may be affected by the market discount provisions of the Internal Revenue Code
of 1986, as amended. These rules generally provide that if a subsequent holder
of an Exchange ROARS purchases it at a market discount in excess of a
statutorily defined de minimis amount, and thereafter recognizes gain upon a
disposition (including a partial redemption) of that Exchange ROARS, the
lesser of such gain or the portion of the market discount that accrued while
the Exchange ROARS was held by such holder will be treated as ordinary
interest income at the time of the disposition. The rules also provide that a
holder who acquires an Exchange ROARS at a market discount may be required to
defer a portion of any interest expense that may otherwise be deductible on
any indebtedness incurred or maintained to purchase or carry such Exchange
ROARS until the holder disposes of such Exchange ROARS in a taxable
transaction. If a holder of an Exchange ROARS elects to include market
discount in income currently, both of the foregoing rules would not apply.
NON-U.S. HOLDERS
Under present United States Federal income and estate tax law, assuming
certain certification requirements are satisfied (which include identification
of the beneficial owner of the instrument), and subject to the discussion of
backup withholding below:
(a) payments of interest on Exchange ROARS to any Non-U.S. holder will not
be subject to United States Federal income or withholding tax;
provided, that (1) such holder does not actually or constructively own
10% or more of the total combined voting power of all classes of stock
of the Company entitled to vote, (2) such holder is not (i) a bank
receiving interest pursuant to a loan agreement entered into in the
ordinary course of its trade or business or (ii) a controlled foreign
corporation that is related to the Company through stock ownership, and
(3) such interest payments are not effectively connected with the
conduct of a United States trade or business of such holder;
(b) a holder of an Exchange ROARS who is a Non-U.S. holder will not be
subject to the United States Federal income tax on gain realized on the
sale, exchange or other disposition of that Exchange ROARS, unless (1)
such holder is an individual who is present in the United States for
183 days or more during the taxable year and certain other requirements
are met, or (2) the gain is effectively connected with the conduct of a
United States trade or business of such holder; and
(c) if interest on an Exchange ROARS is exempt from withholding of United
States Federal income tax under the rules described below, that
Exchange ROARS will not be included in the estate of a deceased Non-
U.S. holder for United States Federal estate tax purposes.
The certification referred to above may be made on an I.R.S. Form W-8 or
substantially similar substitute form.
INFORMATION REPORTING AND BACKUP WITHHOLDING
A U.S. holder may be subject to backup withholding at a rate of 31% with
respect to interest paid on or proceeds derived from the sale or other
disposition of an Exchange ROARS, unless that U.S. holder (i) is a corporation
or comes within certain other exempt categories or (ii) provides a taxpayer
identification number, certifies as to no loss of exemption from backup
withholding and otherwise complies with applicable requirements of the backup
withholding rules.
Under temporary United States Treasury regulations, United States
information reporting requirements and backup withholding tax will generally
not apply to interest paid on Exchange ROARS to a Non-U.S. holder at an
address outside the United States. Payment by a United States office of a
broker of the proceeds of a sale of
39
<PAGE>
an Exchange ROARS are subject to both backup withholding at a rate of 31% and
information reporting unless the holder thereof certifies its Non-U.S. holder
status under penalties of perjury or otherwise establishes an exemption.
Information reporting requirements (but not backup withholding) will also
apply to payment of the proceeds of a sale of an Exchange ROARS by a foreign
office of a United States broker or a foreign broker with certain types of
relationships to the United States, unless that broker has documentary
evidence in its records that the holder is a Non-U.S. holder and certain other
conditions are met or the holder otherwise establishes an exemption.
Backup withholding is not an additional tax. Any amount withheld under the
backup withholding rules will be refunded or credited against the holder's
United States Federal income tax liability; provided, that the required
information is furnished to the I.R.S.
On October 6, 1997, the United States Treasury Department issued final
regulations governing information reporting and the certification procedures
regarding withholding and backup withholding on certain amounts paid to Non-
U.S. holders after December 31, 1999. The new Treasury regulations would alter
the procedures for claiming the benefits of an income tax treaty and may
change the certification procedures relating to the receipt by intermediaries
of payments on behalf of beneficial owners of ROARS. Holders of ROARS should
consult their tax advisors concerning the effect, if any, of such new Treasury
regulations on an investment in ROARS.
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange ROARS for its own account pursuant
to the Exchange Offers must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange ROARS. This Prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange ROARS received in exchange for Private
ROARS where such Private ROARS were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has
agreed that, starting on the applicable Expiration Date and ending at the
close of business on the 60th day following such Expiration Date, it will make
this Prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with any such resale.
The Company will not receive any proceeds from any sale of Exchange ROARS by
broker-dealers. Exchange ROARS received by broker-dealers for their own
account pursuant to the Exchange Offers may be sold from time to time in one
or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on those Exchange ROARS or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer that resells Exchange ROARS that were
received by it for its own account pursuant to the Exchange Offers and any
broker or dealer that participates in a distribution of such Exchange ROARS
may be deemed to be an "underwriter" within the meaning of the Securities Act
and any profit from any such resale of Exchange ROARS and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. Each Letter of Transmittal states that,
by acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
For a period of 60 days after the applicable Expiration Date, the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such
documents in the applicable Letter of Transmittal. The Company has agreed to
pay all expenses incident to the Exchange Offers, other than any of the
expenses of any Holder, including the fees and expenses of such Holder's
counsel, and will indemnify the Holders of the Private ROARS (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
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<PAGE>
LEGAL MATTERS
Certain legal matters relating to the Exchange ROARS will be passed upon for
the Company by Kirkpatrick & Lockhart LLP, Pittsburgh, Pennsylvania.
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The consolidated financial statements of United States Filter Corporation
and its subsidiaries as of March 31, 1997 and 1998 and for each of the three
years in the period ended March 31, 1998, have been incorporated by reference
herein and the Registration Statement in reliance upon the reports of KPMG
Peat Marwick LLP and Ernst and Young LLP, independent certified public
accountants, incorporated by reference, and upon the authority of said firms
as experts in accounting and auditing.
The consolidated financial statements of The Kinetics Group, Inc. at
September 30, 1997 and for each of the two years in the period ended September
30, 1997 incorporated by reference herein have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon incorporated
by reference herein, and are included in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
41
<PAGE>
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY IN-
FORMATION OTHER THAN THAT CONTAINED IN THIS PROSPECTUS OR TO MAKE ANY REPRE-
SENTATIONS IN CONNECTION WITH THE OFFERINGS COVERED BY OR PURSUANT TO THIS
PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY OF THE
SECURITIES DESCRIBED HEREIN IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PRO-
SPECTUS NOR ANY TRANSACTION HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THERE HAS NOT BEEN A CHANGE IN THE FACTS SET FORTH IN THIS
PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
--------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
Risk Factors............................................................... 3
The Company................................................................ 10
Use of Proceeds............................................................ 11
Selected Consolidated Financial Data....................................... 12
The Exchange Offers........................................................ 15
Description of the ROARS................................................... 22
Certain United States Federal Income Tax Consequences...................... 38
Plan of Distribution....................................................... 40
Legal Matters.............................................................. 41
Independent Certified Public Accountants................................... 41
</TABLE>
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UNITED STATES
FILTER CORPORATION
OFFERS TO EXCHANGE
$500,000,000
6.375% EXCHANGE REMARKETABLE OR
REDEEMABLE SECURITIES
DUE 2011
(REMARKETING DATE MAY 15, 2001)
$400,000,000
6.50% EXCHANGE REMARKETABLE OR
REDEEMABLE SECURITIES
DUE 2013
(REMARKETING DATE MAY 15, 2003)
---------------
PROSPECTUS
---------------
, 1998
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- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation and the By-laws of the Company provide for
the indemnification of directors and officers to the fullest extent permitted
by the General Corporation Law of the State of Delaware, the state of
incorporation of the Company.
Section 145 of the General Corporation Law of the State of Delaware
authorizes indemnification when a person is made a party or is threatened to
be made a party to any proceeding by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation or is or was
serving as a director, officer, employee or agent of another enterprise, at
the request of the corporation, and if such person acted in good faith and in
a manner reasonably believed by him or her to be in, or not opposed to, the
best interests of the corporation. With respect to any criminal proceeding,
such person must have had no reasonable cause to believe that his or her
conduct was unlawful. If it is determined that the conduct of such person
meets these standards, he or she may be indemnified for expenses incurred
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such
proceeding.
If such a proceeding is brought by or in the right of the corporation (i.e.,
a derivative suit), such person may be indemnified against expenses actually
and reasonably incurred if he or she acted in good faith and in a manner
reasonably believed by him or her to be in, or not opposed to, the best
interests of the corporation. There can be no indemnification with respect to
any matter as to which such person is adjudged to be liable to the
corporation; however, a court may, even in such case, allow such
indemnification to such person for such expenses as the court deems proper.
Where such person is successful in any such proceeding, he or she is
entitled to be indemnified against expenses actually and reasonably incurred
by him or her. In all other cases, indemnification is made by the corporation
upon determination by it that indemnification of such person is proper because
such person has met the applicable standard of conduct.
The Company maintains an errors and omissions liability policy for the
benefit of its officers and directors, which may cover certain liabilities of
such individuals to the Company.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The following exhibits are filed as part of this registration
statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.01 Debt Securities Indenture dated as of May 19, 1998 between United
States Filter Corporation and The Bank of New York, as Trustee
(incorporated by reference to Exhibit 4.2 to the Company's Annual
Report on Form 10-K for the year ended March 31, 1998 (File No. 1-
10728)).
4.02 First Supplemental Indenture dated as of May 19, 1998, between United
States Filter Corporation and The Bank of New York, supplementing the
Indenture dated as of May 19, 1998 (incorporated by reference to
Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year
ended March 31, 1998 (File No. 1-10728)).
4.03 Registration Rights Agreement dated as of May 19, 1998 among United
States Filter Corporation, NationsBanc Montgomery Securities LLC,
Donaldson, Lufkin & Jenrette Securities Corporation and Salomon
Brothers Inc (filed herewith).
5.01 Opinion of Kirkpatrick & Lockhart LLP as to the legality of the
securities being registered (filed herewith).
12.01 Computation of Ratio of Earnings to Fixed Charges (filed herewith).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
23.01 Consent of Kirkpatrick & Lockhart LLP (included in Exhibit 5.01).
23.02 Consent of KPMG Peat Marwick LLP (filed herewith).
23.03 Consent of Ernst & Young LLP (filed herewith).
24.01 Power of Attorney (included in signature page of this registration
statement).
25.01 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under the
Indenture for the 6.375% Exchange Remarketable or Redeemable
Securities due 2011 (filed herewith).
25.02 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under the
Indenture for the 6.50% Exchange Remarketable or Redeemable Securities
due 2013 (filed herewith).
99.01 Form of Letter of Transmittal for the 6.375% Exchange Remarketable or
Redeemable Securities due 2011 (filed herewith).
99.02 Form of Letter of Transmittal for the 6.50% Exchange Remarketable or
Redeemable Securities due 2013 (filed herewith).
99.03 Form of Notice of Guaranteed Delivery for the 6.375% Exchange
Remarketable or Redeemable Securities due 2011 (filed herewith).
99.04 Form of Notice of Guaranteed Delivery for the 6.50% Exchange
Remarketable or Redeemable Securities due 2013 (filed herewith).
99.05 Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 (filed herewith).
99.06 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees for the 6.375% Exchange Remarketable or Redeemable
Securities due 2011 (filed herewith).
99.07 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees for the 6.50% Exchange Remarketable or Redeemable
Securities due 2013 (filed herewith).
99.08 Form of Letter to Clients for the 6.375% Exchange Remarketable or
Redeemable Securities due 2011 (filed herewith).
99.09 Form of Letter to Clients for the 6.50% Exchange Remarketable or
Redeemable Securities due 2013 (filed herewith).
99.10 Form of Exchange Agent Agreement (filed herewith).
</TABLE>
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE>
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(5) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other Items of
the applicable form.
(6) That every prospectus (i) that is filed pursuant to paragraph (5)
immediately preceding, or (ii) that purports to meet the requirements of
section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to the
registration statement and will not be used until such amendment is effective,
and that, for purposes of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(7) To respond to requests for information that is incorporated by reference
into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within
one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of
the registration statement through the date of responding to the request.
(8) To supply by means of a post-effective amendment all required
information concerning a transaction, and the company being acquired involved
therein, that was not the subject of and included in the registration
statement when it became effective.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Palm Desert, State of
California, on September 16, 1998.
UNITED STATES FILTER CORPORATION
/s/ Richard J. Heckmann
By: ________________________________
Richard J. Heckmann
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kevin L. Spence and Damian C. Georgino, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, including post-effective amendments, and to file the same, with all
exhibits thereto, and other documentation in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in or about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
/s/ Richard J. Heckmann Chairman of the Board, President September 16,
- ------------------------- and Chief Executive Officer 1998
Richard J. Heckmann (Principal Executive Officer)
and a Director
/s/ Kevin L. Spence Executive Vice President/Chief September 16,
- ------------------------- Financial Officer (Principal 1998
Kevin L. Spence Financial and Accounting
Officer)
/s/ Andrew D. Seidel President/Chief Operating September 16,
- ------------------------- Officer-- North American 1998
Andrew D. Seidel Wastewater Group and a Director
/s/ Nicholas C. Memmo President/Chief Operating September 16,
- ------------------------- Officer-- North American Process 1998
Nicholas C. Memmo Water Group and a Director
Director
- -------------------------
James E. Clark
II-4
<PAGE>
SIGNATURE CAPACITY DATE
/s/ John L. Diederich Director September 16,
- ------------------------- 1998
John L. Diederich
/s/ Robert S. Hillas Director September 16,
- ------------------------- 1998
Robert S. Hillas
Director
- -------------------------
Arthur B. Laffer
/s/ Ardon E. Moore Director September 16,
- ------------------------- 1998
Ardon E. Moore
/s/ Alfred E. Osborne, Director September 16,
Jr. 1998
- -------------------------
Alfred E. Osborne, Jr.
/s/ J. Danforth Quayle Director September 16,
- ------------------------- 1998
J. Danforth Quayle
/s/ C. Howard Wilkins, Director September 16,
Jr. 1998
- -------------------------
C. Howard Wilkins, Jr.
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.03 Registration Rights Agreement dated as of May 19, 1998 among United
States Filter Corporation, NationsBanc Montgomery Securities LLC,
Donaldson, Lufkin & Jenrette Securities Corporation and Salomon
Brothers Inc.
5.01 Opinion of Kirkpatrick & Lockhart LLP as to the legality of the
securities being registered.
12.01 Computation of Ratio of Earnings to Fixed Charges.
23.01 Consent of Kirkpatrick & Lockhart LLP (included in Exhibit 5.01).
23.02 Consent of KPMG Peat Marwick LLP.
23.03 Consent of Ernst & Young LLP.
24.01 Power of Attorney (included in signature page of this registration
statement).
25.01 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under the
Indenture for the 6.375% Exchange Remarketable or Redeemable
Securities due 2011.
25.02 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under the
Indenture for the 6.50% Exchange Remarketable or Redeemable Securities
due 2013.
99.01 Form of Letter of Transmittal for the 6.375% Exchange Remarketable or
Redeemable Securities due 2011.
99.02 Form of Letter of Transmittal for the 6.50% Exchange Remarketable or
Redeemable Securities due 2013.
99.03 Form of Notice of Guaranteed Delivery for the 6.375% Exchange
Remarketable or Redeemable Securities due 2011.
99.04 Form of Notice of Guaranteed Delivery for the 6.50% Exchange
Remarketable or Redeemable Securities due 2013.
99.05 Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
99.06 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees for the 6.375% Exchange Remarketable or Redeemable
Securities due 2011.
99.07 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees for the 6.50% Exchange Remarketable or Redeemable
Securities due 2013.
99.08 Form of Letter to Clients for the 6.375% Exchange Remarketable or
Redeemable Securities due 2011.
99.09 Form of Letter to Clients for the 6.50% Exchange Remarketable or
Redeemable Securities due 2013.
99.10 Form of Exchange Agent Agreement.
</TABLE>
1
<PAGE>
EXHIBIT 4.03
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of May 19, 1998 among United States Filter Corporation, a Delaware
corporation (the "Company"), and NationsBanc Montgomery Securities LLC,
Donaldson, Lufkin & Jenrette Securities Corporation and Salomon Brothers Inc
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated as of May
14, 1998 (the "ROARS Purchase Agreement"), between the Company, as issuer of
the 6.375% Remarketable or Redeemable Securities due May 15, 2011 (the "6.375%
ROARS") and the 6.50% Remarketable or Redeemable Securities due May 15, 2013
(the "6.50% ROARS" and, together with the 6.375% ROARS, the "ROARS"), and the
Initial Purchasers, which provides for, among other things, the sale by the
Company to the Initial Purchasers of the aggregate principal amount of ROARS
specified therein. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closings under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section 3
hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u) hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in the City of New York, New York are authorized
or required by law or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this Agreement
and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided that such depositary must have
an address in the Borough of Manhattan, in The City of New York, New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange ROARS" shall mean the 6.375% Remarketable or Redeemable Securities
due May 15, 2011 and the 6.50% Remarketable or Redeemable Securities due May
15, 2013 issued by the Company under the Indenture containing terms identical
to the 6.375% ROARS and the 6.50% ROARS, respectively (except that (x)
interest thereon shall accrue from the last date on which interest has been
paid on the 6.375% ROARS and the 6.50% ROARS, respectively, or, if no such
interest has been paid, from the date of the original issue of the ROARS, (y)
they will not contain terms with respect to transfer restrictions under the
Securities Act and will not provide for any Liquidated Damages thereon and (z)
if the proposed acquisition of Culligan Water Technologies,
<PAGE>
Inc. by the Company has been consummated on terms substantially similar to
those contained in the Culligan Merger Agreement (as defined in the Indenture)
on or before the issue date of the Exchange ROARS, they will not contain terms
relating to the Repurchase Right (as defined in the Indenture)).
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable ROARS for a like amount of Exchange ROARS of
the equivalent series pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the Securities
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable ROARS, and each of its direct and indirect transferees who become
registered owners of Registrable ROARS under the Indenture.
"Indenture" shall mean the Indenture, dated as of May 19, 1998, between the
Company, as issuer, and The Bank of New York, as trustee, and the supplemental
indenture thereto, dated as of May 19, 1998, as the same may be further
amended or supplemented from time to time in accordance with the terms
thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
"Issue Date" shall mean May 19, 1998, the date of delivery of the ROARS from
the Company to the Initial Purchasers.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding ROARS.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
ROARS covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments, and in
each case including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
"Registrable ROARS" shall mean all ROARS; provided, however, that ROARS
shall cease to be Registrable ROARS when the earlier of the following occurs:
(i) a Registration Statement with respect to such ROARS for the exchange or
resale thereof shall have been declared effective under the Securities Act and
such ROARS shall have been exchanged or disposed of pursuant to such
Registration Statement, (ii) such ROARS
2
<PAGE>
shall have been sold pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the Securities Act or are eligible to be sold
without restriction as contemplated by Rule 144(k), (iii) such ROARS shall
have ceased to be outstanding, (iv) no Shelf Registration Event has occurred
and the Exchange Offer has concluded in accordance with the provisions hereof,
or (v) upon consummation of the Exchange Offer but only with respect to ROARS
held by a Holder that are eligible to receive fully tradeable Exchange ROARS
in connection with the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable ROARS in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for all
underwriters or Holders as a group in connection with blue sky qualification
of any of the Exchange ROARS or Registrable ROARS) and compliance with the
rules of the NASD, (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and expenses incurred in connection with the
listing, if any, of any of the Exchange ROARS on any securities exchange or
exchanges, (vi) the fees and disbursements of counsel for the Company and of
the independent certified public accountants of the Company, including the
expenses of any "cold comfort" letters required by or incident to the
performance of and compliance with this Agreement, (vi) the reasonable fees
and expenses of the Trustee and its counsel and any exchange agent, escrow
agent or custodian, and (vii) any fees and disbursements of the underwriters
customarily required to be paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained by the Company in
connection with any Registration Statement, but excluding fees of counsel to
the underwriters or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
ROARS by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any Exchange ROARS or Registrable ROARS pursuant to the
provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"Representative" shall have the meaning set forth in Section 3(a) hereof.
"ROARS" shall have the meaning set forth in the preamble to this Agreement.
"Rule 144(k) Period" shall mean the period of two years (or such other
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from time
to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Event Date" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable ROARS on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and
3
<PAGE>
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the Company
shall, for the benefit of the Holders, at the Company's cost (i) cause to be
filed with the SEC an Exchange Offer Registration Statement on an appropriate
form under the Securities Act relating to the Exchange Offer within 120
calendar days after the Issue Date (the "Filing Date"), (ii) use its
reasonable best efforts to cause such Exchange Offer Registration Statement to
be declared effective under the Securities Act by the SEC within 180 calendar
days after the Issue Date (the "Effective Date"), (iii) use its reasonable
best efforts to keep such Exchange Offer Registration Statement effective for
not less than 20 Business Days (or longer if required by applicable law) after
the date notice of the Exchange Offer is mailed to the Holders and (iv) use
its reasonable best efforts to cause the Exchange Offer to be consummated
within 35 calendar days after the date that the Exchange Offer Registration
Statement is declared effective (the "Consummation Date"). Promptly after the
effectiveness of the Exchange Offer Registration Statement, the Company shall
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each eligible Holder to exchange Registrable ROARS for a like principal
amount of Exchange ROARS of the equivalent series (provided that such Holder
(i) is not an Affiliate of the Company, (ii) is not a broker-dealer tendering
Registrable ROARS acquired directly from the Company, (iii) acquires the
Exchange ROARS in the ordinary course of such Holder's business and (iv) has
no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing Exchange ROARS).
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less
than 20 Business Days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(iii) utilize the services of the Depositary for the Exchange Offer with
respect to ROARS represented by a global certificate;
(iv) permit each Holder to withdraw tendered ROARS at any time prior to
the close of business, New York City time, on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice to
Holders, a telegram, telex, facsimile transmission or letter setting forth
the name of such Holder, the series and amount of ROARS delivered for
exchange, and a statement that such Holder is withdrawing its election to
have such ROARS exchanged;
(v) notify each Holder that any ROARS not tendered by such Holder in the
Exchange Offer will remain outstanding and continue to accrue interest but
will not retain any rights under this Agreement (except in the case of the
Initial Purchasers and Participating Broker-Dealers as provided herein);
and
(vi) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(1) accept for exchange all ROARS or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer;
4
<PAGE>
(2) deliver, or cause to be delivered, to the Trustee for cancellation all
ROARS or portions thereof so accepted for exchange by the Company; and
(3) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, Exchange ROARS of the equivalent
series equal in principal amount to the principal amount of the ROARS
surrendered by such Holder.
Interest on each Exchange ROARS issued pursuant to the Exchange Offer will
accrue from the last date on which interest was paid on the ROARS surrendered
in exchange therefor or, if no interest has been paid on such ROARS, from the
Issue Date. To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company shall use its reasonable
best efforts to complete the Exchange Offer as provided above, and shall
comply with the applicable requirements of the Securities Act, the Exchange
Act and other applicable laws in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions other than the
conditions referred to in Section 2(b)(i) below and those conditions that are
customary in similar exchange offers. Each Holder of Registrable ROARS who
wishes to exchange such Registrable ROARS for Exchange ROARS in the Exchange
Offer will be required to make certain customary representations in connection
therewith, including representations that (i) it is not an Affiliate of the
Company, (ii) it is not a broker-dealer tendering Registrable ROARS acquired
directly from the Company, (iii) the Exchange ROARS to be received by it are
being acquired in the ordinary course of its business and (iv) at the time of
the Exchange Offer, it has no arrangements or understandings with any Person
to participate in the distribution (within the meaning of the Securities Act)
of Exchange ROARS. The Company shall inform the Initial Purchasers, after
consultation with the Trustee, of the names and addresses of the Holders to
whom the Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders in order to facilitate the tender of Registrable
ROARS in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange ROARS held by Participating Broker-
Dealers to the extent of any prospectus delivery requirement for a period of
60 days after the Exchange Offer is consummated, and the Company shall not
have any further obligation to register the Registrable ROARS held by any
Holder (other than any Initial Purchaser) pursuant to Section 2(b) of this
Agreement.
(b) Shelf Registration. In the event that (i) the Company reasonably
determines, after conferring with counsel (which may be in-house counsel),
that the Exchange Offer Registration provided in Section 2(a) above is not
available under applicable law and regulations and currently prevailing
interpretations of the staff of the SEC, (ii) the Exchange Offer is not
consummated within 215 calendar days after the Issue Date or (iii) upon the
request of any Initial Purchaser with respect to any Registrable ROARS held by
it, if such Initial Purchaser is not permitted, in the written opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, pursuant to applicable law or
applicable interpretations of the staff of the SEC, to participate in the
Exchange Offer and thereby receive securities that are freely tradeable
without restriction under the Securities Act and applicable blue sky or state
securities laws (any of the events specified in (i), (ii) or (iii) being a
"Shelf Registration Event," and the date of occurrence thereof being the
"Shelf Registration Event Date"), then in addition to or in lieu of conducting
the Exchange Offer contemplated by Section 2(a), as the case may be, the
Company shall promptly notify the Holders and shall, at its cost, use its
reasonable best efforts to cause to be filed as promptly as practicable after
such Shelf Registration Event Date, a Shelf Registration Statement providing
for the sale by the Holders of all of the Registrable ROARS, and shall use its
reasonable best efforts to have such Shelf Registration Statement declared
effective by the SEC as soon as practicable. No Holder of Registrable ROARS
shall be entitled to include any of its Registrable ROARS in any Shelf
Registration pursuant to this Agreement unless and until such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder and furnishes to the Company in writing, within 10 days after
receipt of a request therefor, such information as the Company may, after
conferring with counsel with regard to information relating to Holders that
would be required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder
5
<PAGE>
as to which any Shelf Registration is being effected agrees to furnish to the
Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales until the earlier of: (a) the end of the Rule 144(k) Period or (b)
such time as all of the Registrable ROARS covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or cease
to be Registrable ROARS (the "Effectiveness Period"). The Company shall not
permit any securities other than (i) the Company's issued and outstanding
securities currently possessing incidental registration rights and (ii)
Registrable ROARS to be included in the Shelf Registration. The Company will,
in the event a Shelf Registration Statement is declared effective, provide to
each Holder a reasonable number of copies of the Prospectus which is a part of
the Shelf Registration Statement, notify each such Holder when the Shelf
Registration has become effective and take any other action required to permit
unrestricted resales of the Registrable ROARS. The Company further agrees, if
necessary, to supplement or amend the Shelf Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations thereunder for
shelf registrations, and the Company agrees to furnish to the Holders of
Registrable ROARS copies of any such supplement or amendment promptly after it
has been filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in connection
with any Registration Statement filed pursuant to Section 2(a) or 2(b) hereof.
Each Holder shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable ROARS pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the Exchange Offer or the offering of
Registrable ROARS pursuant to such Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, the Exchange Offer Registration
Statement or Shelf Registration Statement will be deemed not to have been
effective during the period of such interference, until the Exchange Offer or
the offering of Registrable ROARS pursuant to such Registration Statement may
legally resume.
(e) Liquidated Damages. In the event that, with respect to either series of
ROARS:
(i) the Exchange Offer Registration Statement for such series is not
filed with the Commission by the Filing Date, the Exchange Offer
Registration Statement is not declared effective by the Commission by the
Effective Date or the Exchange Offer for such series is not consummated on
or prior to the Consummation Date (unless changes in law or the applicable
interpretation of the staff does not permit the Company to effect the
Exchange Offer, in which case clause (ii) shall apply); or
(ii) any Shelf Registration Statement with respect to the ROARS of such
series required to be filed pursuant to clause (i) or (iii) of Section 2(b)
is not declared effective (or shall thereafter cease to be effective,
except for a 45-day grace period within any 12 month period as the result
of the occurrence of an event specified in Section 3(e)(iii), 3(e)(iv),
3(e)(v) or 3(e)(vi), prior to the earlier of the second anniversary of the
Issue Date or until all ROARS have been sold thereunder) under the
Securities Act on or prior to the later of the 215th calendar day after the
date of the original issuance of such ROARS and the 60th calendar day after
the publication of the change in law or interpretation;
then Liquidated Damages shall accrue on the principal amount of the ROARS at a
rate of 0.50% per annum for the first 90 days immediately following each such
date and such Liquidated Damages rate shall increase to 1.0% per annum
commencing on the 91st day following each such date; provided, however, that
upon (1) filing of the
6
<PAGE>
Exchange Offer Registration Statement after the Filing Date or the declaration
of the Effectiveness of the Exchange Offer Registration Statement after the
Effective Date or the consummation of the Exchange Offer after the
Consummation Date, as applicable as described in clause (i) above or (2) the
effectiveness of a Shelf Registration Statement after the 215th or 60th
calendar day, as applicable, described in clause (ii) above (or if the Shelf
Registration Statement ceased to be effective as described above, once the
Shelf Registration Statement again becomes effective), any increase in the
interest rate of the applicable series of ROARS will cease to be effective.
Any amounts of Liquidated Damages due pursuant to Section 2(e)(i) or (ii)
above will be payable in cash on the next succeeding May 15 or November 15, as
the case may be, to Holders on the relevant record dates for the payment of
interest pursuant to the Indenture.
3. Registration Procedures. In connection with the obligations of the
Company pursuant to Sections 2(a) and 2(b) hereof, the Company shall use its
reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or Registration
Statements as prescribed by Sections 2(a) and 2(b) hereof within the relevant
time periods specified in Section 2 hereof on the appropriate form under the
Securities Act, (x) which form shall (i) be selected by the Company and (ii)
in the case of a Shelf Registration, be available for the sale of the
Registrable ROARS by the selling Holders thereof and, in the case of an
Exchange Offer, be available for the exchange of Registrable ROARS, and (y)
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith; and to cause such Registration Statement to become effective
and remain effective (and, in the case of a Shelf Registration Statement, the
Prospectus to remain usable for resales) in accordance with Section 2 hereof;
provided, however, that if (1) such filing is pursuant to Section 2(b) or (2)
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange ROARS, before
filing any such Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to a representative designated
by the Majority Holders (the "Representative") which, unless other notice is
given to the Company, shall be the Initial Purchasers and their counsel and
afford such Persons a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto which have been previously filed with the
SEC) proposed to be filed; and the Company shall not file any such
Registration Statement or Prospectus or any amendments or supplements thereto
in respect of which the Representative must be afforded an opportunity to
review prior to the filing of such document if the Representative and their
counsel shall reasonably object in a timely manner;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the Exchange Period, the Effectiveness
Period or the Applicable Period, as the case may be, and cause each Prospectus
to be supplemented, if determined by the Company or requested by the SEC, by
any required prospectus supplement and as so supplemented to be filed pursuant
to Rule 424 (or any similar provision then in force) under the Securities Act,
and comply with the provisions of the Securities Act, the Exchange Act and the
rules and regulations promulgated thereunder applicable to it with respect to
the disposition of all securities covered by a Registration Statement during
the Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the selling
Holders thereof described in this Agreement (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable ROARS, at least three Business Days prior to filing, that the
Shelf Registration Statement with respect to the Registrable ROARS is being
filed and advising such Holder that the distribution of Registrable ROARS will
be made in accordance with the method selected by the Majority Holders;
provided that the Majority Holders for this purpose shall be determined
without an Initial Purchaser to the extent they hold ROARS acquired as part of
its initial placement, (ii) furnish to each Holder of Registrable ROARS
included in the Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable ROARS, if any, without charge, as many
copies of each
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Prospectus, including each preliminary prospectus, and any amendment or
supplement thereto, and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or other
disposition of the Registrable ROARS and (iii) consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable ROARS included in the Shelf Registration Statement in
connection with the offering and sale of the Registrable ROARS covered by the
Prospectus or any amendment or supplement thereto; provided, however, that the
Company shall have no obligation under this Agreement to become a party to an
underwriting or similar agreement or otherwise participate in an underwritten
or similar offering of ROARS, unless the principal amount to be underwritten
exceeds $50,000,000;
(d) in the case of a Shelf Registration, register or qualify the Registrable
ROARS under all applicable state securities or "blue sky" laws of such
jurisdictions by the time the Shelf Registration Statement is declared
effective by the SEC as any Holder of Registrable ROARS covered by such
Registration Statement and each underwriter of an underwritten offering of
Registrable ROARS shall reasonably request in writing in advance of such date
of effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable ROARS
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), (ii) file any general consent to service of process in
any jurisdiction where it would not otherwise be subject to such service of
process or (iii) subject itself to taxation in any such jurisdiction if it is
not then so subject;
(e) (1) in the case of the Shelf Registration or (2) if Participating
Broker-Dealers, from whom the Company has received prior written notice that
they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(u) hereof, are seeking to sell
Exchange ROARS and are required to deliver Prospectuses, promptly notify each
Holder of Registrable ROARS or such Participating Broker-Dealers, as the case
may be, their counsel and the managing underwriters, if any, and promptly
confirm such notice in writing (i) when the applicable Registration Statement
has become effective and when any post-effective amendments thereto become
effective, (ii) of any request by the SEC or any state securities authority
for amendments and supplements to the applicable Registration Statement or
Prospectus or for additional information after such Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of the applicable
Registration Statement or the qualification of the Registrable ROARS or the
Exchange ROARS to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in Section 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of the Registration Statement and the closing of
any sale of Registrable ROARS covered thereby, the representations and
warranties of the Company contained in any underwritten or other similar
agreement cease to be true and correct in all material respects, (v) of the
happening of any event or the failure of any event to occur or the discovery
of any facts during the Effectiveness Period, which makes any statement made
in such Registration Statement or the related Prospectus untrue in any
material respect or which causes such Registration Statement or Prospectus to
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, as well as any other corporate developments, public filings with
the SEC or similar events causing such Registration Statement not to be
effective or the Prospectus not useable for resales and (vi) of the reasonable
determination of the Company that a post-effective amendment to the applicable
Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment;
(g) in the case of the Shelf Registration, furnish to each Holder of
Registrable ROARS included within the coverage of the Shelf Registration
Statement, without charge, at least one conformed copy of such Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
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<PAGE>
(h) in the case of the Shelf Registration, cooperate with the selling
Holders of Registrable ROARS to facilitate the timely preparation and delivery
of certificates representing Registrable ROARS to be sold and not bearing any
restrictive legends and in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling Holders or the
underwriters may reasonably request at least two Business Days prior to the
closing of any sale of Registrable ROARS pursuant to such Shelf Registration
Statement;
(i) in the case of a Shelf Registration or an Exchange Offer Registration,
promptly after the occurrence of any event specified in Section 3(e)(iii),
3(e)(v) (subject to a 45-day grace period within any 12-month period) or
3(e)(vi) hereof, prepare a supplement or post-effective amendment to such
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of Registrable ROARS, such Prospectus
will not include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and to notify each
Holder to suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend use of
the Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) in the case of the Shelf Registration, a reasonable time prior to the
filing of any document which is to be incorporated by reference into the Shelf
Registration Statement or the Prospectus after the initial filing of the Shelf
Registration Statement, provide a reasonable number of copies of such document
to the Representative and make such of the representatives of the Company as
shall be reasonably requested by the Representative on behalf of such Holders
available for discussion of such document;
(k) obtain a CUSIP number and ISIN for each series of Exchange ROARS not
later than the effective date of the Exchange Offer Registration Statement,
and provide the Trustee with certificates for the Exchange ROARS in a form
eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA"), in connection with the registration of the
Exchange ROARS or Registrable ROARS, as the case may be, and effect such
changes to such document as may be required for it to be so qualified in
accordance with the terms of the TIA and execute, and cause the Trustee to
execute, all documents as may be required to effect such changes, and all
other forms and documents required to be filed with the SEC to enable such
documents to be so qualified in a timely manner;
(m) in the case of the Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and take all such other appropriate actions in connection therewith as are
reasonably requested by the Holders of at least 25% in aggregate principal
amount of the Registrable ROARS (other than the Initial Purchasers to the
extent they hold ROARS as part of its initial placement) in order to
facilitate the disposition of the Registrable ROARS; provided, however, that
the Company shall have no such obligations unless the aggregate principal
amount to be underwritten shall exceed $50,000,000;
(n) in the case of the Shelf Registration, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, if requested by an Initial Purchaser, in the case
where such Initial Purchaser holds ROARS acquired by it as part of its initial
placement: (i) make such representations and warranties to Initial Purchasers
and the underwriters (if any) with respect to the business of the Company and
the subsidiaries of the Company as then conducted and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which may be in the form of a reliance letter) in form and substance
reasonably satisfactory to the managing underwriters (if any) and the Initial
Purchasers, addressed to the Initial Purchasers and the underwriters (if any)
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
underwriters (it being agreed that the matters to be covered by such opinion
may be subject to customary
9
<PAGE>
qualifications and exceptions); (iii) obtain "cold comfort" letters and
updates thereof in form and substance reasonably satisfactory to the managing
underwriters from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort" letters
in connection with underwritten offerings and such other matters as reasonably
requested by such underwriters in accordance with Statement on Auditing
Standards No. 72; and (iv) provide indemnification provisions and procedures
no less favorable than those set forth in Section 4 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable ROARS covered by such Registration Statement
and the managing underwriters) customary for such agreements with respect to
all parties to be indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders);
(o) if (i) the Shelf Registration is filed pursuant to Section 2(b) or (ii)
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange ROARS during the
Applicable Period, make reasonably available for inspection by any selling
Holder of Registrable ROARS in such offering or Participating Broker-Dealer,
as applicable, any underwriter participating in any such disposition of
Registrable ROARS, if any, and any attorney, accountant or other agent
retained by any such selling Holder, Participating Broker-Dealer, or
underwriter (collectively, the "Inspectors") at the offices where normally
kept, during the Company's normal business hours, all financial and other
records, pertinent organizational and operational documents and properties of
the Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, trustees and employees of the
Company and its subsidiaries to supply all relevant information in each case
reasonably requested by any such Person in connection with such Registration
Statement; and any Records and information which the Company determines, in
good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed to any Inspector except where (i) the
disclosure of such Records or information is necessary to avoid or correct a
material misstatement or omission in such Registration Statement, (ii) the
release of such Records or information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or is necessary in
connection with any action, suit or proceeding or (iii) such Records or
information previously has been made generally available to the public; and
each such selling Holder of Registrable ROARS, Participating Broker-Dealer and
underwriter will be required to agree in writing that Records and information
obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally available to
the public through no fault of an Inspector; and each such selling Holder,
Participating Broker-Dealer and underwriter will be required to further agree
in writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction or in connection
with any action, suit or proceeding, give notice to the Company and allow the
Company at its expense to undertake appropriate action to prevent disclosure
of the Records and information deemed confidential;
(p) comply with all applicable rules and regulations of the SEC so long as
any provision of Section 2 hereof shall be applicable and make generally
available to its securityholders earning statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if
such period is a fiscal year) (i) commencing at the end of any fiscal quarter
in which Registrable ROARS are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter of
the Company after the effective date of a Registration Statement, which
statements shall cover said 12-month periods;
(q) upon consummation of the Exchange Offer, if requested by the Trustee,
obtain an opinion of counsel to the Company addressed to the Trustee for the
benefit of all Holders of Registrable ROARS participating in
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<PAGE>
the Exchange Offer, substantially to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange ROARS, and (ii) each of the
Exchange ROARS constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company, in accordance with its respective
terms (in each case, with customary exceptions);
(r) if the Exchange Offer is to be consummated, upon delivery of the
Registrable ROARS by Holders to the Company (or to such other Person as
directed by the Company) in exchange for Exchange ROARS, the Company shall
mark, or cause to be marked, on such Registrable ROARS delivered by such
Holders that such Registrable ROARS are being cancelled in exchange for
Exchange ROARS; it being understood that in no event shall such Registrable
ROARS be marked as paid or otherwise satisfied;
(s) cooperate with each seller of Registrable ROARS covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable ROARS and their respective counsel in
connection with any filings required to be made with the NASD;
(t) take all other steps necessary to effect the registration of the
Registrable ROARS covered by the Shelf Registration Statement contemplated
hereby;
(u) (A) in the case of the Exchange Offer Registration Statement (i) include
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the
Representative and which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that holds Registrable ROARS
acquired for its own account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer") and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
ROARS to be received by such broker-dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the staff of the SEC
or such positions or policies, in the reasonable judgment of the
Representatives or such other representative, represent the prevailing views
of the staff of the SEC, including a statement that any such broker-dealer who
receives Exchange ROARS for Registrable ROARS pursuant to the Exchange Offer
may be deemed a statutory underwriter and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange ROARS, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-Dealer may
reasonably request (the Company hereby consents to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment or
supplement thereto by any Person subject to the prospectus delivery
requirements of the Securities Act, including all Participating Broker-
Dealers, in connection with the sale or transfer of the Exchange ROARS covered
by the Prospectus or any amendment or supplement thereto), (iii) keep the
Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such Persons
must comply with such requirements under the Securities Act and applicable
rules and regulations in order to resell the Exchange ROARS; provided,
however, that such period shall not be required to exceed 60 days (or such
longer period if extended pursuant to the last sentence of Section 3 hereof)
(the "Applicable Period"), and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable ROARS
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of
Exchange ROARS received in respect of such Registrable ROARS pursuant to
the Exchange Offer";
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<PAGE>
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable ROARS, the broker-dealer will not
be deemed to admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of the Exchange Offer Registration Statement, the Company
agrees to deliver to the Initial Purchasers, if reasonably requested by an
Initial Purchaser on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (i) an opinion of counsel in form and
substance reasonably satisfactory to such Initial Purchaser covering the
matters customarily covered in opinions requested in connection with exchange
offer registration statements and such other matters as may be reasonably
requested (it being agreed that the matters to be covered by such opinion may
be subject to customary qualifications and exceptions), (ii) an officers'
certificate containing certifications substantially similar to those set forth
in Section 5(d) of the Purchase Agreement and such additional certifications
as are customarily delivered in a public offering of debt securities and (iii)
upon the effectiveness of the Exchange Offer Registration Statement, comfort
letter(s), in each case, in customary form if permitted by Statement on
Auditing Standards No. 72.
The Company may require each seller of Registrable ROARS as to which any
registration is being effected to furnish to the Company such information
regarding such seller as may be required by the staff of the SEC to be
included in a Registration Statement. The Company may exclude from such
registration the Registrable ROARS of any seller who fails to furnish such
information within a reasonable time after receiving such request. The Company
shall not have any obligation to register under the Securities Act the
Registrable ROARS of a seller who so fails to furnish such information.
In the case of the Shelf Registration Statement, or if Participating Broker-
Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided
in this Section 3(u) hereof are seeking to sell Exchange ROARS and are
required to deliver Prospectuses, each Holder agrees that, upon receipt of any
notice from the Company of the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith
discontinue disposition of Registrable ROARS or Exchange ROARS, as the case
may be, pursuant to a Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3(i) hereof or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and, if so directed
by the Company, such Holder will deliver to the Company (at the Company's
expense) all copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable ROARS or Exchange ROARS, as the case may be, current at the time
of receipt of such notice. If the Company shall give any such notice to
suspend the disposition of Registrable ROARS or Exchange ROARS, as the case
may be, pursuant to a Registration Statement, the Company shall use its
reasonable best efforts to file and have declared effective (if an amendment)
as soon as practicable after the resolution of the related matters an
amendment or supplement to the applicable Registration Statement and shall
extend the period during which such Registration Statement is required to be
maintained effective and the Prospectus usable for resales pursuant to this
Agreement by the number of days in the period from and including the date of
the giving of such notice to and including the date when the Company shall
have made available to the Holders (x) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company shall
indemnify and hold harmless the Initial Purchasers, each Holder, each
underwriter who participates in an offering of Registrable ROARS, each
Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and each of their respective directors, officers,
employees and agents (each, an "Indemnified Person"), against any and all
losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of
12
<PAGE>
counsel to any Indemnified Person) directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by an untrue statement or omission
or alleged untrue statement or omission that is (i) made in reliance upon and
in conformity with information ("Indemnified Person Information") relating to
any Holder or any other Indemnified Person furnished in writing to the Company
by such Indemnified Person expressly for use in a Registration Statement or
any Prospectus or (ii) with respect to the Indemnified Person from whom the
person asserting the loss, claim, damage or liability purchased ROARS, made in
any preliminary prospectus if a copy of the Prospectus (as amended or
supplemented) shall have been furnished to the Initial Purchasers by the
Company with such amendments or supplements thereto on a timely basis and such
Prospectus (as amended or supplemented) was not delivered by or on behalf of
the Indemnified Person to the person asserting the claim or action, if
required by law to have been so delivered by the Indemnified Person seeking
indemnification, at or prior to the written confirmation of the sale of such
ROARS, and it shall be finally determined by a court of competent
jurisdiction, by a judgment not subject to appeal or review, that the
Prospectus (as amended or supplemented) would have corrected such untrue
statement or omission. The Company shall notify any applicable Indemnified
Party promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation, of which
it has knowledge, in connection with the matters addressed by this Agreement
which involves the Company or an Indemnified Person.
In case any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Indemnified Person with respect to
which indemnity may be sought against an indemnifying party (or indemnifying
parties), such Indemnified Person shall promptly notify the indemnifying party
(or indemnifying parties) in writing (provided that the failure to give such
notice shall not relieve the indemnifying party (or indemnifying parties) of
its obligations pursuant to this Agreement unless and only to the extent such
failure to give notice results in the loss or compromise of any material
rights or defenses of the indemnifying party (or indemnifying parties) as
determined by a court of competent jurisdiction by a final judgment no longer
subject to appeal or review). Upon receiving such notice, the indemnifying
party (or indemnifying parties) shall be entitled to participate in any such
action or proceeding and to assume, at their sole expense, the defense
thereof, with counsel satisfactory to such Indemnified Person (who shall not,
except with the consent of the Indemnified Person, be counsel to the
indemnifying party (or indemnifying parties) or an affiliate thereof) and,
after written notice from the indemnifying party (or indemnifying parties) to
such Indemnified Person of their election so to assume the defense thereof
within 15 business days after receipt of the notice from the Indemnified
Person of such action or proceeding, the indemnifying party (or indemnifying
parties) shall not be liable to such Indemnified Person hereunder for legal
expenses of other counsel subsequently incurred by such Indemnified Person in
connection with the defense thereof, other than reasonable costs of
investigation, unless (i) the indemnifying party (or indemnifying parties)
agrees in writing to pay such fees and expenses, or (ii) the indemnifying
party (or indemnifying parties) fails to assume such defense within the 15
business days specified above or fails to employ counsel satisfactory to such
Indemnified Person, or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both such Indemnified
Person and the indemnifying party (or indemnifying parties) or its affiliates,
and such Indemnified Person shall have been advised by counsel that a conflict
of interest exists between such Indemnified Person and the indemnifying party
(or indemnifying parties) or its affiliates, in which case, if such
Indemnified Person notifies the indemnifying party (or indemnifying parties)
in writing, the indemnifying party (or indemnifying parties) shall not have
the right to assume the defense thereof, it being understood, however, that
the indemnifying party (or indemnifying parties) shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) at any time for all Indemnified Persons. No indemnifying party
shall be liable for any settlement of any such action or proceeding effected
without its prior written consent. Notwithstanding the foregoing sentence, if
at any time an Indemnified Person shall have requested the indemnifying party
(or
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<PAGE>
indemnifying parties) to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the second sentence of this paragraph,
the indemnifying party (or indemnifying parties) agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 business days
after receipt by the indemnifying party (or indemnifying parties) of the
aforesaid request and (ii) the indemnifying party (or indemnifying parties)
shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. The indemnifying party (or
indemnifying parties) shall not, without the prior written consent of each
Indemnified Person, settle or compromise or consent to the entry of judgment
in or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not any Indemnified Person is a party
thereto), unless such settlement, compromise, consent or termination includes
an unconditional release of each Indemnified Person from all liability arising
out of such action, claim, litigation or proceeding.
(b) Each of the Indemnified Persons agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers, and any
person controlling (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) the Company, to the same extent as the foregoing
indemnity from the Company to each of the Indemnified Persons, but only with
respect to claims and actions based on any Indemnified Person Information.
(c) If the indemnification provided for in this Section 4 is for any reason
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the Company or the Indemnified Persons, as applicable, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying parties and the indemnified party, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand, and the indemnified party, on the other hand, shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact related to information supplied by the
Company, on the one hand, or the Indemnified Persons, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The indemnity and
contribution obligations of the Company set forth herein shall be in addition
to any liability or obligation that the Company may otherwise have (other than
with respect to the matters covered by this Section 4) to any Indemnified
Person.
(d) The Company and the Indemnified Persons agree that it would not be just
and equitable if contribution pursuant to this Section 4 were determined by
pro rata allocation (even if the Indemnified Persons were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Indemnified Persons' obligations to
contribute pursuant to this Section 4 are several not joint.
(e) The rights and obligations provided in this Section 4 shall terminate 15
years from the date hereof.
5. Participation in an Underwritten Registration. No Holder may participate
in an underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Registrable ROARS on the basis provided in the underwriting
arrangement approved by the Persons entitled hereunder to approve such
arrangements; (b) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and other
documents reasonably required under the terms of such underwriting
arrangements.
14
<PAGE>
6. Selection of Underwriters. The Holders of Registrable ROARS covered by
the Shelf Registration Statement who desire to do so may sell the ROARS
covered by such Shelf Registration in an underwritten offering, subject to the
provisions of Section 3(m) hereof. In any such underwritten offering, the
underwriter or underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount, as applicable, of the Registrable ROARS included in such offering
other than the Initial Purchasers; provided, however, that such underwriters
and managers must be reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable ROARS remain outstanding, the Company will file the reports
required to be filed by it under the Securities Act and Section 13(a) or 15(d)
of the Exchange Act and the rules and regulations adopted by the SEC
thereunder; provided, however, that if the Company ceases to be so required to
file such reports, it will, upon the request of any Holder of Registrable
ROARS (a) make publicly available such information as is necessary to permit
sales of its securities pursuant to Rule 144 under the Securities Act, (b)
deliver such information to a prospective purchaser as is necessary to permit
sales of its securities pursuant to Rule 144A under the Securities Act, and
(c) take such further action that is reasonable in the circumstances, in each
case, to the extent required from time to time to enable such Holder to sell
its Registrable ROARS without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such rule may be amended from time to time, (ii) Rule 144A under the
Securities Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the request of
any Holder of Registrable ROARS, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, nor will
the Company on or after the date of this Agreement enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
ROARS in this Agreement or otherwise conflicts with the provisions hereof,
except to the extent that the other party to any such agreement has waived
such conflict. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of the Company's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority
in aggregate principal amount of the outstanding Registrable ROARS affected by
such amendment, modification, supplement, waiver or departure; provided that
no amendment, modification or supplement or waiver or consent to departure
with respect to the provisions of Section 4 hereof shall be effective as
against any Holder of Registrable ROARS unless consented to in writing by such
Holder of Registrable ROARS. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
ROARS, by written agreement signed by the Company and the Initial Purchasers,
to cure any ambiguity, to correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement
or to make any other provisions with respect to matters or questions arising
under this Agreement which shall not be inconsistent with other provisions of
this Agreement, (ii) this Agreement may be amended, modified or supplemented,
and waivers and consents to departures from the provisions hereof may be
given, by written agreement signed by the Company and the Initial Purchasers
to the extent that any such amendment, modification, supplement, waiver or
consent is, in their reasonable judgment, necessary or appropriate to comply
with applicable law (including any interpretation of the Staff of the SEC) or
any change therein and (iii) to the extent any provision of this Agreement
relates to an Initial Purchaser, such provision may be amended, modified or
supplemented, and waivers or consents to departures from such provisions may
be given, by written agreement signed by such Initial Purchaser and the
Company.
15
<PAGE>
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
7(d), which address initially is, with respect to each Initial Purchaser, the
address set forth in the Purchase Agreement; and (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of
Registrable ROARS in violation of the terms of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable ROARS, in
any manner, whether by operation of law or otherwise, such Registrable ROARS
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable ROARS, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits
hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating Broker-
Dealer shall be third party beneficiaries of the agreements made hereunder
among the Initial Purchasers and the Company, and the Initial Purchasers shall
have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE
STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE
TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS.
(j) Jurisdiction, Etc.
(i) The Company hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the ROARS, or
for recognition or enforcement of any judgment, and the Company hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York
State court or, to the extent permitted by law, in such federal court. The
Company hereby agrees that service of process in any such action or
16
<PAGE>
proceeding brought in any such New York State court or in such federal
court may be made upon the Company at its offices at 40-004 Cook Street,
Palm Desert, California 92211, Attention: Corporate Secretary (the "Process
Agent") and hereby further agrees that the failure of the Process Agent to
give any notice of any such service to the Company shall not impair or
affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon. The Company agrees that a final
judgement in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right
that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the ROARS in the courts of any jurisdiction.
(ii) The Company irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the ROARS in any New York
State or federal court. The Company hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(iii) To the extent that the Company has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to
itself or its property, the Company hereby irrevocably waives such immunity
in respect of its obligations under this Agreement and the ROARS.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Securities Held by the Company or its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of Registrable ROARS is
required hereunder, Registrable ROARS held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
17
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
UNITED STATES FILTER CORPORATION
/s/ Damian C. Georgino
By:..................................
Name: Damian C. Georgino
Title: Executive Vice President,
General Counsel & Corporate
Secretary
Confirmed and accepted as of the date first above written:
NATIONSBANC MONTGOMERY SECURITIES LLC
/s/ R. Keith Harman
By:..................................
Name: R. Keith Harman
Title: Managing Director
SALOMON BROTHERS INC
/s/ [Signature Illegible]
By:..................................
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
/s/ Pauline Boghosian
By:..................................
Name: Pauline Boghosian
Title: Vice President
18
<PAGE>
EXHIBIT 5.01
September 16, 1998
United States Filter Corporation
40-004 Cook Street
Palm Desert, California 92211
Ladies and Gentlemen:
We have acted as special counsel to United States Filter Corporation, a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-4 (the "Registration Statement") to be filed by the
Company on September 16, 1998 with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Act"). The
Registration Statement is being filed in connection with the registration of
exchange offers of an aggregate principal amount of up to $500,000,000 of the
Company's 6.375% Exchange Remarketable or Redeemable Securities (ROARSSM) due
May 15, 2011 (the "Exchange 6.375% ROARS") for its 6.375% ROARS due May 15,
2011 (the "Private 6.375% ROARS") and an aggregate principal amount of up to
$400,000,000 of its 6.50% Exchange ROARS due May 15, 2013 (the "Exchange 6.50%
ROARS" and, with the Exchange 6.375% ROARS, the "Exchange ROARS") for its
6.50% ROARS due May 15, 2013 (the "Private 6.50% ROARS"). The Private 6.375%
ROARS and the Private 6.50% ROARS were issued by the Company on May 19, 1998
in accordance with an exemption from the registration requirements of the Act
pursuant to Section 4(2) thereof.
We have examined the indenture, dated as of May 19, 1998, between the
Company and The Bank of New York, as trustee, and the first supplemental
indenture thereto, dated as of May 19, 1998 (collectively, the "Indenture").
We are familiar with the Registration Statement and the proceedings taken and
proposed to be taken by the Company in connection with the issuance of the
Exchange ROARS. We have also examined such other public and corporate
documents, including the Company's Certificate of Incorporation and By-laws,
each as amended to date, certificates, instruments and corporate records and
such questions of law as we have deemed necessary for purposes of expressing
an informed opinion on the matters hereinafter set forth. In all examinations
of documents, certificates, instruments and other papers, we have assumed the
genuineness of all signatures on original and certified documents and the
conformity to original and certified documents of all copies submitted to us
as conformed, photostatic or other copies.
On the basis of the foregoing, we are of the opinion that, subject to (i)
the proposed additional proceedings being taken as now contemplated prior to
the issuance of the Exchange ROARS, (ii) the effectiveness of the Registration
Statement under the Act and the qualification of the Indenture under the Trust
Indenture Act of 1939, as amended, and (iii) the due execution, authorization
and delivery of the Exchange ROARS, the Exchange 6.375% ROARS and the Exchange
6.50% ROARS will, upon issuance thereof in exchange for the Private 6.375%
ROARS and the Private 6.50% ROARS, respectively, be legally issued and binding
obligations of the Company, except as the same may be limited by bankruptcy,
insolvency or other laws relating to or affecting the enforcement of
creditors' rights or by general principles of equity.
We consent to the use of this letter as Exhibit 5.01 to the Registration
Statement and to the reference to this firm in the Prospectus forming a part
thereof under the caption "Legal Matters."
Yours truly,
/s/ Kirkpatrick & Lockhart LLP
<PAGE>
EXHIBIT 12.01
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS
FISCAL YEAR ENDED MARCH 31, ENDED JUNE 30,
-------------------------------------------- -----------------
1994 1995 1996 1997 1998 1997 1998
-------- ------- ------- -------- --------- ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) before
interest and income
taxes.................. $(13,223) $ 2,807 $44,659 $ 79,338 $(256,758) $62,711 $(175,001)
Interest expense........ 18,185 27,892 28,706 31,999 63,790 10,995 25,648
Portion of rental
expense deemed to
represent interest..... 2,401 4,146 4,233 6,167 15,000 3,750 4,125
-------- ------- ------- -------- --------- ------- ---------
Earnings (loss) before
fixed charges.......... $ 7,363 $34,845 $77,598 $117,504 $(177,968) $77,456 $(145,228)
======== ======= ======= ======== ========= ======= =========
Interest expense........ $ 18,185 $27,892 $28,706 $ 31,999 $ 63,790 $10,995 $ 25,648
Portion of rental
expense deemed to
represent interest..... 2,401 4,146 4,233 6,167 15,000 3,750 4,125
-------- ------- ------- -------- --------- ------- ---------
Fixed charges........... $ 20,586 $32,038 $32,939 $ 38,166 $ 78,790 $14,745 $ 29,773
======== ======= ======= ======== ========= ======= =========
Ratio of earnings to
fixed charges.......... N/A 1.1 2.4 3.1 N/A 5.3 N/A
======== ======= ======= ======== ========= ======= =========
Deficiency of earnings
to fixed charges....... $(13,223) N/A N/A N/A $(256,758) N/A $(175,001)
======== ======= ======= ======== ========= ======= =========
</TABLE>
<PAGE>
EXHIBIT 23.02
INDEPENDENT AUDITORS' CONSENT
Board of Directors and Stockholders
United States Filter Corporation:
We consent to the reference to our firm under the caption "Independent
Certified Public Accountants" in the Registration Statement on Form S-4 and
related Prospectus of United States Filter Corporation for the registration of
its Exchange Remarketable or Redeemable Securities and to the incorporation by
reference herein of our report dated June 1, 1998, with respect to the
consolidated financial statements of United States Filter Corporation and
subsidiaries, included in the Annual Report on Form 10-K of United States
Filter Corporation, filed with the Securities and Exchange Commission.
/s/ KPMG Peat Marwick LLP
Orange County, California
September 16, 1998
<PAGE>
EXHIBIT 23.03
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Independent
Certified Public Accountants" in the Registration Statement (Form S-4) and
related Prospectus of United States Filter Corporation for the registration of
$500,000,000 of its 6.375% and $400,000,000 of its 6.50% Exchange Remarketable
or Redeemable Securities and to the incorporation by reference herein of our
report dated January 16, 1998, with respect to the financial statements of The
Kinetics Group, Inc. included in the Current Report on Form 8-K/A dated
February 6, 1998 of United States Filter Corporation, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Walnut Creek, California
September 16, 1998
<PAGE>
Exhibit 25.01
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UNITED STATES FILTER CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 33-0266015
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40-004 Cook Street
Palm Desert, California 92211
(Address of principal executive offices) (Zip code)
______________________
6.375% Exchange Remarketable or Redeemable Securities (ROARS/sm/)
Due 2011 (Remarketing Date May 15, 2001)
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1
filed with Registration Statement No. 33-21672 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
- 2 -
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
- 3 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a
corporation organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 9th day of September, 1998.
THE BANK OF NEW YORK
By: /s/ ROBERT A. MASSIMILLO
-------------------------------
Name: ROBERT A. MASSIMILLO
Title: ASSISTANT VICE PRESIDENT
- 4 -
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin.................... $ 6,397,993
Interest-bearing balances............. 1,138,362
Securities:
Held-to-maturity securities........... 1,062,074
Available-for-sale securities......... 4,167,240
Federal funds sold and Securities pur-
chased under agreements to resell..... 391,650
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ...................36,538,242
LESS: Allowance for loan and
lease losses ................631,725
LESS: Allocated transfer risk
reserve............................0
Loans and leases, net of unearned
income, allowance, and reserve...... 35,906,517
Assets held in trading accounts......... 2,145,149
Premises and fixed assets (including
capitalized leases)................... 663,928
Other real estate owned................. 10,895
Investments in unconsolidated
subsidiaries and associated
companies............................. 237,991
Customers' liability to this bank on
acceptances outstanding............... 992,747
Intangible assets....................... 1,072,517
Other assets............................ 1,643,173
-----------
Total assets............................ $55,830,236
===========
LIABILITIES
Deposits:
In domestic offices................... $24,849,054
Noninterest-bearing ........10,011,422
Interest-bearing ...........14,837,632
In foreign offices, Edge and
Agreement subsidiaries, and IBFs...... 15,319,002
Noninterest-bearing ...........707,820
Interest-bearing ...........14,611,182
Federal funds purchased and Securities
sold under agreements to repurchase... 1,906,066
Demand notes issued to the U.S.
Treasury.............................. 215,985
Trading liabilities..................... 1,591,288
Other borrowed money:
With remaining maturity of one year
or less............................. 1,991,119
With remaining maturity of more than
one year through three years........ 0
With remaining maturity of more than
three years......................... 25,574
Bank's liability on acceptances exe-
cuted and outstanding................. 998,145
Subordinated notes and debentures....... 1,314,000
Other liabilities....................... 2,421,281
-----------
Total liabilities....................... 50,631,514
-----------
EQUITY CAPITAL
Common stock............................ 1,135,284
Surplus................................. 731,319
Undivided profits and capital
reserves.............................. 3,328,050
Net unrealized holding gains
(losses) on available-for-sale
securities............................ 40,198
Cumulative foreign currency transla-
tion adjustments...................... (36,129)
-----------
Total equity capital.................... 5,198,722
-----------
Total liabilities and equity
capital ............................ $55,830,236
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith } Directors
J. Carter Bacot )
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.02
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UNITED STATES FILTER CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 33-0266015
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40-004 Cook Street
Palm Desert, California 92211
(Address of principal executive offices) (Zip code)
______________________
6.50% Exchange Remarketable or Redeemable Securities (ROARS/sm/)
Due 2013 (Remarketing Date May 15, 2003)
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1
filed with Registration Statement No. 33-21672 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
- 2 -
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
- 3 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a
corporation organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 9th day of September, 1998.
THE BANK OF NEW YORK
By: /s/ ROBERT A. MASSIMILLO
-------------------------------
Name: ROBERT A. MASSIMILLO
Title: ASSISTANT VICE PRESIDENT
- 4 -
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin.................... $ 6,397,993
Interest-bearing balances............. 1,138,362
Securities:
Held-to-maturity securities........... 1,062,074
Available-for-sale securities......... 4,167,240
Federal funds sold and Securities pur-
chased under agreements to resell..... 391,650
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ...................36,538,242
LESS: Allowance for loan and
lease losses ................631,725
LESS: Allocated transfer risk
reserve............................0
Loans and leases, net of unearned
income, allowance, and reserve 35,906,517
Assets held in trading accounts......... 2,145,149
Premises and fixed assets (including
capitalized leases)................... 663,928
Other real estate owned................. 10,895
Investments in unconsolidated
subsidiaries and associated
companies............................. 237,991
Customers' liability to this bank on
acceptances outstanding............... 992,747
Intangible assets....................... 1,072,517
Other assets............................ 1,643,173
-----------
Total assets............................ $55,830,236
===========
LIABILITIES
Deposits:
In domestic offices................... $24,849,054
Noninterest-bearing ........10,011,422
Interest-bearing ...........14,837,632
In foreign offices, Edge and
Agreement subsidiaries, and IBFs...... 15,319,002
Noninterest-bearing .........707,820
Interest-bearing .........14,611,182
Federal funds purchased and Securities
sold under agreements to repurchase. 1,906,066
Demand notes issued to the U.S.
Treasury.............................. 215,985
Trading liabilities..................... 1,591,288
Other borrowed money:
With remaining maturity of one year
or less............................. 1,991,119
With remaining maturity of more than
one year through three years........ 0
With remaining maturity of more than
three years......................... 25,574
Bank's liability on acceptances exe-
cuted and outstanding................. 998,145
Subordinated notes and debentures....... 1,314,000
Other liabilities....................... 2,421,281
-----------
Total liabilities....................... 50,631,514
-----------
EQUITY CAPITAL
Common stock............................ 1,135,284
Surplus................................. 731,319
Undivided profits and capital
reserves.............................. 3,328,050
Net unrealized holding gains
(losses) on available-for-sale
securities............................ 40,198
Cumulative foreign currency transla-
tion adjustments...................... (36,129)
-----------
Total equity capital.................... 5,198,722
-----------
Total liabilities and equity
capital ............................ $55,830,236
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith } Directors
J. Carter Bacot )
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 99.01
LETTER OF TRANSMITTAL
UNITED STATES FILTER CORPORATION
OFFER FOR ANY AND ALL OUTSTANDING
6.375% REMARKETABLE OR REDEEMABLE SECURITIES (ROARSSM) DUE MAY 15, 2011
IN EXCHANGE FOR
6.375% EXCHANGE ROARS DUE MAY 15, 2011,
WHICH EXCHANGE HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE PROSPECTUS DATED , 1998
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT P.M., NEW YORK
CITY TIME, ON , 1998, UNLESS EXTENDED. TENDERED SECURITIES MAY BE
WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE OF THE EXCHANGE OFFER.
The Exchange Agent For the Exchange Offer Is:
The Bank of New York
By Registered or By Hand Only: By Overnight Delivery:
Certified Mail:
The Bank of New York The Bank of New York The Bank of New York
55 Water Street, Room 55 Water Street, Room 234 55 Water Street, Room
234 234
New York, New York 10041 New York, New York 10041 New York, New York 10041
Attention: Lewis Padilla (United States Filter Attention: Lewis Padilla
(United States Filter Corporation, (United States Filter
Corporation, 6.375% and 6.50% Private Corporation,
6.375% and 6.50% Private ROARS) 6.375% and 6.50% Private
ROARS) ROARS)
Facsimile Transmission:
(For Eligible Institutions Only)
(212) 638-7375
or
(212) 638-7380
To Confirm By Telephone or For
Information:
(212) 638-0458
----------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN ONE
SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL
VIA FACSIMILE TO A NUMBER OTHER THAN ONE SET FORTH ABOVE
DOES NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges that it has received and reviewed the
Prospectus dated , 1998 (the "Prospectus") of United States Filter
Corporation, a Delaware corporation (the "Company"), and this Letter of
Transmittal, which together constitute the Company's offer (the "Exchange
Offer") to exchange an aggregate principal amount of up to $500,000,000 of its
6.375% Exchange ROARS due May 15, 2011 (the "Exchange ROARS") for its 6.375%
ROARS due May 15, 2011 (the "Private ROARS"), which exchange has been
registered under the U.S. Securities Act of 1933, as amended (the "Securities
Act").
The term "Expiration Date" means p.m., New York City time, on ,
1998, unless the Company, in its sole discretion, extends the Exchange Offer,
in which event, the term "Expiration Date" shall mean the time and date when
the Exchange Offer as so extended shall expire. The Company shall notify the
holders of the Private ROARS of any extension by means of a press release or
other public announcement no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date.
<PAGE>
The Exchange ROARS will bear interest from the most recent date to which
interest has been paid on the Private ROARS or, if no interest has been paid,
from May 19, 1998. Accordingly, if the relevant record date for interest
payment occurs after the consummation of the Exchange Offer, registered
holders of Exchange ROARS on such record date will receive interest accruing
from the most recent date to which interest has been paid or, if no interest
has been paid, from May 19, 1998. If, however, the relevant record date for
interest payment occurs prior to the consummation of the Exchange Offer,
registered holders of Private ROARS on such record date will receive interest
accruing from the most recent date to which interest has been paid or, if no
interest has been paid, from May 19, 1998. Holders of Private ROARS whose
Private ROARS are accepted for exchange will not receive any payment in
respect of accrued interest on such Private ROARS otherwise payable on any
interest payment date the record date for which occurs after consummation of
the Exchange Offer.
The Exchange Offer is not conditioned upon any minimum principal amount of
Private ROARS being tendered for exchange. However, the Exchange Offer is
subject to certain conditions. Please see the Prospectus under the section
entitled "The Exchange Offers--Certain Conditions to the Exchange Offers."
The Exchange Offer is not being made to, nor will tenders be accepted from
or on behalf of, holders of Private ROARS in any jurisdiction in which the
making or acceptance of the Exchange Offer would not be in compliance with the
laws of such jurisdiction.
Capitalized terms used but not defined herein have the same meanings given
them in the Prospectus. As used herein, the term "Holder" means a holder of
Private ROARS, including any participant ("DTC Participant") in the book-entry
transfer facility system of The Depository Trust Company ("DTC") whose name
appears on a security position listing as the owner of Private ROARS. As used
herein, the term "Certificates" means physical certificates representing
Private ROARS.
To participate in the Exchange Offer, Holders must tender by (i) book-entry
transfer pursuant to the procedure set forth in the Prospectus under "The
Exchange Offers--Procedures for Tendering Private ROARS," or (ii) forwarding
Certificates herewith. Holders who are DTC Participants tendering by book-
entry transfer must execute such tender through the Automated Tender Offer
Program ("ATOP") of DTC. A Holder using ATOP should transmit its acceptance to
DTC prior to the Expiration Date. DTC will verify such acceptance, execute a
book-entry transfer of the tendered Private ROARS into the Exchange Agent's
account at DTC and then send to the Exchange Agent a confirmation of such
book-entry transfer (a "Book-Entry Confirmation"), including an agent's
message ("Agent's Message") confirming that DTC has received an express
acknowledgment from such Holder that such Holder has received and agrees to be
bound by the terms of this Letter of Transmittal and that the Company may
enforce such agreement against such Holder. The Book-Entry Confirmation must
be received by the Exchange Agent in order for the tender relating thereto to
be effective. Book-entry transfer in DTC in accordance with DTC's procedures
does not constitute delivery of a Book-Entry Confirmation to the Exchange
Agent.
If a tender is not made through ATOP, Certificates, as well as this Letter
of Transmittal, properly completed and duly executed, with any required
signature guarantees, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at one of its addresses
set forth herein at or prior to the Expiration Date in order for such tender
to be effective.
Holders of Private ROARS whose Certificates are not immediately available or
who cannot deliver their Certificates and all other required documents to the
Exchange Agent at or prior to the Expiration Date or who cannot complete the
procedure for book-entry transfer on a timely basis, must tender their Private
ROARS according to the guaranteed delivery procedures set forth in "The
Exchange Offers--Guaranteed Delivery Procedures" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC
DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
<PAGE>
DESCRIPTION OF PRIVATE ROARS TENDERED
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) PRIVATE ROARS TENDERED
(PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST IF NECESSARY)
- -----------------------------------------------------------------------------------------------------------------------
AGGREGATE
TOTAL AGGREGATE AMOUNT OF
AMOUNT OF PRIVATE ROARS
PRIVATE ROARS TENDERED**
CERTIFICATE REPRESENTED BY (IF LESS THAN
NUMBER(S)* CERTIFICATE(S)* ALL)
<S> <C> <C> <C>
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
TOTAL
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
* Need not be completed if Private ROARS are being tendered by book-entry
transfer.
** Private ROARS may be tendered in whole or in part in integral multiples
of $1,000. See Instruction 4. Unless otherwise indicated in this column,
a Holder will be deemed to have tendered all Private ROARS represented
by the Certificates indicated in the first column. See Instruction 4.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_]CHECK HERE IF TENDERED PRIVATE ROARS ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution __________________________________________
Account Number _________________________________________________________
Transaction Code Number ________________________________________________
[_]CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY
IF TENDERED PRIVATE ROARS ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING:
Name of Registered Holder(s) ___________________________________________
Window Ticket Number (if any) __________________________________________
Date of Execution of Notice of Guaranteed Delivery _____________________
Name of Institution which Guaranteed Delivery __________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution __________________________________________
Account Number _________________________________________________________
Transaction Code Number ________________________________________________
[_]CHECK HERE IF PRIVATE ROARS TENDERED BY BOOK-ENTRY TRANSFER AND NOT
EXCHANGED ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET
FORTH ABOVE.
<PAGE>
[_] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED PRIVATE ROARS FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING
ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: _________________________________________________________________
Address: ______________________________________________________________
LADIES AND GENTLEMEN:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the above described aggregate
principal amount of Private ROARS in exchange for a like aggregate principal
amount of Exchange ROARS.
Subject to and effective upon the acceptance for exchange of all or any
portion of the Private ROARS tendered herewith in accordance with the terms
and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Company all right, title and interest in and to such Private
ROARS as are being accepted by the Company. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as an agent of the
Company in connection with the Exchange Offer) with respect to the tendered
Private ROARS, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), subject only to
the right of withdrawal described in the Prospectus, to (i) deliver
Certificates for such Private ROARS to the Company, together with all
accompanying evidences of transfer and authenticity, to or upon the order of
the Company, upon receipt by the Exchange Agent, as the undersigned's agent,
of the Exchange ROARS to be issued in exchange for such Private ROARS, (ii)
present Certificates for such Private ROARS for transfer, and transfer such
Private ROARS, on the books of the Company, and (iii) receive for the account
of the Company all benefits and otherwise exercise all rights of beneficial
ownership of such Private ROARS, all in accordance with the terms and
conditions of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, exchange, sell, assign and transfer the Private
ROARS tendered hereby and that, when the same are accepted for exchange, the
Company will acquire good, marketable and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances, and that the
Private ROARS tendered hereby are not subject to any adverse claims or
proxies. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Company or the Exchange Agent to be
necessary or desirable to complete the exchange, assignment and transfer of
the Private ROARS tendered hereby. The undersigned has read and agrees to all
of the terms of the Exchange Offer.
The name(s) and address(es) of the registered Holder(s) of the Private ROARS
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Certificates representing such Private ROARS. The
Certificate number(s) and the Private ROARS that the undersigned wishes to
tender should be indicated in the appropriate boxes above.
If any tendered Private ROARS are not exchanged pursuant to the Exchange
Offer for any reason, or if Certificates are submitted for more Private ROARS
than are tendered for exchange, Certificates for such nonexchanged or
nontendered Private ROARS will be returned (or, in the case of Private ROARS
tendered by book-entry transfer, such Private ROARS will be credited to an
account maintained at DTC), without expense to the tendering Holder, promptly
following the expiration or termination of the Exchange Offer.
<PAGE>
The undersigned understands that a tender of Private ROARS pursuant to any
one of the procedures described in "The Exchange Offers--Procedures for
Tendering Private ROARS" in the Prospectus and in the instructions attached
hereto will, upon the Company's acceptance for exchange of such tendered
Private ROARS, constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Exchange Offer.
The undersigned recognizes that, under certain circumstances set forth in the
Prospectus, the Company may not be required to accept for exchange any of the
Private ROARS tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that Exchange ROARS be
issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Private ROARS, that such Exchange ROARS be credited to the account
indicated above maintained at DTC. If applicable, substitute Certificates
representing Private ROARS not tendered or not accepted for exchange will be
issued to the undersigned or, in the case of a book entry transfer of Private
ROARS, will be credited to the account indicated above maintained at DTC.
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please deliver Exchange ROARS to the undersigned at the address shown below
the undersigned's signature.
By tendering Private ROARS and executing this Letter of Transmittal, the
undersigned hereby represents and agrees that (i) the undersigned is not an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act, (ii) any Exchange ROARS to be received by the undersigned in exchange for
Private ROARS are being acquired in the ordinary course of its business, and
(iii) the undersigned has no arrangement or understanding with any person to
participate in a distribution, within the meaning of the Securities Act, of
Exchange ROARS. By tendering Private ROARS pursuant to the Exchange Offer and
executing this Letter of Transmittal, a holder of Private ROARS which is a
broker-dealer represents and acknowledges, consistent with certain
interpretive letters issued by the Staff of the Division of Corporation
Finance of the Securities and Exchange Commission to third parties, that such
Private ROARS were acquired by such broker-dealer for its own account as a
result of market-making activities or other trading activities and it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange ROARS (provided that, by so
acknowledging and by delivering a prospectus, such broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act).
The Company has agreed that, subject to the provisions of the Registration
Rights Agreement, the Prospectus, as it may be amended or supplemented from
time to time, may be used by a Participating Broker-Dealer in connection with
resales of Exchange ROARS received in exchange for Private ROARS, where such
Private ROARS were acquired by such Participating Broker-Dealer for its own
account as a result of market-making activities or other trading activities,
for a period ending 60 days after the Expiration Date or, if earlier, when all
such Exchange ROARS have been disposed of by such Participating Broker-Dealer.
In that regard, each Participating Broker-Dealer, by tendering such Private
ROARS and executing this Letter of Transmittal, agrees that, upon receipt of
notice from the Company of the occurrence of any event or the discovery of any
fact which makes any statement contained or incorporated by reference in the
Prospectus untrue in any material respect or which causes the Prospectus to
omit to state a material fact necessary in order to make the statements
contained or incorporated by reference therein, in light of the circumstances
under which they were made, not misleading or of the occurrence of certain
other events specified in the Registration Rights Agreement, such
Participating Broker-Dealer will suspend the sale of Exchange ROARS pursuant
to the Prospectus until the Company has amended or supplemented the Prospectus
to correct such misstatement or omission and has furnished copies of the
amended or supplemented Prospectus to the Participating Broker-Dealer or the
Company has given notice that the sale of the Exchange ROARS may be resumed,
as the case may be.
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF PRIVATE
ROARS" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE PRIVATE ROARS AS SET FORTH IN SUCH BOX.
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6) (SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the To be completed ONLY if the
Exchange ROARS or the Private Exchange ROARS or the Private
ROARS not tendered or not ex- ROARS not tendered or not ex-
changed are to be issued in the changed are to be sent to some-
name of someone other than the one other than the registered
registered Holder(s) of the Holder(s) of the Private ROARS
Private ROARS whose name(s) whose name(s) appear(s) above
appear(s) above. or such registered Holder(s) at
an address other than that
shown above.
Issue Mail
[_] Private ROARS not tendered [_] Private ROARS not tendered
or not exchanged to: or not exchanged to:
[_] Exchange ROARS to: [_] Exchange ROARS to:
Name(s) ________________________ Name(s) ________________________
Address ________________________ Address ________________________
________________________________ _______________________________
(INCLUDE ZIP CODE) (INCLUDE ZIP CODE)
Area Code and Area Code and
Telephone Number ---------------- Telephone Number ----------------
Tax Identification or Social Tax Identification or Social
Security Number(s) _____________ Security Number(s) _____________
<PAGE>
HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
.............................................................
.............................................................
(SIGNATURE(S) OF STOCKHOLDER(S))
Must be signed by registered Holder(s) exactly as name(s)
appear(s) on Certificate(s) for the Private ROARS hereby
tendered or on the register of Holders maintained by the
Company, or by any person(s) authorized to become registered
Holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certifications and
other information as may be required by the Company). If
signature is by an attorney-in-fact, executor,
administrator, trustee, guardian, officer of a corporation
or other acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See
Instruction 5.
Date ................................................. , 1998
Name(s)......................................................
.............................................................
(PLEASE PRINT)
Capacity (Full Title) .......................................
Address......................................................
.............................................................
.............................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number ..............................
Tax Identification or Social Security Number(s). ............
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 2 AND 5)
Authorized Signature ........................................
Date ................................................. , 1998
Name of Firm ................................................
Capacity (full title) .......................................
(PLEASE PRINT)
Address .....................................................
.............................................................
.............................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number ..............................
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be completed only if Certificates
are to be forwarded herewith. In order for a tender to be effective,
Certificates, as well as this Letter of Transmittal, properly completed and
duly executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, or a Book-Entry Confirmation,
including an Agent's Message, must be received by the Exchange Agent at one of
its addresses set forth herein at or prior to the Expiration Date. Private
ROARS may be tendered in whole or in part in integral multiples of $1,000.
Book-entry transfer in DTC in accordance with DTC's procedures does not
constitute delivery of a Book-Entry Confirmation to the Exchange Agent.
Holders who wish to tender their Private ROARS and (i) whose Private ROARS
are not immediately available or (ii) who cannot deliver their Private ROARS,
this Letter of Transmittal and all other required documents to the Exchange
Agent at or prior to the Expiration Date or (iii) who cannot complete the
procedure for book-entry transfer on a timely basis, may tender their Private
ROARS pursuant to the guaranteed delivery procedures set forth in "The
Exchange Offers--Guaranteed Delivery Procedures" in the Prospectus. Pursuant
to such procedures: (i) such tender must be made by or through an Eligible
Institution (as defined below); (ii) a properly completed and duly executed
Notice of Guaranteed Delivery, substantially in the form accompanying this
Letter of Transmittal, must be received by the Exchange Agent at or prior to
the Expiration Date; and (iii) the Certificates, in proper form for transfer,
together with a Letter of Transmittal, properly completed and duly executed,
with any required signature guarantees, and any other documents required by
this Letter of Transmittal, or a Book-Entry Confirmation representing all such
tendered Private ROARS, must be received by the Exchange Agent within five New
York Stock Exchange trading days after the date of execution of such Notice of
Guaranteed Delivery.
As used herein and in the Prospectus, "Eligible Institution" means any
financial institution that is a participant in the Securities Transfer Agents
Medallion Program.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN SUCH DOCUMENTS ARE ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH
RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
2. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered Holder of the
Private ROARS tendered herewith, unless such Holder has completed
either the box entitled "Special Issuance Instructions" or the box
entitled "Special Delivery Instructions" above, or
(ii) such Private ROARS are tendered for the account of an Eligible
Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned "Description
of Private ROARS" is inadequate, the Certificate number(s) and/or the
aggregate principal amount of Private ROARS and any other required information
should be listed on a separate signed schedule which is attached to this
Letter of Transmittal.
<PAGE>
4. Partial Tenders and Withdrawal Rights. Tenders of Private ROARS will be
accepted only in integral multiples of $1,000. If less than all the Private
ROARS evidenced by any Certificate submitted are to be tendered, the tendering
Holder should fill in the aggregate principal amount of Private ROARS which
are to be tendered in the box entitled "Aggregate Amount of Private ROARS
Tendered (if less than all)." In such case, new Certificate(s) for the
remainder of the Private ROARS that were evidenced by such Certificate(s) will
be sent to the Holder of such Private ROARS promptly after the Expiration
Date. All Private ROARS represented by Certificates delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Private ROARS may be
withdrawn at any time prior to the Expiration Date. In order for a withdrawal
to be effective, a written notice of withdrawal by telegram, facsimile
transmission (receipt confirmed by telephone) or letter must be received by
the Exchange Agent at one of its addresses set forth above prior to the
Expiration Date. Any such notice of withdrawal must specify the name of the
person who tendered the Private ROARS to be withdrawn, identify the Private
ROARS to be withdrawn (including the principal amount of such Private ROARS),
and, where Certificates for Private ROARS have been transmitted, specify the
name in which such Private ROARS are registered, if different from that of the
withdrawing holder. If Certificates for the Private ROARS have been delivered
or otherwise identified to the Exchange Agent, then, prior to the physical
release of such Certificates, the withdrawing holder must also submit the
certificate numbers of the particular Certificates to be withdrawn and the
signatures on the notice of withdrawal must be guaranteed by an Eligible
Institution, unless such holder is an Eligible Institution. If Private ROARS
have been tendered pursuant to the procedure for book-entry transfer set forth
in the Prospectus under "The Exchange Offers--Procedures for Tendering Private
ROARS," the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawn Private ROARS and otherwise
comply with the procedures of DTC. Withdrawals of tenders of Private ROARS may
not be rescinded. Private ROARS properly withdrawn will be deemed not to have
been validly tendered for purposes of the Exchange Offer, but may be
retendered at any subsequent time at or prior to the Expiration Date by
following any of the procedures described in the Prospectus under "The
Exchange Offers--Procedures for Tendering Private ROARS."
If, for any reason whatsoever, acceptance for exchange of any Private ROARS
tendered pursuant to the Exchange Offer is delayed, or the Company is unable
to accept for exchange tendered Private ROARS pursuant to the Exchange Offer,
then, without prejudice to the Company's rights set forth herein, the Exchange
Agent may, nevertheless, on behalf of the Company, retain tendered Private
ROARS and such Private ROARS may not be withdrawn except to the extent that
the tendering Holder is entitled to and duly exercises withdrawal rights as
described in the Prospectus. Any such delay will be by an extension of the
Exchange Offer to the extent required by law.
5. Signatures on Letter of Transmittal, Assignments and Endorsements. If
this Letter of Transmittal is signed by the registered Holder(s) of the
Private ROARS tendered hereby, the signature(s) must correspond exactly with
the name(s) as written on the face of the Certificate(s) without alteration,
enlargement or other change whatsoever.
If any of the Private ROARS tendered hereby are owned of record by two or
more joint holders, all such holders must sign this Letter of Transmittal.
If any tendered Private ROARS are registered in different names on several
Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of
Certificates.
If this Letter of Transmittal or any Certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing and must submit proper evidence
satisfactory to the Company and the Exchange Agent, in their sole discretion,
of each such person's authority so to act.
<PAGE>
When this Letter of Transmittal is signed by the registered Holder(s) of the
Private ROARS listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) are required unless Exchange ROARS
are to be issued in the name of a person other than the registered Holder(s).
Signature(s) on such Certificate(s) or bond power(s) must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person or persons other than
the registered Holder or Holders of Private ROARS, such Private ROARS must be
endorsed or accompanied by appropriate powers of attorney, in either case
signed exactly as the name or names of the registered Holder or Holders that
appear on the Private ROARS.
6. Special Issuance and Delivery Instructions. If Exchange ROARS are to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if Exchange ROARS are to be sent to someone other than the
signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be
completed. Certificates for Private ROARS not exchanged will be returned by
mail or, if tendered by book-entry transfer, by crediting the account
indicated above maintained at DTC. See Instruction 4.
7. Irregularities. All questions as to the form of documents, the validity
and eligibility (including time of receipt) of any tender and the acceptance
of Private ROARS tendered for exchange will be determined by the Company, in
its sole discretion, which determination shall be final and binding on all
parties. The Company reserves the absolute right to reject any or all tenders
of any particular Private ROARS not properly tendered or to not accept any
particular Private ROARS, the acceptance of which might, in the judgment of
the Company or its counsel, be unlawful. The Company also reserves the
absolute right to waive any defects or irregularities in tenders or conditions
of the Exchange Offer as to any particular Private ROARS either before or
after the Expiration Date (including the right to waive the ineligibility of
any Holder who seeks to tender Private ROARS in the Exchange Offer). The
Company's interpretation of the terms and conditions of the Exchange Offer
shall be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Private ROARS must be cured
within such reasonable period of time as the Company shall determine. Neither
the Company, the Exchange Agent nor any other person shall be under any duty
to give notification of any defect or irregularity with respect to any tender
of Private ROARS, nor shall any of them incur any liability for failure to
give such notification.
8. Questions, Requests for Assistance and Additional Copies. Questions and
requests for assistance may be directed to the Exchange Agent at one of its
addresses or the telephone number set forth on this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and
this Letter of Transmittal may be obtained from the Exchange Agent or from
your broker, dealer, commercial bank, trust company or other nominee.
9. Backup Withholding; Substitute Form W-9. Under U.S. federal income tax
law, a Holder whose tendered Private ROARS are accepted for exchange is
required to provide the Exchange Agent with such Holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 below. If the Exchange
Agent is not provided with the correct TIN, the Internal Revenue Service (the
"IRS") may subject the Holder or other payee to a $50 penalty. In addition,
payments to such Holder or other payee with respect to Private ROARS exchanged
pursuant to the Exchange Offer may be subject to 31% backup withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the tendering
Holder has not been issued a TIN and has applied for a TIN or intends to apply
for a TIN in the near future. If the box in Part 2 is checked, the Holder or
other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN
is provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-
9. If the Holder furnishes the Exchange Agent with its TIN within 60 days
after the date of the Substitute Form W-9, the
<PAGE>
amounts retained during the 60-day period will be remitted to the Holder and
no further amounts shall be retained or withheld from payments made to the
Holder thereafter. If, however, the Holder has not provided the Exchange Agent
with its TIN within such 60-day period, amounts withheld will be remitted to
the IRS as backup withholding. In addition, 31% of all payments made
thereafter will be withheld and remitted to the IRS until a correct TIN is
provided.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered holder of
the Private ROARS tendered hereby or of the last transferee appearing on the
transfers attached to, or endorsed on, such Private ROARS. If the Private
ROARS are registered in more than one name or are not in the name of the
actual holder, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on substitute Form W-9" for additional guidance on which
number to report.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the
face thereof, to avoid possible erroneous backup withholding. A foreign person
may qualify as an exempt recipient by submitting a properly completed IRS Form
W-8, signed under penalties of perjury, attesting to that Holder's exempt
status. Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
Holders are exempt from backup withholding.
Backup withholding is not an additional U.S. federal income tax. Rather, the
U.S. federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
10. Waiver of Conditions. The Company reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
11. No Conditional Tenders. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering Holders of Private ROARS,
by execution of a Letter of Transmittal, shall waive any right to receive
notice of the acceptance of their Private ROARS for exchange.
12. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Private ROARS have been lost, destroyed or stolen, the Holder
thereof should promptly notify the Exchange Agent. The Holder will then be
instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
13. Security Transfer Taxes. Holders who tender their Private ROARS for
exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, Exchange ROARS are to be delivered to, or are to be
issued in the name of, any person other than the registered Holder of the
Private ROARS tendered, then the amount of any such transfer tax (whether
imposed on the registered Holder or any other persons) will be payable by the
tendering Holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with the Letter of Transmittal, the
amount of such transfer taxes will be billed directly to such tendering
Holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS MUST
BE RECEIVED BY THE EXCHANGE AGENT AT OR PRIOR TO THE EXPIRATION DATE.
<PAGE>
TO BE COMPLETED BY ALL TENDERING SECURITY HOLDERS
PAYER'S NAME: THE BANK OF NEW YORK
- -------------------------------------------------------------------------------
PART 1--PLEASE PROVIDE YOUR
SUBSTITUTE TIN ON THE LINE AT RIGHT
AND CERTIFY BY SIGNING AND
DATING BELOW TIN:__________________
Social Security
FORM W-9 Number or Employer
Identification Number
----------------------------
PART 2--TIN Applied for [_]
--------------------------------------------------------
CERTIFICATION--Under the penalties of perjury, I
certify that:
(1) The number shown on this form is my correct
Taxpayer Identification Number (or I am waiting
for a number to be issued to me),
(2) I am not subject to backup withholding either
because (i) I am exempt from backup withholding,
DEPARTMENT OF (ii) I have not been notified by the Internal
THE TREASURY Revenue Service ("IRS") that I am subject to
INTERNAL backup withholding as a result of a failure to
REVENUE report all interest or dividends, or (iii) the
SERVICE IRS has notified me that I am no longer subject
to backup withholding; and
PAYOR'S REQUEST (3) any other information provided on this form is
FOR TAXPAYER true and correct.
IDENTIFICATION -------------------------------------------------------
NUMBER ("TIN") CERTIFICATION INSTRUCTIONS--You must cross out item
AND CERTIFICATION (iii) in clause (2) above if you have been notified
by the IRS that you are subject to backup withholding
because of underreporting interest or dividends on
your tax return and you have not been notified by the
IRS that you are no longer subject to backup with-
holding.
- -------------------------------------------------------------------------------
SIGNATURE:_______________________________ DATE:_____________________, 1998
- -------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT
TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9.
- -------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all payments made to me on account of the Private
ROARS shall be retained until I provide a taxpayer identification number to
the Exchange Agent and that, if I do not provide my taxpayer identification
number within 60 days, such retained amounts shall be remitted to the
Internal Revenue Service as backup withholding and 31% of all reportable
payments made to me thereafter will be withheld and remitted to the Internal
Revenue Service until I provide a taxpayer identification number.
Signature ________________________________________ Date ____________, 1998
- -------------------------------------------------------------------------------
<PAGE>
EXHIBIT 99.02
LETTER OF TRANSMITTAL
UNITED STATES FILTER CORPORATION
OFFER FOR ANY AND ALL OUTSTANDING
6.50% REMARKETABLE OR REDEEMABLE SECURITIES (ROARSSM) DUE MAY 15, 2013
IN EXCHANGE FOR
6.50% EXCHANGE ROARS DUE MAY 15, 2013,
WHICH EXCHANGE HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE PROSPECTUS DATED , 1998
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT P.M., NEW YORK
CITY TIME, ON , 1998, UNLESS EXTENDED. TENDERED SECURITIES MAY BE
WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE OF THE EXCHANGE OFFER.
The Exchange Agent For the Exchange Offer Is:
The Bank of New York
By Registered or By Hand Only: By Overnight Delivery:
Certified Mail:
The Bank of New York The Bank of New York The Bank of New York
55 Water Street, Room 55 Water Street, Room 234 55 Water Street, Room
234 234
New York, New York 10041 New York, New York 10041 New York, New York 10041
Attention: Lewis Padilla (United States Filter Attention: Lewis Padilla
(United States Filter Corporation, (United States Filter
Corporation, 6.375% and 6.50% Private Corporation,
6.375% and 6.50% Private ROARS) 6.375% and 6.50% Private
ROARS) ROARS)
Facsimile Transmission:
(For Eligible Institutions Only)
(212) 638-7375
or
(212) 638-7380
To Confirm By Telephone or For
Information:
(212) 638-0458
----------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN ONE
SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL
VIA FACSIMILE TO A NUMBER OTHER THAN ONE SET FORTH ABOVE
DOES NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges that it has received and reviewed the
Prospectus dated , 1998 (the "Prospectus") of United States Filter
Corporation, a Delaware corporation (the "Company"), and this Letter of
Transmittal, which together constitute the Company's offer (the "Exchange
Offer") to exchange an aggregate principal amount of up to $400,000,000 of its
6.50% Exchange ROARS due May 15, 2013 (the "Exchange ROARS") for its 6.50%
ROARS due May 15, 2013 (the "Private ROARS"), which exchange has been
registered under the U.S. Securities Act of 1933, as amended (the "Securities
Act").
The term "Expiration Date" means p.m., New York City time, on ,
1998, unless the Company, in its sole discretion, extends the Exchange Offer,
in which event, the term "Expiration Date" shall mean the time and date when
the Exchange Offer as so extended shall expire. The Company shall notify the
holders of the Private ROARS of any extension by means of a press release or
other public announcement no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date.
<PAGE>
The Exchange ROARS will bear interest from the most recent date to which
interest has been paid on the Private ROARS or, if no interest has been paid,
from May 19, 1998. Accordingly, if the relevant record date for interest
payment occurs after the consummation of the Exchange Offer, registered
holders of Exchange ROARS on such record date will receive interest accruing
from the most recent date to which interest has been paid or, if no interest
has been paid, from May 19, 1998. If, however, the relevant record date for
interest payment occurs prior to the consummation of the Exchange Offer,
registered holders of Private ROARS on such record date will receive interest
accruing from the most recent date to which interest has been paid or, if no
interest has been paid, from May 19, 1998. Holders of Private ROARS whose
Private ROARS are accepted for exchange will not receive any payment in
respect of accrued interest on such Private ROARS otherwise payable on any
interest payment date the record date for which occurs after consummation of
the Exchange Offer.
The Exchange Offer is not conditioned upon any minimum principal amount of
Private ROARS being tendered for exchange. However, the Exchange Offer is
subject to certain conditions. Please see the Prospectus under the section
entitled "The Exchange Offers--Certain Conditions to the Exchange Offers."
The Exchange Offer is not being made to, nor will tenders be accepted from
or on behalf of, holders of Private ROARS in any jurisdiction in which the
making or acceptance of the Exchange Offer would not be in compliance with the
laws of such jurisdiction.
Capitalized terms used but not defined herein have the same meanings given
them in the Prospectus. As used herein, the term "Holder" means a holder of
Private ROARS, including any participant ("DTC Participant") in the book-entry
transfer facility system of The Depository Trust Company ("DTC") whose name
appears on a security position listing as the owner of Private ROARS. As used
herein, the term "Certificates" means physical certificates representing
Private ROARS.
To participate in the Exchange Offer, Holders must tender by (i) book-entry
transfer pursuant to the procedure set forth in the Prospectus under "The
Exchange Offers--Procedures for Tendering Private ROARS," or (ii) forwarding
Certificates herewith. Holders who are DTC Participants tendering by book-
entry transfer must execute such tender through the Automated Tender Offer
Program ("ATOP") of DTC. A Holder using ATOP should transmit its acceptance to
DTC prior to the Expiration Date. DTC will verify such acceptance, execute a
book-entry transfer of the tendered Private ROARS into the Exchange Agent's
account at DTC and then send to the Exchange Agent a confirmation of such
book-entry transfer (a "Book-Entry Confirmation"), including an agent's
message ("Agent's Message") confirming that DTC has received an express
acknowledgment from such Holder that such Holder has received and agrees to be
bound by the terms of this Letter of Transmittal and that the Company may
enforce such agreement against such Holder. The Book-Entry Confirmation must
be received by the Exchange Agent in order for the tender relating thereto to
be effective. Book-entry transfer in DTC in accordance with DTC's procedures
does not constitute delivery of a Book-Entry Confirmation to the Exchange
Agent.
If a tender is not made through ATOP, Certificates, as well as this Letter
of Transmittal, properly completed and duly executed, with any required
signature guarantees, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at one of its addresses
set forth herein at or prior to the Expiration Date in order for such tender
to be effective.
Holders of Private ROARS whose Certificates are not immediately available or
who cannot deliver their Certificates and all other required documents to the
Exchange Agent at or prior to the Expiration Date or who cannot complete the
procedure for book-entry transfer on a timely basis, must tender their Private
ROARS according to the guaranteed delivery procedures set forth in "The
Exchange Offers--Guaranteed Delivery Procedures" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC
DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
<PAGE>
DESCRIPTION OF PRIVATE ROARS TENDERED
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
NAME(S) AND ADDRESS(ES)
OF REGISTERED HOLDER(S) PRIVATE ROARS TENDERED
(PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST IF NECESSARY)
- ---------------------------------------------------------------------------------------------------------
AGGREGATE
TOTAL AGGREGATE AMOUNT OF
AMOUNT OF PRIVATE ROARS
PRIVATE ROARS TENDERED**
CERTIFICATE REPRESENTED BY (IF LESS THAN
NUMBER(S)* CERTIFICATE(S)* ALL)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
TOTAL
- ---------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed if Private ROARS are being tendered by book-entry
transfer.
** Private ROARS may be tendered in whole or in part in integral multiples
of $1,000. See Instruction 4. Unless otherwise indicated in this column,
a Holder will be deemed to have tendered all Private ROARS represented
by the Certificates indicated in the first column. See Instruction 4.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_]CHECK HERE IF TENDERED PRIVATE ROARS ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution __________________________________________
Account Number _________________________________________________________
Transaction Code Number ________________________________________________
[_]CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY
IF TENDERED PRIVATE ROARS ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING:
Name of Registered Holder(s) ___________________________________________
Window Ticket Number (if any) __________________________________________
Date of Execution of Notice of Guaranteed Delivery _____________________
Name of Institution which Guaranteed Delivery __________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution __________________________________________
Account Number _________________________________________________________
Transaction Code Number ________________________________________________
[_]CHECK HERE IF PRIVATE ROARS TENDERED BY BOOK-ENTRY TRANSFER AND NOT
EXCHANGED ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET
FORTH ABOVE.
<PAGE>
[_] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED PRIVATE ROARS FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING
ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: _________________________________________________________________
Address: ______________________________________________________________
LADIES AND GENTLEMEN:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the above described aggregate
principal amount of Private ROARS in exchange for a like aggregate principal
amount of Exchange ROARS.
Subject to and effective upon the acceptance for exchange of all or any
portion of the Private ROARS tendered herewith in accordance with the terms
and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Company all right, title and interest in and to such Private
ROARS as are being accepted by the Company. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as an agent of the
Company in connection with the Exchange Offer) with respect to the tendered
Private ROARS, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), subject only to
the right of withdrawal described in the Prospectus, to (i) deliver
Certificates for such Private ROARS to the Company, together with all
accompanying evidences of transfer and authenticity, to or upon the order of
the Company, upon receipt by the Exchange Agent, as the undersigned's agent,
of the Exchange ROARS to be issued in exchange for such Private ROARS, (ii)
present Certificates for such Private ROARS for transfer, and transfer such
Private ROARS, on the books of the Company, and (iii) receive for the account
of the Company all benefits and otherwise exercise all rights of beneficial
ownership of such Private ROARS, all in accordance with the terms and
conditions of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, exchange, sell, assign and transfer the Private
ROARS tendered hereby and that, when the same are accepted for exchange, the
Company will acquire good, marketable and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances, and that the
Private ROARS tendered hereby are not subject to any adverse claims or
proxies. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Company or the Exchange Agent to be
necessary or desirable to complete the exchange, assignment and transfer of
the Private ROARS tendered hereby. The undersigned has read and agrees to all
of the terms of the Exchange Offer.
The name(s) and address(es) of the registered Holder(s) of the Private ROARS
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Certificates representing such Private ROARS. The
Certificate number(s) and the Private ROARS that the undersigned wishes to
tender should be indicated in the appropriate boxes above.
If any tendered Private ROARS are not exchanged pursuant to the Exchange
Offer for any reason, or if Certificates are submitted for more Private ROARS
than are tendered for exchange, Certificates for such nonexchanged or
nontendered Private ROARS will be returned (or, in the case of Private ROARS
tendered by book-entry transfer, such Private ROARS will be credited to an
account maintained at DTC), without expense to the tendering Holder, promptly
following the expiration or termination of the Exchange Offer.
<PAGE>
The undersigned understands that a tender of Private ROARS pursuant to any
one of the procedures described in "The Exchange Offers--Procedures for
Tendering Private ROARS" in the Prospectus and in the instructions attached
hereto will, upon the Company's acceptance for exchange of such tendered
Private ROARS, constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Exchange Offer.
The undersigned recognizes that, under certain circumstances set forth in the
Prospectus, the Company may not be required to accept for exchange any of the
Private ROARS tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that Exchange ROARS be
issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Private ROARS, that such Exchange ROARS be credited to the account
indicated above maintained at DTC. If applicable, substitute Certificates
representing Private ROARS not tendered or not accepted for exchange will be
issued to the undersigned or, in the case of a book entry transfer of Private
ROARS, will be credited to the account indicated above maintained at DTC.
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please deliver Exchange ROARS to the undersigned at the address shown below
the undersigned's signature.
By tendering Private ROARS and executing this Letter of Transmittal, the
undersigned hereby represents and agrees that (i) the undersigned is not an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act, (ii) any Exchange ROARS to be received by the undersigned in exchange for
Private ROARS are being acquired in the ordinary course of its business, and
(iii) the undersigned has no arrangement or understanding with any person to
participate in a distribution, within the meaning of the Securities Act, of
Exchange ROARS. By tendering Private ROARS pursuant to the Exchange Offer and
executing this Letter of Transmittal, a holder of Private ROARS which is a
broker-dealer represents and acknowledges, consistent with certain
interpretive letters issued by the Staff of the Division of Corporation
Finance of the Securities and Exchange Commission to third parties, that such
Private ROARS were acquired by such broker-dealer for its own account as a
result of market-making activities or other trading activities and it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange ROARS (provided that, by so
acknowledging and by delivering a prospectus, such broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act).
The Company has agreed that, subject to the provisions of the Registration
Rights Agreement, the Prospectus, as it may be amended or supplemented from
time to time, may be used by a Participating Broker-Dealer in connection with
resales of Exchange ROARS received in exchange for Private ROARS, where such
Private ROARS were acquired by such Participating Broker-Dealer for its own
account as a result of market-making activities or other trading activities,
for a period ending 60 days after the Expiration Date or, if earlier, when all
such Exchange ROARS have been disposed of by such Participating Broker-Dealer.
In that regard, each Participating Broker-Dealer, by tendering such Private
ROARS and executing this Letter of Transmittal, agrees that, upon receipt of
notice from the Company of the occurrence of any event or the discovery of any
fact which makes any statement contained or incorporated by reference in the
Prospectus untrue in any material respect or which causes the Prospectus to
omit to state a material fact necessary in order to make the statements
contained or incorporated by reference therein, in light of the circumstances
under which they were made, not misleading or of the occurrence of certain
other events specified in the Registration Rights Agreement, such
Participating Broker-Dealer will suspend the sale of Exchange ROARS pursuant
to the Prospectus until the Company has amended or supplemented the Prospectus
to correct such misstatement or omission and has furnished copies of the
amended or supplemented Prospectus to the Participating Broker-Dealer or the
Company has given notice that the sale of the Exchange ROARS may be resumed,
as the case may be.
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF PRIVATE
ROARS" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE PRIVATE ROARS AS SET FORTH IN SUCH BOX.
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6) (SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the To be completed ONLY if the
Exchange ROARS or the Private Exchange ROARS or the Private
ROARS not tendered or not ex- ROARS not tendered or not ex-
changed are to be issued in the changed are to be sent to some-
name of someone other than the one other than the registered
registered Holder(s) of the Holder(s) of the Private ROARS
Private ROARS whose name(s) ap- whose name(s) appear(s) above
pear(s) above. or such registered Holder(s) at
an address other than that
shown above.
Issue
[_] Private ROARS not tendered
or not exchanged to: Mail
[_] Private ROARS not tendered
[_] Exchange ROARS to: or not exchanged to:
Name(s) ________________________ [_] Exchange ROARS to:
Address ________________________
________________________________ Name(s) ________________________
(INCLUDE ZIP CODE)
Address ________________________
Area Code and Telephone Number _ ________________________________
(INCLUDE ZIP CODE)
Tax Identification or Social
Security Number(s) _____________ Area Code and Telephone Number _
Tax Identification or Social
Security Number(s) _____________
<PAGE>
HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
.............................................................
.............................................................
(SIGNATURE(S) OF STOCKHOLDER(S))
Must be signed by registered Holder(s) exactly as name(s)
appear(s) on Certificate(s) for the Private ROARS hereby
tendered or on the register of Holders maintained by the
Company, or by any person(s) authorized to become registered
Holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certifications and
other information as may be required by the Company). If
signature is by an attorney-in-fact, executor,
administrator, trustee, guardian, officer of a corporation
or other acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See
Instruction 5.
Date ................................................. , 1998
Name(s)......................................................
.............................................................
(PLEASE PRINT)
Capacity (Full Title) .......................................
Address......................................................
.............................................................
.............................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number ..............................
Tax Identification or Social Security Number(s). ............
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 2 AND 5)
Authorized Signature ........................................
Date ................................................. , 1998
Name of Firm ................................................
Capacity (full title) .......................................
(PLEASE PRINT)
Address .....................................................
.............................................................
.............................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number ..............................
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be completed only if Certificates
are to be forwarded herewith. In order for a tender to be effective,
Certificates, as well as this Letter of Transmittal, properly completed and
duly executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, or a Book-Entry Confirmation,
including an Agent's Message, must be received by the Exchange Agent at one of
its addresses set forth herein at or prior to the Expiration Date. Private
ROARS may be tendered in whole or in part in integral multiples of $1,000.
Book-entry transfer in DTC in accordance with DTC's procedures does not
constitute delivery of a Book-Entry Confirmation to the Exchange Agent.
Holders who wish to tender their Private ROARS and (i) whose Private ROARS
are not immediately available or (ii) who cannot deliver their Private ROARS,
this Letter of Transmittal and all other required documents to the Exchange
Agent at or prior to the Expiration Date or (iii) who cannot complete the
procedure for book-entry transfer on a timely basis, may tender their Private
ROARS pursuant to the guaranteed delivery procedures set forth in "The
Exchange Offers--Guaranteed Delivery Procedures" in the Prospectus. Pursuant
to such procedures: (i) such tender must be made by or through an Eligible
Institution (as defined below); (ii) a properly completed and duly executed
Notice of Guaranteed Delivery, substantially in the form accompanying this
Letter of Transmittal, must be received by the Exchange Agent at or prior to
the Expiration Date; and (iii) the Certificates, in proper form for transfer,
together with a Letter of Transmittal, properly completed and duly executed,
with any required signature guarantees, and any other documents required by
this Letter of Transmittal, or a Book-Entry Confirmation representing all such
tendered Private ROARS, must be received by the Exchange Agent within five New
York Stock Exchange trading days after the date of execution of such Notice of
Guaranteed Delivery.
As used herein and in the Prospectus, "Eligible Institution" means any
financial institution that is a participant in the Securities Transfer Agents
Medallion Program.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN SUCH DOCUMENTS ARE ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH
RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
2. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered Holder of the
Private ROARS tendered herewith, unless such Holder has completed
either the box entitled "Special Issuance Instructions" or the box
entitled "Special Delivery Instructions" above, or
(ii) such Private ROARS are tendered for the account of an Eligible
Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned "Description
of Private ROARS" is inadequate, the Certificate number(s) and/or the
aggregate principal amount of Private ROARS and any other required information
should be listed on a separate signed schedule which is attached to this
Letter of Transmittal.
<PAGE>
4. Partial Tenders and Withdrawal Rights. Tenders of Private ROARS will be
accepted only in integral multiples of $1,000. If less than all the Private
ROARS evidenced by any Certificate submitted are to be tendered, the tendering
Holder should fill in the aggregate principal amount of Private ROARS which
are to be tendered in the box entitled "Aggregate Amount of Private ROARS
Tendered (if less than all)." In such case, new Certificate(s) for the
remainder of the Private ROARS that were evidenced by such Certificate(s) will
be sent to the Holder of such Private ROARS promptly after the Expiration
Date. All Private ROARS represented by Certificates delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Private ROARS may be
withdrawn at any time prior to the Expiration Date. In order for a withdrawal
to be effective, a written notice of withdrawal by telegram, facsimile
transmission (receipt confirmed by telephone) or letter must be received by
the Exchange Agent at one of its addresses set forth above prior to the
Expiration Date. Any such notice of withdrawal must specify the name of the
person who tendered the Private ROARS to be withdrawn, identify the Private
ROARS to be withdrawn (including the principal amount of such Private ROARS),
and, where Certificates for Private ROARS have been transmitted, specify the
name in which such Private ROARS are registered, if different from that of the
withdrawing holder. If Certificates for the Private ROARS have been delivered
or otherwise identified to the Exchange Agent, then, prior to the physical
release of such Certificates, the withdrawing holder must also submit the
certificate numbers of the particular Certificates to be withdrawn and the
signatures on the notice of withdrawal must be guaranteed by an Eligible
Institution, unless such holder is an Eligible Institution. If Private ROARS
have been tendered pursuant to the procedure for book-entry transfer set forth
in the Prospectus under "The Exchange Offers--Procedures for Tendering Private
ROARS," the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawn Private ROARS and otherwise
comply with the procedures of DTC. Withdrawals of tenders of Private ROARS may
not be rescinded. Private ROARS properly withdrawn will be deemed not to have
been validly tendered for purposes of the Exchange Offer, but may be
retendered at any subsequent time at or prior to the Expiration Date by
following any of the procedures described in the Prospectus under "The
Exchange Offers--Procedures for Tendering Private ROARS."
If, for any reason whatsoever, acceptance for exchange of any Private ROARS
tendered pursuant to the Exchange Offer is delayed, or the Company is unable
to accept for exchange tendered Private ROARS pursuant to the Exchange Offer,
then, without prejudice to the Company's rights set forth herein, the Exchange
Agent may, nevertheless, on behalf of the Company, retain tendered Private
ROARS and such Private ROARS may not be withdrawn except to the extent that
the tendering Holder is entitled to and duly exercises withdrawal rights as
described in the Prospectus. Any such delay will be by an extension of the
Exchange Offer to the extent required by law.
5. Signatures on Letter of Transmittal, Assignments and Endorsements. If
this Letter of Transmittal is signed by the registered Holder(s) of the
Private ROARS tendered hereby, the signature(s) must correspond exactly with
the name(s) as written on the face of the Certificate(s) without alteration,
enlargement or other change whatsoever.
If any of the Private ROARS tendered hereby are owned of record by two or
more joint holders, all such holders must sign this Letter of Transmittal.
If any tendered Private ROARS are registered in different names on several
Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of
Certificates.
If this Letter of Transmittal or any Certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity,
such persons should so indicate when signing and must submit proper evidence
satisfactory to the Company and the Exchange Agent, in their sole discretion,
of each such person's authority so to act.
<PAGE>
When this Letter of Transmittal is signed by the registered Holder(s) of the
Private ROARS listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) are required unless Exchange ROARS
are to be issued in the name of a person other than the registered Holder(s).
Signature(s) on such Certificate(s) or bond power(s) must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person or persons other than
the registered Holder or Holders of Private ROARS, such Private ROARS must be
endorsed or accompanied by appropriate powers of attorney, in either case
signed exactly as the name or names of the registered Holder or Holders that
appear on the Private ROARS.
6. Special Issuance and Delivery Instructions. If Exchange ROARS are to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if Exchange ROARS are to be sent to someone other than the
signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be
completed. Certificates for Private ROARS not exchanged will be returned by
mail or, if tendered by book-entry transfer, by crediting the account
indicated above maintained at DTC. See Instruction 4.
7. Irregularities. All questions as to the form of documents, the validity
and eligibility (including time of receipt) of any tender and the acceptance
of Private ROARS tendered for exchange will be determined by the Company, in
its sole discretion, which determination shall be final and binding on all
parties. The Company reserves the absolute right to reject any or all tenders
of any particular Private ROARS not properly tendered or to not accept any
particular Private ROARS, the acceptance of which might, in the judgment of
the Company or its counsel, be unlawful. The Company also reserves the
absolute right to waive any defects or irregularities in tenders or conditions
of the Exchange Offer as to any particular Private ROARS either before or
after the Expiration Date (including the right to waive the ineligibility of
any Holder who seeks to tender Private ROARS in the Exchange Offer). The
Company's interpretation of the terms and conditions of the Exchange Offer
shall be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Private ROARS must be cured
within such reasonable period of time as the Company shall determine. Neither
the Company, the Exchange Agent nor any other person shall be under any duty
to give notification of any defect or irregularity with respect to any tender
of Private ROARS, nor shall any of them incur any liability for failure to
give such notification.
8. Questions, Requests for Assistance and Additional Copies. Questions and
requests for assistance may be directed to the Exchange Agent at one of its
addresses or the telephone number set forth on this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and
this Letter of Transmittal may be obtained from the Exchange Agent or from
your broker, dealer, commercial bank, trust company or other nominee.
9. Backup Withholding; Substitute Form W-9. Under U.S. federal income tax
law, a Holder whose tendered Private ROARS are accepted for exchange is
required to provide the Exchange Agent with such Holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 below. If the Exchange
Agent is not provided with the correct TIN, the Internal Revenue Service (the
"IRS") may subject the Holder or other payee to a $50 penalty. In addition,
payments to such Holder or other payee with respect to Private ROARS exchanged
pursuant to the Exchange Offer may be subject to 31% backup withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the tendering
Holder has not been issued a TIN and has applied for a TIN or intends to apply
for a TIN in the near future. If the box in Part 2 is checked, the Holder or
other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN
is provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-
9. If the Holder furnishes the Exchange Agent with its TIN within 60 days
after the date of the Substitute Form W-9, the
<PAGE>
amounts retained during the 60-day period will be remitted to the Holder and
no further amounts shall be retained or withheld from payments made to the
Holder thereafter. If, however, the Holder has not provided the Exchange Agent
with its TIN within such 60-day period, amounts withheld will be remitted to
the IRS as backup withholding. In addition, 31% of all payments made
thereafter will be withheld and remitted to the IRS until a correct TIN is
provided.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered holder of
the Private ROARS tendered hereby or of the last transferee appearing on the
transfers attached to, or endorsed on, such Private ROARS. If the Private
ROARS are registered in more than one name or are not in the name of the
actual holder, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on substitute Form W-9" for additional guidance on which
number to report.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the
face thereof, to avoid possible erroneous backup withholding. A foreign person
may qualify as an exempt recipient by submitting a properly completed IRS Form
W-8, signed under penalties of perjury, attesting to that Holder's exempt
status. Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
Holders are exempt from backup withholding.
Backup withholding is not an additional U.S. federal income tax. Rather, the
U.S. federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
10. Waiver of Conditions. The Company reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
11. No Conditional Tenders. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering Holders of Private ROARS,
by execution of a Letter of Transmittal, shall waive any right to receive
notice of the acceptance of their Private ROARS for exchange.
12. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Private ROARS have been lost, destroyed or stolen, the Holder
thereof should promptly notify the Exchange Agent. The Holder will then be
instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
13. Security Transfer Taxes. Holders who tender their Private ROARS for
exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, Exchange ROARS are to be delivered to, or are to be
issued in the name of, any person other than the registered Holder of the
Private ROARS tendered, then the amount of any such transfer tax (whether
imposed on the registered Holder or any other persons) will be payable by the
tendering Holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with the Letter of Transmittal, the
amount of such transfer taxes will be billed directly to such tendering
Holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS MUST
BE RECEIVED BY THE EXCHANGE AGENT AT OR PRIOR TO THE EXPIRATION DATE.
<PAGE>
TO BE COMPLETED BY ALL TENDERING SECURITY HOLDERS
PAYER'S NAME: THE BANK OF NEW YORK
PART 1--PLEASE PROVIDE YOUR
SUBSTITUTE TIN ON THE LINE AT RIGHT
FORM W-9 AND CERTIFY BY SIGNING AND
DATING BELOW
TIN:__________________
Social Security
---------------------------- Number or Employer
PART 2--TIN Applied for [_] Identification Number
-------------------------------------------------------
CERTIFICATION--Under the penalties of perjury, I
certify that:
DEPARTMENT OF (1) The number shown on this form is my correct
THE TREASURY Taxpayer Identification Number (or I am waiting
REVENUE for a number to be issued to me),
SERVICE
(2) I am not subject to backup withholding either
because (i) I am exempt from backup withholding,
(ii) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to
backup withholding as a result of a failure to
report all interest or dividends, or (iii) the
IRS has notified me that I am no longer subject
to backup withholding; and
(3) any other information provided on this form is
true and correct.
PAYOR'S REQUEST FOR
TAXPAYER IDENTIFICATION
NUMBER ("TIN") AND
CERTIFICATION
--------------------------------------------------------
CERTIFICATION INSTRUCTIONS--You must cross out item
(iii) in clause (2) above if you have been notified
by the IRS that you are subject to backup withholding
because of underreporting interest or dividends on
your tax return and you have not been notified by the
IRS that you are no longer subject to backup with-
holding.
- -------------------------------------------------------------------------------
SIGNATURE:_______________________________ DATE:_____________________, 1998
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT
TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all payments made to me on account of the Private
ROARS shall be retained until I provide a taxpayer identification number to
the Exchange Agent and that, if I do not provide my taxpayer identification
number within 60 days, such retained amounts shall be remitted to the
Internal Revenue Service as backup withholding and 31% of all reportable
payments made to me thereafter will be withheld and remitted to the Internal
Revenue Service until I provide a taxpayer identification number.
Signature ________________________________________ Date ____________, 1998
<PAGE>
EXHIBIT 99.03
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
6.375% REMARKETABLE OR REDEEMABLE SECURITIES (ROARS/SM/) DUE MAY 15, 2011
OF
UNITED STATES FILTER CORPORATION
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for 6.375% Remarketable or Redeemable Securities (ROARS/SM/) due
May 15, 2011 (the "Private ROARS") are not immediately available, (ii) time
will not permit certificates for Private ROARS, the Letter of Transmittal and
all other required documents to reach The Bank of New York (the "Exchange
Agent") before the Expiration Date or (iii) the procedure for book-entry
transfer cannot be completed on a timely basis. This Notice of Guaranteed
Delivery may be delivered by hand, overnight courier or mail, or transmitted
by facsimile transmission, telegram or telex, to the Exchange Agent. See "The
Exchange Offers--Guaranteed Delivery Procedures" in the Prospectus. In
addition, in order to utilize the guaranteed delivery procedures to tender
Private ROARS pursuant to the Exchange Offer, certificates for such Private
ROARS, a completed, signed and dated Letter of Transmittal relating to such
Private ROARS and all other required documents or a Book-Entry Confirmation
must also be received by the Exchange Agent within five New York Stock
Exchange trading days after the date of execution of this Notice. Capitalized
terms not defined herein have the meanings assigned to them in the Prospectus.
The Exchange Agent For the Exchange Offer Is:
The Bank of New York
By Registered or By Hand Only: By Overnight Delivery:
Certified Mail:
The Bank of New York The Bank of New York The Bank of New York
55 Water Street, Room 55 Water Street, Room 234 55 Water Street, Room
234 234
New York, New York 10041 New York, New York 10041 New York, New York 10041
Attention: Lewis Padilla (United States Filter Attention: Lewis Padilla
(United States Filter Corporation,
Corporation, 6.375% and 6.50% Private (United States Filter
6.375% and 6.50% Private ROARS) Corporation,
ROARS) 6.375% and 6.50% Private
ROARS)
Facsimile Transmission:
(For Eligible Institutions Only)
(212) 638-7375
or
(212) 638-7380
To Confirm By Telephone or For
Information:
(212) 638-0458
Delivery of this Notice of Guaranteed Delivery to an address other than one
set forth above or transmission of this Notice of Guaranteed Delivery via
facsimile to a number other than one set forth above does not constitute a
valid delivery.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on such Letter of Transmittal.
<PAGE>
LADIES AND GENTLEMEN:
The undersigned hereby tenders to United States Filter Corporation, a
Delaware corporation (the "Company"), upon the terms and subject to the
conditions set forth in the Prospectus dated , 1998 (as the same may be
amended or supplemented from time to time, the "Prospectus") and the related
Letter of Transmittal (which together constitute the "Exchange Offer"), receipt
of which are hereby acknowledged, the aggregate amount of Private ROARS set
forth below pursuant to the guaranteed delivery procedures set forth in the
Prospectus under the caption "The Exchange Offers--Guaranteed Delivery
Procedures."
Aggregate Amount Name(s) of Registered Holder(s):...
Tendered: $.......................* ...................................
Certificate No.(s)
if Available):.....................
...................................
If Private ROARS will be tendered by book-entry transfer, provide the following
information:
DTC Account Number.................
* Must be in denominations of $1,000 and any integral multiple thereof.
- --------------------------------------------------------------------------------
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
X.................................. ...................................
X.................................. ...................................
Signature(s) of Holder(s) Date
or Authorized Signatory
Area Code and Telephone Number:....
This Notice of Guaranteed Delivery must be signed by the holder(s) of the
Private ROARS being tendered hereby as their name(s) appear(s) on the
certificates for such Private ROARS or on a security position listing, or by
person(s) authorized to become registered holder(s) by endorsement and
documents to be transmitted with the Letter of Transmittal. If signature is by
a trustee, executor, administrator, guardian, attorney-in-fact, officer or
other person acting in a fiduciary or representative capacity, such person must
set forth his or her full title below.
Please print name(s) and address(es)
Name(s):........................................................................
......................................................................
......................................................................
......................................................................
Capacity:.......................................................................
Address(es):....................................................................
......................................................................
......................................................................
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a financial institution that is a participant in the
Securities Transfer Agents Medallion Program (each, an "Eligible
Institution"), hereby guarantees to deliver to the Exchange Agent, at its
address set forth above, either the certificates for the Private ROARS
tendered hereby in proper form for transfer, together with one or more
properly completed and duly executed Letter(s) of Transmittal and any
other required documents, or timely confirmation of the book-entry
transfer of such Private ROARS into the Exchange Agent's account at The
Depositary Trust Company pursuant to the procedure for book-entry transfer
set forth in the Prospectus, in either case, within five New York Stock
Exchange trading days after the date of execution of this Notice of
Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Private ROARS
tendered hereby to the Exchange Agent within the time period set forth
above and that failure to do so could result in a financial loss to the
undersigned.
................................... ...................................
Name of Firm: Authorized Signature
................................... ...................................
Address Title
................................... ...................................
Zip Code Name (Please type or Print)
Area Code and Telephone No......... Dated:.............................
NOTE: DO NOT SEND CERTIFICATES FOR PRIVATE ROARS WITH THIS FORM.
CERTIFICATES FOR PRIVATE ROARS SHOULD ONLY BE SENT WITH YOUR LETTER
OF TRANSMITTAL.
<PAGE>
EXHIBIT 99.04
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
6.50% REMARKETABLE OR REDEEMABLE SECURITIES (ROARS/SM/) DUE MAY 15, 2013
OF
UNITED STATES FILTER CORPORATION
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for 6.50% Remarketable or Redeemable Securities (ROARS/SM/) due May
15, 2013 (the "Private ROARS") are not immediately available, (ii) time will
not permit certificates for Private ROARS, the Letter of Transmittal and all
other required documents to reach The Bank of New York (the "Exchange Agent")
before the Expiration Date or (iii) the procedure for book-entry transfer
cannot be completed on a timely basis. This Notice of Guaranteed Delivery may
be delivered by hand, overnight courier or mail, or transmitted by facsimile
transmission, telegram or telex, to the Exchange Agent. See "The Exchange
Offers--Guaranteed Delivery Procedures" in the Prospectus. In addition, in
order to utilize the guaranteed delivery procedures to tender Private ROARS
pursuant to the Exchange Offer, certificates for such Private ROARS, a
completed, signed and dated Letter of Transmittal relating to such Private
ROARS and all other required documents or a Book-Entry Confirmation must also
be received by the Exchange Agent within five New York Stock Exchange trading
days after the date of execution of this Notice. Capitalized terms not defined
herein have the meanings assigned to them in the Prospectus.
The Exchange Agent For the Exchange Offer Is:
The Bank of New York
By Registered or By Hand Only: By Overnight Delivery:
Certified Mail:
The Bank of New York The Bank of New York The Bank of New York
55 Water Street, Room 55 Water Street, Room 234 55 Water Street, Room
234 234
New York, New York 10041 New York, New York 10041 New York, New York 10041
Attention: Lewis Padilla (United States Filter Attention: Lewis Padilla
(United States Filter Corporation,
Corporation, 6.375% and 6.50% Private (United States Filter
6.375% and 6.50% Private ROARS) Corporation,
ROARS) 6.375% and 6.50% Private
ROARS)
Facsimile Transmission:
(For Eligible Institutions Only)
(212) 638-7375
or
(212) 638-7380
To Confirm By Telephone or For
Information:
(212) 638-0458
Delivery of this Notice of Guaranteed Delivery to an address other than one
set forth above or transmission of this Notice of Guaranteed Delivery via
facsimile to a number other than one set forth above does not constitute a
valid delivery.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on such Letter of Transmittal.
<PAGE>
LADIES AND GENTLEMEN:
The undersigned hereby tenders to United States Filter Corporation, a
Delaware corporation (the "Company"), upon the terms and subject to the
conditions set forth in the Prospectus dated , 1998 (as the same may be
amended or supplemented from time to time, the "Prospectus") and the related
Letter of Transmittal (which together constitute the "Exchange Offer"), receipt
of which are hereby acknowledged, the aggregate amount of Private ROARS set
forth below pursuant to the guaranteed delivery procedures set forth in the
Prospectus under the caption "The Exchange Offers--Guaranteed Delivery
Procedures."
Aggregate Amount Name(s) of Registered Holder(s):...
Tendered: $.......................* ...................................
Certificate No.(s)
if Available):.....................
...................................
If Private ROARS will be tendered by book-entry transfer, provide the following
information:
DTC Account Number.................
* Must be in denominations of $1,000 and any integral multiple thereof.
- --------------------------------------------------------------------------------
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
X.................................. ...................................
X.................................. ...................................
Signature(s) of Holder(s) Date
or Authorized Signatory
Area Code and Telephone Number:....
This Notice of Guaranteed Delivery must be signed by the holder(s) of the
Private ROARS being tendered hereby as their name(s) appear(s) on the
certificates for such Private ROARS or on a security position listing, or by
person(s) authorized to become registered holder(s) by endorsement and
documents to be transmitted with the Letter of Transmittal. If signature is by
a trustee, executor, administrator, guardian, attorney-in-fact, officer or
other person acting in a fiduciary or representative capacity, such person must
set forth his or her full title below.
Please print name(s) and address(es)
Name(s):........................................................................
......................................................................
......................................................................
......................................................................
Capacity:.......................................................................
Address(es):....................................................................
......................................................................
......................................................................
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a financial institution that is a participant in the
Securities Transfer Agents Medallion Program (each, an "Eligible
Institution"), hereby guarantees to deliver to the Exchange Agent, at its
address set forth above, either the certificates for the Private ROARS
tendered hereby in proper form for transfer, together with one or more
properly completed and duly executed Letter(s) of Transmittal and any
other required documents, or timely confirmation of the book-entry
transfer of such Private ROARS into the Exchange Agent's account at The
Depositary Trust Company pursuant to the procedure for book-entry transfer
set forth in the Prospectus, in either case, within five New York Stock
Exchange trading days after the date of execution of this Notice of
Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Private ROARS
tendered hereby to the Exchange Agent within the time period set forth
above and that failure to do so could result in a financial loss to the
undersigned.
................................... ...................................
Name of Firm: Authorized Signature
................................... ...................................
Address Title
................................... ...................................
Zip Code Name (Please type or Print)
Area Code and Telephone No......... Dated:.............................
NOTE: DO NOT SEND CERTIFICATES FOR PRIVATE ROARS WITH THIS FORM.
CERTIFICATES FOR PRIVATE ROARS SHOULD ONLY BE SENT WITH YOUR LETTER
OF TRANSMITTAL.
<PAGE>
EXHIBIT 99.05
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens,
e.g., 000-00-0000. Employer identification numbers have nine digits separated
by only one hyphen, e.g., 00-0000000. The table below will help determine the
number to give the payer.
<TABLE>
<CAPTION>
FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY NUMBER OF--
------------------------- ------------------------------------
<S> <C> <C>
1. An individual's account The individual
2. Two or more individuals (joint account) The actual owner of the account or, if combined funds,
the first individual on the account(1)
3. Husband wife (joint account) The actual owner of the account or, if joint funds,
either person(1)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. Adult and minor (joint account) The adult or, if the minor is the only contributor,
the minor(1)
6. Account in the name of guardian or The ward, minor, or incompetent person(3)
committee for a designated ward,
minor, or incompetent person
7. a. A revocable savings trust account The grantor-trustee(1)
(in which grantor is also trustee)
b. Any "trust" account that is not a The actual owner(1)
legal or valid trust under State law
8. Sole proprietorship account The owner(4)
9. A valid trust, estate, or pension trust The legal entity (do not furnish the identifying number of
the personal representative or trustee unless the legal
entity itself is not designated in the account title)(5)
10. Corporate account The corporation
11. Religious, charitable, or educational The organization
organization account
12. Partnership account held in the name of The partnership
the business
13. Association, club, or other tax-exempt The organization
organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of Agriculture The public entity
in the name of a public entity (such as a State
or local government, school district, or prison)
that receives agricultural program payments
</TABLE>
- --------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner. If the owner does not have an employer
identification number, furnish the owner's social security number.
(5) List first and circle the name of the legal trust, estate or pension
trust.
NOTE: IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME, THE NUMBER WILL
BE CONSIDERED TO BE THAT OF THE FIRST NAME LISTED.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you do not know your
number, obtain form SS-5, Application for a Social Security Number Card (for
resident individuals), Form SS-4, Application for Employer Identification
Number (for businesses and all other entities), or Form W-7, Application for
International Taxpayer Identification Number (for alien individuals required
to file U.S. tax returns), at an office of the Social Security Administration
or the Internal Revenue Service.
To complete Substitute Form W-9, if you do not have a taxpayer
identification number, write "Applied For" in the space for the taxpayer
identification number in Part I, sign and date the Form, and give it to the
requester. Generally, you will then have 60 days to obtain a taxpayer
identification number and furnish it to the requester. If the requester does
not receive your taxpayer identification number within 60 days, backup
withholding, if applicable, will begin and will continue until you furnish
your taxpayer identification number to the requester.
PAYEES EXEMPT FROM BACKUP WITHHOLDING PENALTIES*
Payees specifically exempted from backup withholding on ALL payments include
the following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual
retirement plan, or a custodial account under section 403(b)(7).
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or
any political subdivision or instrumentality thereof.
. A foreign government or a political subdivision, agency or
instrumentality thereof.
. An international organization or any agency or instrumentality thereof.
. A registered dealer in securities or commodities registered in the United
States or a possession of the United States.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a).
. An entity registered at all times during the tax year under the
Investment Company Act of 1940.
. A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the United
States and which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. NOTE: You may
be subject to backup withholding if (i) this interest is $600 or more,
(ii) the interest is paid in the course of the payer's trade or business
and (iii) you have not provided your correct taxpayer identification
number to the payer.
<PAGE>
. Payments of tax-exempt interest (including exempt-interest dividends
under section 85).
. Payments described in section 6049(b)(5) to non-resident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
EXEMPT PAYEES DESCRIBED ABOVE SHOULD FILE A SUBSTITUTE FORM W-9 TO AVOID
POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE THIS FORM WITH THE PAYER, FURNISH
YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM,
SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER.
Certain payments other than interest, dividends and patronage dividends that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICES. Section 6109 requires most recipients of dividends,
interest or other payments to give taxpayer identification numbers to payers
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes and to help verify the accuracy of your tax return.
Payers must be given the numbers whether or not recipients are required to
file tax returns. Payers must generally withhold 31% of taxable interest,
dividends, and certain other payments to a payee who does not furnish a
taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. --If you
fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is
due to reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE STATEMENTS WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--If you falsify
certifications or affirmations, you are subject to criminal penalties
including fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
- --------
* Unless otherwise noted herein, all references to section numbers or to
regulations are references to the Internal Revenue Code and the regulations
promulgated thereunder.
<PAGE>
EXHIBIT 99.06
UNITED STATES FILTER CORPORATION
OFFER FOR ANY AND ALL OUTSTANDING
6.375% REMARKETABLE OR REDEEMABLE SECURITIES
(ROARS/SM/) DUE MAY 15, 2011
IN EXCHANGE FOR
6.375% EXCHANGE ROARS DUE MAY 15, 2011
TO:BROKERS, DEALERS, COMMERCIAL BANKS,
TRUST COMPANIES AND OTHER NOMINEES:
United States Filter Corporation (the "Company") is offering (the "Exchange
Offer"), upon the terms and subject to the conditions set forth in the
Prospectus dated (the "Prospectus") and the related Letter of
Transmittal (the "Letter of Transmittal"), to exchange its 6.375% Exchange
ROARS due May 15, 2011 (the "Exchange ROARS") for its outstanding 6.375% ROARS
due May 15, 2011 (the "Private ROARS"). The Exchange Offer is being made in
order to satisfy certain obligations of the Company contained in the
Registration Rights Agreement dated May 19, 1998, by and among the Company and
the initial purchasers referred to therein.
We are requesting that you contact your clients for whom you hold Private
ROARS regarding the Exchange Offer. For your information and for forwarding to
your clients for whom you hold Private ROARS registered in your name or in the
name of your nominee, or who hold Private ROARS registered in their own names,
we are enclosing the following documents:
1. Prospectus dated , 1998;
2. The Letter of Transmittal for your use and for the information of your
clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange Offer
if Private ROARS are not immediately available or time will not permit the
certificates for Private ROARS or other required documents to reach The Bank
of New York, as the Exchange Agent, before the applicable Expiration Date (as
defined below) or the procedure for book-entry transfer cannot be completed on
a timely basis;
4. A form of letter which may be sent to your clients for whose account you
hold Private ROARS registered in your name or the name of your nominee, with
space provided for obtaining such clients' instructions with regard to the
Exchange Offer;
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
6. Return envelopes addressed to The Bank of New York, as the Exchange Agent
for the Exchange Offer.
YOUR PROMPT ACTION IS REQUESTED. THE EXCHANGE OFFER WILL EXPIRE AT P.M.,
NEW YORK CITY TIME, ON , 1998, UNLESS THE EXCHANGE OFFER IS EXTENDED BY
THE COMPANY (THE "EXPIRATION DATE"). PRIVATE ROARS TENDERED PURSUANT TO THE
EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE THE EXPIRATION DATE.
To participate in the Exchange Offer, your clients must tender by having you
execute for them a book-entry transfer of Private ROARS into the account of
The Bank of New York, as the Exchange Agent, at The Depository Trust Company
("DTC") using DTC's Automated Tender Offer Program. (Your clients may also
tender by having certificates representing their Private ROARS, duly executed
and properly completed Letters of Transmittal with any required signature
guarantees, and any other required documents delivered to such Exchange
Agent.) The Letter of Transmittal and the Prospectus should be consulted for
complete instructions and information about participation in the Exchange
Offer.
<PAGE>
If holders of Private ROARS wish to tender, but it is impracticable for them
to forward their certificates for Private ROARS or other required documents
prior to the expiration of the Exchange Offer or to comply with the book-entry
transfer procedure on a timely basis, a tender may be effected by following
the guaranteed delivery procedures described in the Prospectus under "The
Exchange Offers--Guaranteed Delivery Procedures."
The Company will, upon request, reimburse brokers, dealers, commercial banks
and trust companies for reasonable and necessary costs and expenses incurred
by them in forwarding the Prospectus and the related documents to the
beneficial owners of Private ROARS held by them as nominee or in a fiduciary
capacity. The Company will pay or cause to be paid all stock transfer taxes
applicable to the exchange of Private ROARS pursuant to the Exchange Offer,
except as set forth in Instruction 13 of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests
for additional copies of the enclosed materials, should be directed to The
Bank of New York, the Exchange Agent for the Exchange Offer, at its address
and telephone number set forth on the front of the Letter of Transmittal.
Very truly yours,
UNITED STATES FILTER CORPORATION
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY
OTHER PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT OR AUTHORIZE YOU
OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF
EITHER OF THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS
EXPRESSLY MADE IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
<PAGE>
EXHIBIT 99.07
UNITED STATES FILTER CORPORATION
OFFER FOR ANY AND ALL OUTSTANDING
6.50% REMARKETABLE OR REDEEMABLE SECURITIES
(ROARS/SM/) DUE MAY 15, 2013
IN EXCHANGE FOR
6.50% EXCHANGE ROARS DUE MAY 15, 2013
TO:BROKERS, DEALERS, COMMERCIAL BANKS,
TRUST COMPANIES AND OTHER NOMINEES:
United States Filter Corporation (the "Company") is offering (the "Exchange
Offer"), upon the terms and subject to the conditions set forth in the
Prospectus dated (the "Prospectus") and the related Letter of
Transmittal (the "Letter of Transmittal"), to exchange its 6.50% Exchange
ROARS due May 15, 2013 (the "Exchange ROARS") for its outstanding 6.50% ROARS
due May 15, 2013 (the "Private ROARS"). The Exchange Offer is being made in
order to satisfy certain obligations of the Company contained in the
Registration Rights Agreement dated May 19, 1998, by and among the Company and
the initial purchasers referred to therein.
We are requesting that you contact your clients for whom you hold Private
ROARS regarding the Exchange Offer. For your information and for forwarding to
your clients for whom you hold Private ROARS registered in your name or in the
name of your nominee, or who hold Private ROARS registered in their own names,
we are enclosing the following documents:
1. Prospectus dated , 1998;
2. The Letter of Transmittal for your use and for the information of your
clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange Offer
if Private ROARS are not immediately available or time will not permit the
certificates for Private ROARS or other required documents to reach The Bank
of New York, as the Exchange Agent, before the applicable Expiration Date (as
defined below) or the procedure for book-entry transfer cannot be completed on
a timely basis;
4. A form of letter which may be sent to your clients for whose account you
hold Private ROARS registered in your name or the name of your nominee, with
space provided for obtaining such clients' instructions with regard to the
Exchange Offer;
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
6. Return envelopes addressed to The Bank of New York, as the Exchange Agent
for the Exchange Offer.
YOUR PROMPT ACTION IS REQUESTED. THE EXCHANGE OFFER WILL EXPIRE AT P.M.,
NEW YORK CITY TIME, ON , 1998, UNLESS THE EXCHANGE OFFER IS EXTENDED BY
THE COMPANY (THE "EXPIRATION DATE"). PRIVATE ROARS TENDERED PURSUANT TO THE
EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE THE EXPIRATION DATE.
To participate in the Exchange Offer, your clients must tender by having you
execute for them a book-entry transfer of Private ROARS into the account of
The Bank of New York, as the Exchange Agent, at The Depository Trust Company
("DTC") using DTC's Automated Tender Offer Program. (Your clients may also
tender by having certificates representing their Private ROARS, duly executed
and properly completed Letters of Transmittal with any required signature
guarantees, and any other required documents delivered to such Exchange
Agent.) The Letter of Transmittal and the Prospectus should be consulted for
complete instructions and information about participation in the Exchange
Offer.
<PAGE>
If holders of Private ROARS wish to tender, but it is impracticable for them
to forward their certificates for Private ROARS or other required documents
prior to the expiration of the Exchange Offer or to comply with the book-entry
transfer procedure on a timely basis, a tender may be effected by following
the guaranteed delivery procedures described in the Prospectus under "The
Exchange Offers--Guaranteed Delivery Procedures."
The Company will, upon request, reimburse brokers, dealers, commercial banks
and trust companies for reasonable and necessary costs and expenses incurred
by them in forwarding the Prospectus and the related documents to the
beneficial owners of Private ROARS held by them as nominee or in a fiduciary
capacity. The Company will pay or cause to be paid all stock transfer taxes
applicable to the exchange of Private ROARS pursuant to the Exchange Offer,
except as set forth in Instruction 13 of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests
for additional copies of the enclosed materials, should be directed to The
Bank of New York, the Exchange Agent for the Exchange Offer, at its address
and telephone number set forth on the front of the Letter of Transmittal.
Very truly yours,
UNITED STATES FILTER CORPORATION
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY
OTHER PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT OR AUTHORIZE YOU
OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF
EITHER OF THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS
EXPRESSLY MADE IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
<PAGE>
EXHIBIT 99.08
UNITED STATES FILTER CORPORATION
OFFER FOR ANY AND ALL OUTSTANDING
6.375% REMARKETABLE OR REDEEMABLE SECURITIES (ROARS/SM/)
DUE MAY 15, 2011
IN EXCHANGE FOR
6.375% EXCHANGE ROARS DUE MAY 15, 2011
TO OUR CLIENTS:
Enclosed for your consideration is a Prospectus dated , 1998 (the
"Prospectus") and the related Letter of Transmittal (the "Letter of
Transmittal"), relating to the offer (the "Exchange Offer") of United States
Filter Corporation (the "Company") to exchange its 6.375% Exchange ROARS due
May 15, 2011 (the "Exchange ROARS") for its outstanding 6.375% ROARS due May
15, 2011 (the "Private ROARS"), upon the terms and subject to the conditions
set forth in the Prospectus and Letter of Transmittal. The Exchange Offer is
being made in order to satisfy certain obligations of the Company contained in
the Registration Rights Agreement dated May 19, 1998, by and among the Company
and the initial purchasers referred to therein.
This material is being forwarded to you as the beneficial owner of Private
ROARS carried by us in your account but not registered in your name. A TENDER
OF SUCH PRIVATE ROARS MAY ONLY BE MADE BY US AS THE HOLDER OF RECORD AND
PURSUANT TO YOUR INSTRUCTIONS.
Accordingly, we hereby request instructions as to whether you wish us to
tender on your behalf any or all of the Private ROARS held by us for your
account, pursuant to the terms and conditions set forth in the Prospectus and
Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in order
to permit us to tender your Private ROARS on your behalf in accordance with
the provisions of the Exchange Offer. The Exchange Offer will expire at
p.m., New York City time, on , 1998, unless the Exchange Offer is
extended by the Company (the "Expiration Date"). Any Private ROARS tendered
pursuant to the Exchange Offer may be withdrawn at any time before the
Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Private ROARS.
2. The Exchange Offer is subject to certain conditions set forth in the
Prospectus in the section captioned "The Exchange Offers--Certain
Conditions to the Exchange Offers."
3. Any transfer taxes incident to the transfer of Private ROARS from the
holder to the Company will be paid by the Company, except as otherwise
provided in the Instructions in the Letter of Transmittal.
If you wish to have us tender any or all of your Private ROARS, please so
instruct us by completing, executing and returning to us the instruction form
on the reverse hereof. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR
INFORMATION ONLY AND MAY NOT BE USED DIRECTLY BY YOU TO TENDER YOUR PRIVATE
ROARS.
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Exchange Offer made by United
States Filter Corporation with respect to its Private ROARS.
This will instruct you to tender the Private ROARS held by you for the
account of the undersigned, upon the terms and subject to the conditions set
forth in the Prospectus and the related Letter of Transmittal.
Please tender the Private ROARS held by you for my account as indicated
below:
[_]Please do not tender any Private Aggregate Principal Amount of
ROARS held by you for my account. Private ROARS
to be tendered: _____________________
Dated: _______________________ , 1998
-------------------------------------
-------------------------------------
Signature(s)
-------------------------------------
-------------------------------------
Please print name(s) here
-------------------------------------
-------------------------------------
Address(es)
-------------------------------------
Area Code and Telephone Number
-------------------------------------
Tax Identification or Social
Security No(s).
None of the Private ROARS held by us for your account will be tendered
unless we receive written instructions from you to do so. Unless a specific
contrary instruction is given in the space provided, your signature(s) hereon
shall constitute an instruction to us to tender all the Private ROARS held by
us for your account.
<PAGE>
EXHIBIT 99.09
UNITED STATES FILTER CORPORATION
OFFER FOR ANY AND ALL OUTSTANDING
6.50% REMARKETABLE OR REDEEMABLE SECURITIES (ROARS/SM/)
DUE MAY 15, 2013
IN EXCHANGE FOR
6.50% EXCHANGE ROARS DUE MAY 15, 2013
TO OUR CLIENTS:
Enclosed for your consideration is a Prospectus dated , 1998 (the
"Prospectus") and the related Letter of Transmittal (the "Letter of
Transmittal"), relating to the offer (the "Exchange Offer") of United States
Filter Corporation (the "Company") to exchange its 6.50% Exchange ROARS due
May 15, 2013 (the "Exchange ROARS") for its outstanding 6.50% ROARS due May
15, 2013 (the "Private ROARS"), upon the terms and subject to the conditions
set forth in the Prospectus and Letter of Transmittal. The Exchange Offer is
being made in order to satisfy certain obligations of the Company contained in
the Registration Rights Agreement dated May 19, 1998, by and among the Company
and the initial purchasers referred to therein.
This material is being forwarded to you as the beneficial owner of Private
ROARS carried by us in your account but not registered in your name. A TENDER
OF SUCH PRIVATE ROARS MAY ONLY BE MADE BY US AS THE HOLDER OF RECORD AND
PURSUANT TO YOUR INSTRUCTIONS.
Accordingly, we hereby request instructions as to whether you wish us to
tender on your behalf any or all of the Private ROARS held by us for your
account, pursuant to the terms and conditions set forth in the Prospectus and
Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in order
to permit us to tender your Private ROARS on your behalf in accordance with
the provisions of the Exchange Offer. The Exchange Offer will expire at
p.m., New York City time, on , 1998, unless the Exchange Offer is
extended by the Company (the "Expiration Date"). Any Private ROARS tendered
pursuant to the Exchange Offer may be withdrawn at any time before the
Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Private ROARS.
2. The Exchange Offer is subject to certain conditions set forth in the
Prospectus in the section captioned "The Exchange Offers--Certain
Conditions to the Exchange Offers."
3. Any transfer taxes incident to the transfer of Private ROARS from the
holder to the Company will be paid by the Company, except as otherwise
provided in the Instructions in the Letter of Transmittal.
If you wish to have us tender any or all of your Private ROARS, please so
instruct us by completing, executing and returning to us the instruction form
on the reverse hereof. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR
INFORMATION ONLY AND MAY NOT BE USED DIRECTLY BY YOU TO TENDER YOUR PRIVATE
ROARS.
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Exchange Offer made by United
States Filter Corporation with respect to its Private ROARS.
This will instruct you to tender the Private ROARS held by you for the
account of the undersigned, upon the terms and subject to the conditions set
forth in the Prospectus and the related Letter of Transmittal.
Please tender the Private ROARS held by you for my account as indicated
below:
[_]Please do not tender any Private Aggregate Principal Amount of
ROARS held by you for my account. Private ROARS
to be tendered: _____________________
Dated: _______________________ , 1998
-------------------------------------
-------------------------------------
Signature(s)
-------------------------------------
-------------------------------------
Please print name(s) here
-------------------------------------
-------------------------------------
Address(es)
-------------------------------------
Area Code and Telephone Number
-------------------------------------
Tax Identification or Social
Security No(s).
None of the Private ROARS held by us for your account will be tendered
unless we receive written instructions from you to do so. Unless a specific
contrary instruction is given in the space provided, your signature(s) hereon
shall constitute an instruction to us to tender all the Private ROARS held by
us for your account.
<PAGE>
Exhibit 99.10
, 199
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EXCHANGE AGENT AGREEMENT
------------------------
The Bank of New York
Corporate Trust Trustee Administration
21st Floor
101 Barclay Street
New York, New York 10286
Ladies and Gentlemen:
(the "Company") proposes to make an offer
--------------------------
(the "Exchange Offer") to exchange its (the "Old
------------------------------
Securities") for its (the "New Securities"). The terms
------------------------
and conditions of the Exchange Offer as currently contemplated are set forth in
a prospectus, dated , 199 (the "Prospectus"), proposed to
------------------- -
be distributed to all record holders of the Old Securities. The Old Securities
and the New Securities are collectively referred to herein as the "Securities."
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
, 199 . The Letter of Transmittal accompanying
- ------------------------------ -
the Prospectus (or in the case of book entry securities, the ATOP system) is to
be used by the holders of the Old Securities to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Old
Securities tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
, 199 or on such later date or time to which
- ----------------------------- -
the Company may extend the Exchange Offer (the "Expiration Date"). Subject to
the terms and conditions set forth in the Prospectus, the Company expressly
reserves the right to extend the Exchange Offer from time to time and may extend
the Exchange Offer by giving oral (confirmed in writing) or written notice to
you before 9:00 a.m., New York City time, on the business day following the
previously scheduled Expiration Date.
[The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Securities not
theretofore accepted for exchange,
<PAGE>
upon the occurrence of any of the conditions of the Exchange Offer specified in
the Prospectus under the caption ["The Exchange Offer--Certain Conditions to the
Exchange Offer."] The Company will give oral (confirmed in writing) or written
notice of any amendment, termination or nonacceptance to you as promptly as
practicable.]
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specially set
forth in the section of the Prospectus captioned ["The Exchange Offer"] or as
specially set forth herein; provided, however, that in no way will your general
-------- -------
duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Securities at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Old Securities by causing
the Book-Entry Transfer Facility to transfer such Old Securities into your
account in accordance with the Book-Entry Transfer Facility's procedure for such
transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Securities (or confirmation of book-entry transfer into your account at
the Book-Entry Transfer Facility) and any other documents delivered or mailed to
you by or for holders of the Old Securities to ascertain whether (i) the Letters
of Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and (ii) the Old
Securities have otherwise been properly tendered. In each case where the Letter
of Transmittal or any other document has been improperly completed or executed
or any of the certificates for Old Securities are not in proper form for
transfer or some other irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the presenters of the need
for fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the President, Senior Vice President, Executive
Vice President, or any Vice President of the company (such approval, if given
orally, to be confirmed in writing) or any other party designated by such an
officer in writing, you are authorized to waive any irregularities in connection
with any tender of Old Securities pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned ["The Exchange
Offer--Procedures for Tendering Old Securities"], and Old Securities shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
2
<PAGE>
Notwithstanding the provisions of this paragraph 5, Old Securities which
the President, Senior Vice President, Executive Vice President, or any Vice
President of the Company shall approve as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally, shall be
confirmed in writing).
6. You shall advise the Company with respect to any Old Securities
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or more names
only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Securities
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Old
Securities to the transfer agent for split-up and return any untendered Old
Securities to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all Old
Securities properly tendered and you, on behalf of the Company, will exchange
such Old Securities for new Securities and cause such Old Securities to be
cancelled. Delivery of New Securities will be made on behalf of the Company by
you at the rate of $1,000 principal amount of New Securities for each $1,000
principal amount of the corresponding series of Old Securities tendered promptly
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Old Securities by the Company; provided, however, that in all
cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged
only after timely receipt by you of certificates for such Old Securities (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of transmittal (or
facsimile thereof) with any required signature guarantees and any other required
documents. You shall issue New Securities only in denominations of $1,000 or any
integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of
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<PAGE>
Transmittal, Old Securities tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption ["The Exchange Offer--Certain Conditions to the Exchange Offer"] or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Old Securities
(or effect appropriate book-entry transfer), together with any related required
documents and the letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically set
forth herein or as may be subsequently agreed to in writing by you and the
Company;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Old Securities represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which might
in your reasonable judgment involve any expense or liability, unless you shall
have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in reliance
upon any certificate, instrument, opinion, notice, letter, telegram or other
document or security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
4
<PAGE>
(e) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity and effectiveness of this provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
believe to be genuine or to have been signed or represented by a proper person
or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from any officer of the Company;
(g) may consult with your counsel with respect to any questions relating to
your duties and responsibilities and the advice or opinion of such counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by you hereunder in good faith and in
accordance with the advice or opinion of such counsel; and
(h) shall not advise any person tendering Old Securities pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market value
or decline or appreciation in market value of any Old Securities.
15. You shall take such action as may from time to time be requested by
Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms
as may be approved from time to time by the company, to all persons requesting
such documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents at your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: _____________.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to __________________________ of the Company and
such other person or persons as it may request, daily (and more frequently
during the week immediately preceding the Expiration Date and if otherwise
requested) up to and including the Expiration Date, as to the number of Old
Securities which have been tendered pursuant to the Exchange offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received.
In addition, you will also inform, and cooperate in making available to, the
company or any such other person or persons upon oral request made from time to
time prior to the Expiration Date of such other information as it or he or she
reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of all
persons whose tenders were
5
<PAGE>
accepted, the aggregate principal amount of Old Securities accepted and deliver
said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or light of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
21. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability, cost or
expense, including attorneys' fees and expenses, arising out of or in connection
with any act, omission, delay or refusal made by you in reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Securities reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or effect any transfer
of Old Securities; provided, however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnity with respect to any claim
against you unless the Company shall be notified by you, by letter or by
facsimile confirmed by letter, of the written assertion of a claim against you
or of any other action commenced against you, promptly after you shall have
received any such written assertion or notice of commencement of action. The
Company shall be entitled to participate at its own expense in the defense of
any such claim or other action, and, if the Company so elects, the Company shall
assume the defense of any suit brought to enforce any such claim. In the event
that the Company shall not be liable for the fees and expenses of any additional
counsel thereafter retained by you so long as the Company shall retain counsel
6
<PAGE>
satisfactory to you to defend such suit, and so long as you have not determined,
in your reasonable judgment, that a conflict of interest exists between you and
the Company.
22. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service. The Company understands that you are required to deduct 31% on payments
to holders who have not supplied their correct Taxpayer Identification Number or
required certification. Such funds will be turned over to the Internal Revenue
Service in accordance with applicable regulations.
23. You shall deliver or cause to be delivered, in a timely manner to each
governmental authority to which any transfer taxes are payable in respect of the
exchange of Old Securities, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Old Securities; provided,
however, that you shall reimburse the Company for amounts refunded to you in
respect of your payment of any such transfer taxes, at such time as such refund
is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
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<PAGE>
If to the Company:
____________________________
_____________________________
_____________________________
Facsimile: ____________________
Attention: ____________________
If to the Exchange Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Facsimile: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 19, 21 and 23 shall survive the termination of this Agreement. Upon
any termination of this Agreement, you shall promptly deliver to the Company any
certificates for Securities, funds or property then held by you as Exchange
Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
8
<PAGE>
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
_____________________________ CORPORATION
By: ______________________________________
Name:
Title:
Accepted as of the date first
above written:
THE BANK OF NEW YORK, as Exchange Agent
By: _____________________________________
Name:
Title
9
<PAGE>
SCHEDULE I
FEES
