SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D**
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
United States Filter Corporation
(Name of Issuer)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
911843209
(Cusip Number)
W. Robert Cotham
201 Main Street, Suite 2600
Fort Worth, Texas 76102
(817) 390-8400
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 21, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e,) 13d-1(f) or 13d-1(g), check
the following box [ ].
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
**The total number of shares reported herein is 8,000,000 shares, which
constitutes approximately 4.4% of the total number of shares outstanding.
All ownership percentages set forth herein assume that there are
179,908,015 shares outstanding.
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1. Name of Reporting Person:
Lee M. Bass
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 6,147,227 (1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 6,147,227 (1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
6,147,227 (1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 3.4%
14. Type of Reporting Person: IN
- ------------------------------------------
(1) Includes 1,289,950 shares of the Common Stock held by Agua Partners, a
Texas general partnership ("Agua"). Lee M. Bass exercises sole voting and
dispositive power with respect to such shares in his capacity as Manager of
Agua.
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1. Name of Reporting Person:
Fine Line Inc.
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 1,231,559(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 1,231,559(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,231,559
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 0.7%
14. Type of Reporting Person: CO
- ----------
(1) Power is exercised by its sole shareholder, E.P. Bass.
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1. Name of Reporting Person:
E. P. Bass
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 1,231,559(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 1,231,559(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,231,559(1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): 0.7%
14. Type of Reporting Person: IN
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(1) Solely in his capacity as the sole shareholder of Fine Line Inc.
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1. Name of Reporting Person:
Ardon E. Moore
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 148,480
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 148,480
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
148,480
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: IN
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1. Name of Reporting Person:
William P. Hallman, Jr.
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 61,578
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 61,578
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
61,578
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: IN
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1. Name of Reporting Person:
Peter Sterling
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 61,578
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 61,578
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
61,578
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: IN
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1. Name of Reporting Person:
Jason Michael Taylor Grantor Trust
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 30,789(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 30,789(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
30,789
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: 00 - Trust
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(1) Power is exercised by its trustee, Annette B. Taylor
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1. Name of Reporting Person:
Rhonda Leigh Taylor Grantor Trust
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable (See Item 3)
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: Texas
7. Sole Voting Power: 30,789(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 30,789(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
30,789
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: 00 - Trust
- ----------
(1) Power is exercised by its trustee, Annette B. Taylor
<PAGE>
<PAGE>
1. Name of Reporting Person:
Annette B. Taylor
2. Check the Appropriate Box if a Member of a Group:
(a) / /
(b) / X /
3. SEC Use Only
4. Source of Funds: Not Applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
/ /
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 61,578(1)
Number of
Shares
Beneficially 8. Shared Voting Power: -0-
Owned By
Each
Reporting 9. Sole Dispositive Power: 61,578(1)
Person
With
10. Shared Dispositive Power: -0-
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
61,578(1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
/ /
13. Percent of Class Represented by Amount in Row (11): <0.1%
14. Type of Reporting Person: IN
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(1) Solely in her capacity as the trustee of the Jason Michael Taylor
Grantor Trust with respect to 30,789 shares of the Common Stock and
solely in her capacity as the trustee of the Rhonda Lee Taylor Grantor
Trust with respect to 30,789 shares of the Common Stock.
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Pursuant to Rule 13d-2(a) of Regulation 13D-G of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Act"), the undersigned hereby amend their Schedule 13D Statement dated
August 13, 1997, as amended by Amendment No. 1 dated September 18, 1997
(the "Schedule 13D") relating to the Common Stock, par value $0.01 per
share, of United States Filter Corporation. Unless otherwise indicated,
all defined terms shall have the meanings ascribed to them in the Schedule
13D.
Item 4. PURPOSE OF TRANSACTION.
Item 4 is hereby amended and restated by adding at the end thereof the
following:
As previously announced by the Issuer, the Issuer has entered into an
Agreement and Plan of Merger (the "Merger Agreement") with Vivendi, a
societe anonyme organized under the laws of France ("Vivendi"), and Eau
Acquisition Corp., a Delaware corporation and a subsidiary of Vivendi (the
"Purchaser"), pursuant to which the Purchaser has agreed to make a tender
offer for all the outstanding shares of the Issuer, at $31.50 per share to
be followed by a merger of the Purchaser into the Issuer. Concurrently,
with the execution of the Merger Agreement, the Reporting Persons entered
into a Support Agreement pursuant to which the Reporting Persons have
agreed to tender all shares of the Common Stock beneficially owned by them
to the Purchaser and to vote their shares of the Common Stock against any
action or agreement that would interfere with, delay, postpone or attempt
to discourage the merger or the tender offer.
Except as set forth in this Item 4, the Reporting Persons have no
present plans or proposals that relate to or that would result in any of
the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D
of the Act.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
Paragraphs (a) - (c) of Item 5 are hereby amended and restated in
their entireties to read as follows:
(a)
LMB
The aggregate number of shares of Common Stock that LMB owns
beneficially, pursuant to Rule 13d-3 of the Act, is 6,147,227, which
constitutes approximately 3.4% of the outstanding shares of Common Stock.
Fine Line
The aggregate number of shares of Common Stock that Fine Line owns
beneficially, pursuant to Rule 13d-3 of the Act, is 1,231,559, which
constitutes approximately 0.7% of the outstanding shares of Common Stock.
EPB
Because of his position as the sole shareholder of Fine Line, EPB may,
pursuant to Rule 13d-3 of the Act, be deemed to be the beneficial owner of
1,231,559 shares of the Common Stock, which constitutes approximately 0.7%
of the outstanding shares of the Common Stock.
AEM
The aggregate number of shares of Common Stock that AEM owns
beneficially, pursuant to Rule 13d-3 of the Act, is 148,480, which
constitutes less than 0.1% of the outstanding shares of Common Stock.
WPH
The aggregate number of shares of Common Stock that WPH owns
beneficially, pursuant to Rule 13d-3 of the Act, is 61,578, which
constitutes less than 0.1% of the outstanding shares of Common Stock.
PS
The aggregate number of shares of Common Stock that PS owns
beneficially, pursuant to Rule 13d-3 of the Act, is 61,578, which
constitutes less than 0.1% of the outstanding shares of Common Stock.
JMT Trust
The aggregate number of shares of Common Stock that JMT Trust owns
beneficially, pursuant to Rule 13d-3 of the Act, is 30,789, which
constitutes less than 0.1% of the outstanding shares of Common Stock.
RLT Trust
The aggregate number of shares of Common Stock that RLT Trust owns
beneficially, pursuant to Rule 13d-3 of the Act, is 30,789, which
constitutes less than 0.1% of the outstanding shares of Common Stock.
ABT
Because of her positions as the trustee of each of the JMT Trust and
the RLT Trust, ABT may, pursuant to Rule 13d-3 of the Act, be deemed to be
the beneficial owner of an aggregate of 61,578 shares of Common Stock,
which constitutes less than 0.1% of the outstanding shares of Common Stock.
In addition, the Sellers beneficially own Warrants to purchase
1,200,000 shares of Common Stock; however, such Warrants are not presently
exercisable within 60 days and therefore the shares of Common Stock which
may be acquired upon exercise thereof are not reported herein. See Item 6.
To the best knowledge of the Reporting Persons, other than as set
forth herein, none of the persons named in Item 2 herein is the beneficial
owner of any shares of Common Stock.
(b)
LMB
LMB has the sole power to vote or to direct the vote and to dispose or
to direct the disposition of 6,147,227 shares of Common Stock.
Fine Line
Acting through its sole shareholder, EPB, Fine Line has the sole power
to vote or to direct the vote and to dispose or to direct the disposition
of 1,231,559 shares of Common Stock.
EPB
In his capacity as the sole shareholder of Fine Line, EPB has the sole
power to vote or direct the vote and to dispose or to direct the
disposition of 1,231,559 shares of Common Stock.
AEM
AEM has the sole power to vote or to direct the vote and to dispose or
to direct the disposition of 148,480 shares of Common Stock.
WPH
WPH has the sole power to vote or to direct the vote and to dispose or
to direct the disposition of 61,578 shares of Common Stock.
PS
PS has the sole power to vote or to direct the vote and to dispose or
to direct the disposition of 61,578 shares of Common Stock.
JMT Trust
Acting through its sole trustee, ABT, JMT Trust has the sole power to
vote or to direct the vote and to dispose or to direct the disposition of
30,789 shares of Common Stock.
RLT Trust
Acting through its sole trustee, ABT, RLT Trust has the sole power to
vote or to direct the vote and to dispose or to direct the disposition of
30,789 shares of Common Stock.
ABT
In her capacities as the sole trustee of each of the JMT Trust and the
RLT Trust, ABT has the sole power to vote or to direct the vote and to
dispose or to direct the disposition of an aggregate of 61,578 shares of
Common Stock.
(c) None of the Reporting Persons has purchased or sold any shares of
Common Stock in the previous 60 days.
(d) No material change.
(e) The Reporting Persons ceased to be the beneficial owner of more
than five percent of the Common Stock on June 26, 1998, based upon the
number of shares of Common Stock outstanding as reported in the Issuer's
10-K for the year ended March 31, 1998.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby partially amended by adding at the end thereof the
following:
See Item 4 for information regarding the Support Agreement dated as of
March 21, 1999 by and among the Reporting Persons and Vivendi, a societe
anonyme organized under the laws of France. A copy of the Support
Agreement is attached hereto as Exhibit 99.6.
Except as set forth herein or in the Exhibits filed herewith, there
are no contracts, arrangements, understandings or relationships with
respect to the shares of the Common Stock owned by the Reporting Persons.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 99.1--Agreement pursuant to Rule 13d-1(k)(1)(iii) and Power of
Attorney (previously filed).
Exhibit 99.2--Agreement for Sale and Purchase of Partnership Interests
dated as of August 3, 1997 by and among Sellers and the Issuer (previously
filed).
Exhibit 99.3--Confidential Agreement dated July 2, 1997 between the
Issuer and Western Farms, L.P. (previously filed)
Exhibit 99.4--Transfer, Registration Rights and Governance Agreement
dated as of September 17, 1997 by and among Sellers and the Issuer
(previously filed).
Exhibit 99.5--Transferred Securities Agreement dated as of September
17, 1997 by and among the Issuer, the Sellers, LMB, Fine Line, AEM, WPH,
PS, JMT Trust, RLT Trust, John Cardwell and Jeffery Hart (previously
filed).
Exhibit 99.6--Support Agreement dated as of March 21, 1999 by and
among the Reporting Persons and Vivendi, a societe anonyme organized under
the laws of France.
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After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
DATED: March 26, 1999
/s/ W.R. Cotham
W.R. Cotham,
Attorney-in-Fact for:
LEE M. BASS (1)
FINE LINE INC. (2)
E.P. BASS (3)
ARDON E. MOORE (4)
WILLIAM P. HALLMAN, J.R. (5)
PETER STERLING (6)
JASON MICHAEL TAYLOR GRANTOR TRUST (7)
RHONDA LEIGH TAYLOR GRANTOR TRUST (8)
ANNETTE B. TAYLOR (9)
(1) A Power of Attorney authorizing W.R. Cotham, et al., to act on
behalf of Lee M. Bass previously has been filed with the Securities
and Exchange Commission.
(2) A Power of Attorney authorizing W.R. Cotham, et al., to act on
behalf of Fine Line Inc. previously has been filed with the
Securities and Exchange Commission.
(3) A Power of Attorney authorizing W.R. Cotham, et al., to act on
behalf of E.P. Bass previously has been filed with the Securities
and Exchange Commission.
(4) A Power of Attorney authorizing W.R. Cotham, et al., to act on
behalf of Ardon E. Moore previously has been filed with the
Securities and Exchange Commission.
(5) A Power of Attorney authorizing W.R. Cotham, et al., to act on
behalf of William P. Hallman, Jr. previously has been filed with
the Securities and Exchange Commission.
(6) A Power of Attorney authorizing W.R. Cotham, et al., to act on
behalf of Peter Sterling previously has been filed with the
Securities and Exchange Commission.
(7) A Power of Attorney authorizing W.R. Cotham, et al., to act on
behalf of the Jason Michael Taylor Grantor Trust previously has
been filed with the Securities and Exchange Commission.
(8) A Power of Attorney authorizing W.R. Cotham, et al., to act on
behalf of Rhonda Leigh Taylor Grantor Trust previously has been
filed with the Securities and Exchange Commission.
(9) A Power of Attorney authorizing W.R. Cotham, et al., to act on
behalf of Annette B. Taylor previously has been filed with the
Securities and Exchange Commission.<PAGE>
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EXHIBIT INDEX
Exhibit 99.1--Agreement pursuant to Rule 13d-1(k)(1)(iii) and Power
of Attorney (previously filed).
Exhibit 99.2--Agreement for Sale and Purchase of Partnership
Interests dated as of August 3, 1997 by and between Sellers and the Issuer
(previously filed).
Exhibit 99.3--Confidentiality Agreement dated July 2, 1997 between
the Issuer and Western Farms, L.P. (previously filed).
Exhibit 99.4--Transfer, Registration Rights and Governance
Agreement dated as of September 17, 1997 by and among Sellers and the
Issuer (previously filed).
Exhibit 99.5--Transferred Securities Agreement dated as of
September 17, 1997 by and among the Issuer, the Sellers, LMB, Fine Line,
AEM, WPH, PS, JMT Trust, RLT Trust, John Cardwell and Jeffery Hart
(previously filed).
Exhibit 99.6--Support Agreement dated as of March 21, 1999 by and
among the Reporting Persons and Vivendi, a societe anonyme organized under
the laws of France.
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Exhibit 99.6
FORM OF SUPPORT AGREEMENT
SUPPORT AGREEMENT (this "Agreement"), dated as of March 21, 1999, by
and between VIVENDI, a societe anonyme organized under the laws of France
("Parent"), and each of the individuals and entities listed on Annex A
hereto (individually or collectively, "Seller").
WHEREAS, concurrently herewith, Parent, Eau Acquisition Corp. (the
"Purchaser"), a Delaware corporation and a subsidiary of Parent, and United
States Filter Corporation (the "Company"), a Delaware corporation, are
entering into an Agreement and Plan of Merger of even date herewith (the
"Merger Agreement", which term shall not include any amendment to such
Agreement which decreases the Offer Price or changes the form of
consideration payable in the Offer, unless Seller consents to the inclusion
of such amendment in such term). Capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement, pursuant
to which the Purchaser agrees to make a tender offer (the "Offer") for all
outstanding Shares of the Company, at $31.50 per Share (the "Offer Price")
net to the seller in cash, to be followed by a merger (the "Merger") of the
Purchaser with and into the Company;
WHEREAS, as of the date hereof, Seller beneficially owns directly that
number of Shares (the "Owned Shares") set forth opposite his name on Annex
A hereto;
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement and make the Offer, Parent and the Purchaser have required that
Seller agree, and Seller hereby agrees, (i) if requested by Parent, to
tender pursuant to the Offer the Owned Shares, together with any Shares
acquired after the date hereof and prior to the termination of the Offer,
whether upon the exercise of options, conversion of convertible securities
or otherwise (collectively, the "Tender Shares") on the terms and subject
to the conditions provided for in this Agreement and (ii) to enter into the
other agreements set forth herein; and
WHEREAS, as a condition to its willingness to enter into this
Agreement, Seller has requested, and Parent has agreed, that Parent
purchase or cause the Purchaser to purchase the Owned Shares in the event
the Owned Shares are not purchased in the Offer;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration given to each party hereto, the receipt of which
is hereby acknowledged, the parties agree as follows:
1. Agreement to Tender and to Vote.
1.1 Tender. Seller hereby agrees that if, but only if, it is so
requested by Parent, it will validly tender (or cause the record owner of
such shares to validly tender), pursuant to and in accordance with the
terms of the Offer, as soon as practicable after such request but in no
event later than the then scheduled expiration date of the Offer, the
Tender Shares by physical delivery of the certificates therefor, and to not
withdraw such Tender Shares, except following termination of the Offer
pursuant to its terms. Seller hereby permits Parent and the Purchaser to
publish and disclose in the Offer Documents and, if approval of the
Company's stockholders is required under applicable law, the Proxy
Statement (including all documents and schedules filed with the Securities
and Exchange Commission) its identity and ownership of the Tender Shares
and the nature of its commitments, arrangements and understandings under
this Agreement.
1.2 Voting. Seller hereby agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of the Company,
however called, Seller shall (a) vote the Tender Shares in favor of the
Merger; (b) vote the Tender Shares against any action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement;
and (c) vote the Tender Shares against any action or agreement (other than
the Merger Agreement or the transactions contemplated thereby) that would
impede, interfere with, delay, postpone or attempt to discourage the Merger
or the Offer, including, but not limited to: (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries; (ii) a sale
or transfer of a material amount of assets of the Company or any of its
subsidiaries or a reorganization, recapitalization or liquidation of the
Company and its subsidiaries; (iii) any change in the management or board
of directors of the Company, except, as otherwise agreed to in writing by
the Purchaser; (iv) any material change in the present capitalization or
dividend policy of the Company; or (v) any other material change in the
Company's corporate structure or business. Seller hereby revokes any proxy
previously granted by him with respect to the Tender Shares.
1.3 Grant of Irrevocable Proxy; Appointment of Proxy.
(i) Seller hereby irrevocably grants to, and appoints, Guillaume
Hannezo and Eric Lecoys, or either of them, in their respective capacities
as officers or directors of Parent, and any individual who shall hereafter
succeed to any such office or directorship of parent, and each of them
individually, Seller's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Seller, to vote the
Tender Shares in favor of the Merger and other transactions contemplated by
the Merger Agreement, against any Acquisition Transaction and otherwise as
contemplated by Section 1.2.
(ii) Seller represents that any proxies heretofore given in respect of
the Tender Shares are not irrevocable, and that any such proxies are hereby
revoked.
(iii)Seller understands and acknowledges that Parent is entering into
the Merger Agreement in reliance upon Seller's execution and delivery of
this Agreement. Seller hereby affirms that the irrevocable proxy set forth
in this Section 1.3 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of Seller under this Agreement. Seller hereby
further affirms that the irrevocable proxy is coupled with an interest and
may under no circumstances be revoked. Seller hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law.
1.4 No Inconsistent Arrangements. Seller hereby covenants and agrees
that, except as contemplated by this Agreement and the Merger Agreement, it
shall not (i) except to Parent or the Purchaser, transfer (which term shall
include, without limitation, any sale, gift, pledge or other disposition),
or consent to any transfer of, any or all of the Tender Shares or any
interest therein, (ii) except with parent, enter into any contract, option
or other agreement or understanding with respect to any transfer of any or
all of the Tender Shares or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to the Tender
Shares, (iv) deposit any Tender Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Tender Shares or (v)
take any other action that would in any way restrict, limit or interfere
with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement or which would make any
representation or warranty of Seller hereunder untrue or incorrect.
1.5 No Solicitation. Seller hereby agrees that it shall not, and
shall not permit or authorize any of its affiliates, representatives or
agents to, directly or indirectly, encourage, solicit, explore, participate
in or initiate discussions or negotiations with, or provide or disclose any
information to, any corporation, partnership, person or other entity or
group (other than Parent, the Purchaser or any of their affiliates or
representatives) concerning any Acquisition Transaction or enter into any
agreement, arrangement or understanding requiring the Company to abandon,
terminate or fail to consummate the Merger or any other transactions
contemplated by the Merger Agreement. Seller will immediately cease any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any Acquisition Transaction. From and after the
execution of this Agreement, Seller shall immediately advise Parent in
writing of the receipt, directly or indirectly, of any inquiries,
discussions, negotiations or proposals relating to an Acquisition
Transaction, identify the offeror and furnish to Parent a copy of any such
proposal or inquiry, if it is in writing, or a written summary of any oral
proposal or inquiry relating to an Acquisition Transaction. Seller shall
promptly advise Parent in writing of any development relating to such
proposal, including the results of any discussions or negotiations with
respect thereto. Any action taken by the Company or any member of the
Board of Directors of the Company including, if applicable, any
representative of Seller acting in such capacity, in accordance with the
proviso to the second sentence of Section 6.10(a) of the Merger Agreement
shall be deemed not to violate this Section 1.5.
1.6 Reasonable Best Efforts. Subject to the terms and conditions of
this Agreement, Seller hereby agrees to use all reasonable best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done,
all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated
by this Agreement and the Merger Agreement. Seller shall promptly consult
with Parent and provide any necessary information and material with respect
to all filings made by Seller with any Governmental Entity in connection
with this Agreement and the Merger Agreement and the transactions
contemplated hereby and thereby.
1.7 Waiver of Appraisal Rights. Seller hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have.
1.8 Parent's Commitment to Purchase Owned Shares. Parent hereby
agrees that, if (i) the Offer is terminated, abandoned or withdrawn by the
Purchaser or (ii) the Offer is consummated and the Owned Shares are not
purchased by the Purchaser pursuant to the Offer, then Parent will purchase
or cause the Purchaser to purchase, the Owned Shares at a purchase price
per share equal to the Offer Price (or such higher price as may be paid to
tendering shareholders pursuant to the Offer), on the 5th Business Day
after the date of such termination, abandonment, withdrawal or consummation
of the Offer; provided that (x) all waiting periods under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and
any equivalent foreign laws, required for the purchase of the Owned Shares
upon such exercise shall have expired or been waived, (y) there shall not
be in effect any preliminary or final injunction or other order issued by
any court or governmental, administrative or regulatory agency or authority
prohibiting the purchase of the Owned Shares pursuant to this Agreement and
(z) Seller's representations and warranties herein shall be true and all
material respects at such time.
1.9 Reasonable Efforts. Parent agrees (a) to cause the Purchaser to
institute the Offer as soon as reasonably practicable after execution of
this Agreement and the Merger Agreement and (b) to reasonably promptly file
an application under the HSR Act and equivalent foreign laws to purchase
the Owned Shares.
2. Expiration. This Agreement and the parties' obligations
hereunder shall terminate on the earlier of the payment for the Owned
Shares pursuant to the Offer or pursuant to Section 1.8 and the 181st day
after the termination of the Merger Agreement.
3. Representation and Warranties. Seller hereby represents and
warrants to Parent as follows:
(a) Title. Seller has good and valid title to the Owned Shares,
free and clear of any lien, pledge, charge, encumbrance or claim of
whatever nature, except the pledge of the Owned Shares to secure margin
borrowings. Upon the purchase of the Tender Shares by Parent or the
Purchaser, Seller will deliver good and valid title to the Tender Shares,
free and clear of any lien, charge, encumbrance or claim of whatever
nature.
(b) Ownership of Shares. On the date hereof, the Owned Shares
are owned of record or beneficially by Seller and, on the date hereof, the
Owned Shares constitute all of the Shares owned of record or beneficially
by Seller. Seller has sole voting power and sole power of disposition with
respect to all of the Owned Shares, with no restrictions, subject to
applicable federal securities laws, on Seller's rights of disposition
pertaining thereto.
(c) Power; Binding Agreement. Seller has the legal capacity,
power and authority to enter into and perform all of its obligations under
this Agreement. This Agreement has been duly and validly executed and
delivered by Seller and constitutes a valid and binding agreement of
Seller, enforceable against Seller in accordance with its terms.
(d) No Conflicts. Other than in connection with or in
compliance with the provisions of the Exchange Act and the HSR Act, no
authorization, consent or approval of, or filing with, any court or any
public body or authority is necessary for the consummation by Seller of the
transactions contemplated by this Agreement. Subject to the release of the
margin loan pledge at or prior to the purchase of the Owned Shares, the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby will not constitute a breach,
violation or default (or any event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of,
or accelerate the performance required by, or result in a right of
termination or acceleration under, or result in the creation of any lien,
encumbrance, pledge, charge or claim upon any of the properties or assets
of Seller under, any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which Seller is a party or
by which its properties or assets are bound.
(e) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements, made by or on
behalf of Seller.
(f) Information. Seller understands and acknowledges that
Parent and the Purchaser have been conducting a due diligence investigation
of the Company and may have information which is material regarding the
Company and its financial performance and prospects and which is not
publicly disclosed. Seller agrees that it shall not take any action
against Parent or the Purchaser in respect of such information.
4. Additional Shares. Seller hereby agrees, while this Agreement is
in effect, to promptly notify Parent of the number of any new Shares
acquired by Seller, if any, after the date hereof.
5. Further Assurances. From time to time, at the Parent's request
and without further consideration, Seller shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
6. Miscellaneous.
6.1 Non-Survival. The representations and warranties made herein
shall terminate upon Seller's sale of the Tender Shares to the Purchaser in
the Offer or pursuant to Section 1.8, other than Seller's representations
and warranties in Section 3(a) and (b) which shall survive the sale of the
Tender Shares and the termination of this Agreement following such sale.
6.2 Entire Agreement; Assignment. This Agreement (i) constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof and (ii) shall not be assigned by operation of law or otherwise,
provided that Parent may assign its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of Parent, but no such
assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
6.3 Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
6.4 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand
delivery, telegram, telex or telecopy or by any courier service, such as
Federal Express, providing proof of delivery. All communications hereunder
shall be delivered to the respective parties at the following addresses:
If to Seller:
c/o Ardon Moore
Agent and Attorney-in-fact
201 Main Street
Suite 3200
Fort Worth, Texas 76102
Fax: 817-
copy to Seller's Counsel:
Kelly, Hart & Hallman
201 Main Street
Suite 2500
Fort Worth, Texas 76102
Attention: F. Richard Bernasek
Fax: 817-878-9285
If to Parent:
VIVENDI
42 Avenue de Friedland
75380 Paris Cedex 08
France
Attention: Guillaime Hannezo
Fax: (011) 331-7171-1415
copy to:
Cabinet Bredin Prat
130 rue du Faubourg Saint Honore
75008
Paris
Attention: Elena M. Baxter, Esq.
Fax: (011) 331-4359-7001
and
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Trevor S. Norwitz, Esq.
Fax: (212) 403-2000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
6.5 Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. Each of Seller, Parent and the
Purchaser irrevocably submits to the exclusive jurisdiction of any Delaware
state or federal court sitting in the State of Delaware in any action
arising out of or relating to this Agreement, hereby irrevocably agrees
that all claims in respect of such action may be heard and determined in
such Delaware state or federal court, and hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding.
6.6 Specific Performance. Each of Parent and Seller recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other to sustain damages for which it
would not have an adequate remedy at law, and therefore each of Parent and
Seller agrees that in the event of any such breach the other shall be
entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
6.7 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same Agreement.
6.8 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
6.9 Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
<PAGE>
IN WITNESS WHEREOF, Parent and Seller have caused this Agreement to be
duly executed as of the day and year first above written.
VIVENDI
By:
Name:
Title:
SELLERS
Name: Lee M. Bass
Name: John A. Cardwell
Name: Jeffrey L. Hart
Name: Fine Line Inc.
Name: William P. Hallman, Jr.
Name: Peter Sterling
Name: Ardon E. Moore
Name: Jason M. Taylor Grantor Trust
Name: Rhonda Leigh Taylor Grantor Trust
Name: Agua Partners
<PAGE>
Annex A
Seller Shares Beneficially Owned
Lee M. Bass 4,857,277
John A. Cardwell 216,000
Jeffrey L. Hart 72,000
Fine Line Inc. 1,231,559
William P. Hallman, Jr. 61,578
Peter Sterling 61,578
Ardon E. Moore 148,480
Jason M. Taylor Grantor Trust 30,789
Rhonda Leigh Taylor Grantor Trust 30,789
Agua Partners 1,289,950
