EXHIBIT A
SUPPORT AGREEMENT
SUPPORT AGREEMENT (this "Agreement"), dated as of March 22,
1999, by and between VIVENDI, a societe anonyme organized under the laws of
France ("Parent"), and Apollo Investment Fund, L.P., ("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 for purposes of this Agreement shall not include any
amendment or waiver to such Merger Agreement which decreases the Offer Price or
the number of Shares to be purchased in the Offer or changes the form of
consideration payable in the Offer). 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 (including any increase
in the price per share paid to tendering shareholders pursuant to the Offer, 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 at the same Offer Price;
WHEREAS, as of the date hereof, Seller beneficially owns
6,877,805 Shares (the "Owned Shares");
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, 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
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;
WHEREAS, immediately prior to the execution and delivery of
this Agreement, Parent has entered into Support Agreements similar to this
Agreement with certain members of the Company's management and another
significant shareholder of the Company;
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 to 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 ten business days after the date of
commencement, the Tender Shares by physical delivery of the certificates
therefor (or delivery via transfer to Purchaser's account at the Depository
7
Trust Company), and to not withdraw such Tender Shares, except following
termination of the Offer pursuant to its terms or as otherwise contemplated
herein. Seller hereby acknowledges and agrees that Parent's and the Purchaser's
obligation to accept for payment and pay for the Tender Shares in the Offer is
subject to the terms and conditions of the Offer. 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,
subject to providing a copy of said disclosure to Seller and considering any
reasonable comments thereon provided by Seller).
1.2 Voting. Subject to Section 1.3 and Section 2, 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 at the written
direction of Parent, (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 it with respect to the Tender Shares.
1.3 Grant of Irrevocable Proxy; Appointment of Proxy.
------------------------------------------------
(i) Subject to Section 2, Seller hereby irrevocably grants to,
and appoints, Guillaume Hannezo and ▇▇▇▇ 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
8
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. 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.
1.6 Reasonable Best Efforts. Seller shall promptly consult
------------------------
with Parent and use reasonable best efforts to 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. Parent acknowledges that Seller
will file a Schedule 13D in connection with the Agreement.
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, (other than as a result of a
9
breach of this Agreement by Seller) then Parent will purchase or cause the
Purchaser to purchase, and the Seller shall sell, the Owned Shares at a purchase
price per share equal to the Offer Price, on the 10th Business Day after the
date of such termination, abandonment, withdrawal or consummation of the Offer;
provided that (x) all waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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 in all material respects at such time except to
the extent that the failure to be so true in all material respects would not
adversely affect the benefits to be received by Parent. Parent and the Purchaser
will use their best efforts to obtain all necessary regulatory approvals so as
to enable them to pay the aggregate Offer Price (or have a third party to pay
the aggregate Offer Price) to Seller no later than June 15, 1999 in accordance
with all applicable securities laws and other legal constraints. In that regard,
Seller shall cooperate with Parent and the Purchaser, including by transferring
against payment of the Offer Price on or before June 15, 1999 the Tender Shares
at Parent's request to a third party designated by Parent or the Purchaser on
terms reasonably specified by them, provided that such terms do not increase
Seller's obligations or liabilities in any respect or reduce the benefits to be
obtained by Seller hereunder. If the Owned Shares have not been purchased and
paid for in the Offer or under the preceding sentences of this Section 1.8 by
June 15, 1999, (and so long as Seller's representations and warranties herein
shall be true in all material respects except where the failure to be so true in
all material respects would not adversely affect the benefits to be received by
Parent or the third party so designated by Parent), then Seller may sell such
Shares, in one or more transactions in the sole discretion of Seller, to persons
other than the Parent or Purchaser and such sold Shares shall not be subject to
Sections 1.1 to 1.4 hereof. In the event Seller sells any Owned Shares for
anything less than the Offer Price, Parent shall, promptly after such sale, pay
to Seller in US Dollars the difference between the amount received in such sale
and the amount that Seller would have received had such Shares been sold in the
Offer or under the preceding sentences of this Section 1.8 (plus any "gross- up"
in respect of French withholding tax, if any). Seller shall use such efforts as
it reasonably determines are appropriate to obtain a fair price for any such
Shares sold under the second preceding sentence, it being agreed that Seller may
seek to sell all such Shares promptly and with no retained obligation or
liability.
2. Expiration. Sections 1.1 through 1.4 of this Agreement and
----------
the parties' obligations thereunder shall terminate on the earlier of the
payment for the Tender Shares pursuant to the Offer or in accordance with to
Section 1.8.
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, charge, encumbrance
or claim of whatever nature (other than liens in respect of
pledges to secure margin or similar borrowings). Upon the
purchase of the Tender Shares by Parent or the Purchaser,
Purchaser will receive good and valid title to the Tender
Shares, free and clear of any lien, charge, encumbrance or
similar claim of whatever nature.
10
(b) Ownership of Shares. On the date hereof, the Owned
-------------------
Shares are owned beneficially by Seller and, on the date
hereof, except as described in Seller's Schedule 13D filings,
the Owned Shares constitute all of the Shares owned of record
or beneficially by Seller. Except as described in Seller's
Schedule 13D filings, Seller has sole voting power and sole
power of disposition with respect to all of the Owned Shares,
with no restrictions on Seller's rights of disposition
pertaining thereto, subject to applicable federal and state
securities laws (including Rules 144 and 145) and any liens in
the ordinary course of business that will not interfere the
Seller's obligations hereunder.
(c) Power; Binding Agreement. Seller has the legal
--------------------------
capacity, power and authority to enter into and perform all of
its obligations under this Agreement. The execution, delivery
and performance of this Agreement by Seller will not violate
any other agreement to which Seller is a party including,
without limitation, any voting agreement, stockholders
agreement or voting trust. 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 which would reasonably be expected to materially
restrict or hinder the performance of Seller's obligations
hereunder. 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 which would reasonably be
expected to materially restrict or hinder the performance of
Seller's actions hereunder.
(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.
11
Parent and the Purchaser hereby represent and warrant to
Seller as follows:
(g) Power; Binding Agreement. Each of Parent and the
-------------------------
Purchaser has the legal capacity, power and authority to enter
into and perform all of its obligations under this Agreement.
The execution, delivery and performance of this Agreement by
Parent and the Purchaser will not violate any other agreement
to which Parent or the Purchaser are parties including,
without limitation, any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly and
validly executed and delivered by Parent and the Purchaser and
constitutes a valid and binding agreement of each of Parent
and the Purchaser, enforceable against them in accordance with
its terms.
(h) 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 Parent and the Purchaser of the transactions
contemplated by this Agreement which would reasonably be
expected to materially restrict or hinder the performance of
Parent's obligations hereunder. 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 Parent
or the Purchaser under, any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument
to which Parent or the Purchaser is a party or by which their
properties or assets are bound which would reasonably be
expected to materially restrict or hinder the performance of
their obligations hereunder.
(i) 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 Parent
or the Purchaser for which Seller would be responsible.
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 request of
-------------------
one party hereto and without further consideration, the other party shall
execute and deliver such additional documents and take all such further action
as may be reasonably necessary or desirable in connection with the performance
of its obligations hereunder. Parent shall cause the Company to provide a
Certificate to Seller that it is not a U.S. real property holding company.
12
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) which shall survive the sale of the Tender Shares.
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 assignment shall relieve Parent of its
obligations hereunder if the assignee does not perform its obligations and
Seller may assign its rights and obligations hereunder to one or more persons
reasonably acceptable to Purchaser to whom it transfers Tender Shares in
accordance herewith, so long as such persons agree in writing with Parent and
Seller to be bound by the provisions hereof applicable to Seller.
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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Apollo Advisors, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
copy to Seller's Counsel:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Parent:
VIVENDI
▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 08
Attention: Guillaume Hannezo
Fax: (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇
13
copy to:
Cabinet ▇▇▇▇▇▇ Prat
▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇
and
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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 and the right to trial by jury.
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.
14
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.
6.10 No Agency; Indemnification. Nothing herein shall be
----------------------------
deemed create any agency or partnership relationship between the parties hereto.
Parent shall indemnify Seller and hold Seller harmless from and against any
loss, claim or liability arising out of a third party claim relating to Seller's
entering into this Agreement and the consummation of the transactions
contemplated hereby, and each party shall indemnify the other against breaches
of its representations and warranties.
* * *
15
IN WITNESS WHEREOF, Parent and Seller have caused this
Agreement to be duly executed as of the day and year first above written.
APOLLO INVESTMENT FUND, L.P.
By: APOLLO ADVISORS, L.P.
ITS GENERAL PARTNER
By: APOLLO CAPITAL MANAGEMENT, INC.
ITS GENERAL PARTNER
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
VIVENDI
By: /S/ VIVENDI
________________________________________
16