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EXHIBIT (c)(3)
EXECUTION COPY
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 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
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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 ▇▇▇▇ 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,
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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
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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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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.
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
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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 Sections 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.
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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 ▇▇▇▇▇ ▇▇▇▇▇
Agent and Attorney-in-fact
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: 817-
copy to Seller's Counsel:
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: F. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Parent:
VIVENDI
▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 08
France
Attention: Guillaume Hannezo
Fax: (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇
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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.
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.
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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.
* * *
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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: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
SELLERS
/s/ ▇▇▇ ▇. ▇▇▇▇*
---------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇*
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ Fine Line Inc.*
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Name: Fine Line Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.*
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇*
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Grantor Trust*
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Grantor Trust
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Grantor Trust*
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Grantor Trust
/s/ Agua Partners*
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Name: Agua Partners
* By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Agent
and Attorney-in-Fact
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ANNEX A
Seller Shares Beneficially Owned
------ -------------------------
▇▇▇ ▇. ▇▇▇▇ 4,857,277
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 216,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 72,000
Fine Line Inc. 1,231,559
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ 61,578
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 61,578
▇▇▇▇▇ ▇. ▇▇▇▇▇ 148,480
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Grantor Trust 30,789
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Grantor Trust 30,789
Agua Partners 1,289,950
