1
EXHIBIT (c)(4)
EXECUTION COPY
MANAGEMENT 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 Xxxxxxx X. Xxxxxxxx ("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 is an executive officer of
the Company beneficially owns directly 647,658 Shares (the "Owned Shares") and
options to acquire 761,650 Shares, and other equity-linked securities and
arrangements (the "Options");
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) 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
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 commencement of the
Offer but in no event later than ten business days after the date of
commencement 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 acknowledges and
agrees that Parent's and the Purchaser's obligation to accept for payment and
pay for the Tender Shares 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
2
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, Michel
Avenas, Xxxxxxxxx X. Xxxxxx and Xxxx-Xxxxx Xxxxxxx, or any of them, in their
respective capacities as officers of the Purchaser or Parent, and any individual
who shall hereafter succeed to any such office of the Purchaser or 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 consistent with Seller's duties as an
officer or Director of the Company and in accordance with the terms of the
Merger 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.
-2-
3
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 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 Options or 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
Options or Tender Shares or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to the Options or
Tender Shares, (iv) deposit any Options or 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.
-3-
4
1.8 Option; Payment for Tender Shares in Excess of the Offer Price.
(a) In order to induce Parent and Purchaser to enter into the
Merger Agreement, Seller hereby grants to Parent an irrevocable
option (the "Stock Option") to purchase the Tender Shares at a
purchase price per share equal to the Offer Price (the "Purchase
Price"), on the terms described below. If (i) the Tender Shares are
purchased pursuant to the Offer, (ii) the Merger Agreement is
terminated pursuant to Section 8.1 (e), (f) or (g), or the Offer is
terminated following the failure of any of the conditions set forth
in clauses (c) or (e) of Annex I of the Merger Agreement to be
satisfied, the Stock Option shall, in either such case, become
exercisable in whole or in part upon the first to occur of either
such event and remain exercisable, in whole or in part, until the
date which is 120 days after the date of the occurrence of such
event; provided that the Stock Option may only be exercised if (x)
all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and any
equivalent foreign laws, required for the purchase of the Tender
Shares upon such exercise shall have expired or been waived (and
such 120-day period shall be tolled if it would otherwise expire
pending such expiration or waiver) and (ii) 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 exercise of the Stock Option pursuant to
this Agreement. In the event that Parent wishes to exercise the
Stock Option, Parent shall send a written notice (the "Notice") to
Seller identifying the place and date (not less than one nor more
than 20 business days from the date of the Notice) for the closing
of such purchase.
(b) Seller hereby agrees that any incremental value Seller has
in the equity of the Company (including any Shares and Options
beneficially owned by Seller) resulting from or attributable to an
Acquisition Transaction (other than with Parent or the Purchaser)
that is entered into or consummated within 12 months of the
termination of the Merger Agreement that exceeds $31.50 per share
(an "Excess Amount") shall belong to Parent. Seller accordingly
agrees to hold in trust for the benefit of Parent, and to remit to
Parent within two days of any receipt thereof (or, if earlier,
entitlement to receive), any Excess Amount or Amounts that Seller
shall receive or be entitled to receive from any person. Seller
acknowledges that this provision is a material inducement to Parent
and Purchaser to enter into this Agreement, and is intended to
ensure that Seller would not have a personal incentive to favor a
competing transaction over the transactions contemplated by the
Merger Agreement. Accordingly, Seller hereby agrees to reimburse
Parent and Purchaser for any fees and expenses (including reasonable
attorneys fees) incurred by Parent and Purchaser in connection with
any successful litigation, dispute or other attempt to recover
Excess Amounts.
-4-
5
2. Expiration. This Agreement and Seller's obligation to tender
provided hereto shall terminate on the earlier of the payment for the Shares
pursuant to the Offer 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 and, upon the purchase of the Tender Shares
by 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. 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. 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
-5-
6
similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
Seller.
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 exercise of the Stock Option, other than Seller's
representation and warranty 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.
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 United States Filter Corporation
00-000 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
-6-
7
copy to Seller's Counsel:
Diamond & Xxxxxx LLP
1900 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx
If to Parent:
Vivendi
00, Xxxxxx xx Xxxxxxxxx
00000 Xxxxx Cedex 08
France
Attention: Guilluame Hannezo
Fax: (000) 000-00-00-00-00
copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
and
Cabinet Xxxxxx Prat
000 xxx xx Xxxxxxxx Xxxxx Xxxxxx
00000 Xxxxx Cedex
France
Attention: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000-0000
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
-7-
8
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
6.6 Specific Performance. Seller recognizes and acknowledges that a
breach by it of any covenants or agreements contained in this Agreement will
cause Parent to sustain damages for which it would not have an adequate remedy
at law, and therefore Seller agrees that in the event of any such breach Parent
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.
* * *
-8-
9
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/ Xxxx-Xxxxx Xxxxxxx
--------------------------------------------
Name: Xxxx-Xxxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-9-
