1
EXHIBIT (c)(9)
United States Filter Corporation
00-000 Xxxx Xxxxxx
Xxxx xxxxxx, XX 00000
March 15, 1999
Vivendi
00, xxxxxx xx Xxxxxxxxx
00000 Xxxxx Xxxxx 00, Xxxxxx
Re: Confidentiality Agreement
Gentlemen:
You have expressed an interest in exploring a possible transaction (the
"Transaction") with United States Filter Corporation (the "Company") relating
to a possible acquisition of the Company and have requested that the Company
furnish you with certain information.
As used herein, "Evaluation Material" means all information relating to
the Company, whether oral, written or otherwise (including any such information
furnished prior to the execution of this Agreement), furnished to you or your
directors, officers, partners, advisors (including financial advisors),
subsidiaries or other entities controlled by you directly or indirectly
("Controlled Entities"), employees, agents or representatives (collectively,
"Representatives"), by the Company or its Representatives and all reports,
analyses, compilations, studies and other materials prepared by you or your
Representatives (in whatever form maintained, whether documentary, computer
storage or otherwise) containing, reflecting or based upon, in whole or in part,
any such information. The term "Evaluation Material" does not include
information which (i) is or becomes generally available to the public other than
as a result of a disclosure by you, your Representatives or anyone to whom you
or any of your Representatives transmit any Evaluation Material or (ii) is or
becomes known or available to you on a non-confidential basis from a source
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March 15, 1998
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(other than the Company or one of its Representatives) who, insofar as is known
to you after reasonable due inquiry, is not prohibited from transmitting the
information to you or your Representatives by a contractual, legal, fiduciary or
other obligation.
In consideration of your being furnished with the Evaluation Material,
you agree that:
1. Subject to paragraph 3 below, the Evaluation Material will be kept
confidential in accordance with the terms hereof and will not, without the
prior written consent of the Company, be disclosed by you or your
Representatives, in whole or in part, and will not be used by you or your
Representatives, directly or indirectly, for any purpose other than in
connection with evaluating a possible Transaction. Moreover, you agree to
disclose that you are evaluating the Transaction and transmit Evaluation
Material to your Representatives only for the purpose of evaluating such
Transaction and are informed by you of the confidential nature of the Evaluation
Material and agree to act in accordance with the confidentiality provisions of
this Agreement. In any event, you will be responsible for any actions by your
Representatives which are not in accordance with the provisions hereof;
provided, however, that you shall not be responsible for any such actions by any
of your Representatives who is not one of your directors, partners, officers,
Affiliates or employees and who furnishes to the Company a letter substantially
in the form of Exhibit A.
2. Subject to paragraph 3 below, without the prior written consent of
the Company, neither you nor your Representatives will disclose to any person
any information regarding a possible Transaction involving the Company or any
information relating in any way to the Evaluation Material, including, without
limitation (i) the fact that discussions or negotiations with the Company are
taking place concerning a possible Transaction, including the status thereof or
the termination of discussions or negotiations with the Company, (ii) any of the
terms, conditions or other facts with respect to any such possible Transaction
or of your consideration of a possible Transaction or (iii) that this Agreement
exists, that Evaluation Material has been made available to you. The Company,
its subsidiaries, and its Representatives shall be subject to the restrictions
contained in the immediately preceding sentence. The term "person" as used in
this Agreement shall be broadly interpreted to include, without limitation, any
corporation, company, group, partnership, entity or individual; and the term
"Company" shall include, without limitation, its subsidiaries.
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March 15, 1998
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3. In the event that you, your Representatives or anyone to whom you or
your Representatives supply Evaluation Material or any of the facts or
information referred to in paragraph 2, above, are requested or required (by
oral questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand, any informal or formal investigation by
any government or governmental agency or authority or otherwise) to disclose any
Evaluation Material or any of the facts or information referred to in the prior
paragraph or any information relating to a possible Transaction or such person's
opinion, judgment, view or recommendation concerning the Company as developed
from the Evaluation Material, you agree (i) to immediately notify the Company of
the existence, terms and circumstances surrounding such a request, (ii) to
consult with the Company on the advisability of taking legally available steps
to resist or narrow such request and (iii) if disclosure of such information is
required, to furnish only that portion of the Evaluation Material which, in the
opinion of your counsel, you are legally required to disclose and to cooperate
with any reasonable action by the Company to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Evaluation Material.
4. You hereby acknowledge that you are aware, and that you will advise
such of your Representatives who are informed in accordance with the terms of
this Agreement, that the United States securities laws prohibit any person who
has received from an issuer material non-public information concerning the
matters which are the subject of this Agreement from purchasing or selling
securities of such issuer or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities.
5. You hereby acknowledge that the Evaluation Material is being
furnished to you in consideration of your agreement that, for a period of two
years from the date hereof, neither you nor any of your Controlled Entities
shall, directly or indirectly, without the consent of the Company (a)(x)
solicit, seek or offer to effect or effect, (xx) negotiate with or provide any
information to the Company's Board of Directors, any director or officer of the
Company, any stockholder of the Company, any employee or union or other labor
organization representing employees of the Company or any other person with
respect to, (xxx) make any statement or proposal, whether written or oral,
either alone or in concert with others, to the Board of Directors of the
Company, any directors or officers of the Company or any stockholder of the
Company, any employee or union or other labor organization representing
employees of the Company or any other person with respect to,
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March 15, 1998
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or (xxxx) make any public announcement (except as required by law in respect of
actions permitted hereby) or proposal or offer whatsoever (including, but not
limited to, any "solicitation" of "proxies" as such terms are defined or used in
Regulation 14A of the Exchange Act) with respect to (i) any form of business
combination or similar or other extraordinary transaction involving the Company
or any of its subsidiaries or other entities controlled by the Company (the
"Company Controlled Entities"), including, without limitation, a merger, tender
or exchange offer or liquidation of the Company assets, (ii) any form of
restructuring, recapitalization or similar transaction with respect to the
Company or any Company Controlled Entities, (iii) any purchase of any securities
or assets, or rights or options to acquire any securities or assets (through
purchase, exchange, conversion or otherwise), of the Company or any Company
Controlled Entities, (iv) any proposal to seek representation on the Board of
Directors of the Company or otherwise to seek to control or influence the
management, Board of Directors or policies of the Company or any Company
Controlled Entities, (v) any request or proposal to waive, terminate or amend
the provisions of this letter or (vi) any proposal or other statement
inconsistent with the terms of this agreement or (b) instigate, encourage, join,
act in concert with or assist (including, but not limited to, providing or
assisting in any way in obtaining financing for, or acting as a joint or
co-bidder for the Company) any third party to do any of the foregoing (the
actions referred to in (a) and (b) in this sentence are referred to as
"Prohibited Actions"), unless and until you have received the prior written
invitation or approval of a majority of the Board of Directors of the Company to
do any of the foregoing (it being agreed and understood that the entering into
of this Agreement shall not constitute such invitation). If at any time during
such period you are approached by any party concerning your or their
participation in a transaction involving the Company assets, businesses or
securities or any other Prohibited Actions, you will promptly inform the Company
of the nature of such contact and the parties thereto unless you terminate such
contact immediately upon becoming aware of the subject matter thereof.
Notwithstanding the foregoing provisions of this paragraph, such provisions
shall not apply in the event the Company enters into a definitive agreement or
an agreement in principle with a third party (other than the undersigned) with
respect to a transaction referred to in clause (a)(i) or (ii) of this paragraph
or a third party engages in any of the activities referred to in clause(a)(xxxx)
with respect to a transaction referred to in clause (a)(i), (ii) or (iv) of this
paragraph. You further agree that for a period of two years from the date hereof
you will not offer to hire or hire any person currently or formerly employed by
the Company with whom you have had contact, or about whom you have become aware,
during the period of your investigation of the Company provided however, that
the foregoing provision will not prevent you from employing any such person
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who contacts you on his or her own initiative or in response to any general
solicitation or advertisement concerning available positions.
6. You agree that prior to the consummation of a Transaction, without
the prior consent of the Company, neither you nor your Controlled Entities shall
directly or indirectly, initiate, engage or participate in any discussions or
negotiations or enter into any agreement or arrangements regarding the sale of
any assets or securities of the Company, except for agreements with bona fide
financial institutions providing financing for such Transaction which require
sales of certain assets to third parties prior to a certain time.
7. Although the Company has endeavored to include in the Evaluation
Material information known to it which it believes to be relevant for the
purpose of your investigation, you understand that neither the Company nor any
of its Representatives has made or will make any representation or warranty as
to the accuracy or completeness of the Evaluation Material; except as may be
contained in a definitive agreement with respect to a Transaction. You agree
that neither the Company nor its Representatives shall have any liability to you
or any of your Representatives resulting from the Evaluation Material or for
your or your Representatives' consideration of, or participation in a process
relating to, a possible Transaction.
8. Promptly upon request from the Company, you shall redeliver to the
Company or destroy all tangible Evaluation Material and any other tangible
material containing, prepared on the basis of, or reflecting any information in
the Evaluation Material (whether prepared by the Company, its advisors or
otherwise), including all reports, analyses, compilations, studies and other
materials containing or based on the Evaluation Material or reflecting your
review of, or interest in, the Company, and will not retain any copies, extracts
or other reproductions in whole or in part of such tangible material. Upon the
request of the Company, any such destruction shall be certified in writing to
the Company by an authorized officer supervising the same.
9. You acknowledge and agree that in the event of any breach of this
Agreement, the Company would be irreparably and immediately harmed and could
not be made whole by monetary damages. It is accordingly agreed that the
Company, in addition to any other remedy to which it may be entitled in law or
equity, shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to compel specific performance of this Agreement, without the
need for proof of actual damages. You also agree to xxxx-
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xxxxx the Company for all costs and expenses, including attorney's fees,
incurred by the Company in successfully enforcing your or your Representatives'
obligations hereunder.
10. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, including, without limitation, ss.
5-1401 and 5-1402 of the New York General Obligations Law and NYCPLR 327(b). You
hereby irrevocably and unconditionally submit to the jurisdiction of any court
of the state of New York or any federal court sitting in the State of New York
for purposes of any suit, action or other proceeding arising out of this
Agreement or the Transaction contemplated hereby, which is brought by or against
the Company (and you agree not to commence any action, suit or proceedings
relating thereto except in such courts) and agree that service of any process,
summons, notice or document by U.S. registered mail to Vivendi, 00, xxxxxx xx
Xxxxxxxxx, 00000 Xxxxx Xxxxx 00, Xxxxxx, with a copy by hand delivery, first
class U.S. mail or overnight courier to Wachtell, Lipton, Xxxxx & Xxxx
(attention: Xxxxxx X. Xxxx, Esq.), 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, shall be effective service of process for any action, suit or proceeding
brought against you in any such court. You hereby irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the Transaction contemplated
hereby, which is brought by or against the Company, in the courts of the State
of New York or any federal court sitting in the State of New York and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such action suit or proceeding brought in any such court
has been brought in an inconvenient forum.
11. You and the Company agree that unless and until a definitive
written agreement between the Company and you with respect to a Transaction has
been executed and delivered, neither the Company nor you will be under any legal
obligation of any kind whatsoever with respect thereto. The agreements set forth
in this Agreement may be modified or waived only by a separate writing by the
Company and you which expressly modifies or waives such agreements.
12. You agree that you and your Representatives will direct all
inquiries and any requests for information concerning the Company to Xxxxx X.
Xxxxxx or such other individuals named by the Company and not contact any other
members of management or employees of the Company, without the prior consent of
the Company. Notwithstanding anything else contained in this Agreement, (i) you
may contact Apollo Investment Fund L.P.("Apollo") at any time in connection with
a Sale Transaction and you may enter into an
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March 15, 1998
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agreement to purchase or an option agreement to purchase any shares of common
stock of the Company owned by Apollo, and (ii) you may not contact other
stockholders of the Company without the prior consent of Xxxxxxx X. Xxxxxxxx,
provided that any consent previously given by Xx. Xxxxxxxx to contact AXA
Assurances I.A.R.D. Mutelle and its affiliates and the Bass family and its
affiliates will be deemed to satisfy the requirements of this clause.
13. It is understood and agreed that no failure or delay by either
party hereto in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
14. This Agreement shall inure to the benefit of any successor in
interest to the Company. In addition, the confidentiality provisions of this
Agreement shall inure to the benefit of any person that may acquire, after the
date hereof, any subsidiary or division of the Company with respect to
Evaluation Material concerning the business or affairs of such subsidiary or
division. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which shall constitute the same agreement.
15. In the event the Company or any of its subsidiaries has entered
into or enters into a confidentiality agreement with any third party with
respect to a possible acquisition of or other business combination involving the
Company ( a "Third Party Agreement") and the Third Party Agreement contains
terms similar to or relating to the matters covered hereby, and such terms of
the Third Party Agreement are more favorable to such third party than the terms
contained herein, then the Company shall notify you of such terms and this
Agreement shall be deemed to be amended so that you will be entitled to the
benefit of such more favorable terms.
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Very truly yours,
United States Filter Corporation
By: /s/ XXXXX XXXXXX
------------------------------
Name: Xxxxx Xxxxxx
Title: Executive V.P. CFO
Confirmed and Agreed to as of the date first written above:
Vivendi
By: /s/ GUILLAUME HANNEZO
--------------------------------
Name: Guillaume Hannezo
Authorized Officer
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March 15, 1998
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EXHIBIT A
Representative's Letter
_______________, 199_
United States Filter Corporation
00-000 Xxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Vivendi
00, xxxxxx xx Xxxxxxxxx
00000 Xxxxx Xxxxx 00, Xxxxxx
Ladies and Gentlemen:
The undersigned agrees to be bound by the confidentiality provisions of
the letter agreement dated March __, 1999 between Vivendi and United States
Filter Corporation, a copy of which is attached hereto.
Very truly yours,
[ ]
By: _____________________
Name:
Title:
