Exhibit 99.01
SHARE DISPOSITION AGREEMENT
This SHARE DISPOSITION AGREEMENT (this "Agreement") made and
entered into this 19th day of September, 1995, to be effective as
of the Close of Escrow by and XXXXXX XXXXX XXXX, TRUSTEE OF THE
XXXXXX XXXXX HELM TRUST, established October 7, 1987, as amended
(the "Seller"), or Seller's nominee (as provided in Section 12 of
the Purchase Agreement) and UNITED STATES FILTER CORPORATION, a
Delaware corporation (the "Purchaser").
WITNESSETH:
WHEREAS, the Purchaser and the Seller entered into a Real
Estate Purchase Agreement dated as of September 19th, 1995 (the
"Purchase Agreement"), pursuant to which the Purchaser has agreed
to purchase from the Seller the Property, as defined in the
Purchase Agreement, in consideration for (a) US$50,000 in cash,
and (b) delivery to Seller on the Closing of the number of shares
of the Purchaser's Common Stock, par value $.01 per share
("Purchaser Shares") provided in Section 1.1(b) of the Purchase
Agreement.
WHEREAS, the Purchaser has agreed to file with the U.S.
Securities and Exchange Commission a registration statement (the
"Registration Statement") with respect to the Purchaser Shares on
the Interim Closing, as defined in Section 1.2(b) of the Purchase
Agreement.
WHEREAS, the parties desire to enter into this Agreement in
order to grant to the Seller certain rights with respect to the
Purchaser Shares, as set forth in Section 1.2(d) and (f) of the
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements and covenants hereinafter set forth, the
Purchaser and the Seller hereby agree as follows:
SECTION 1.01. Definitions. As used in this Agreement, the
following capitalized terms shall have the following meanings:
"Affiliate" means a person or entity controlling, controlled
by or under common control with the Seller.
"Business Day" means any day that is not a Saturday, a
Sunday or other day on which banks are required or authorized by
law to be closed in the City of New York.
"Close of Escrow" shall be the date defined in Section 10.2
of the Purchase Agreement.
"Exchange Act" means the U.S. Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder, as in
effect from time to time.
"Guaranteed Value" means an aggregate of US$3.25 million in
gross proceeds (prior to deduction for broker fees and
commissions) from the disposition or sale by Seller of the
Purchaser Shares.
"Registration Effective Date" means the date that the
registration statement to be filed with the SEC under the
Purchase Agreement becomes effective or the Close of Escrow, if
later.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933, as
amended, and the rules and regulations thereunder, as in effect
from time to time.
"Stock Event" means any stock split, stock dividend,
combination or similar recapitalization of the Purchaser Shares
after the date hereof.
"Termination Date" means the date six (6) months after the
Close of Escrow.
"Purchaser Shares" means the number of shares of Purchaser
Common Stock delivered by the Purchaser to the Seller on the
Close of Escrow (and any additional securities issued with
respect to the Purchaser Shares by reason of any Stock Event) as
provided in Section 1.2(b) of the Purchase Agreement.
Unless the context otherwise requires: (i) "or" is not
exclusive; and (ii) words in the singular include the plural and
words in the plural include the singular.
SECTION 1.02. Guaranteed Value for Shares Sold. (a)
Purchaser hereby agrees that Seller will receive the Guaranteed
Value from the disposition or sale by Seller of the Purchaser
Shares. In the event that the aggregate gross proceeds (prior to
deduction from the gross proceeds of any brokerage fees and
commission) from the sale by the Seller of Purchaser Shares
effected after the close of Escrow and prior to the Termination
Date is less than the Guaranteed Value for such Purchaser Shares,
then the Purchaser shall, within three (3) Business Days
thereafter from receipt of Seller's written Notice of Deficiency,
pay to the Seller in immediately available funds a sum equal to
the amount of such deficiency.
(b) At any time between the Close of Escrow and prior
to the Termination Date, if (i) the closing price for Purchaser
Shares for ten (10) consecutive trading days (the "Specified
Trading Period") is more than 10% per share above the price per
share of such Purchaser Shares as of the date of the Close of
Escrow and delivery to Seller or Seller's nominee of the
Purchaser Shares and (ii) the Seller could have but has
voluntarily elected not to sell the Purchaser Shares still owned
by it as of this period, then the Purchaser's obligations under
Section 1.02(a) shall automatically terminate.
(c) The Notice of Deficiency shall be a writing from
Seller or Seller's nominee to Purchaser and shall contain the
following information: the gross selling price for all sales of
the Purchaser Shares and the trading date(s), information as to
the broker commissions or fees due by either the Purchaser or the
Seller pursuant to the terms of the Purchase Agreement, and a
calculation of the deficiency. Such information shall be
certified by the Seller, or Seller's nominee, to be accurate and
complete.
(d) In the event that the Purchaser shall not pay the
deficiency set forth in the Notice of Deficiency within the three
(3) Business Days specified in subsection (a) above, then the
Seller shall be entitled to pursue the remedies contained in
1.04 hereof.
SECTION 1.03. Disposition Procedures. Notwithstanding the
foregoing:
(a) If the Seller desires to sell any Purchaser Shares
on the NYSE using any broker other than Xxxxxxxxx, Xxxxxx &
Xxxxxxxx ("DLJ"), then the Purchaser's obligations under Section
1.02 shall be effective only if the Seller sells at least 50,000
Purchaser Shares on the NYSE and the resulting sale or sales
occur only in amounts not greater on any given day than 25% of
the average daily trading volume for Purchaser Common Stock
during the four calendar weeks immediately prior to such sale or
sales. The Purchaser acknowledges and agrees that not all 50,000
Purchaser Shares must be sold on the same trading day in order to
comply with this clause (a), but rather such Purchaser Shares may
be sold over any number of trading days so long as all such
Purchaser Shares were placed in the hands of a broker at the same
time for orderly sale on the NYSE.
(b) If the Seller desires to sell any Purchaser Shares
on the NYSE using DLJ, then the Purchaser's obligations under
Section 1.02 shall be effective only if the Seller sells at least
$50,000 Purchaser Shares on the NYSE and the resulting sale or
sales occur only in amounts not greater on any given day than 25%
of the average daily trading volume for Purchaser Common Stock
during the subject to adjustment for any Stock Event four
calendar weeks immediately prior to such sale or sales; provided,
however, that if DLJ believes that a greater number of Purchaser
Shares may be sold on any given day without adversely affecting
the price of or
otherwise disrupting the market for Purchase Common Stock, then
such greater number may be sold. The Purchaser acknowledges and
agrees that not all 50,000 Purchaser Shares must be sold on the
same trading day in order to comply with this clause (b), but
rather such Purchaser Shares may be sold over any number of
trading days so long as all such Purchaser Shares were placed in
the hands of DLJ at the same time for orderly sale on the NYSE.
(c) If the Seller desires to sell any of the Purchaser
Shares not on the NYSE at a price below the Guaranteed Value,
then the Seller must give to the Purchaser prior written notice
(the "Seller Sale Notice") of its intention to sell not less than
50,000 Purchaser Shares at a price and to the person or persons
specified in the Seller Sale Notice. If the Purchaser provides
to the Seller written notice (the "Purchaser Response Notice")
within one business day after receipt by the Purchaser of the
Seller Sale Notice identifying a proposed substitute purchaser or
purchasers (collectively, a "Substitute Purchaser") for all
Purchaser Shares proposed to be sold by the Seller in the Seller
Sale Notice at or above the price specified in the Seller Sale
Notice, then the Seller shall sell all such Purchaser Shares to
either such Substitute Purchaser or the Purchaser at or above the
price specified in the Seller Sale Notice prior to the fifth
(5th) Business Day after receipt by the Seller of the Purchaser
Response Notice. If neither such Substitute Purchaser nor the
Purchaser purchases such Purchaser Shares prior to such fifth
(5th) Business Day at or above the price specified in the Seller
Sales Notice, then the Seller may sell all such Purchaser shares
to the person or persons named in and at or above the price
specified in the Seller Sale Notice prior to the tenth (10th)
Business Day after receipt by the Seller of the Purchase Response
Notice. If the Seller does not sell all such Purchaser Shares to
such person or persons at or above such price prior to such tenth
(10th) Business Day, then prior to any sale by the Seller of such
Purchaser Shares (other than sales governed by clauses (a) or (b)
of this Section 1.03), a new Seller Sale Notice must first be
delivered to the Purchaser and the provisions of this clause (c)
must again be complied with in full. If the Seller sells such
Purchaser Shares to such Substitute Purchaser, the Purchaser or
to the person or persons named in and at the price specified in
the Seller Sales Notice, then the Purchaser's obligations under
Section 1.02 shall apply to such transaction or transactions.
(d) The Purchaser shall have no obligation under
Section 1.02 with respect to any sale of Purchaser Shares (i) to
any Affiliate of the Seller, (ii) in connection with any
transaction involving any consideration other than payment of
cash for the Purchaser Shares or a promissory note or notes
requiring payment of cash, (iii) in connection with any
transaction in violation of clauses (a), (b) or (c) of this
Section 1.03, or (iv) in connection with any transaction that is
in violation of the Securities Act, provided such violation is
not the result of actions by Purchaser.
SECTION 1.04. Letter of Credit and Remedies.
(a) Purchaser will deliver to Seller or its nominee,
to be effective as of the date of the Close of Escrow, a letter
of credit (the "Letter of Credit") drawn on The First National
Bank of Boston (the "Bank") in the amount of $1,000,000 with
instructions as provided on Exhibit "A" attached hereto, to
secure its payment obligations to Seller under Section 1.02(c) of
this Agreement. Seller agrees to pay all costs and expenses
charged by the Bank for the Letter of Credit. Seller will be
notified by Purchaser of the amount of these costs and expenses,
which are not anticipated to exceed $3,500, prior to issuance of
the Letter of Credit.
(b) Upon non-payment by the Purchaser hereunder, the
Seller or the Seller's nominee shall be entitled to proceed under
the Letter of Credit for the amount of the deficiency set forth
in the Notice of Deficiency up to the maximum amount of
$1,000,000.
(c) In the event the deficiency exceeds the sum of
$1,000,000, Seller or Seller's nominee shall be entitled, without
waiver of its right to proceed under the Letter of Credit, to
immediately commence legal action against Purchaser to secure
payment of the deficiency not satisfied by the letter of credit.
SECTION 1.05. Miscellaneous. (a) Notices. All notices,
requests, claims, demands and other communications hereunder
shall be in writing and shall be given or made (and shall be
deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by cable, by telecopy, by
telegram, by telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at
the following
addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section
1.05):
(i) if to Seller:
The Xxxxxx Xxxxx Xxxx Trust
Xxxxxx Xxxxx Helm, Trustee
c/o Xxxxxxx Xxxx
Helm Investments
000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
with copy to:
Xxxxx X. Xxxxxxx, Esquire
Balfour MacDonald Xxxxxx Mijuskovic & Olmsted
000 Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
(ii) if to the Purchaser:
United States Filter Corporation
00-000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
and separately to the General Counsel
Telecopier: (000) 000-0000
(b) Successor and Assigns. This Agreement is solely
for the benefit of, and binding upon, the parties and their
respective successors. Nothing herein shall be construed to
provide any rights to any other entity or individual. Neither
this Agreement nor any of the rights or obligations hereunder may
be assigned by any party.
(c) Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
(d) Titles. The titles, captions or headings of the
Sections herein are for convenience of reference only and are not
intended to be a part of or to affect the meaning or
interpretation of this Agreement.
(e) Governing Law. This Agreement shall be construed,
interpreted and the rights of the parties determined in
accordance with the laws of the State of California (without
reference to the choice of law provisions of California law).
(f) Invalidity. In the event that any one or more of
the provisions contained in this Agreement shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect,
then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other
provision of this Agreement.
(g) Entire Agreement; Modifications and Waivers. This
Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and supersedes
agreements, understandings,
negotiations and discussions, whether oral or written, of the
parties. No supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by the party to be
bound thereby. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly
provided.
(h) Attorney Fee Provision. If either party files an
action or brings any proceeding against the other, the prevailing
party shall be entitled to recover reasonable attorneys' fees and
costs. The "prevailing party" shall be the party entitled to
recover the costs of suit, whether or not the suit proceeds to
final judgment.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first
written above.
UNITED STATES FILTER CORPORATION
By: /s/Xxxxxxx X. Xxxxxxxx
______________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman, CEO and President
THE XXXXXX XXXXX HELM TRUST
By: /s/ Xxxxxx Xxxxx Xxxx
_____________________
Name: Xxxxxx Xxxxx Helm
Title: Trustee
