Exhibit 99.02
Option, Transfer and Registration Agreement
among
United States Filter Corporation,
Xxxxxxxxx International, Inc.,
Hajoca Corporation,
Xxxxxxxxxxx X. Xxxxx
and
Xxxxxxx X. Xxxx
dated as of
October 28, 1996
Option, Transfer and Registration Agreement
among
United States Filter Corporation,
Xxxxxxxxx International, Inc.,
Hajoca Corporation,
Xxxxxxxxxxx X. Xxxxx
and
Xxxxxxx X. Xxxx
dated as of
October 28, 1996
TABLE OF CONTENTS
PAGE
1. Certain Definitions . . . . . . . . . . . . . . . . 1
2. Restrictions on Transferability . . . . . . . . . . 2
3. Restrictive Legends . . . . . . . . . . . . . . . . 2
4. Notice of Proposed Transfers . . . . . . . . . . . . 3
5. Initial Registration of Debt Repayment Shares . . . 4
6. Demand Registration . . . . . . . . . . . . . . . . 4
7. Plan of Distribution . . . . . . . . . . . . . . . . 6
8. Company Registration . . . . . . . . . . . . . . . . 6
9. Expenses of Registration . . . . . . . . . . . . . . 7
10. Indemnification . . . . . . . . . . . . . . . . . . 7
11. Obligations of the Company . . . . . . . . . . . . . 9
12. Securities Law Compliance . . . . . . . . . . . . . 10
13. Standoff Agreement . . . . . . . . . . . . . . . . 11
14. Rule 144 Requirements . . . . . . . . . . . . . . . 11
15. Put Right and Call Offer . . . . . . . . . . . . . 11
16. Amendment . . . . . . . . . . . . . . . . . . . . . 13
17. Investment Representation. . . . . . . . . . . . . . 13
18. Notices, etc.. . . . . . . . . . . . . . . . . . . . 13
19. Entire Agreement; Severability . . . . . . . . . . . 14
20. Governing Law . . . . . . . . . . . . . . . . . . . 14
21. Counterparts . . . . . . . . . . . . . . . . . . . . 14
OPTION, TRANSFER AND REGISTRATION AGREEMENT
This Option, Transfer and Registration Agreement
("Agreement") is entered into as of October 28, 1996 among United
States Filter Corporation, a Delaware corporation (the
"Company"), Xxxxxxxxx International, Inc., a California
corporation ("Xxxxxxxxx"), Hajoca Corporation, a Maine
corporation ("Hajoca"), Xxxxxxxxxxx X. Xxxxx ("Xxxxx") and
Xxxxxxx X. Xxxx ("Klau"), with reference to certain shares of
Common Stock, $.01 par value (the "Common Stock") of the Company.
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Commission" shall mean the United States Securities
and Exchange Commission or any other federal agency at the
time administering the Securities Act.
"Debt Repayment Shares" shall mean Registrable Shares
issued in repayment of the Insider Company Debt as defined
in the Stock Purchase Agreement.
"Equity Shares" shall mean Registrable Shares other
than the Debt Repayment Shares.
"Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, all as the same
shall be in effect at the time and any successor thereto.
"Holders" shall mean Xxxxxxxxx, Hajoca, Pappo and Klau.
"Restricted Shares" shall mean the shares of the
Company required to bear the legend set forth in paragraph
(a) of Section 3 hereof.
"Registrable Shares" shall mean the Shares; provided,
however, that Shares shall be treated as Registrable Shares
only if and so long as they have not been (i) sold in a
public distribution or a public securities transaction, or
(ii) sold in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act as a
result of which all transfer restrictions and restrictive
legends with respect thereto are removed upon the
consummation of such sale.
The terms "register", "registered" and "registration"
refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities
Act, and the declaration or ordering of the effectiveness of
such registration statement.
"Registration Expenses" shall mean all registration,
qualification and filing fees, fees and disbursements of
counsel for the Company, accounting fees incident to any
such registration, state securities or blue sky fees and
expenses, printing expenses, transfer agent and registrar
fees, reasonable fees and expenses of any special experts
retained by the Company in connection with any such
registration, and any listing fees.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule shall be in effect at the time,
and any successor thereto.
"Securities Act" shall mean the United States
Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder, all as the same
shall be in effect at the time.
"Selling and Distribution Expenses" shall mean all
underwriting discounts, selling commissions and stock
transfer taxes attributable to the sale of Shares by the
Holders and any out-of-pocket expenses of the Holders
incurred in connection with the registration of Shares,
including, without limitation, fees and disbursements of
counsel for the Holders if such counsel is not also counsel
for the Company and marketing expenses.
"Shares" shall mean the 3,201,507 shares of Common
Stock issued to or for the benefit of the Holders on the
date hereof and any shares of Common Stock issued in respect
thereof in connection with stock splits, stock dividends or
distributions, or combinations or similar recapitalizations,
on or after the date hereof.
"Stock Purchase Agreement" shall mean the Stock
Purchase Agreement dated as of September 10, 1996, as
amended October 28, 1996, by and among the parties hereto
and WaterPro Supplies Corporation.
2. Restrictions on Transferability. The Shares may be
sold, assigned, transferred or pledged only in accordance with
the conditions specified in this Agreement, which conditions are
intended to ensure compliance with the provisions of the
Securities Act.
3. Restrictive Legends.
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(a) Each certificate representing Shares shall (unless
otherwise permitted by subsection (c) of this Section 3 or
Section 4) be stamped with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
PLEDGED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
THE COMPANY RECEIVES AN OPINION OF COUNSEL (WHICH MAY
BE COUNSEL FOR THE COMPANY) REASONABLY ACCEPTABLE TO IT
STATING THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) Each certificate representing Shares shall also be
stamped with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS OF AN AGREEMENT
BETWEEN CERTAIN STOCKHOLDERS AND THE CORPORATION WHICH
INCLUDES RESTRICTIONS ON CERTAIN SALES OF THE
SECURITIES. COPIES OF THE AGREEMENT MAY BE OBTAINED
UPON WRITTEN REQUEST TO THE SECRETARY OF THE
CORPORATION.
(c) Each Holder consents to the Company's making a
notation on its records and giving instructions to any transfer
agent of the Company in order to implement the restrictions on
transfer established in this Agreement. The legend placed on any
certificate pursuant to Section 3(a) and any notations or
instructions with respect to the Restricted Shares represented by
such certificate will be promptly removed, and the Company will
promptly issue a certificate without such legend to the Holder of
such Restricted Shares (i) if such Restricted Shares are
registered under the Securities Act (but only in connection with
the actual sale of such securities) and a prospectus meeting the
requirements of Section 10 of the Securities Act is available or
(ii) if the Holder thereof satisfies the requirements of Rule
144(k) and, where reasonably determined necessary by the Company,
provides the Company with an opinion of counsel for the Holder of
the Shares, both such counsel and such opinion being reasonably
satisfactory to the Company, to the effect that (A) the Holder
meets the requirements of Rule 144(k) or (B) a public sale,
transfer or assignment of the Shares may be made without
registration.
4. Notice of Proposed Transfers. The holder of each
certificate representing Restricted Shares by acceptance thereof
agrees to comply in all respects with the provisions of this
Section 4. Prior to any proposed sale, assignment, transfer or
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pledge of any Restricted Shares, unless there is in effect a
registration statement under the Securities Act covering the
proposed transfer, the Holder thereof shall notify the Company in
writing of such Holder's intention to effect such sale,
assignment, transfer or pledge and the intended manner and
circumstances thereof in reasonable detail. If requested by the
Company, any such notice shall be accompanied at such Holder's
expense by a written opinion of legal counsel who is, and whose
legal opinion shall be, reasonably satisfactory to the Company,
addressed to the Company, to the effect that the proposed
transfer of Restricted Shares may be effected without
registration under the Securities Act, and by such certificates
and other information as the Company may reasonably require to
confirm such opinion, whereupon the Holder of such Restricted
Shares shall be entitled to transfer such Restricted Shares in
the manner contemplated by such opinion. Each certificate
evidencing the Restricted Shares transferred as above provided
shall bear, except if such transfer is made pursuant to Rule 144,
the appropriate restrictive legend set forth in Section 3(a)
above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for such Holder
and the Company such legend is not required in order to establish
compliance with any provisions of the Securities Act. So long as
such restrictive legend shall be required to remain on any such
certificates, the transfer of the Restricted Shares represented
thereby shall be conditioned upon the transferee thereof becoming
a party hereto (except that such transferee shall have no rights
under Sections 5, 6 or 8 hereof unless the transferee is a
Holder).
5. Initial Registration of Debt Repayment Shares. The
Company shall file a shelf registration statement on Form S-3 (or
successor form) covering the Debt Repayment Shares under the
Securities Act as expeditiously as reasonably possible following
the date of this Agreement, shall use its best efforts to cause
such registration statement to become effective, and shall keep
such registration statement effective until the earlier of (i)
the distribution by Xxxxxxxxx of all of the Debt Repayment Shares
or (ii) the day after all of the following shall have been true
on each of 60 days (which need not be consecutive): (a) the
registration statement shall have been effective and (b) the
prospectus included in the registration statement shall have been
current for purposes of the methods of distribution of the Debt
Repayment Shares set forth in the registration statement.
Notwithstanding the foregoing, the Company shall not be required
to file a registration statement covering the Debt Repayment
Shares or to cause such a registration statement to become
effective at any time when the Holders would be required to
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refrain from selling Registrable Shares pursuant to Section 12(b)
hereof.
6. Demand Registration. In case the Company shall receive
a written request from Xxxxxxxxx that the Company effect a
registration with respect to the Equity Shares, the Company will:
(a) promptly give written notice of the proposed
registration to all other Holders of Equity
Shares; and
(b) file a shelf registration statement (on Form S-3
or successor form) with the Commission within 120
days after Xxxxxxxxx'x request and use its best
efforts to effect such registration as would
permit or facilitate the sale and distribution of
all Equity Shares; and
Provided further, however, that the Company
shall not be obligated to effect any such
registration pursuant to this Section 6:
(A) Unless Xxxxxxxxx'x request is made under
one of the following circumstances:
(I) such request is received by the Company
during the period commencing six months
after the date hereof and ending twelve
months after the date hereof (the "First
Window") and the Company has not
previously effected a registration
pursuant to a request received during
the First Window; or
(II) such request is received by the Company
during the period commencing twelve
months after the date hereof and ending
twenty-four months after the date hereof
(the "Second Window"), the Company has
not previously effected a registration
pursuant to a request received during
the Second Window and the holding period
for the Equity Shares as may be then
specified in Rule 144 has not expired;
provided, however, the Holders may make
an aggregate of two registration
requests during the Second Window if:
(x) a registration requested during the
First Window was not effected by reason
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of subsection (B) or (C) below, and (y)
in the case where the First Window
registration request was not effected by
reason of subsection (B) below, the
registration statement referred to
therein did not include all Equity
Shares which were requested to be so
included or Equity Shares were not
entitled to be so included;
(B) During any period of time (not exceeding
60 days) when the Company is
contemplating the filing of a
registration statement or a private
placement with respect to a public
offering or private placement of its
securities and is advised in writing by
its investment banking firm that such
public offering or private placement
would in its opinion be adversely
affected by the requested registration,
and during a period ending 60 days
following the completion of any such
offering; and
(C) At any time when the Holders would be
required to refrain from selling Registrable
Shares pursuant to Section 12(b) hereof.
7. Plan of Distribution.
(a) The distribution of Registrable Shares pursuant to
a registration under Section 5 or 6 shall be effected, whether
from time to time or at one time, only (i) by or through such
investment banking firm or firms as may be designated by the
Company in connection with the filing of the applicable
registration statement, acting in such capacity (as broker,
dealer, principal or otherwise), and receiving such compensation,
as may be agreed by Xxxxxxxxx and such investment banking firm or
firms, or (ii) in private transactions as to which the Company
shall have been given at least two business days' prior written
notice describing the terms of the proposed transaction(s),
unless the Company shall have identified prior to the expiration
of such two-day period a substitute purchaser for all of the
Registrable Shares identified in such notice on terms at least as
favorable to the Holders as the terms specified in such notice,
in which event such Registrable Shares shall be sold to such
substitute purchaser (which may be the Company).
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(b) The Company shall give the Holder or Holders of
Registrable Shares to be included in any registration statement
at least ten (10) days written notice prior to the filing of a
registration statement pursuant to Section 5 or 6. Such Holder
or Holders shall advise the Company in writing within five (5)
days of receipt of such notice of the terms of its compensation
arrangements with the designated investment banking firm or
firms, the capacity in which such firm or firms will act, the
distribution proposed by such Holder or Holders, and such
information regarding such Holder or Holders and the shares of
Common Stock held by them as the Company may request in writing
and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
(c) The Holders shall not be entitled to effect a
distribution under Section 5 or 6 by means of an underwritten
offering, except as provided in Section 8 or otherwise provided
herein.
(d) The Holders shall be entitled to exclude from any
registration effected pursuant to Section 5 or 6 any shares of
Common Stock held by others having rights to include shares in
registrations effected by the Company if the investment banking
firm or firms designated under subsection (a) hereof determines
that marketing factors require a limitation of the number of
shares to be included in such registration.
(e) The Company hereby represents and warrants that it
has no agreement, undertaking or other arrangement granting to
any third party the right (whether demand, piggyback or
otherwise) to require the Company to register any class of shares
of its capital stock, outstanding as of the date of this
Agreement, except as disclosed on Schedule 7(e).
8. Company Registration.
(a) Notice of Registration. If, at any time or from
time to time, the Company shall determine to register any of its
Common Stock, either for its own account or the account of a
security holder or holders exercising their respective demand
registration rights, for distribution pursuant to an underwritten
offering, the Company will (i) promptly give to each Holder
written notice thereof, and (ii) include in such registration
(and any related qualification under blue sky laws or other
compliance), subject to Section 8(b), all the Registrable Shares
specified in a written request or requests made by any Holder
within 30 days after its receipt of such written notice from the
Company.
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(b) Underwriting. The right of any Holder to
registration pursuant to this Section 8 shall be conditioned upon
such Holder's participation in such underwriting and the
inclusion of Registrable Shares in the underwriting to the extent
provided herein. All Holders proposing to distribute all or a
portion of their Registrable Shares through such underwriting
shall (together with the Company and the other holders
distributing shares of Common Stock through such underwriting),
if required by the managing underwriter of such offering, enter
into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the
Company (or by the holders who have demanded such registration),
and shall provide to the Company upon written request such
information referenced in Section 7(b) hereof as may be specified
in such request. Notwithstanding any other provision of this
Section 8, if the managing underwriter in its sole discretion
determines that marketing factors require a limitation of the
number of shares to be underwritten, the managing underwriter may
limit the Registrable Shares to be included in such registration.
The Company shall so advise all Holders and the other holders
distributing their securities through such underwriting pursuant
to piggyback registration rights similar to this Section 8, and
the number of Registrable Shares and other securities that may be
included in the registration and underwriting by such Holders and
such other holders shall be reduced by the number of shares
determined by the managing underwriter not to be included in such
registration, such cutback to be allocated among all Holders and
such other holders in proportion, as nearly as practicable, to
the respective amounts of Registrable Shares held by such Holders
and such other securities by such other holders. If any Holder
disapproves of the terms of any such underwriting, it may elect
to withdraw therefrom by written notice to the Company and the
managing underwriter.
(c) Right to Terminate Registration. The Company
shall have the right to terminate or withdraw any registration
under this Section 8 prior to the effectiveness of such
registration whether or not any Holder has elected to include
securities in such registration.
9. Expenses of Registration. All Registration Expenses
incurred in connection with any registration pursuant to Sections
5, 6 or 8 shall be borne by the Company. All Selling and
Distribution Expenses attributable to the Registrable Shares
registered on behalf of the Holders shall be borne by the Holders
of the Registrable Shares included in such registration pro rata
on the basis of the number of Registrable Shares so registered,
except that Selling and Distribution Expenses relating to Debt
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Repayment Shares (other than any stock transfer taxes) shall be
borne by the Company.
10. Indemnification.
(a) The Company will indemnify each Holder, each of
its officers, directors, partners, employees and agents and each
person controlling such Holder within the meaning of Section 15
of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this
Agreement, against all expenses, claims, losses, damages or
liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any
such registration, qualification or compliance, or any omission
(or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein,
in the light of the circumstances in which they were made, not
misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act or any other
federal, state or common law rule or regulation applicable to the
Company in connection with any such registration, qualification
or compliance, and the Company will reimburse each such Holder,
each of its officers, directors, employees and agents and each
person controlling such Holder for any legal and any other
expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability
or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission made in reliance
upon and in conformity with any written information furnished to
the Company pursuant to an instrument duly executed by such
Holder or controlling person and stated to be specifically for
use therein.
(b) Each Holder will, if Registrable Shares held by
such Holder are included in the securities as to which such
registration, qualification or compliance is being effected,
indemnify the Company, each of its directors and officers, each
underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or
such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers
and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims,
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losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, persons,
underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in
each case to the extent, but only if and to the extent, that such
untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon
and in conformity with any written information furnished to the
Company pursuant to an instrument duly executed by such Holder
and stated to be specifically for use therein.
(c) Each party entitled to indemnification under this
Section 10 (the "Indemnified Party") shall give written notice to
the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not unreasonably be withheld), and
the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this
Agreement unless, but only to the extent that, the failure to
give such notice is actually prejudicial to an Indemnifying
Party's ability to defend such action. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with
the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
(d) In order to provide for just and equitable
contribution to joint liability under the Securities Act in any
case in which any Holder of Registrable Shares exercising rights
under this Agreement, or any controlling person of any such
Holder, makes a claim for indemnification pursuant to this
Section 10 but it is judicially determined (by the entry of a
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final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right
of appeal) that such indemnification may not be enforced in such
case notwithstanding the fact that this Section 10 provides for
indemnification in such case, then, the Company and such Holder
will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from
others) in such proportion as shall be finally determined and
decided by a panel of three arbitrators, one selected by
Xxxxxxxxx, one selected by the Company and the third selected by
the arbitrators selected by Xxxxxxxxx and the Company; provided,
however, that, in any such case, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
11. Obligations of the Company. Whenever required under
this Agreement to use its best efforts to effect the registration
of any Registrable Shares, the Company shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the Commission a
registration statement with respect to such Registrable Shares,
and use its best efforts to cause such registration statement to
become effective and to keep such registration statement
effective (i) for the period provided in Section 5 in the case of
a registration effected under that section and (ii) for up to 90
days in the case of a registration effected under Section 6.
(b) Prepare and file with the Commission such
amendments and supplements to such registration statement as may
be necessary (i) to update and keep such registration statement
effective as provided in Section 11(a) above, (ii) to comply with
the provisions of the Securities Act with respect to the
disposition of all Registrable Shares covered by such
registration statement and (iii) to reflect a modification in the
manner of distribution of the Registrable Shares.
Notwithstanding anything else to the contrary contained herein,
the Company shall not be required to disclose in any amendment or
supplement to a registration statement or otherwise (x) any
confidential information concerning any matter which is the
subject of a notice given under Section 11(f) as to which the
Company has a bona fide interest in withholding disclosure, or
(y) historical financial statements or pro forma financial
information required by Regulation S-X of the Commission in
connection with a business acquisition or disposition prior to
the date when such information would otherwise be required to be
filed with the Commission (including extensions pursuant to Item
7(a)(4) of Form 8-K), except as provided in Section 11(f) hereof.
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(c) Furnish to the Holders whose Registrable Shares
have been included in a registration statement such numbers of
copies of the registration statement and all amendments thereto,
any prospectus included in such registration statement, including
any preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of
Registrable Shares owned by them.
(d) Use its best efforts to register and qualify the
Registrable Shares covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as
shall be reasonably requested by the Holders whose Registrable
Shares have been included in such registration statement,
provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or
to execute and file a general consent to service of process in
any such states or jurisdictions.
(e) In the event of any underwritten public offering
contemplated by Section 8, enter into and perform its obligations
under an underwriting agreement, in usual and customary form,
with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Shares covered
by a registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances under which the prospectus is used,
and, except for periods not to exceed 180 days in each instance
where the Company has a bona fide interest in withholding
disclosure or the time period for filing with the Commission
information referred to in Section 11(b)(y) has not expired,
promptly prepare and furnish to such Holders a supplement or
amendment to such prospectus, or otherwise update such prospectus
through the filing of a Current Report on Form 8-K or otherwise,
so that such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
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12. Securities Law Compliance.
(a) The Holder or Holders of Registrable Shares
included in any registration pursuant to this Agreement covenant
that they will comply with the Securities Act and with the
Exchange Act with respect to any such registration, recognizing
that the Company may notify such Holder or Holders in accordance
with Section 11(f) that the registration statement is not then
current.
(b) The Holders agree that, immediately upon receipt
of a notification pursuant to Section 11(f), they will refrain
from selling Registrable Shares under a registration statement
filed pursuant to Section 5 or 6 of this Agreement until (i)
subsequently notified by the Company that the registration is
current as a result of actions taken by the Company pursuant to
Section 11(f) or otherwise or (ii) receipt of a favorable opinion
of counsel as hereinbelow provided. The Company agrees that it
will consult with Xxxxxxxxx or, at Xxxxxxxxx'x request, counsel
for Xxxxxxxxx, following the giving of any such notification, and
that in the event Xxxxxxxxx (or its counsel) is of the view that
the Registrable Shares could be sold in compliance with the
Securities Act and the Exchange Act without disclosure of the
nonpublic information which is the subject of the notification,
the parties hereto agree to be bound by an opinion of Xxxxxxxxxxx
& Xxxxxxxx LLP or other counsel reasonably satisfactory both to
Xxxxxxxxx and the Company as to whether such sales can be made
without violation of the Securities Act or the Exchange Act.
13. Standoff Agreement. The Holders agree in connection
with any registration of the Company's securities, upon request
of the underwriters managing any underwritten offering of the
Company's securities, not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any
Equity Shares (other than those included in such registration),
without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to
exceed 120 days) from the effective date of such registration as
may be requested by the Company or such managing underwriters.
14. Rule 144 Requirements. The Company agrees to:
(a) use its best efforts to file with the Commission
in a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act;
(b) furnish to any Holder of Registrable Securities
upon request (i) a written statement by the Company as to its
compliance with the requirements of Rule 144(c), and the
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reporting requirements of the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of
the Company, and (iii) such other reports and documents of the
Company as such Holder may reasonably request to avail itself of
any similar rule or regulation of the Commission allowing itself
to sell any such securities without registration; and
(c) cooperate with any Holder in such manner as such
Holder may reasonably request so as to enable sales made in
compliance with the requirements of Rule 144 to be made in
compliance with the requirements of any transfer agent, registrar
or the broker through whom any sales are to be executed.
15. Put Right and Call Offer.
(a) Subject to Section 15(b) below, each Holder shall
have the right to sell (a "Put Right") during the Put Right
Exercise Period (as defined below), and upon exercise of that
right the Company shall purchase, all or any portion of the
Shares then owned by such Holder at a purchase price per Equity
Share equal to 100% of the Average Specified Price (as defined
below) during the Put Right Exercise Period, and at a purchase
price per Debt Repayment Share equal to 100% of the Average
Specified Price during the first 90 days of the Put Exercise
Period. If the Put Right is not duly exercised during the Put
Right Exercise Period, it shall expire at the end of the Put
Right Exercise Period. A Put Right may be exercised only once by
each Holder.
(b) The Company may offer to purchase from each Holder
or from all of the Holders (a "Call Offer") during the Call Offer
Period (as defined below) all or any portion of the Shares then
owned by such Holders at a purchase price equal to 110% of the
Average Specified Price (as defined below). The Holders may, at
their option, accept such Call Offer upon written notice
delivered to the Company within twenty business days after notice
of the Call Offer is given to the Holders. If any Holder does
not duly accept the Call Offer in accordance with the terms of
the Call Offer and this Agreement, or if any such Holder accepts
the Call Offer but subsequently does not sell to the Company the
Shares agreed to be sold by such Holder to the Company within the
period provided for in this Section 15, then both the Call Offer
and all rights of the Holders under Section 15(a) with respect to
the Shares subject to such Call Offer shall then immediately
expire and be of no further force and effect.
(c) The "Average Specified Price" for each Share
subject to a Put Right or a Call Offer shall be $33.125, which is
equal the average of the closing prices of the Common Stock as
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reported by the New York Stock Exchange for each of the twenty-
five trading days ending on the sixth to the last trading day
preceding the date of this Agreement. The "Put Right Exercise
Period" and the "Call Offer Period" shall each be the 90-day
period commencing on the 60th day after the date of this
Agreement. A Put Right may be exercised and a Call Offer may be
made only by written notice to the Company or the Holders, as the
case may be, and such notice shall contain the number of Shares
to be purchased and the identity of the Holder selling such
Shares. The purchase price payable upon purchase and sale of the
Shares subject to a Put Right or Call Offer hereunder shall be
paid in cash on the Closing Date (as defined below). In the
event that such payment is not made on the Closing Date, the
Holder of such Shares shall be entitled to receive a lump sum
payment equal to 5% of the purchase price thereof.
(d) In the event of an exercise of a Put Right or the
making of a Call Offer, the parties to such transaction shall
mutually determine a closing date (a "Closing Date") which shall
not be more than 30 days, subject to any applicable waiting
period under the U.S. Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, after the date the Put Right is
exercised or Call Offer is made and accepted by one or more
Holders, as the case may be, or if any such day is not a business
day, then the first business day thereafter. Such closing
("Closing") shall be held at 11:00 a.m., local time, at the
principal executive office of the Company, or at such other time
or place as the parties may agree. On the Closing Date of a
purchase of Shares pursuant to this Section, the Holders shall
deliver to the Company certificates, with stock powers duly
endorsed in blank, representing the Shares to be purchased. In
addition, if the person selling the Shares is the personal
representative of a deceased Holder, the personal representative
shall also deliver to the Company (i) copies of letters
testamentary or letters of administration evidencing his
appointment and qualification, (ii) a certificate issued by the
Internal Revenue Service pursuant to Section 6325 of the United
States Internal Revenue Code of 1986, as amended (the "Code"),
discharging the Shares being sold from liens imposed by the Code
(or, if it is not possible to obtain such certificate by the
Closing Date, the sale of such Shares may be consummated and the
proceeds placed in escrow pending receipt thereof), and (iii) an
estate tax waiver issued by the state of the decedent's domicile.
16. Amendment. Any provision of this Agreement may be
amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only by the written consent of the Company and
Xxxxxxxxx. Any amendment or waiver effected in accordance with
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this Section 16 shall be binding upon each Holder of any
Registrable Shares then outstanding, each future holder of any
Shares who is a party to this Agreement, and the Company.
17. Investment Representation. Each Holder hereby confirms
and represents and warrants to the Company that such Holder is
acquiring the Shares for investment only and not with a view to
or in connection with any resale or distribution of the Shares.
18. Notices, etc. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if delivered by hand, courier service,
United States mail (return receipt requested) or by facsimile,
addressed as follows:
(a) if to Xxxxxxxxx and Hajoca, to:
Xxxxx X. Xxxxxxx, President
Xxxxxxxxx International, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a required copy to:
Xxxxxxx X. Xxxxx
Attorney at Law
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
(b) if to Pappo, to:
Xxxxxxxxxxx X. Xxxxx
0000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
(c) if to Klau, to:
Xxxxxxx X. Xxxx
00000 00xx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
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(d) if to the Company, to:
United States Filter Corporation
00-000 Xxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
FAX No. (000) 000-0000
Attn: Chief Executive Officer
with a copy to: General Counsel
or to such other address or facsimile number of a party of which
such party has given notice to the other parties pursuant to this
Section.
19. Entire Agreement; Severability. This Agreement and the
Stock Purchase Agreement together with the Schedules and Exhibits
thereto set forth all of the provisions, covenants, agreements,
conditions and undertakings among the parties hereto with respect
to the subject matter hereof. The provisions of this Agreement
are severable, and in the event that any one or more provisions
are deemed illegal or unenforceable, the remaining provisions
shall remain in full force and effect.
20. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws (other than those with
respect to choice of law) of the State of Delaware. Each of the
parties hereto agrees that all claims in any action or proceeding
arising out of or related to this Agreement may be heard and
determined in any Delaware state court or federal court sitting
in the State of Delaware.
21. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
UNITED STATES FILTER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
Vice President, General Counsel
and Secretary
XXXXXXXXX INTERNATIONAL, INC.
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By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name:
Title: Vice President
HAJOCA CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name:
Title: Vice President
XXXXXXXXXXX X. XXXXX
/s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------
XXXXXXX X. XXXX
/s/ Xxxxxxx X. Xxxx
--------------------------------
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Schedule 7(e)
1. Transfer and Registration Agreement between United States
Filter Corporation and Alcoa Securities Corporation dated as
of December 31, 1991
2. Transfer, Registration and Other Rights Agreement among
United States Filter Corporation, Warburg, Xxxxxx Capital
Company, L.P. and Certain Individual Stockholders of United
States Filter Corporation dated as of July 8, 1994
3. Transfer, Registration and Other Rights Agreement among
United States Filter Corporation, Xxxxxxx International
Investments (Luxembourg) S.A., Xxxxxxx Investments
(Barbados) Ltd., Marfit, S.p.A., Xxxxxxx, Inc. and Ing.
Xxxxxxxx Cominetta dated as of August 31, 1994
4. Option and Registration Rights Agreement among United States
Filter Corporation, Xxxxxxxx X. Xxxxxxxxx, Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx X. Xxxxxxxxx XXX, Xxxx Xxxxxxxxxxx
Xxxxxxxxx, Xxxxxx X. Xxxxxxxxxx and Xxxxxxxxx X. Xxxxx dated
as of August 10, 1995
5. Transfer and Registration Agreement among United States
Filter Corporation, Xxxx Xxxxxxx Capital Growth Fund IIB
Limited Partnership, Xxxx Xxxxxxx Capital Growth Fund III
Limited Partnership, Xxxx X. Xxxxxxxxx, Trustee and The
Black Xxxxxxx Company dated as of May 31, 1996
6. Option, Transfer and Registration Agreement among United
States Filter Corporation, Xxxxxx X. Xxxxxx and M&I Ventures
Corporation dated as of September 30, 1996
7. Transfer and Registration Agreement among United States
Filter Corporation, CGW Southeast Partners I, L.P., Xxxxx X.
Xxxxxxx, Xx., Xxxxx Xxxxxx and Xxxxxxxx X. Xxxxxxxxx dated
as of October 25, 1996
8. Option, Transfer and Registration Agreement among United
States Filter Corporation and NI Industries, Inc. dated as
of October 24, 1996
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