Exhibit 99.6
FORM OF SUPPORT AGREEMENT
SUPPORT AGREEMENT (this "Agreement"), dated as of March 21, 1999, by
and between VIVENDI, a societe anonyme organized under the laws of France
("Parent"), and each of the individuals and entities listed on Annex A
hereto (individually or collectively, "Seller").
WHEREAS, concurrently herewith, Parent, Eau Acquisition Corp. (the
"Purchaser"), a Delaware corporation and a subsidiary of Parent, and United
States Filter Corporation (the "Company"), a Delaware corporation, are
entering into an Agreement and Plan of Merger of even date herewith (the
"Merger Agreement", which term shall not include any amendment to such
Agreement which decreases the Offer Price or changes the form of
consideration payable in the Offer, unless Seller consents to the inclusion
of such amendment in such term). Capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement, pursuant
to which the Purchaser agrees to make a tender offer (the "Offer") for all
outstanding Shares of the Company, at $31.50 per Share (the "Offer Price")
net to the seller in cash, to be followed by a merger (the "Merger") of the
Purchaser with and into the Company;
WHEREAS, as of the date hereof, Seller beneficially owns directly that
number of Shares (the "Owned Shares") set forth opposite his name on Annex
A hereto;
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement and make the Offer, Parent and the Purchaser have required that
Seller agree, and Seller hereby agrees, (i) if requested by Parent, to
tender pursuant to the Offer the Owned Shares, together with any Shares
acquired after the date hereof and prior to the termination of the Offer,
whether upon the exercise of options, conversion of convertible securities
or otherwise (collectively, the "Tender Shares") on the terms and subject
to the conditions provided for in this Agreement and (ii) to enter into the
other agreements set forth herein; and
WHEREAS, as a condition to its willingness to enter into this
Agreement, Seller has requested, and Parent has agreed, that Parent
purchase or cause the Purchaser to purchase the Owned Shares in the event
the Owned Shares are not purchased in the Offer;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration given to each party hereto, the receipt of which
is hereby acknowledged, the parties agree as follows:
1. Agreement to Tender and to Vote.
1.1 Tender. Seller hereby agrees that if, but only if, it is so
requested by Parent, it will validly tender (or cause the record owner of
such shares to validly tender), pursuant to and in accordance with the
terms of the Offer, as soon as practicable after such request but in no
event later than the then scheduled expiration date of the Offer, the
Tender Shares by physical delivery of the certificates therefor, and to not
withdraw such Tender Shares, except following termination of the Offer
pursuant to its terms. Seller hereby permits Parent and the Purchaser to
publish and disclose in the Offer Documents and, if approval of the
Company's stockholders is required under applicable law, the Proxy
Statement (including all documents and schedules filed with the Securities
and Exchange Commission) its identity and ownership of the Tender Shares
and the nature of its commitments, arrangements and understandings under
this Agreement.
1.2 Voting. Seller hereby agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of the Company,
however called, Seller shall (a) vote the Tender Shares in favor of the
Merger; (b) vote the Tender Shares against any action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement;
and (c) vote the Tender Shares against any action or agreement (other than
the Merger Agreement or the transactions contemplated thereby) that would
impede, interfere with, delay, postpone or attempt to discourage the Merger
or the Offer, including, but not limited to: (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries; (ii) a sale
or transfer of a material amount of assets of the Company or any of its
subsidiaries or a reorganization, recapitalization or liquidation of the
Company and its subsidiaries; (iii) any change in the management or board
of directors of the Company, except, as otherwise agreed to in writing by
the Purchaser; (iv) any material change in the present capitalization or
dividend policy of the Company; or (v) any other material change in the
Company's corporate structure or business. Seller hereby revokes any proxy
previously granted by him with respect to the Tender Shares.
1.3 Grant of Irrevocable Proxy; Appointment of Proxy.
(i) Seller hereby irrevocably grants to, and appoints, Guillaume
Hannezo and Xxxx Lecoys, or either of them, in their respective capacities
as officers or directors of Parent, and any individual who shall hereafter
succeed to any such office or directorship of parent, and each of them
individually, Seller's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Seller, to vote the
Tender Shares in favor of the Merger and other transactions contemplated by
the Merger Agreement, against any Acquisition Transaction and otherwise as
contemplated by Section 1.2.
(ii) Seller represents that any proxies heretofore given in respect of
the Tender Shares are not irrevocable, and that any such proxies are hereby
revoked.
(iii)Seller understands and acknowledges that Parent is entering into
the Merger Agreement in reliance upon Seller's execution and delivery of
this Agreement. Seller hereby affirms that the irrevocable proxy set forth
in this Section 1.3 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of Seller under this Agreement. Seller hereby
further affirms that the irrevocable proxy is coupled with an interest and
may under no circumstances be revoked. Seller hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law.
1.4 No Inconsistent Arrangements. Seller hereby covenants and agrees
that, except as contemplated by this Agreement and the Merger Agreement, it
shall not (i) except to Parent or the Purchaser, transfer (which term shall
include, without limitation, any sale, gift, pledge or other disposition),
or consent to any transfer of, any or all of the Tender Shares or any
interest therein, (ii) except with parent, enter into any contract, option
or other agreement or understanding with respect to any transfer of any or
all of the Tender Shares or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to the Tender
Shares, (iv) deposit any Tender Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Tender Shares or (v)
take any other action that would in any way restrict, limit or interfere
with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement or which would make any
representation or warranty of Seller hereunder untrue or incorrect.
1.5 No Solicitation. Seller hereby agrees that it shall not, and
shall not permit or authorize any of its affiliates, representatives or
agents to, directly or indirectly, encourage, solicit, explore, participate
in or initiate discussions or negotiations with, or provide or disclose any
information to, any corporation, partnership, person or other entity or
group (other than Parent, the Purchaser or any of their affiliates or
representatives) concerning any Acquisition Transaction or enter into any
agreement, arrangement or understanding requiring the Company to abandon,
terminate or fail to consummate the Merger or any other transactions
contemplated by the Merger Agreement. Seller will immediately cease any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any Acquisition Transaction. From and after the
execution of this Agreement, Seller shall immediately advise Parent in
writing of the receipt, directly or indirectly, of any inquiries,
discussions, negotiations or proposals relating to an Acquisition
Transaction, identify the offeror and furnish to Parent a copy of any such
proposal or inquiry, if it is in writing, or a written summary of any oral
proposal or inquiry relating to an Acquisition Transaction. Seller shall
promptly advise Parent in writing of any development relating to such
proposal, including the results of any discussions or negotiations with
respect thereto. Any action taken by the Company or any member of the
Board of Directors of the Company including, if applicable, any
representative of Seller acting in such capacity, in accordance with the
proviso to the second sentence of Section 6.10(a) of the Merger Agreement
shall be deemed not to violate this Section 1.5.
1.6 Reasonable Best Efforts. Subject to the terms and conditions of
this Agreement, Seller hereby agrees to use all reasonable best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done,
all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated
by this Agreement and the Merger Agreement. Seller shall promptly consult
with Parent and provide any necessary information and material with respect
to all filings made by Seller with any Governmental Entity in connection
with this Agreement and the Merger Agreement and the transactions
contemplated hereby and thereby.
1.7 Waiver of Appraisal Rights. Seller hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have.
1.8 Parent's Commitment to Purchase Owned Shares. Parent hereby
agrees that, if (i) the Offer is terminated, abandoned or withdrawn by the
Purchaser or (ii) the Offer is consummated and the Owned Shares are not
purchased by the Purchaser pursuant to the Offer, then Parent will purchase
or cause the Purchaser to purchase, the Owned Shares at a purchase price
per share equal to the Offer Price (or such higher price as may be paid to
tendering shareholders pursuant to the Offer), on the 5th Business Day
after the date of such termination, abandonment, withdrawal or consummation
of the Offer; provided that (x) all waiting periods under the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and
any equivalent foreign laws, required for the purchase of the Owned Shares
upon such exercise shall have expired or been waived, (y) there shall not
be in effect any preliminary or final injunction or other order issued by
any court or governmental, administrative or regulatory agency or authority
prohibiting the purchase of the Owned Shares pursuant to this Agreement and
(z) Seller's representations and warranties herein shall be true and all
material respects at such time.
1.9 Reasonable Efforts. Parent agrees (a) to cause the Purchaser to
institute the Offer as soon as reasonably practicable after execution of
this Agreement and the Merger Agreement and (b) to reasonably promptly file
an application under the HSR Act and equivalent foreign laws to purchase
the Owned Shares.
2. Expiration. This Agreement and the parties' obligations
hereunder shall terminate on the earlier of the payment for the Owned
Shares pursuant to the Offer or pursuant to Section 1.8 and the 181st day
after the termination of the Merger Agreement.
3. Representation and Warranties. Seller hereby represents and
warrants to Parent as follows:
(a) Title. Seller has good and valid title to the Owned Shares,
free and clear of any lien, pledge, charge, encumbrance or claim of
whatever nature, except the pledge of the Owned Shares to secure margin
borrowings. Upon the purchase of the Tender Shares by Parent or the
Purchaser, Seller will deliver good and valid title to the Tender Shares,
free and clear of any lien, charge, encumbrance or claim of whatever
nature.
(b) Ownership of Shares. On the date hereof, the Owned Shares
are owned of record or beneficially by Seller and, on the date hereof, the
Owned Shares constitute all of the Shares owned of record or beneficially
by Seller. Seller has sole voting power and sole power of disposition with
respect to all of the Owned Shares, with no restrictions, subject to
applicable federal securities laws, on Seller's rights of disposition
pertaining thereto.
(c) Power; Binding Agreement. Seller has the legal capacity,
power and authority to enter into and perform all of its obligations under
this Agreement. This Agreement has been duly and validly executed and
delivered by Seller and constitutes a valid and binding agreement of
Seller, enforceable against Seller in accordance with its terms.
(d) No Conflicts. Other than in connection with or in
compliance with the provisions of the Exchange Act and the HSR Act, no
authorization, consent or approval of, or filing with, any court or any
public body or authority is necessary for the consummation by Seller of the
transactions contemplated by this Agreement. Subject to the release of the
margin loan pledge at or prior to the purchase of the Owned Shares, the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby will not constitute a breach,
violation or default (or any event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of,
or accelerate the performance required by, or result in a right of
termination or acceleration under, or result in the creation of any lien,
encumbrance, pledge, charge or claim upon any of the properties or assets
of Seller under, any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which Seller is a party or
by which its properties or assets are bound.
(e) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements, made by or on
behalf of Seller.
(f) Information. Seller understands and acknowledges that
Parent and the Purchaser have been conducting a due diligence investigation
of the Company and may have information which is material regarding the
Company and its financial performance and prospects and which is not
publicly disclosed. Seller agrees that it shall not take any action
against Parent or the Purchaser in respect of such information.
4. Additional Shares. Seller hereby agrees, while this Agreement is
in effect, to promptly notify Parent of the number of any new Shares
acquired by Seller, if any, after the date hereof.
5. Further Assurances. From time to time, at the Parent's request
and without further consideration, Seller shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
6. Miscellaneous.
6.1 Non-Survival. The representations and warranties made herein
shall terminate upon Seller's sale of the Tender Shares to the Purchaser in
the Offer or pursuant to Section 1.8, other than Seller's representations
and warranties in Section 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 Xxxxx Xxxxx
Agent and Attorney-in-fact
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Fax: 817-
copy to Seller's Counsel:
Xxxxx, Xxxx & Xxxxxxx
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: F. Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
If to Parent:
VIVENDI
00 Xxxxxx xx Xxxxxxxxx
00000 Xxxxx Cedex 08
France
Attention: Guillaime Hannezo
Fax: (000) 000-0000-0000
copy to:
Cabinet Xxxxxx Prat
000 xxx xx Xxxxxxxx Xxxxx Xxxxxx
00000
Xxxxx
Attention: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000-0000
and
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
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 extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding.
6.6 Specific Performance. Each of Parent and Seller recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other to sustain damages for which it
would not have an adequate remedy at law, and therefore each of Parent and
Seller agrees that in the event of any such breach the other shall be
entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
6.7 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same Agreement.
6.8 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
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.
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:
Name:
Title:
SELLERS
Name: Xxx X. Xxxx
Name: Xxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxx
Name: Fine Line Inc.
Name: Xxxxxxx X. Xxxxxxx, Xx.
Name: Xxxxx Xxxxxxxx
Name: Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxxx Grantor Trust
Name: Xxxxxx Xxxxx Xxxxxx Grantor Trust
Name: Agua Partners
Annex A
Seller Shares Beneficially Owned
Xxx X. Xxxx 4,857,277
Xxxx X. Xxxxxxxx 216,000
Xxxxxxx X. Xxxx 72,000
Fine Line Inc. 1,231,559
Xxxxxxx X. Xxxxxxx, Xx. 61,578
Xxxxx Xxxxxxxx 61,578
Xxxxx X. Xxxxx 148,480
Xxxxx X. Xxxxxx Grantor Trust 30,789
Xxxxxx Xxxxx Xxxxxx Grantor Trust 30,789
Agua Partners 1,289,950
