EXHIBIT 1.1
UNITED STATES FILTER CORPORATION
% Convertible Subordinated Notes due 2001
UNDERWRITING AGREEMENT
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December [ ], 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
DEUTSCHE XXXXXX XXXXXXXX INC.
NATWEST SECURITIES LIMITED
SALOMON BROTHERS INC
XXXXX XXXXXX INC.
As representatives of the several
Underwriters named in Schedule I hereto
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
United States Filter Corporation, a Delaware corporation (the
"Company"), confirms its agreement with the several underwriters listed in
Schedule I hereto (the "Underwriters"), for whom Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation ("DLJ"), Deutsche Xxxxxx Xxxxxxxx Inc., NatWest
Securities Limited ("NatWest"), Salomon Brothers Inc and Xxxxx Xxxxxx Inc.
("Xxxxx Xxxxxx") have been duly authorized to act as representatives (the
"Representatives"), as follows:
1. The Securities. Subject to the terms and conditions herein set
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forth, the Company proposes to sell to the Underwriters an aggregate of
$200,000,000 principal amount of its ____% Convertible Subordinated Notes due
2001 (the "Firm Securities"). The Company also proposes to sell to the U.S.
Underwriters not more than $30,000,000 aggregate principal amount of additional
___% Convertible Subordinated Notes due 2001, of the Company (the "Additional
Securities" and, together with the Firm Securities, the "Securities"), if
requested by the Underwriters as provided in Sections 3 and 4 hereof. The
Securities are to be issued pursuant to the provisions of an Indenture to be
dated as of _________________, 1996, by and between the Company and State Street
Bank and Trust Company of California, N.A., as trustee (the "Trustee") (the
"Indenture"), pursuant to which the Securities will be convertible at the option
of the holders thereof, into Shares of the Common Stock (as defined below).
Prior to or concurrently with the issuance and sale of the Securities (as
defined below) the Company will issue and sell 10,000,000 shares of Common
Stock, par value $.01 per share, of the Company (the "Common Stock") (excluding
1,500,000 additional shares of Common Stock subject to an overallotment option)
(the "Common Stock Offering").
2. Registration Statement and Prospectus. The Company has prepared
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and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated pursuant thereto
(collectively, the "Act"), a registration statement on Form S-3 (No. 333-[
]), with respect to the Securities including the Common Stock issuable upon
conversion thereof, including a preliminary prospectus, subject to completion,
relating to the Securities including the Common Stock issuable upon conversion
thereof. The registration statement, as amended at the time it becomes
effective or, if a post-effective amendment is filed with respect thereto, as
amended by such post-effective amendment at the time of its effectiveness
(including in each case all documents incorporated or deemed incorporated by
reference therein, if any, all financial statements and exhibits, and the
information, if any, contained in a prospectus or term sheet subsequently filed
with the Commission pursuant to Rule 424(b) under the Act and deemed to be a
part of the registration statement at the time of its effectiveness pursuant to
Rule 430A or Rule 434 under the Act (as applicable), and any additional
registration statement relating to the issuance of additional Securities filed
pursuant to Rule 462(b) under the Act, is hereinafter referred to as the
"Registration Statement;" and the prospectus, constituting a part of the
Registration Statement at the time it became effective, or such revised
prospectus as shall be provided to the Underwriters for use in connection with
the offering of the Securities including the Common Stock issuable upon
conversion thereof that differs from the prospectus on file with the Commission
at the time the Registration Statement became effective including, in each case,
all documents incorporated or deemed incorporated by reference therein, if any,
and including
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any prospectus subject to completion and any term sheet meeting the requirements
of Rule 434(c), filed pursuant to Rule 424(b), in the form used to confirm sales
of the Securities, whether or not filed with the Commission pursuant to Rule
424(b) under the Act, is hereinafter referred to as the "Prospectus."
3. Agreements to Sell and Purchase. On the basis of the
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representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, the Firm
Securities in the respective amounts set forth opposite their names on Schedule
I hereto, at a purchase price equal to [_____%] of the principal amount thereof
(the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell to the Underwriters, and the Underwriters shall have a right to
purchase, severally and not jointly, up to all of the Additional Securities from
the Company at the Purchase Price. Additional Securities may be purchased, from
time to time, as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Securities.
Each Underwriter, severally and not jointly, agrees to purchase the principal
amount of Additional Securities (subject to such adjustment to eliminate partial
Securities as the Underwriters may determine) which bears the same proportion to
the total principal amount of Additional Securities to be purchased as the
principal amount of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto bears to the total principal amount of Firm
Securities.
The Company shall deliver, concurrently with the execution of this
Agreement, an agreement executed by (i) each of the Company's directors,
officers and stockholders listed on Schedule II hereto, pursuant to which each
such person agrees, not to, directly or indirectly, offer, sell, contract to
sell, grant any warrant, right, or option to purchase or sell or otherwise
dispose of without the prior written consent of DLJ, any shares of Common Stock,
or any securities convertible into or exercisable or exchangeable for, or
warrants, options, or rights to purchase or acquire, Common Stock owned by such
person, or in any other manner transfer all or a portion of the economic
consequences associated with the ownership of any Common Stock, or enter into
any agreement to do any of the foregoing or file a registration statement with
respect to any of the foregoing, for a period of 90 days after the date of the
Prospectus, except pursuant to this Agreement.
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4. Delivery and Payment. Delivery to you of and payment for the Firm
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Securities shall be made at 9:00 A.M., New York City time, on the third business
day, unless otherwise permitted by the Commission pursuant to Rule 15c6-1 under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Exchange Act") (such time and
date being referred to as the "Closing Date") following the date of the public
offering of the Firm Securities as advised by the Representatives to the
Company, at such place as you shall reasonably designate. The Closing Date and
the location of delivery of the Firm Securities may be varied by agreement
between the Representatives and the Company.
Delivery to the Underwriters of and payment for any Additional
Securities to be purchased by the Underwriters shall be made at such place as
the Representatives shall designate in writing, at 9:00 A.M., New York City
time, on such date or dates (individually, an "Option Closing Date"), which may
be the same as the Closing Date but shall in no event be earlier than the
Closing Date, as shall be specified in a written notice from the Representatives
to the Company of the Underwriters' determination to purchase a certain
principle amount, specified in said notice, of Additional Securities. The date
or dates specified in any such notice shall be a business day no later than ten
business days after such notice has been given and no earlier than two business
days after such notice has been given. Any such notice may be given at any time
not later than 30 days after the date of this Agreement. Any Option Closing
Date and the location of delivery of and payment for the Additional Securities
may be varied by agreement among the Representatives and the Company.
The Securities in definitive form shall be registered in such names
and issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date or the applicable Option
Closing Date, as the case may be, and shall be made available to you at such
place as you shall reasonably request for inspection not later than 9:30 A.M.,
New York City time, on the business day next preceding the Closing Date or the
applicable Option Closing Date, as the case may be. The Securities shall be
delivered to you on the Closing Date or the applicable Option Closing Date, as
the case may be, with any transfer taxes payable upon initial issuance thereof
duly paid by the Company, for your account against payment of the Purchase Price
in currently available funds to the order of the Company.
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5. Agreements of the Company. The Company agrees with each of the
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Underwriters and the Selling Stockholders that:
(a) It will, if the Registration Statement has not heretofore become
effective under the Act, file an amendment to the Registration Statement
or, if necessary pursuant to Rule 430A under the Act, a post-effective
amendment to the Registration Statement, in each case as soon as
practicable after the execution and delivery of this Agreement, and will
use its best efforts to cause the Registration Statement or such post-
effective amendment to become effective at the earliest possible time. The
Company will comply fully and in a timely manner with the applicable
provisions of Rule 424, Rule 430A, and, if applicable, Rule 434, and Rule
462, under the Act.
(b) It will advise you promptly and, if requested by you, confirm such
advice in writing, (i) when the Registration Statement has become
effective, if and when the Prospectus is sent for filing pursuant to Rule
424 under the Act and when any post-effective amendment to the Registration
Statement becomes effective, (ii) of the receipt of any comments from the
Commission or any state securities commission or regulatory authority that
relate to the Registration Statement or requests by the Commission or any
state securities commission or regulatory authority for amendments to the
Registration Statement or amendments or supplements to the Prospectus or
for additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, or
of the suspension of qualification of the Securities, including the Common
Stock issuable upon conversion thereof, for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by the
Commission or any state securities commission or other regulatory
authority, and (iv) of the happening of any event during such period as in
your judgment the Underwriters are required to deliver a prospectus in
connection with sales of the Securities, including the Common Stock
issuable upon conversion thereof, which makes any statement of a material
fact made in the Registration Statement untrue or which requires the making
of any additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements therein not
misleading or that makes any statement of a material fact made in the
Prospectus (as amended or supplemented from time to time) untrue or which
requires the making of any additions to or changes in the Prospectus
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(as amended or supplemented from time to time) in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Company shall use its best efforts to prevent the
issuance of any stop order by the Commission or order suspending the
qualification or exemption of the Securities, including the Common Stock
issuable upon conversion thereof, under any state securities or Blue Sky
laws, and, if at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption of the Securities, including the
Common Stock issuable upon conversion thereof, under any state securities
or Blue Sky laws, the Company shall use every reasonable effort to obtain
the withdrawal or lifting of such order at the earliest possible time.
(c) It will furnish to you without charge five (5) copies of the
signed copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits filed
therewith, and will furnish to you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(d) It will not file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
make any amendment or supplement to the Prospectus, of which you shall not
previously have been advised and provided a copy within two business days
prior to the filing thereof or to which you shall reasonably object; and it
will prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and will use its best efforts to
cause any amendment to the Registration Statement to become effective
promptly.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as in the opinion of counsel
for the Underwriters a prospectus is required by law to be delivered in
connection with sales of the Securities by the Underwriters, it will
furnish to each Underwriter and dealer without charge as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as such
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Underwriters and dealers may reasonably request for the purposes
contemplated by the Act. So long as the same is delivered or used pursuant
to applicable law, the Company consents to the use of the Prospectus and
any amendment or supplement thereto by any Underwriter or any dealer, both
in connection with the offering or sale of the Securities and for such
period of time thereafter as the Prospectus is required by the Act or the
Exchange Act to be delivered in connection therewith.
(f) If during such period specified in paragraph (e) any event shall
occur as a result of which, in the opinion of counsel for the Underwriters,
it becomes necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law, it
will promptly prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the Prospectus,
as so amended or supplemented, will not, in the light of the circumstances
when the Prospectus is so delivered, be misleading, and will comply with
law, and will furnish to each Underwriter and dealer without charge such
number of copies thereof as such Underwriters and dealers may reasonably
request.
(g) Prior to any public offering of the Securities, it will cooperate
with you and your counsel in connection with the registration or
qualification of the Securities, including the Common Stock to be issued
upon conversion thereof, for offer and sale by the Underwriters under the
state securities or Blue Sky laws of such jurisdictions as you may
reasonably request (provided, that the Company shall not be obligated to
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qualify as a foreign corporation in any jurisdiction in which it is not so
qualified or to take any action that would subject it to general consent to
service of process in any jurisdiction or subject it to taxation generally
in respect of doing business in any jurisdiction in which it is not now so
subject). The Company will continue such qualification in effect so long
as required by law for distribution of the Securities, including the Common
Stock to be issued upon conversion thereof. The Company will inform the
Florida Department of Banking and Finance if, prior to the completion of
the distribution of the Securities by the Underwriters, the Company
commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba. Such information will be provided
within 90 days of the com-
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mencement thereof or after a change to any such previously reported
information.
(h) It will make generally available to its security holders as soon
as reasonably practicable a consolidated earnings statement covering a
period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder and will
advise you in writing when such statement has been so made available.
(i) During the period of five years after the date of this Agreement,
(i) it will furnish as soon as reasonably practicable after the end of each
fiscal year to the record holders of its Common Stock a financial report of
the Company and its subsidiaries on a consolidated basis (and a similar
financial report of all unconsolidated subsidiaries, if any), all such
financial reports to include a consolidated balance sheet, a consolidated
statement of operations, a consolidated statement of cash flows and a
consolidated statement of stockholders' equity as of the end of and for
such fiscal year, together with comparable information as of the end of and
for the preceding year, certified by independent certified public
accountants, and (ii) it will make generally available as soon as
reasonably practicable after the end of each quarterly period (except for
the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period,
and for the period from the beginning of such year to the close of such
quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(j) During the period referred to in paragraph (i), it will furnish to
you as soon as available a copy of each report or other publicly available
information of the Company mailed to the holders of Common Stock or filed
with the Commission and such other publicly available information
concerning the Company and its subsidiaries as you may reasonably request.
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, it will pay and be responsi-
8
ble for all costs, expenses and fees in connection with or incident to (i)
the printing, processing, filing, distribution and delivery under the Act
or the Exchange Act of the Registration Statement (including financial
statements and exhibits), each preliminary prospectus, the Prospectus and
all amendments or supplements thereto, (ii) the printing and delivery of
this Agreement, any memoranda describing state securities or Blue Sky laws
and all other agreements, memoranda, correspondence and other documents
printed, distributed and delivered in connection with the offering of the
Securities (including in each case any disbursements of counsel for the
Underwriters relating to such printing and delivery), (iii) the
registration with the Commission and the issuance and delivery of the
Securities, including the Common Stock issuable upon conversion thereof,
(iv) the registration or qualification of the Securities, including the
Common Stock issuable upon conversion thereof, for offer and sale under the
securities or Blue Sky laws of the jurisdictions referred to in paragraph
(g) above (including, in each case, the fees and disbursements (including
filing fees) of counsel relating to such registration or qualification and
blue sky memoranda relating thereto), (v) furnishing such copies of the
Registration Statement, Prospectus and preliminary prospectus, and all
amendments and supplements to the Underwriters or any dealers to whom
Securities may be sold prior to or during the period specified in paragraph
5(e), as may be reasonably requested by you, (vi) any filing fees incurred
in connection with the filing, registration and clearance with the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
offering of the Securities, including the Common Stock issuable upon
conversion thereof, (vii) the listing of the Securities, including the
Common Stock issuable upon conversion thereof, on the New York Stock
Exchange, and (viii) the performance by the Company of its other
obligations under this Agreement, the cost of its personnel and other
internal costs and the cost of printing and engraving the certificates
representing the Securities and any shares of Common Stock to be issued
upon Conversion of the Securities and all expenses and taxes incident to
the Sale and delivery of the Securities to the Underwriters; provided, that
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the Company shall have no liability or obligation with respect to any fees
or expenses of counsel to the Underwriters, except as provided in clause
(iv) above, or for any costs of personnel or other internal costs of the
Underwriters.
(l) It will use the proceeds from the sale of the Securities in the
manner described in the Prospectus under the caption "Use of Proceeds."
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(m) It will cause the Securities to be listed on the New York Stock
Exchange and will use its reasonable best efforts to maintain such listing
while any of the Securities are outstanding.
(n) It will cause the Common Stock issuable upon conversion of the
Securities to be listed on the New York Stock Exchange and will use its
best efforts to maintain such listing for a period of five years after the
effective date of the Registration Statement.
(o) It will not voluntarily claim, and will not actively resist any
attempts to claim, the benefit of any usury laws against the holders of the
Securities.
(p) It will use all reasonable efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it
prior to or after the Closing Date or any Option Closing Date, as the case
may be, and to satisfy all conditions precedent on its part to the delivery
of the Securities.
6. Representations and Warranties of the Company. The Company
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represents and warrants to each Underwriter that:
(a) The Company and the transactions contemplated by this Agreement
meet the requirements for using Form S-3 under the Act. The Registration
Statement has become effective; no stop order suspending the effectiveness
of the Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) Each part of the Registration Statement where such part became
effective, did not contain and each such part, as amended or supplemented,
it applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the requirements of the Act, and
(iii) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were
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made, not misleading, except that the representations and warranties set
forth in this paragraph (b) do not apply to statements or omissions from
the Registration Statement or the Prospectus based upon and in conformity
with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein or the
Statement of Eligibility and Qualification of the Trustee on Form T-1 (the
"Form T-1"). The Company acknowledges for all purposes under this Agreement
(including this paragraph and Section 7 hereof) that the statements with
respect to price and underwriting discount and the last paragraph on the
cover page of the Prospectus and the statements set forth in the [_________
paragraph] under the caption "Underwriting" in the Prospectus constitute
the only written information furnished to the Company by the Underwriters
for use in the Registration Statement or the Prospectus or any preliminary
prospectus, or any amendment or supplement to them (the "Underwriter
Information") and that the Underwriters shall not be deemed to have
provided any information (and therefore are not responsible for any
statement or omission) pertaining to any arrangement or agreement with
respect to any parties other than the Underwriters for use in the
Registration Statement or the Prospectus or any preliminary prospectus (or
any amendment or supplement to them). When the Registration Statement
becomes effective, including at the date of any post-effective amendment,
at the date of the Prospectus and any amendment or supplement thereto (if
different), at the Closing Date and at each Option Closing Date, as the
case may be, the Indenture will have been qualified under and will conform
in all material respects to the requirements of the Trust Indenture Act of
1939, as amended, and the rules and regulations promulgated pursuant
thereto (collectively, the "TIA").
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the requirements of the Act; and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(d) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
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and authority to carry on its business as it is currently being conducted
and to own, lease and operate its properties, and each is duly qualified
and is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, cash flow, business
affairs or business prospects of the Company and its subsidiaries, taken as
a whole (the foregoing exception herein defined as a "Material Adverse
Effect").
(e) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and nonassessable, and,
except for the pledge to [THE FIRST NATIONAL BANK OF BOSTON AND FIRST
INTERSTATE BANK OF CALIFORNIA, OTHERS?] (the "Banks") of capital stock of
certain of the Company's subsidiaries [PURSUANT TO THE COMPANY'S CREDIT
FACILITIES WITH THE BANKS (THE "CREDIT FACILITIES") -- DEFINE NEW CREDIT
FACILITIES AS WILL BE DEFINED IN THE REGISTRATION STATEMENT], are owned by
the Company (except as provided in the last sentence of this paragraph
(e)), free and clear of any security interest, claim, lien, encumbrance or
adverse interest of any nature. The Company owns all of the outstanding
capital stock of each of its subsidiaries, except with respect to
subsidiaries that, when taken as a whole, do not account for a material
proportion of the Company's business, operations or assets, and the loss of
which would not result in a Material Adverse Effect upon the Company.
(f) The Indenture has been duly authorized by the Company and, when
duly executed and delivered in accordance with its terms (assuming the due
execution and delivery thereof by the Trustee), will be a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws affecting
creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law
or in equity) and except to the extent that a waiver of rights under any
usury laws may be unenforceable.
(g) The Securities (including the Common Stock issuable upon
conversion thereof) have been duly authorized by the Company and, on the
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Closing Date and the Option Closing Date, if any, the Securities will have
been duly executed by the Company and will, when issued, executed,
authenticated and delivered in accordance with the Indenture and paid for
in accordance with the terms of this Agreement, constitute legal, valid and
binding obligations of the Company, enforceable against the Company
according to their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws affecting
creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law
or in equity) and except to the extent that a waiver of rights under any
usury laws may be unenforceable, will be entitled to the benefits of the
Indenture and will conform in all material respects to the description
thereof in the Prospectus.
(h) All the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid,
nonassessable and, except as otherwise set forth in the Prospectus, not
subject to any preemptive or similar rights; the Shares have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued, fully paid and nonassessable; and the issuance of the
Shares by the Company will not be subject to preemptive or other similar
rights.
(i) The authorized capital stock of the Company, including the Common
Stock, conforms to the description thereof contained in or incorporated by
reference into the Prospectus.
(j) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or other equivalent instruments, as the
case may be, or, except as such as would not have a Material Adverse
Effect, in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, lease, contract, indenture or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of its subsidiaries or their respective property is bound,
and there exists no condition which, with the passage of time or otherwise,
would constitute such a default under any such document or instrument.
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(k) The execution, delivery and performance of this Agreement, the
Indenture and the Securities, compliance by the Company with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except as such may be required under the
securities or Blue Sky laws of the various states) and will not conflict
with or constitute a breach of any of the terms or provisions of, or a
default (with the passage of time or otherwise) under, the charter or by-
laws or other equivalent instruments, as the case may be, of the Company or
any of its subsidiaries or, except such as would not have a Material
Adverse Effect, any agreement, lease, contract, indenture or other
instrument to which it or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is bound, or
violate or conflict with any laws, administrative regulations or rulings or
court decrees applicable to the Company, any of its subsidiaries or their
respective property.
(l) Except as would not result in a Material Adverse Effect, there are
no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any of their respective property is
subject, and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated. No contract or document of a character
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement is not so described
or filed as required.
(m) Except as disclosed or incorporated by reference in the
Prospectus, neither the Company nor any of its subsidiaries nor, to the
best knowledge of the Company, any other person or entity for whom either
is or may be liable is in violation of any Federal, state, local,
provincial or foreign laws or regulations relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata), including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases of
chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos or asbestos-
containing materials, or polychlorinated biphenyls ("Materials of
Environmental Concern"), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
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transport or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation would have a Material Adverse Effect
or would otherwise require disclosure in the Prospectus pursuant to Item
103 of Regulation S-K under the Act ("Item 103"). "Violation" includes, but
is not limited to, noncompliance with any permit or other governmental
authorization required under applicable Environmental Laws and
noncompliance with the terms and conditions of any such permit or
authorization.
(n) Except as disclosed or incorporated by reference in the
Prospectus, neither the Company nor any of its subsidiaries has received
any communication (written or, to the knowledge of the Company or any of
its subsidiaries, oral), whether from a governmental authority, citizens'
group, employee or otherwise, asserting that the Company or any of its
subsidiaries or any other person or entity for whom either is or may be
liable is not in compliance with any Environmental Laws or permit or
authorization required under applicable Environmental Laws where such
failure to comply would have a Material Adverse Effect or would otherwise
require disclosure in the Prospectus pursuant to Item 103, and there are no
circumstances that may prevent or interfere with such full compliance in
the future, except where failure so to comply would not have a Material
Adverse Effect.
(o) Except as disclosed or incorporated by reference in the
Prospectus, there is no claim, action, cause of action, investigation or
notice (written or oral) by any person or entity alleging potential
liability (including, without limitation, potential liability for
investigatory costs, natural resources damages, property damages, personal
injuries or penalties) arising out of, based on or resulting from (i) the
presence in or release into the environment of any Materials of
Environmental Concern at any location owned, leased or operated, now or in
the past, by the Company or any of its subsidiaries or, to the best
knowledge of the Company, any other person or entity for whom either is or
may be liable, or (ii) circumstances forming the basis of any violation or
alleged violation of any Environmental Law (collectively, "Environmental
Claims") pending or threatened against the Company or any of its
subsidiaries or, to the best knowledge of the Company, any other person or
entity whose liability for any Environmental Claim the Company or any of
its subsidiaries has retained or assumed either contractually or by
operation of law, except any such matter that would not
15
have a Material Adverse Effect or would not otherwise require disclosure in
the Prospectus pursuant to Item 103.
(p) Except as disclosed or incorporated by reference in the
Prospectus, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal of any
Materials of Environmental Concern, that could form the basis of any
Environmental Claim against the Company or any of its subsidiaries with
respect to property owned, leased or operated by or for the Company or any
of its subsidiaries, now or in the past, or, to the best knowledge of the
Company, against any person or entity whose liability for any Environmental
Claim the Company or any of its subsidiaries has retained or assumed either
contractually or by operation of law, except any such matter that would not
have a Material Adverse Effect or would not otherwise require disclosure in
the Prospectus pursuant to Item 103.
(q) In the ordinary course of its business, the Company addresses its
environmental compliance obligations with respect to the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates, as appropriate, associated
costs and liabilities. On the basis of such procedures, except for costs
and liabilities heretofore incurred and reflected in the Company's
financial statements as set forth or incorporated by reference in the
Registration Statement, the Company has reasonably concluded that such
associated costs and liabilities would not, singly or in the aggregate,
have a Material Adverse Effect.
(r) Except as otherwise set forth or incorporated by reference in the
Prospectus or such as would not, singly or in the aggregate, have a
Material Adverse Effect, the Company and each of its subsidiaries has good
and marketable title, free and clear of all liens, claims, encumbrances and
restrictions, except liens for taxes not yet due and payable and
restrictions on the Company's ability to encumber its assets contained in
its [CREDIT FACILITIES] with the Banks, to all property and assets
described in the Registration Statement as being owned by it. All leases
to which the Company or any of its subsidiaries is a party are valid and
binding and, except as would not have a Material Adverse Effect, no default
has occurred or is continuing thereunder; and the Company and its
subsidiaries enjoy peaceful
16
and undisturbed possession under all such leases to which any of them is a
party as xxxxxx.
(s) The Company and each of its subsidiaries maintains insurance in
amounts and with limits and coverage which the Company in good xxxxx xxxxx
appropriate.
(t) Each of the accountants who certified the financial statements and
supporting schedules included in the Registration Statement is an
independent public accountant as required by the Act.
(u) The financial statements, together with related schedules and
notes, as set forth or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of operations
and changes in financial position of the Company and its subsidiaries at
the respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein; and
the other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) is, in all material respects, fairly presented and prepared on a
basis consistent with such financial statements and the books and records
of the Company. The pro forma financial information included in the
--- -----
Prospectus presents fairly the information shown therein and has been
prepared in accordance with the relevant accounting requirements of
Regulation S-X. In the opinion of the Company, the assumptions used in the
preparation of the pro forma financial information are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
(v) Except as would not result in a Material Adverse Effect, (i) the
Company and each of its subsidiaries has such permits, licenses, franchises
and authorizations of governmental or regulatory authorities ("permits") as
are necessary to own, lease and operate its respective properties and to
conduct its business in the manner described or incorporated by reference
in the Prospectus, subject to such qualifications as may be set forth or
incorporated by reference in the Prospectus; (ii) the Company and
17
each of its subsidiaries has fulfilled and performed all of its obligations
with respect to such permits and no event has occurred which allows, or
after notice or lapse of time or both would allow, revocation or
termination thereof or results in any other impairment of the rights of the
holder of any such permit, subject in each case to such qualification as
may be set forth or incorporated by reference in the Prospectus; and (iii)
except as described or incorporated by reference in the Prospectus, such
permits contain no restrictions that are burdensome to the Company or any
of its subsidiaries.
(w) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(x) Except rights as to which waivers have been obtained in writing
with respect to inclusion in this offering, no holder of any security of
the Company other than the Selling Stockholders (as that term is defined in
the prospectus relating to the Common Stock Offering), [AND _____] has any
right to require registration of shares of Common Stock or any other
security of the Company.
(y) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(z) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company or any
subsidiary thereof except as otherwise disclosed or incorporated by
reference in the Registration Statement or which have been granted pursuant
to the Company's stock option plans in amounts which are immaterial or are
required by law.
(aa) Except as would not, singly or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of its subsidiaries has (A)
violated any applicable federal, state, provincial or foreign law relating
to employment or employment practices or the terms and conditions of
employment, including, without limitation, discrimination in the hiring,
promotion or pay of employees, wages, hours of work, plant closings and
layoffs, collective bargaining, and occupational safety and
18
health, or any provisions of the Employee Retirement Income Security Act of
1974 ("ERISA") or the rules and regulations promulgated thereunder or any
other applicable law (whether foreign or domestic) relating to or governing
the operation or maintenance of any plan or arrangement falling within the
definition of an "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) or any other employee benefit plan or arrangement,
or (B) engaged in any unfair labor practice. Except as would not, singly or
in the aggregate, result in any Material Adverse Effect, there is (i) no
unfair labor practice charge or complaint pending or threatened against the
Company or any of its subsidiaries before the National Labor Relations
Board or any corresponding state, local, provincial or foreign agency, and
no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending or threatened against the
Company or any of its subsidiaries; and (ii) no union representation claim
or question existing with respect to the employees of the Company or any of
its subsidiaries and no union organizing activities taking place. Except as
would not, singly or in the aggregate, result in any Material Adverse
Effect, (i) no labor dispute involving the employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company, is
threatened or imminent; and (ii) the Company is not aware of any existing,
threatened or imminent labor disturbance by the employees of any principal
suppliers, manufacturers or contractors of the Company or any of its
subsidiaries.
(bb) The books, records and accounts of the Company and its
subsidiaries accurately and fairly reflect, in reasonable detail, the
transactions in and dispositions of the assets of the Company and its
subsidiaries. The Company and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(cc) All material tax returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed, other than
19
those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided. No deficiency or adjustment for any material taxes
has been proposed or assessed against the Company or any of its
subsidiaries.
(dd) The Company and its subsidiaries own, license or possess the
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names presently employed by them in
connection with the businesses now operated by them, except such as to
which the failure so to own, license or possess would not, singly or in the
aggregate, have a Material Adverse Effect, and neither the Company nor any
of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing, which,
singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(ee) Each of the Company and its subsidiaries is in compliance with
all laws, ordinances and regulations (domestic and foreign) applicable to
its properties (whether owned or leased) and its business, as described in
the Prospectus, except where noncompliance with such laws, ordinances and
regulations would not, singly or in the aggregate, have a Material Adverse
Effect.
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless (i) each of the
Underwriters and (ii) each person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) any of the
Underwriters (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any of the Underwriters or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as
an "Indemnified Person") to the fullest extent lawful, from and against any
and all losses,
20
claims, damages, liabilities, judgments, actions and expenses (including
without limitation and as incurred, reimbursement of all reasonable costs
of investigating, preparing, pursuing or defending any claim or action, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of
counsel to any Indemnified Person) directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement pursuant to
Rule 430A promulgated under the Act, if applicable, or the Prospectus
(including any amendment or supplement thereto) or any preliminary
prospectus, 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 case of the Prospectus, in light of the circumstances under
which they were made) not misleading, except insofar as such losses,
claims, damages, liabilities or expenses are caused by an untrue statement
or omission or alleged untrue statement or omission that is (i) made in
reliance upon and in conformity with information relating to any
Underwriter Information or (ii) with respect to the Underwriter from whom
the person asserting the loss, claim, damage or liability purchased
Securities, made in any preliminary prospectus if a copy of the Prospectus
(as amended or supplemented) shall have been furnished to the Underwriters
by the Company with such amendments or supplements thereto on a timely
basis and such Prospectus was not delivered by or on behalf of any of the
Underwriters to the person asserting the claim or action, if required by
law to have been so delivered by the Underwriter seeking indemnification,
at or prior to the written confirmation of the sale of the Securities, and
it shall be finally determined by a court of competent jurisdiction, by a
judgment not subject to appeal or review, that the Prospectus (as so
amended or supplemented) would have corrected such untrue statement or
omission. The Company shall notify you promptly of the institution, threat
or assertion of any claim, proceeding (including any governmental
investigation) or litigation in connection with the matters addressed by
this Agreement which involves the Company or an Indemnified Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Indemnified Person
with respect to which indemnity may be sought against an indem-
21
nifying party (or indemnifying parties), such Indemnified Person shall
promptly notify the indemnifying party (or indemnifying parties) in writing
(provided that the failure to give such notice shall not relieve the
--------
indemnifying party (or indemnifying parties) of its obligations pursuant to
this Agreement unless and only to the extent such failure to give notice
results in the loss or compromise of any material rights or defenses of the
indemnifying party (or indemnifying parties) as determined by a court of
competent jurisdiction by a final judgment no longer subject to appeal or
review). Upon receiving such notice, the indemnifying party (or
indemnifying parties) shall be entitled to participate in any such action
or proceeding and to assume, at their sole expense, the defense thereof,
with counsel satisfactory to such Indemnified Person (who shall not, except
with the consent of the Indemnified Person, be counsel to the indemnifying
party (or indemnifying parties) or an affiliate thereof) and, after written
notice from the indemnifying party (or indemnifying parties) to such
Indemnified Person of their election so to assume the defense thereof
within 5 business days after receipt of the notice from the Indemnified
Person of such action or proceeding, the indemnifying party (or
indemnifying parties) shall not be liable to such Indemnified Person
hereunder for legal expenses of other counsel subsequently incurred by such
Indemnified Person in connection with the defense thereof, other than
reasonable costs of investigation, unless (i) the indemnifying party (or
indemnifying parties) agrees in writing to pay such fees and expenses, or
(ii) the indemnifying party (or indemnifying parties) fails to assume such
defense within the 5 business days specified above or fails to employ
counsel satisfactory to such Indemnified Person, or (iii) the named parties
to any such action or proceeding (including any impleaded parties) include
both such Indemnified Person and the indemnifying party (or indemnifying
parties) or its affiliates, and such Indemnified Person shall have been
advised by counsel either (x) that there may be one or more legal defenses
available to such Indemnified Person that are different from or additional
to those available to the indemnifying party (or indemnifying parties), or
(y) a conflict of interest exists between such Indemnified Person and the
indemnifying party (or indemnifying parties) or its affiliates (in which
case, if such Indemnified Person notifies the indemnifying party (or
indemnifying parties) in writing, neither the indemnifying party (or
indemnifying parties) shall have the right to assume the defense thereof),
it being understood, however, that the indemnifying party (or indemnifying
parties) shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions
22
or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any
local counsel) at any time for such Indemnified Persons, which firm shall
be designated in writing by DLJ. No indemnifying party shall be liable for
any settlement of any such action or proceeding effected without its prior
written consent. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested the indemnifying party (or
indemnifying parties) to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the second sentence of this
paragraph, the indemnifying party (or indemnifying parties) agree that they
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 45
business days after receipt by the indemnifying party (or indemnifying
parties) of the aforesaid request and (ii) the indemnifying party (or
indemnifying parties) shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. Neither
the indemnifying party (or indemnifying parties) shall, without the prior
written consent of each Indemnified Person, settle or compromise or consent
to the entry of judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Person is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each
Indemnified Person from all liability arising out of such action, claim,
litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement, and any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) any of
the Company, to the same extent as the foregoing indemnity from the Company
to each of the Indemnified Persons, but only with respect to claims and
actions based on any Underwriter Information.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then each of the
Company and the Underwriters, as applicable, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indem-
23
nified party as a result of such losses, claims, damages, liabilities and
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Indemnified
Persons on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
indemnifying parties and the indemnified party, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and any of the Underwriters, on the other hand,
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriter, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
of the Company and, on the one hand, and the Underwriters, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact related to information supplied
by the Company, on the one hand, or the Underwriters, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The indemnity
and contribution obligations of the Company set forth herein shall be in
addition to any liability or obligation that the Company may otherwise have
(other than with respect to the matters covered by this Section 7) to any
Indemnified Person.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity
--- ----
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or expenses referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, none of the Underwriters (and its related
Indemnified Persons)
24
shall be required to contribute, in the aggregate, any amount in excess of
the amount by which the total underwriting discount applicable to the
Securities purchased by such Underwriter exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective number of Securities purchased by each of the
Underwriters hereunder and not joint.
(e) The rights and obligations provided in this Section 7 shall
terminate seven years from the date hereof.
8. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters to purchase the Firm Securities under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date.
(b) The Registration Statement shall have become effective not later
than 10:00 A.M., New York City time, on the date of this Agreement or at
such later date and time as you may approve in writing, and at the Closing
Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been commenced or shall be pending before or contemplated by the
Commission.
(c) No action shall have been taken and no statute, rule or regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Securities; no injunction, restraining order or order of any nature by a
U.S. federal or state court of competent jurisdiction shall have been
issued as of the Closing Date which would prevent the issuance of the
Securities; except as disclosed in the Prospectus, on the Closing Date, no
action, suit or proceeding shall be pending against, or, to the knowledge
of
25
the Company, threatened against, the Company or any of its subsidiaries,
respectively, before any court or arbitrator or any governmental body,
agency or official which, if adversely determined, would interfere with or
adversely affect the issuance of the Securities or could reasonably be
expected to have a Material Adverse Effect, or in any manner invalidate
this Agreement or the sale of the Securities. Subsequent to the execution
and delivery of this Agreement and prior to the Closing Date, and each
Option Closing Date, if applicable, there shall not have been any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded any
of the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) of the Act.
(d) (i) Since the date of the latest balance sheet included in or
incorporated by reference into the Registration Statement and the
Prospectus, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, cash flows, business
affairs or business prospects, whether or not arising in the ordinary
course of business, of the Company and its subsidiaries, taken as a whole,
(ii) except as set forth in the Registration Statement, since the date of
the latest balance sheet included in or incorporated by reference into the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the capital stock or in the long-term debt, or
material increase in short-term debt, of the Company and its subsidiaries,
taken as a whole, (iii) the Company and its subsidiaries shall have no
liability or obligation, direct or contingent, which is material to the
Company and its subsidiaries, taken as a whole, other than those reflected
or incorporated by reference in the Registration Statement and the
Prospectus and (iv) on the Closing Date you shall have received a
certificate dated the Closing Date, signed by Xxxxxxx X. Xxxxxxxx and Xxxxx
X. Xxxxxx, in their capacities as the Chief Executive Officer and the Chief
Financial Officer of the Company, respectively, confirming the matters
expressly relating to the Company set forth in paragraphs (a), (b), (c)
(with respect to the first two clauses of such paragraph (c), to the
Company's best knowledge) and (d) of this Section 8.
26
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Xxxxxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to the effect
that:
(i) the Company and each of its United States subsidiaries listed
on Schedule III hereto (the "Subsidiaries") has been duly
incorporated, is existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power
and corporate authority required to carry on its business as described
in the Prospectus and to own, lease and operate its properties;
(ii) all of the issued and outstanding shares of capital stock
of each of the Subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company;
(iv) the shares of Common Stock, par value $.01 per share,
initially issuable upon conversion of the Securities have been duly
authorized and reserved for issuance upon conversion of the
Securities, are free of preemptive rights and, when issued upon
conversion of the Securities in accordance with the terms of the
Indenture, will be validly issued, fully paid and non-assessable;
(v) the Securities, when executed and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by you
and the other Underwriters in accordance with the terms of this
Agreement, will be legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms and entitled to the benefits of the Indenture;
(vi) the authorized capital stock of the Company, including the
Common Stock, conforms as to legal matters to the description thereof
contained or incorporated by reference in the Prospectus, and, except
for the pledge to the Banks of capital stock of those certain
Subsidiaries pursuant to, and as set forth in, the Credit
27
Facilities, are, to our knowledge, owned by the Company free and clear
of any security interest, claim, lien, encumbrance or adverse interest
of any nature;
(vii) the Registration Statement and the Prospectus comply as to
form in all material respects with the requirements for registration
statements on Form S-3 under the Act, the TIA and the rules and
regulations of the Commission thereunder; it being understood,
however, that no opinion need be expressed with respect to the
financial statements, schedules and other financial and statistical
data included in the Registration Statement or the Prospectus or with
respect to the Form T-1;
(viii) the Indenture, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to the following exceptions,
limitations and qualifications: the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
then or thereafter in effect relating to or affecting the rights and
remedies of creditors; general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or law),
and the discretion of the court before which any proceeding therefor
may be brought; the unenforceability under certain circumstances under
law or court decisions of provisions providing for the indemnification
of or contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy; the
enforceability of the waiver of rights or defenses contained in
Section [ ] of the Indenture;
(ix) the Securities, including the Common Stock into which the
Securities are convertible, and the Indenture conform in all material
respects to the descriptions thereof contained in the Registration
Statement and Prospectus under the headings "Description of the Notes"
and "Description of Capital Stock";
(x) the Indenture has been duly qualified under the TIA;
28
(xi) the Registration Statement has become effective under the
Act, and, to such counsel's knowledge, no stop order suspending its
effectiveness has been issued and no proceedings for that purpose are
pending before or threatened by the Commission;
(xii) the statements under the captions "Shares Eligible for
Future Sale," "Recent and Pending Acquisitions," "Dividend Policy" and
"Description of Capital Stock" in the Prospectus and Item 15 of Part
II of the Registration Statement, insofar as such statements
constitute a summary of legal matters or certain contents of documents
referred to therein, are fair summaries of such legal matters or
contents of documents;
(xiii) the execution, delivery and performance of this Agreement
by the Company, compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby
will not require any consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other
governmental body (except as such may be required under the Act or
other securities or Blue Sky laws) and, except as would not have a
Material Adverse Effect, will not violate or constitute a breach of
any of the terms or provisions of, or a default (with the passage of
time, the giving of notice or otherwise) under, the charter or by-laws
or other equivalent instruments, as the case may be, of the Company or
any of the Subsidiaries or any agreement, lease, contract, indenture
or other instrument that is an exhibit to the Registration Statement
or any document incorporated by reference therein, or (assuming
compliance with all applicable state securities or Blue Sky laws)
violate any laws or administrative regulations applicable to the
Company or any of its Subsidiaries or their respective properties
which, in such counsel's opinion, are normally applicable to the
transactions of the type contemplated by this Agreement or violate any
judgment, injunction, order or decree known to such counsel that names
the Company or any of the Subsidiaries and is specifically directed to
any of them or any of their respective properties;
(xiv) such counsel does not know of any contract or other
document to which the Company or any Subsidiary is a party which
29
is required to be described in the Registration Statement or the
Prospectus or is required to be filed as an exhibit to the
Registration Statement which is not described or filed as required;
(xv) the Company has the corporate power and authority to
enter into and perform this Agreement; and this Agreement has been
duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company enforceable in accordance with
its terms (except as rights to indemnity and contribution hereunder
may be limited by applicable law);
(xvi) to the best of such counsel's knowledge, except for
rights as to which waivers have been obtained in writing with respect
to inclusion in this Offering, no holder of any security of the
Company has any right to require registration of any security of the
Company other than [ ];
(xvii) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for financial statements and
financial schedules and other statistical data included or
incorporated therein as to which no opinion need be expressed) comply
as to form in all material respects with the Act; and
(xviii) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of each of the
Company[, WATERPRO SUPPLIES CORPORATION, WHEELABRATOR TECHNOLOGIES INC.--SYSTEMS
AND MANUFACTURING GROUP, UNITED UTILITIES PLC--PROCESS DIVISION AND THE UTILITY
SUPPLY GROUP, INC.,] and representatives of the Underwriters and their counsel
at which the contents of the Registration Statement and the Prospectus were
discussed and, although such counsel has not independently verified and is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus (except as specified elsewhere in such counsel's opinion), on the
basis of the foregoing,
30
nothing has come to the attention of such counsel that causes such counsel to
believe that the Registration Statement, at the time such Registration Statement
or any post-effective amendment became effective, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus, as amended or supplemented, as of its date and the Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements, schedules, statistical data, and pro forma and other
financial data included in the Registration Statement or the Prospectus).
The opinion of Xxxxxxxxxxx & Xxxxxxxx LLP described in paragraph (e)
above shall be rendered to you at the request of the Company and shall so state
therein. In rendering such opinions, such counsel may rely upon certificates of
any officer of the Company or of government officials as to matters of fact of
which the maker of such certificate has knowledge provided that counsel
rendering such opinion shall furnish the Underwriters with copies of any such
statements or certificates. In addition, in rendering their opinion, such
counsel may state that their opinion is limited to matters of the laws of the
Commonwealth of Pennsylvania, the General Corporation Law of the State of
Delaware and U.S. Federal law.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Xxxxxx X. Xxxxxxxx, General Counsel for the Company, to the effect
that:
(i) to the knowledge of such counsel, each contract or document
described in or whose description is incorporated into the Prospectus
is, unless otherwise disclosed therein, in full force and effect in
accordance with its terms, except as would not cause a Material
Adverse Effect;
(ii) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or other equivalent
instruments, as the case may be, except as would not singly or in the
aggregate have a Material Adverse Effect, and, to such counsel's
31
knowledge, except as would not have a Material Adverse Effect, neither
the Company nor any of its subsidiaries is in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other agreement, lease, contract, indenture or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
its subsidiaries or their respective property is bound, and there
exists no condition which, with the passage of time or otherwise,
would constitute such a default under any such document or instrument;
(iii) the execution, delivery and performance of this Agreement,
the Indenture and the Securities by the Company, compliance by the
Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will
not require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body (except as such may be required under the Act or other securities
or Blue Sky laws) and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default (with the passage of
time or otherwise) under, the charter or by-laws or other equivalent
instruments, as the case may be, of the Company or any of its
subsidiaries or, except as such would not have a Material Adverse
Effect, any agreement, lease, contract, indenture or other instrument
to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective properties
are bound, or, except such as would not have a Material Adverse
Effect, violate or conflict with any valid statutes or valid and
published administrative regulations applicable to the Company or any
of its subsidiaries or their respective properties which, in such
counsel's opinion, are normally applicable to the transactions of the
type contemplated by this Agreement or violate any judgment,
injunction, order or decree known to such counsel that names the
Company or any of the Subsidiaries and is specifically directed to any
of them or any of their respective properties;
(iv) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or
32
any of its subsidiaries is a party or to which any of their respective
property is subject which is required to be described in the
Registration Statement or the Prospectus and is not so described or
incorporated by reference;
(v) the Company has the corporate power and authority to enter
into and perform this Agreement, the Indenture and the Securities;
this Agreement, the Indenture and the Securities has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company enforceable in accordance with its
terms (except as rights to indemnity and contribution hereunder may be
limited by applicable law).
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company and the Selling Stockholder, representatives of the independent public
accountants of each of the Company[, WATERPRO SUPPLIES CORPORATION, WHEELABRATOR
TECHNOLOGIES INC.--SYSTEMS AND MANUFACTURING GROUP, UNITED UTILITIES PLC--
PROCESS DIVISION AND THE UTILITY SUPPLY GROUP, INC.,] and representatives of the
Underwriters and their counsel at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel has not
independently verified and is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except as specified
elsewhere in such counsel's opinion), on the basis of the foregoing, nothing has
come to the attention of such counsel that causes such counsel to believe that
the Registration Statement, at the time such Registration Statement or any post-
effective amendment became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as amended or supplemented, as of its date and the Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements, schedules, statistical data, and pro forma and other
financial data included in the Registration Statement or the Prospectus).
33
The opinion of Xxxxxx X. Xxxxxxxx described in paragraph (f) above
shall be rendered to you at the request of the Company and shall so state
therein.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP ("Xxxxxxx Xxxx"),
counsel for the Underwriters, in form and substance reasonably satisfactory
to you.
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former, based on limited
procedures), in form and substance satisfactory to you, from KPMG Peat
Marwick LLP, Price Waterhouse LLP, Ernst & Young LLP, Xxxxxx Xxxxxxxx LLP
(the "Accountants"), each independent public accountants, with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(i) Xxxxxxx Xxxx shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to
review or pass upon the matters referred to in this Section 8 and in order
to evidence the accuracy, completeness or satisfaction in all material
respects of any of the representations, warranties or conditions herein
contained.
(j) Prior to the Closing Date, the Company shall have furnished to you
or caused to be furnished to you such further information, certificates,
opinions and documents as you may reasonably request.
(k) The Company shall not have failed at or prior to the Closing Date
to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company as applicable, at
or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to satisfaction on and as of each Option Closing
Date of the conditions set forth in paragraphs (a) through (k), except that the
opinions called for in paragraphs (e), (f) and (g) and the letters referred to
in paragraph (h) shall be revised to reflect the sale of the Additional
Securities
34
9. Effective Date of Agreement and Termination. This Agreement
-------------------------------------------
shall become effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any adverse change or development
involving a prospective adverse change in the condition, financial or otherwise,
of the Company or any of its subsidiaries or the earnings, cash flows, business
affairs, or business prospects of the Company or any of its subsidiaries,
whether or not arising in the ordinary course of business, which would, in your
judgment, make it impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and adverse and would,
in your judgment, make it impracticable or inadvisable to market the Securities
or to enforce contracts for the sale of the Securities (iii) the suspension or
material limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market System or limitation on
prices for securities on any such exchange or National Market System, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your judgment materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your judgment has a material adverse effect on the
financial markets in the United States and would, in your judgment, make it
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase the Firm Securities which it or they have agreed to
purchase hereunder on such date and the aggregate number of Firm Securities
which such defaulting Underwriter or Underwriters, as the case may be, agreed
but failed or refused to purchase is not more than one-tenth of the total number
of Securities to be purchased on such date by all Underwriters, each non-
defaulting Underwriter shall be obligated severally, in the proportion which the
number of Firm Securities
35
set forth opposite its name in Schedule I bears to the total number of Firm
Securities which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Securities which such defaulting Underwriter or Underwriters, as the
case may be, agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Firm Securities which any Underwriter has
agreed to purchase pursuant to Section 3 hereof be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such number of Firm Securities
without the written consent of such Underwriter. If on the Closing Date any
Underwriter or Underwriters shall fail or refuse to purchase Firm Securities and
the aggregate number of Firm Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date by all Underwriters, and arrangements satisfactory to you and the
Company for purchase of such Securities are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter and the Company. In any such case which does not result
in termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
12. Miscellaneous. Notices given pursuant to any provision of his
-------------
Agreement shall be addressed as follows: (a) if to the Company, to United States
Filter Corporation, 00-000 Xxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, [_____________] and (b) if to any Underwriter or to
you, to you c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in any
case to such other address as the person to be notified may have requested in
writing.
The respective indemnities, representations, warranties and other
statements of the Company, its officers and directors, and of the several
Underwriters set forth in or made pursuant to this Agreement and the respective
contribution agreements of the Company and its officers and directors and of the
several Underwriters set forth in this Agreement shall remain operative and in
full force and effect, and will survive delivery of and payment for the
Securities for a period of seven years, regardless of (i) any investigation, or
statement as to the
36
results thereof, made by or on behalf of any Underwriter or by or on behalf of
the Company, its officers or directors, or any controlling person of the Company
(ii) acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the party whose failure or
refusal to comply with such terms or fulfill such conditions shall reimburse the
several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from any of the several Underwriters merely because of
such purchase.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, EXCLUDING (TO THE GREATEST
EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. THE COMPANY, ON
BEHALF OF ITSELF AND ITS SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY IRREVOCABLY
WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT
37
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
38
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
UNITED STATES FILTER CORPORATION
By:______________________________________________________________
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
DEUTSCHE XXXXXX XXXXXXXX INC.
NATWEST SECURITIES LIMITED
SALOMON BROTHERS INC
XXXXX XXXXXX INC.
Acting severally on behalf of
itself and the several
Underwriters named in
Schedule I hereto:
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:__________________________________
Name:
Title:
SCHEDULE I
----------
Number of Firm Securities
U.S. Underwriters to be Purchased
----------------- -------------------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities corporation [ ]
Deutsche Xxxxxx Xxxxxxxx Inc. [ ]
NatWest Securities Limited [ ]
Salomon Brothers Inc [ ]
Xxxxx Xxxxxx Inc. [_____________]
Total 200,000,000
===========
SCHEDULE II
-----------
REQUIRED STOCKHOLDER LOCK-UPS
-----------------------------
Name
----
[TO BE UPDATED]
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxx
Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
G.G. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx
X. Xxxxxx Xxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx, Xx.
C. Xxxxxx Xxxxxxx, Xx.
Interlake Stockholders /(1)/
[ZIMPRO]
[KBS]
[JET-TECH]
[BEKOX]
[XXXXXX]
[WATER PRO]
[USG]
[UNITED UTILITIES]
_________________
/(1)/ The Interlake Stockholders are Xxxxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxx
Xxxxxxxxx.
SCHEDULE III
------------
LIST OF CERTAIN SUBSIDIARIES
----------------------------
Name Place of Incorporation
---- ----------------------
[TO BE UPDATED]
U.S. Subsidiaries
-----------------
Continental Water Conditioning California
Company of the Bay Area
Illinois Water Treatment, Inc. Delaware
IP Holding Company Delaware
U.S. Filter/Arrowhead, Inc. Delaware
U.S. Filter/Ionpure, Inc. Massachusetts
U.S. Filter/Permutit, Inc. Delaware
USF Two, Inc. Delaware
U.S. Filter, Inc. Warrendale, PA Delaware
U.S. Filter/Whittier, Inc. Delaware
Continental Penfield Corporation Delaware
U.S. Filter Recovery Services, Inc. Delaware
Polymetrics, Inc. California
Foreign Subsidiaries
--------------------
USF Smogless S.p.A. Italy
USF Limited U.K.
Societe des Ceramiques Techniques France
Xxxxx Xxxxx Xxxxxxxx GmbH Germany
Establishments Crouzat S.A. France
Ionpure Technologies SARL France
Ionpure Technologies Ltd. (UK) U.K.
