Exhibit 99.3
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the "Agreement") is dated as of July
2nd, 1997, by and between Western Farms, L.P., a California limited
partnership ("Western Farms") and United States Filter Corporation, a
Delaware corporation ("US Filter"). Western Farms and US Filter are
sometimes herein collectively referred to as the "Parties" and each, a
"Party". In its capacity as a Party receiving Confidential Information, as
that term is hereinafter defined, a Party may be referred to herein as a
"Receiving Party"; in its capacity as a Party disclosing Confidential
Information, a Party may be referred to herein as a "Disclosing Party".
1. Confidential Information, Representatives. The Parties are
considering entering into a possible transaction whereby Western Farms may
transfer certain water rights to US Filter in exchange for consideration,
which may include securities of US Filter (the "Transaction"), and in order
to assist the other Party in evaluating the possible Transaction, each
Party is prepared to make available to the other Party certain
confidential, non-public or proprietary information concerning its
business, operations and assets (the "Confidential Information"). As a
condition to the Confidential Information being furnished by each Party to
the other Party and its directors, officers, employees, agents,
affiliates, attorneys, accountants, and advisors (collectively,
"Representatives"), each Party agrees to treat the Confidential Information
provided to it by the other Party in accordance with the provisions of this
Agreement and to take or abstain from taking certain other actions
hereinafter set forth.
2. Excluded Information. The Confidential Information shall not
include information that (i) is or becomes publicly available other than as
a result of acts by the Receiving Party in breach of this Agreement, (ii)
is in the Receiving Party's possession prior to disclosure by the
Disclosing Party or is independently derived by the Receiving Party without
the aid, application or use of the Confidential Information, (iii) is
disclosed to the Receiving Party by a third party on a non-confidential
basis, or (iv) the Receiving Party is advised by counsel is required to be
disclosed by law.
3. Non-Disclosure of Confidential Information. The Receiving Party
and its Representatives shall use the Confidential Information provided to
it by the Disclosing Party solely for the purpose of evaluating a possible
Transaction. The Receiving Party shall keep the Confidential Information
provided to it by the Disclosing Party confidential and shall not disclose
any of the Confidential Information in any manner whatsoever; provided,
however, that (i) the Receiving Party may make any disclosure of
information contained in the Confidential Information provided to it by the
Disclosing Party to which the Disclosing Party gives its prior written
consent, and (ii) any information contained in the Confidential Information
provided by the Disclosing Party may be disclosed to the Receiving Party's
Representatives who need to know such information for the purpose of
evaluating a possible Transaction and who agree to keep such information
confidential. Each Party shall be responsible for any breach of this
Agreement by any of its Representatives.
4. Non-Disclosure of Existence of Negotiations. Without the prior
written consent of the other Party, or except as a Party is advised by its
counsel is required by law, neither Party nor any of its Representatives
shall (i) disclose to any other person that it has received Confidential
Information from the other Party, or (ii) disclose to any person that
discussions or negotiations are taking place between the Parties concerning
a possible Transaction, including the status of such discussions or
negotiations.
5. Return of Confidential Information. Promptly upon the written
request of the Disclosing Party, the Receiving Party shall return all
copies of the Confidential Information provided by the Disclosing Party to
such Disclosing Party, and all notes, studies, reports, memoranda and other
documents prepared by the Receiving Party or its Representatives that
contain or reflect the Confidential Information shall be destroyed;
provided, however, that the Receiving Party may retain one archival copy of
the Confidential Information for its legal records.
6. Subpoena or Court Order. In the event that a Party or anyone to
whom it discloses the Confidential Information provided to it by the
Disclosing Party receives a request to disclose all or any part of the
Confidential Information provided to it by the Disclosing Party under the
terms of a subpoena or other order issued by a court of competent
jurisdiction or by another governmental agency, such Party shall (i)
promptly notify the Disclosing Party of the existence, terms and
circumstances surrounding such a request, (ii) consult with the Disclosing
Party on the advisability of taking steps to resist or narrow such request,
(iii) if disclosure of such Confidential Information is required, furnish
only such portion of the Confidential Information as such Party is advised
by counsel is legally required to be disclosed, and (iv) cooperate with the
Disclosing Party in its efforts to obtain an order or other reliable
assurance that confidential treatment will be afforded to such portion of
the Confidential Information that is required to be disclosed.
7. Disclaimer of Warranty. None of the Parties or their
Representatives have made or make any representation or warranty as to the
accuracy or completeness of the Confidential Information provided to the
other Party. The Parties and their Representatives shall have no liability
to each other resulting from a Party's use of the Confidential Information,
except as may be expressly set forth in a definitive written agreement
between the Parties with respect to a Transaction, in accordance with the
terms thereof.
8. Definitive Agreement. Unless and until a definitive written
agreement between the Parties with respect to a Transaction has been
executed and delivered, neither Party shall be under any legal obligation
of any kind whatsoever with respect to such a Transaction by virtue of this
or any other written or oral expression by either of them or their
Representatives except, in the case of this Agreement, for the matters
specifically agreed to herein.
9. Employees and Officers of the Parties. For a period of two years
from the date of this Agreement, without the other Party's prior written
consent, neither Party shall knowingly solicit for employment or employ any
of the officers or executives of the other Party.
10. Certain Obligations of Western Farms. Western Farms will not,
for a period of twelve months from the date of this Agreement, acquire in
open market transactions any shares of common stock of US Filter and
neither party will participate in or make, directly or indirectly, any
solicitation or seek a proxy to vote or seek to advise or influence any
person with respect to the voting of any voting securities of US Filter.
11. Certain Permitted Arbitrage Trading. Notwithstanding anything to
the contrary contained herein, XxXxxxx & Co., L.P., for its own account or
for its client accounts (which may include affiliates or associates of
Western Farms), is permitted to engage in arbitrage and related trading in
the equity and debt securities of US Filter in the ordinary course of
business, provided that no Confidential Information has been disclosed to
any person directing such trading or executing any order with respect
thereto.
12. Remedies. Each Party acknowledges that in the event of any
breach of this Agreement, the other Party could not be made whole by
monetary damages. Accordingly, each Party, in addition to any other remedy
to which it may be entitled in law or in equity, shall be entitled to an
injunction to prevent breaches of this Agreement, and to an order
compelling specific performance of this Agreement. A breaching party shall
reimburse the other Party for all reasonable costs and expenses, including
reasonable attorneys' fees, incurred by the other Party in the event it
successfully enforces the obligations of the breaching Party or its
Representatives hereunder.
13. Entire Agreement. This Agreement represents the entire
understanding and agreement of the Parties hereto with respect to the
matters contained herein, and may be modified or waived only by a separate
writing executed by both Parties hereto, expressly so modifying or waiving
this Agreement.
14. No Waiver. No failure or delay by either Party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege
hereunder.
15. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard to the
laws of conflict of laws.
16. Captions. The Captions contained in this Agreement are for
convenience only and shall not affect the construction or interpretation of
any provisions of this Agreement.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which for all purposes shall be deemed to be an
original, but all of such counterparts shall together constitute one and
the same instrument. It is not necessary that each party to this Agreement
execute the same counterpart, so long as identical counterparts are
executed by all parties to this Agreement.
18. Term. This Agreement shall expire three years from the date
hereof.
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective
as of the date first written above.
WESTERN FARMS, L.P. UNITED STATES FILTER
a California limited partnership CORPORATION
a Delaware corporation
By: Western Farm & Cattle Company
its general partner By: /s/ Xxxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxx Title: Senior Vice President
Title: Vice President
