Exhibit 99.04
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") is made and
entered into as of the ____ day of September, 1986, between
Thomas J. Goulet, an individual ("Goulet") and M&I Ventures
Corporation, a Wisconsin corporation ("M&I") (collectively
"Seller" or "Sellers") and Illinois Water Treatment, Inc.,
("Buyer"), and Firstar Trust Company of Milwaukee, Wisconsin
("Escrow Agent").
WHEREAS, Sellers and Buyer have entered into a Stock
Purchase Agreement ("Stock Purchase Agreement") relating to the
purchase of all of the outstanding capital stock of Kisco Water
Treatment Company, a Missouri corporation (the "Company"), a copy
of which is attached hereto as Exhibit A and is by this reference
made a part hereof; and
WHEREAS, the Stock Purchase Agreement provides in Section
7.4(b) that a portion of the purchase price in the form of common
stock of United States Filter Corporation ("USF Shares") be
deposited into escrow on the date hereof for the purpose of
distributing to Buyer any Post-Closing Purchase Price Adjustment
pursuant to Section 2.4 and securing the Sellers' obligation to
indemnify Buyer pursuant to the provisions of Article VII of the
Stock Purchase Agreement; and
WHEREAS, USF, Goulet and M&I have entered into an Option,
Transfer and Registration Agreement (the "Transfer Agreement"), a
copy of which is attached as Exhibit B and is by this reference
made a part hereof, under the terms of which all or a portion of
the USF Shares to be held on deposit hereunder may be converted
to cash by exercise of the Put Right or Call Offer thereunder.
WHEREAS, Seller and Buyer have requested that Escrow Agent
act as "Escrow Agent" pursuant to Section 7.4(b) of, and in
accordance with the terms and conditions of, the Stock Purchase
Agreement, and Escrow Agent has consented and agreed to do so, on
the terms and conditions described below.
NOW, THEREFORE, for and in consideration of the premises,
covenants and agreements hereinafter made, the receipt and
sufficiency of which is hereby acknowledged, Sellers, Buyer and
Escrow Agent covenant and agree as follows:
1. ESCROW DEPOSIT. Seller hereby deposits with Escrow
Agent, and Escrow Agent hereby acknowledges receipt of 15,686
shares of USF common stock. In the event such stock is converted
to cash pursuant to the Transfer Agreement, Escrow Agent hereby
agrees to deposit such amount into an interest bearing account
with a bank, savings and loan institution or other depository
reasonably satisfactory to Seller, Buyer and Escrow Agent (the
"Depository"), or to invest in interest bearing obligations of
the United States or agencies maturing in not more than ninety
(90) days, with the income thereon to accrue for the account of
Sellers. Subject to the provisions of paragraph 2 of this
Agreement, such stock or cash shall be held for a period of six
(6) months from the date hereof (the "Escrow Period").
2. DISBURSEMENT OF ESCROW.
(a) Any USF Shares or cash from sale proceeds required
to be distributed to Buyer as a Post-Closing Purchase Price
Adjustment pursuant to Section 2.4 shall be disbursed to Buyer
upon Escrow Agent's receipt of written notice from Sellers and
Buyer confirming the amount of such distribution.
(b) The Escrow Agent shall disburse from the principal
of the escrow account any amounts which become payable to Buyer
by way of indemnification pursuant to Article VII of the Stock
Purchase Agreement.
(c) The Escrow Agent is authorized to disburse escrow
assets only as directed jointly by Buyer and Sellers; provided,
however, that if Buyer and Sellers disagree as to the amount
properly payable from this escrow, such disagreement shall be
resolved pursuant to the procedure outlined in Section 7.9 of the
Stock Purchase Agreement.
3. PURPOSE OF ESCROW. Seller and Buyer mutually
acknowledge that the sole purpose of this Agreement is to hold
shares of USF Shares or cash in escrow pursuant to the Stock
Purchase Agreement and that their respective rights thereto shall
be determined by that Agreement.
4. ESCROW AGENT FEE. The fee of the Escrow Agent for its
services hereunder shall be its reasonable, usual and customary
charges and shall be paid by Buyer.
5. LIMITATION OF ESCROW AGENT'S LIABILITY. Escrow Agent
shall not be liable to Sellers or to Buyer or any of them for any
losses, costs, claims, damages, liabilities or expenses which
they may suffer or incur by reason of any one or more of the
following:
(a) the failure of the Depository; or
(b) any action taken or omitted to be taken in
accordance with the terms hereof; or
(c) any action taken or omitted to be taken in
reliance upon any document, including any written
notice of authorization to disburse as provided
for hereinabove, all of which writings Escrow
- 2 -
Agent can rely upon as to due execution, validity,
effectiveness, and also as to truth and accuracy
of the information contained therein. Escrow
Agent's liability hereunder shall be limited to
any actions taken or omitted to be taken which are
found by a court of law to be willful misconduct
or gross negligence.
6. INDEMNIFICATION. Except for acts or omissions of the
Escrow Agent which are found by a court of law to be a breach of
this Agreement, or to be in the nature of gross negligence or
willful misconduct, Sellers and Buyer hereby jointly and
severally indemnify and hold harmless Escrow Agent from and
against any and all losses, claims, damages, liabilities, costs
or expenses, including, without limitation, attorneys' fees and
all trial and/or appellate court costs, which arise out of or are
connected with this Agreement, the appointment of Escrow Agent
hereunder, or any actions or omissions of Escrow Agent in the
performance of its responsibilities hereunder, including, without
limitation, any litigation arising out of or involving the
subject matter of this Agreement.
7. GENERAL. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns, and shall be governed by and construed in
accordance with the laws of the State of Wisconsin. Escrow Agent
shall be bound only by the terms of this Agreement and shall not
be bound by or have any responsibility or incur any liability
with respect to the Stock Purchase Agreement between Sellers and
Buyer. No modification, amendment or waiver of the terms hereof
shall be valid or effective unless in writing and signed by all
of the parties hereto. This Agreement may be executed in
multiple counterpart originals, each of which shall be deemed to
be and shall constitute an original.
8. NOTICES. Any notices sent by any of the parties to any
other of the parties hereto shall be sent by prepaid certified
mail, return receipt requested, to the addresses set forth below,
shall include a copy to the party who is not the addressee of
such notice, and shall be deemed received on the third (3rd)
business day after mailing:
(a) If to Sellers, to:
Thomas J. Goulet and M&I Ventures Corporation
765 West Jonathan Lane Attention: William G. Krugler
Milwaukee, WI 53217 770 North Water Street
Milwaukee, WI 53202
- 3 -
with a copy to:
Robert J. Loots
von Briesen, Purtell & Roper, s.c.
400 East Wisconsin Avenue
Milwaukee, WI 53202
(b) If to Buyer, to:
Illinois Water Treatment, Inc.
c/o United States Filter Corporation
40-004 Cook Street
Palm Desert, CA 92211
Attention: Chief Executive Officer
with a copy to:
the General Counsel of Buyer at the above address and
telecopy number
(c) If to Escrow Agent, to:
Firstar Trust Company
615 East Michigan Street, 4th Floor
Milwaukee, WI 53202
Attention: William Caruso
9. BENEFIT. This Agreement shall be binding upon and
inure to the benefit of the parties, their successors and
assigns.
10. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same agreement.
- 4 -
IN WITNESS WHEREOF, each of the parties hereto have caused
this Agreement to be executed and delivered as of the day and
year first above written.
Sellers:
/s/ Thomas J. Goulet
----------------------------------
Thomas J. Goulet
M&I Ventures Corporation
/s/ William G. Krugler
----------------------------------
Title: Vice President
Buyer:
Illinois Water Treatment, Inc.
By: /s/ Michael E. Hulme, Jr.
-----------------------------
Title: Vice President
Escrow Agent:
Firstar Trust Company
By: /s/ William Caruso
----------------------------
Title: Assistant Vice President
Attest: /s/ D. J. Mayer
--------------------------
Title: Assistant Secretary
- 5 -