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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
(AMENDMENT NO. 2)
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 19)
AQUA ALLIANCE INC.
(NAME OF SUBJECT COMPANY)
VIVENDI
AQUA ACQUISITION CORPORATION
(BIDDERS)
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CLASS A COMMON STOCK, PAR VALUE $.001 PER SHARE
AND
WARRANTS TO PURCHASE CLASS A COMMON STOCK, PAR VALUE $.001 PER SHARE
(TITLE OF CLASS OF SECURITIES)
----------------
038367108
038367116
(CUSIP NUMBERS OF CLASS OF SECURITIES)
----------------
MICHEL AVENAS
AQUA ACQUISITION CORPORATION
C/O VIVENDI NORTH AMERICA MANAGEMENT SERVICES, INC.
800 THIRD AVENUE
38TH FLOOR
NEW YORK, NY 10022
TELEPHONE: (212) 753-2000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
COPY TO:
MARTHA E. MCGARRY, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-3000
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$97,091,876 $19,418
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* Estimated for purposes of calculating the amount of the filing fee
only. This amount assumes the purchase of 32,935,254 shares of Class A
Common Stock, par value $.001 per share (the "Shares"), of Aqua
Alliance Inc. (the "Company"), a Delaware corporation, at a price of
$2.90 per Share net to the seller in cash, without interest thereon and
3,949,099 warrants to purchase the Shares issued pursuant to the
Company Rights Offering dated January 26, 1998 (the "Warrants"), at the
purchase price of $0.40 per Warrant. Such number of Shares represents
the 31,551,754 Shares outstanding as of July 9, 1999, not owned by
Vivendi, a societe anonyme organized under the laws of the Republic of
France and its wholly owned affiliates, and assumes the issuance prior
to the consummation of the Offer of 1,383,500 Shares upon the exercise
of outstanding options. Such number of Warrants represents the
3,949,099 Warrants outstanding as of July 9, 1999.
** The amount of the filing fee calculated in accordance with Regulation
240.1-11 of the Securities Exchange Act of 1934, as amended, equals
1/50th of one percent of the value of the transaction.
|X| Check box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
Amount previously paid: $19,418 Form or Registration No.: Schedule 14D-1/
13SD
Filing Parties: Vivendi and Aqua
Acquisition Corporation Date Filed: July 16, 1999
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CUSIP NOS. 038367108/ 14D-1 AND 13D
038367116
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Aqua Acquisition Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)|X|
(b)| |
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 shares of Class A Common Stock
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES |_|
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0%
10 TYPE OF REPORTING PERSON
CO
CUSIP NOS. 038367108/ 14D-1 AND 13D
038367116
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Vivendi (FORMERLY NAMED COMPAGNIE GENERALE DES EAUX)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |X|
(b) | |
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC; OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
REPUBLIC OF FRANCE
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
153,714,675 shares of Class A Common Stock*
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES |_|
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
83%
10 TYPE OF REPORTING PERSON
CO
* All such Shares are owned directly and indirectly by Vivendi through its
wholly owned subsidiary, Vivendi North America Operations, Inc., which owns
153,714,675 shares of Class A Common Stock.
TENDER OFFER
This Amendment No.2 (the "Amendment") amends and supplements the
Tender Offer Statement on Schedule 14D-1 filed with the Securities and
Exchange Commission (the "Commission") on July 16, 1999 (as amended and
supplemented by Amendment No. 1 thereto, filed with the Commission on
August 9, 1999, the "Statement") relating to the offer by Aqua Acquisition
Corporation (the "Purchaser"), a Delaware corporation and an indirect
wholly owned subsidiary of Vivendi ("Parent"), a societe anonyme organized
under the laws of the Republic of France, to purchase all of the
outstanding shares of Class A Common Stock, par value $.001 per share (the
"Shares"), of Aqua Alliance Inc. (the "Company"), a Delaware corporation,
at a purchase price of $2.90 per Share, net to the seller in cash, without
interest and all outstanding Warrants to purchase the Shares issued
pursuant to the Company Rights Offering dated January 26, 1998 (the
"Warrants"), at the purchase price of $0.40 per Warrant upon the terms and
subject to the conditions set forth in the Offer to Purchase dated July 16,
1999 (the "Offer to Purchase") and in the related Letter of Transmittal
(which together constitute the "Offer").
This Statement also constitutes Amendment No. 19 to Schedule 13D
with respect to the beneficial ownership of each of the Purchaser and
Parent with respect to the Shares. The item numbers and responses thereto
are in accordance with the requirements of Schedule 14D-1.
Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned to such terms in the Offer.
ITEM 10. ADDITIONAL INFORMATION.
Item 10(f) is hereby amended by amending and restating in its
entirety the first paragraph under "THE TENDER OFFER --Section 10. Certain
Conditions of the Offer" in the Offer to Purchase as follows:
Notwithstanding any other provision of the Offer, the
Purchaser shall not be required to accept for payment or, subject
to the applicable rules and regulations of the Commission,
including Rule 14e-1(c) under the Exchange Act, pay for any Shares
or Warrants tendered pursuant to the Offer, and may postpone the
acceptance for payment of any Shares tendered in a manner
consistent with the terms of the Merger Agreement, if at any time
on or after July 16, 1999 and prior to the Expiration Date, any of
the following conditions shall exist:
(a) there shall have been any action threatened or
taken, or approval withheld, or any statute,
rule, or interpretation of the foregoing
regulation or interpretation proposed, sought,
promulgated, issued, enacted, entered, amended,
enforced or deemed to be applicable to the
Offer, the Merger, Parent or the Purchaser or
any of their subsidiaries, by any governmental,
regulatory or administrative authority or agency
or tribunal, domestic or foreign, which, in the
Purchaser's sole and reasonable judgment, would
directly or indirectly: (i) make the acceptance
for payment of, or payment for, some or all of
the Shares or Warrants illegal or otherwise
restrict or prohibit consummation of the Offer
or the Merger, or (ii) delay or restrict, or
render the Purchaser or Parent unable, or
otherwise impose limitations on the ability of
the Purchaser or Parent to accept for payment or
pay for, or to exercise full rights of ownership
with respect to, some or all of the Shares or
Warrants pursuant to the Offer or to consummate
the Merger; or
(b) there shall be threatened, instituted or pending
any action or proceeding by any government or
governmental authority or agency, domestic or
foreign, or by any other person, domestic or
foreign, before any court or governmental
authority or agency, domestic or foreign,
seeking any of the consequences referred to in
clauses (i) and (ii) of paragraph (a) above, or
otherwise challenging any aspect of or seeking
to, or which could, make illegal, delay or
otherwise directly or indirectly restrain or
prohibit or make materially more costly (i) the
making of the Offer, (ii) the acceptance for
payment of, or payment for, some of or all
Shares or Warrants pursuant to the Offer, (iii)
the purchase of Shares or Warrants pursuant to
the Offer, (iv) consummation of the Merger, (v)
seeking to obtain damages in connection with the
Offer or the Merger, or (vi) seeking to restrain
or prohibit the consummation of the Offer, the
Merger or the transactions contemplated thereby
or which otherwise directly or indirectly
relates to the Offer or the Merger; or
(c) a preliminary or permanent injunction or other
order by any Federal or state court which
prevents (i) the acceptance for payment of, or
payment for, some of or all the Shares or
Warrants pursuant to the Offer or (ii)
consummation of the Merger shall have been
issued and shall remain in effect; or
(d) the Special Committee or the Company Board of
Directors (i) shall have withdrawn or modified
in any manner that is, in the reasonable
judgment of the Purchaser, materially adverse to
the Purchaser or Parent (including by way of any
amendment to the Schedule 13E-3 or the Company's
Schedule 14D-9) its recommendation of the Offer
or (ii) shall have resolved to do any of the
foregoing; or
(e) any change shall occur or be threatened in the
business, condition (financial or otherwise),
income, operations or prospects of the Company
and its subsidiaries, takes as a whole, which is
or may be material to the Company and its
subsidiaries taken as a whole; or
(f) there shall have occurred: (i) the declaration
of any banking moratorium or suspension of
payments in respect of banks in the United
States, France or the European Union; (ii) any
general suspension of trading in, or limitation
on prices for, securities on any United States
national securities exchange or in the
over-the-counter market; or the Paris Bourse;
(iii) any material decline in the CAC-40 Index
from the close of business on the last trading
day immediately preceding the date of the Merger
Agreement; (iv) the commencement of a war, armed
hostilities or any other national or
international crisis directly or indirectly
involving the United States; (v) any limitation
(whether or not mandatory) by any governmental,
regulatory or administrative agency or authority
on, or any event which might affect, the
extension of credit by banks or other lending
institutions in the United States, France or the
European Union; or (vi) in the case of any of
the foregoing existing at the time of the
commencement of the Offer, a material
acceleration or worsening thereof; or
(g) all consents and approvals required to be
obtained from any Federal, state domestic or
foreign governmental agency, authority or
instrumentality in connection with the Offer
shall not have been obtained or the Purchaser
shall have been advised that any such consent or
approval will be denied or substantially
delayed, or will not be given other than upon
terms or conditions which would, in the opinion
of the Purchaser, make it impracticable to
proceed with the Offer or the Merger; or
(h) Parent, the Purchaser and the Company (with the
approval of the Special Committee) shall have
agreed that the Purchaser shall terminate the
Offer or postpone for payment of or the payment
for Shares or Warrants thereunder or that the
Merger Agreement shall be terminated.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Date: August 11, 1999
AQUA ACQUISITION CORPORATION
By: /s/ Michel Avenas
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Name: Michel Avenas
Title: President
VIVENDI
By: /s/ Daniel Caille
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Name: Daniel Caille
Title: Directeur
