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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1/A
TENDER OFFER STATEMENT
(AMENDMENT NO. 1)
PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
AQUAPENN SPRING WATER COMPANY, INC.
(Name of Subject Company)
ZONEO ACQUISITION CORP.
and
GROUPE DANONE
(Bidders)
Common Stock, No Par Value
(Title of Class of Securities)
03838X109
(CUSIP Number of Class of Securities)
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Emmanuel Faber
Groupe Danone
7, rue de Teheran
75381 Paris Cedex 08, France
011 33 1 44 35 20 34
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications on Behalf of Bidders)
Copy to:
Clare O'Brien, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telephone: (212) 848-4000
November 30, 1998
Page 1 of 7 pages
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<PAGE>
1. Name of Reporting Persons
S.S. or I.R.S. Identification No. of Above Person
Zoneo Acquisition Corp.
2. Check the Appropriate Box if a Member of Group
(a)|_|
(b)|_|
3. SEC Use only
4. Sources of Funds
WC
5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(e) or 2(f)
|_|
6. Citizenship or Place of Organization
Pennsylvania
7. Aggregate Amount Beneficially Owned by Each Reporting Person
1,839,813 shares that may be deemed beneficially owned pursuant to
Shareholder Agreements described in "Section 11. Purpose of the
Offer; Plans for the Company After the Offer and the Merger; the
Merger Agreement; and Related Agreements" of the Offer to Purchase
referred to herein
8. Check if the Aggregate Amount in Row (7) Excludes Certain Shares
|_|
9. Percent of Class Represented by Amount in Row (7)
20.6%
10. Type of Reporting Person
CO
Page 2 of 7 Pages
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1. Name of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Person
Groupe Danone
2. Check the Appropriate Box if a Member of Group
(a)|_|
(b)|_|
3. SEC Use only
4. Sources of Funds
WC
5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(e) or 2(f)
|_|
6. Citizenship or Place of Organization
France
7. Aggregate Amount Beneficially Owned by Each Reporting Person
1,839,813 shares that may be deemed beneficially owned pursuant to
Shareholder Agreements described in "Section 11. Purpose of the
Offer; Plans for the Company After the Offer and the Merger; the
Merger Agreement; and Related Agreements" of the Offer to Purchase
referred to herein
8. Check if the Aggregate Amount in Row (7) Excludes Certain Shares
|_|
9. Percent of Class Represented by Amount in Row (7)
20.6%
10. Type of Reporting Person
CO
Page 3 of 7 Pages
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This Amendment No. 1 to the Tender Offer Statement on Schedule 14D-1 and
Amendment No. 1 to the Schedule 13D (the "Schedule 14D-1") relates to the offer
(the "Offer") by Zoneo Acquisition Corp., a Pennsylvania corporation (the
"Purchaser") and an indirect subsidiary of Groupe Danone, a French societe
anonyme (the "Parent"), to purchase all outstanding shares of common stock, no
par value (the "Shares"), of AquaPenn Spring Water Company, Inc., a Pennsylvania
corporation (the "Company"), at a price of $13.00 per Share, net to the seller
in cash, upon the terms and subject to the conditions set forth in the
Purchaser's Offer to Purchase dated November 6, 1998 (the "Offer to Purchase")
and in the related Letter of Transmittal, copies of which were attached to the
Schedule 14D-1 as Exhibits (a)(1) and (a)(2) thereto, respectively.
Capitalized terms used but not defined herein have the meanings
specified for such terms in the Offer to Purchase and the Schedule 14D-1.
Item 10. Additional Information.
Item 10 of the Schedule 14D-1 is hereby amended and supplemented
as follows:
(c) The FTC, on November 20, 1998, notified the Parent that, effective
by such notice, the waiting period under the HSR Act applicable to the purchase
of Shares pursuant to the Offer was terminated.
(f)(1) "Section 1. Terms of the Offer; Proration; Expiration Date" of
the Offer to Purchase is hereby amended by inserting immediately after the
phrase "to decrease the number of Shares being sought" in the second line of the
penultimate paragraph thereof the following:
(including, without limitation, in the event that on the Expiration Date
all the conditions to the Offer have been satisfied or waived other than
the Minimum Condition and Shares constituting at least 19.9% of the
outstanding Shares have been validly tendered and not withdrawn, the
exercise by the Purchaser of its option under the Merger Agreement to
purchase a number of tendered Shares up to 19.9% of the then outstanding
Shares on a pro rata basis).
(f)(2) "Section 2. Acceptance for Payment and Payment for Shares" of the
Offer to Purchase is hereby amended by restating in its entirety the first
sentence of the first paragraph thereof as follows:
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such
extension or amendment), so long as all the conditions to the Offer set
forth in "Section 14. Conditions to the Offer" (other than relating to
the expiration or termination of the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act")) are satisfied or waived on the Expiration Date, the
Purchaser will accept for
Page 4 of 7 Pages
<PAGE>
payment, and will pay for, all Shares validly tendered prior to the
Expiration Date and not properly withdrawn, as promptly as practicable
after the Expiration Date or, if later, as promptly as practicable after
the expiration or termination of the applicable waiting period under the
HSR Act.
(f)(3) "Section 14. Conditions to the Offer" of the Offer to Purchase is
hereby amended by restating in its entirety the introduction thereto as follows:
Notwithstanding any other provision of the Offer, the Purchaser will not
be required to accept for payment or, subject to any applicable rules
and regulations of the Commission, pay for any Shares tendered pursuant
to the Offer, and may terminate or amend the Offer and may postpone
acceptance for payment of and payment for Shares tendered, if (i) on or
prior to the Expiration Date, the Minimum Condition is not satisfied,
(ii) any applicable waiting period under the HSR Act has not expired or
been terminated prior to the expiration of the Offer or (iii) at any
time on or after the date of the Merger Agreement, and on or prior to
the Expiration Date, any of the following conditions exists:
Item 11. Exhibits
Item 11 of the Schedule 14D-1 is hereby amended by adding the
following exhibits:
(c)(6) Letter Agreement dated November 19, 1998, among the Parent, the
Purchaser and the Company.
(c)(7) Consent dated November 17, 1998, executed by the Parent, the
Purchaser and Edward J. Lauth, III.
Page 5 of 7 Pages
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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.
November 30, 1998
ZONEO ACQUISITION CORP.
By /s/ MARK RODRIGUEZ
-------------------------------
Name: Mark Rodriguez
Title: Chief Executive Officer
Page 6 of 7 Pages
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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.
Dated: November 30, 1998
GROUPE DANONE
By /s/ EMMANUEL FABER
-----------------------------------------
Name: Emmanuel Faber
Title: Director of Corporate Development
Page 7 of 7 Pages
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EXHIBIT (c)(6)
[Groupe Danone Letterhead]
November 19, 1998
AquaPenn Spring Water Company, Inc.
One AquaPenn Drive
P.O. Box 938
Milesburg, PA 16853-0938
Attention: Geoffrey F. Feidelberg
Mr. Edward J. Lauth
1346 Sandpiper Drive
State College, PA 16801
Mr. Geoffrey F. Feidelberg
1115 Woodberry Circle
State College, PA 16803
Mr. Matthew J. Suhey
550 Carriage Way
Deerfield, IL 60015
Gentlemen:
Reference is made to: (i) the Agreement and Plan of Merger
among Groupe Danone, a French societe anonyme (the "Parent"), Zoneo Acquisition
Corp., a Pennsylvania corporation (the "Purchaser"), and AquaPenn Spring Water
Company, Inc., a Pennsylvania corporation (the "Company"); (ii) the Registration
Rights Agreement among the Parent, the Purchaser and the Company; (iii) the
Shareholder Agreement among the Parent, the Purchaser and Edward J. Lauth; (iv)
the Shareholder Agreement among the Parent, the Purchaser and Geoffrey F.
Feidelberg; and (v) the Shareholder Agreement among the Parent, the Purchaser
and Matthew J. Suhey, each of the foregoing agreements being dated November 2,
1998 (collectively, the "Transaction Documents").
Each of the undersigned and each of you hereby agree that all
references in each Transaction Document to the "Purchaser" or "Zoneo Acquisition
Corp." as "an indirect wholly owned subsidiary" are hereby amended to delete
therein the term "wholly owned".
Each of the undersigned and each of you further agree that
this Letter Agreement shall be governed, and construed in accordance with, the
laws of the State of New York,
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2
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws. Except as specifically provided otherwise in this
paragraph, each of the Transaction Documents remains in full force and effect in
all respects.
This Letter Agreement may be executed, manually or by
facsimile, in one or more counterparts, and by the different parties hereto in
separate counterparts each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
Please indicate your agreement with the foregoing by signing
in the space provided below. Please also return two executed copies of this
Letter Agreement to Lisa Horvath at Shearman & Sterling (i) via facsimile, at
fax no. 212-848-7179 and (ii) via courier, at 599 Lexington Avenue, New York,
New York 10022.
Very truly yours,
GROUPE DANONE
By: /s/
---------------------------------------
Name: Emmanuel Faber
Title: Director of Corporate
Development and Strategy
ZONEO ACQUISITION CORP.
By: /s/
---------------------------------------
Name: Mark Rodriguez
Title: Chief Executive Officer
Agreed and accepted as of the first date written above:
AQUAPENN SPRING WATER COMPANY, INC.
By: /s/
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Name: Edward J. Lauth
Title: Chairman, President and
Chief Executive Officer
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3
/s/
- --------------------------------------
EDWARD J. LAUTH,
in his individual capacity
/s/
- --------------------------------------
GEOFFREY F. FEIDELBERG,
in his individual capacity
/s/
- --------------------------------------
MATTHEW J. SUHEY,
in his individual capacity
<PAGE>
EXHIBIT (c)(7)
November 17, 1998
Group Danone
Zoneo Acquisition Corp.
7, rue de Teheran,
75008 Paris,
France
Attention: Mr. Emmanuel Faber
Re: Shareholder Agreement Among Groupe Danone, Zoneo Acquisition
Corp. and Edward J. Lauth, III, Dated November 2, 1998
Ladies and Gentlemen:
Reference is made to the Shareholder Agreement (the "Shareholder
Agreement"), dated November 2, 1998, among Group Danone, Zoneo Acquisiton Corp.
and Edward J. Lauth, III.
1. I desire to gift 11,500 shares of Common Stock of AquaPenn Spring
Water Company, Inc., which are beneficially owned by me and subject to the
Shareholder Agreement, to Penn State University ("Penn State").
2. To effectuate the above-referenced gift of shares, I hereby request
your consent and agreement, in accordance with Section 6.08 of the Shareholder
Agreement, to the transfer by me of 11,500 of the 1,022,584 shares of Common
Stock of AquaPenn Spring Water Company, Inc. held by me and set forth on Exhibit
A to the Shareholder Agreement (the "Gift Shares").
3. I further request your acknowledgment that upon the effectuation of
the transfer of the Gift Shares to Penn State, the Gift Shares will be wholly
exempt from the provisions of the Shareholder Agreement and will be held by Penn
State free of any restrictions imposed by or arising in connection with the
Shareholder Agreement.
4. Other than as expressly set forth herein with respect to the Gift
Shares, this consent shall not operate as a waiver or modification of any other
term, condition or covenant of the Shareholder Agreement or any default
thereunder, or of the rights and remedies under the
<PAGE>
Group Danone
Zoneo Acquisition Corp.
November 17, 1998
Page 2
Shareholder Agreement, nor shall this consent affect your ability to exercise
any of your rights and remedies in the future or obligate you to waive or modify
any other term, condition or covenant of the Shareholder Agreement or waive any
default thereunder.
5. All terms, conditions, provisions and covenants in the Shareholder
Agreement, and all other documents delivered in connection therewith shall
remain unaltered and in ful force and effect except as modified or amended
hereby.
6. This Letter Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, regardless of other laws
that might otherwise govern under applicable principles of conflicts of laws.
7. This Letter Agreement may be executed, manually or by facsimile, in
one or more counterparts, and by different parties hereto in separate
counterparts each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
Very truly yours,
/S/ EDWARD J. LAUTH, III
- -------------------------------------
Edward J. Lauth, III
We hereby consent and agree to the foregoing transfer of the Gift Shares to Penn
State. We acknowledge that the Gift Shares will held by Penn State free of any
restriction imposed by or arising in connection with the Shareholder Agreement.
Groupe Danone Zoneo Acquisition Corp.
By: /S/ EMMANUEL FABER By: /S/ MARK RODRIGUEZ
------------------------------ ----------------------------------
Name: Emmanuel Faber Name: Mark Rodriguez
Title: Director of Corporate Title: Chief Executive Officer
Development
