SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE TO
(RULE 14D-100)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934.
(AMENDMENT NO. 2 )
- ---------------------------------------------------------------------------
TRIGEN ENERGY CORPORATION
- ---------------------------------------------------------------------------
(Name of Subject Company (Issuer))
T ACQUISITION CORP. (OFFEROR)
ELYO
SUEZ LYONNAISE DES EAUX
TRIGEN ENERGY CORPORATION
- ---------------------------------------------------------------------------
(Names of Filing Persons (identifying status as offeror,
issuer or other person))
COMMON STOCK, $0.01 PAR VALUE
- ---------------------------------------------------------------------------
(Title of Class of Securities)
895930105
- ---------------------------------------------------------------------------
(CUSIP Number of Class of Securities)
MICHEL BLEITRACH
ELYO
235 AVENUE GEORGES CLEMONCEAU
BP 4601
92746 NANTERRE CEDEX, FRANCE
011-331-41-20-10-10
WITH A COPY TO:
JEFFREY BAGNER
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004-1980
(212) 859-8000
- ---------------------------------------------------------------------------
(Name, address, and telephone numbers of person authorized to
receive notices and communications on behalf of filing persons)
CALCULATION OF FILING FEE
- ---------------------------------------------------------------------------
Transaction Valuation* $173,487,223 Amount Of Filing Fee $34,698
- ---------------------------------------------------------------------------
* ESTIMATED FOR PURPOSES OF CALCULATING THE AMOUNT OF THE FILING FEE
ONLY. THIS AMOUNT ASSUMES THE PURCHASE OF 7,382,435 SHARES OF COMMON
STOCK, PAR VALUE $.01 PER SHARE (THE "SHARES"), OF TRIGEN ENERGY
CORPORATION, A DELAWARE CORPORATION (THE "COMPANY"), AT THE TENDER
PRICE OF $23.50 PER SHARE NET TO THE SELLER IN CASH, WITHOUT INTEREST
THEREON. PURSUANT TO THE AGREEMENT AND PLAN OF MERGER, DATED AS OF
JANUARY 19, 2000, AMONG ELYO ("PARENT"), T ACQUISITION CORP. AND THE
COMPANY, THE COMPANY REPRESENTED THAT AS OF SUCH DATE, IT HAD
12,416,297 SHARES OUTSTANDING AND 849,210 SHARES RESERVED FOR ISSUANCE
UPON EXERCISE OF ALL OUTSTANDING OPTIONS UNDER THE COMPANY'S EMPLOYEE
BENEFIT PLANS. PARENT ALREADY BENEFICIALLY OWNS 6,507,944 SHARES, OF
WHICH THE 1,637,274 SHARES HELD BY COMPAGNIE PARISENNE DE CHAUFFAGE
URBAIN ("CPCU"), A NON-WHOLLY-OWNED SUBSIDIARY OF PARENT, WILL BE
TENDERED. PARENT HAS SEPARATELY AGREED TO PURCHASE 1,012,402 SHARES
FROM THOMAS R. CASTEN ON MARCH 29, 2000, PURSUANT TO A PURCHASE
AGREEMENT, DATED JANUARY 19, 2000 BETWEEN PARENT AND MR. CASTEN. BASED
ON THE FOREGOING, THE TRANSACTION VALUE IS EQUAL TO THE PRODUCT OF (I)
(A) 12,416,297 SHARES (THE NUMBER OF SHARES OUTSTANDING), PLUS (B)
849,210 SHARES (THE NUMBER OF SHARES RESERVED FOR ISSUANCE UPON
EXERCISE OF OPTIONS), MINUS (C) THE DIFFERENCE OF (1) 6,507,944 (THE
NUMBER OF SHARES BENEFICIALLY OWNED BY PARENT) MINUS (2) 1,637,274
(THE NUMBER OF SHARES HELD BY CPCU BEING TENDERED), MINUS (D)
1,012,402 (THE NUMBER OF SHARES HELD BY MR. CASTEN), MULTIPLIED BY
(II) $23.50. THE AMOUNT OF THE FILING FEE, CALCULATED IN ACCORDANCE
WITH RULE 0-11 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED,
EQUALS 1/50 OF ONE PERCENT OF THE AGGREGATE OF THE CASH OFFERED BY THE
BIDDER.
[x]CHECK THE 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: $34,698
Form or Registration No.: Schedule TO-T
Filing Party: T Acquisition Corp., Elyo, Suez Lyonnaise des Eaux
Date Filed: February 28, 2000
[ ] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which
the statement relates:
[x] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[x] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [ ]
<PAGE>
INTRODUCTION
This Amendment No. 2 (this "Amendment") amends and supplements
the Tender Offer Statement on Schedule TO filed with the Securities and
Exchange Commission on February 28, 2000, by T Acquisition Corp., a
Delaware corporation ("Purchaser"), Elyo, a societe anonyme organized and
existing under the laws of the Republic of France ("Parent") and Suez
Lyonnaise des Eaux, a societe anonyme organized and existing under the laws
of the Republic of France. By this amendment, Trigen Energy Corporation, a
Delaware corporation, is added as a person filing this Tender Offer
Statement. The Schedule TO relates to the offer to purchase any and all
outstanding shares of Common Stock, par value $.01 per share, of Trigen
Energy Corporation, a Delaware corporation (the "Company"), at a purchase
price of $23.50 per share, net to the seller in cash, without interest,
upon the terms and subject to the conditions set forth in the Offer to
Purchase dated February 28, 2000 (the "Offer to Purchase"), and in the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer"), copies of which
are filed as Exhibits (a)(1)(i) and (a)(1)(ii) hereto, respectively, and
which are incorporated herein by reference. Capitalized terms used and not
defined herein shall have the meanings assigned to such terms in the Offer
to Purchase and the Schedule TO.
ITEM 11. Additional Information.
(a) Item 11 is hereby amended by adding the following paragraph
immediately prior to the fourth paragraph on page 2 under "INTRODUCTION" in
the Offer to Purchase:
One of the members of the Special Committee, George Keane,
is also a director of United Water Resources Inc., a New Jersey
corporation ("UWR"). Suez beneficially owns 30.1% of the
outstanding shares of UWR common stock. Suez has entered into a
merger agreement with UWR pursuant to which its wholly owned
subsidiary has agreed to purchase the shares of UWR it did not
already own. Consummation of the transactions contemplated by the
merger agreement is pending certain regulatory approvals. In
appointing Mr. Keane to the Special Committee, the directors of
the Company, including Mr. Bayless, believed (and continue to
believe) that Mr. Keane's role as a director of UWR, which at the
time of Mr. Keane's appointment to the Special Committee was not
a subsidiary of Suez and is not currently a subsidiary of Suez,
was unlikely to impact his independence with respect to Parent's
proposal to acquire the Shares of the Company it did not already
own. The directors of the Company, including Mr. Bayless, also
believed that the stockholders of the Company not affiliated with
Suez, Parent or Purchaser would be better served by a two person
committee including Mr. Keane rather than a one person committee
consisting solely of Mr. Bayless.
(b) Item 11 is hereby amended by adding the following language
after the last sentence of the first paragraph on page 3 under "SPECIAL
FACTORS - Background of the Offer and the Merger; Contacts with the
Company" in the Offer to Purchase:
The concerns expressed by Mr. Casten in his memorandum included
the lack of prior consultation with certain members of management
regarding Parent's proposal, the value of providing employees
with an equity stake in the Company, the advantages of
maintaining an American image for the Company and uncertainty
over where the Company fit into Suez's strategy.
(c) Item 11 is hereby amended by adding the following language at
the end of the third sentence of the third paragraph on page 3 under
"SPECIAL FACTORS - Background of the Offer and the Merger; Contacts with
the Company" in the Offer to Purchase:
In this statement, Parent assured the Special Committee and
management that Parent intended to reinforce the Company's
business strategy and its market position. Parent also addressed
the advantages of taking the Company private, including reduction
of administrative costs, quicker decision-making capabilities and
more flexibility in the face of changing markets, and an improved
ability to obtain financing for the Company. Parent also
emphasized the importance of the role of Americans in the
Company's management. Parent indicated that it had hired a human
resources firm to help propose an attractive compensation and
benefits package for the Company's employees, and noted that as
part of Parent Group employees would have access to significant
career opportunities. Finally, Parent affirmed that energy is a
core business of the Parent Group, and that the United States is
a key market for the Parent Group.
(d) Item 11 is hereby amended by amending and restating the
second sentence of the third paragraph on page 4 under "SPECIAL FACTORS -
Background of the Offer and the Merger; Contacts with the Company" in the
Offer to Purchase as follows:
In that regard, certain confidential information concerning the
Company was, with the authorization of the Special Committee and
pursuant to customary confidentiality agreements, distributed on
an extremely limited basis.
(e) Item 11 is hereby amended by adding the following language
after the first sentence of the carryover paragraph on pages 4 and 5 under
"SPECIAL FACTORS - Background of the Offer and the Merger; Contacts with
the Company" in the Offer to Purchase:
Prior to its initial public offering, the Company relied for
capital development funds almost entirely on project financing
with Parent providing credit support. Commencing in 1995
management began urging the Board of Directors to move to
corporate level financing which did not require Parent credit
support. From 1996 to 1998, the Company increased borrowings
available to it under its revolving credit facility with a
syndicate of banks to $195 million, in order to ensure that the
Company's ongoing financial requirements were fully met. In
addition, management urged the issuance of public debt, coupled
with a secondary offering of equity. In mid-1996, the Board
authorized management to undertake preliminary work for such an
offering, and management continued to discuss and propose various
combinations of public debt and equity financing in 1997 and
1998. In mid-1998, the Board of Directors authorized the issuance
of $225 million of 10-year fixed rate corporate bonds, subject to
approval of final terms and conditions. This authorization was
increased to $290 million in December 1998. However, for a number
of reasons, neither a public debt issuance nor a secondary equity
offering were undertaken. These reasons included poor earnings
performance during the prior two years, the inability to secure
investment grade ratings for corporate debt, market conditions
not conducive to issuance of bonds, and the major shareholder
concerns about dilution. The dilution concern obliged the major
shareholder to commit to purchase 55% of any new equity issued by
the Company in order to maintain its majority position, which led
its representatives on the Board to proceed cautiously in
planning a secondary equity offering. To insure that short term
financial requirements were met, Parent made a subordinated loan
to the Company in the amount of $50 million in December 1998 and
has authorized an additional $50 million subordinated loan, both
on terms approved by the independent directors.
(f) Item 11 is hereby amended by amending and restating the
second sentence of the second full paragraph on page 5 under "SPECIAL
FACTORS - Background of the Offer and the Merger; Contacts with the
Company" in the Offer to Purchase as follows:
Mr. Casten believed that the image of a foreign controlled
company was a hindrance to the Company's success. He also
believed that the Board of Directors should have more independent
directors than the mandatory minimum of two required for listing
on the New York Stock Exchange. Parent agreed to the addition of
one more independent director, but found objections to all
candidates proposed by Mr. Casten. Moreover, Parent wanted a
numeric majority of directors (e.g., five of a total of nine), so
that the addition of multiple outside directors would lead to a
large, unwieldy Board of Directors. Mr. Casten believed that
Parent failed to include the Company's management in strategic
planning issues that directly affected the Company. He also
believed that the decision-making process of the Board of
Directors, especially with respect to development and mergers and
acquisitions efforts, was too slow and cumbersome for an
entrepreneurial company. Mr. Casten also opposed the
privatization of the Company since all employees were
stockholders and stock and stock options were deemed essential
inducements to attract and maintain entrepreneurial managers.
Parent disagreed with Mr. Casten's views on these matters.
Investment criteria and budgets were mutually agreed upon between
management and the Board of Directors. Parent believed that Mr.
Casten was adequately informed of Parent's strategy and
activities. Parent believed that its deliberate decision making
process was prudent and satisfactory. Parent also believed that
the Company could operate successfully as a private company.
Since meetings between Parent and Mr. Casten did not result in
general agreement over strategic and governance issues, Parent
came to believe that the Company required new leadership.
(g) Item 11 is hereby amended by adding the following sentence
immediately following the caption "The Special Committee" on page 5 under
"SPECIAL FACTORS - Recommendation of the Special Committee and the Board of
Directors of the Company; Fairness of the Offer and the Merger" in the
Offer to Purchase:
The Special Committee concluded that the terms of the Offer and
the Merger are fair to, and in the best interests of, the
stockholders of the Company other than Parent.
(h) Item 11 is hereby amended by adding the following sentence
adding at the end of item (i) on page 6 under "SPECIAL FACTORS -
Recommendation of the Special Committee and the Board of Directors of the
Company; Fairness of the Offer and the Merger" in the Offer to Purchase:
The Company may obtain additional capital only if such
transaction is approved by the Board of Directors, a majority of
which is comprised of affiliates of Parent. This fact was not
relevant to the fairness determination.
(i) Item 11 is hereby amended by adding the following sentence at
the end of item (viii) on page 7 under "SPECIAL FACTORS - Recommendation of
the Special Committee and the Board of Directors of the Company; Fairness
of the Offer and the merger" in the Offer to Purchase:
The Special Committee concurred in the analyses and conclusions
of CSFB.
(j) Item 11 is hereby amended by adding the following at the end
of the first full paragraph on page 7 under "SPECIAL FACTORS -
Recommendation of the Special Committee and the Board of Directors of the
Company; Fairness of the Offer and the Merger" in the Offer to Purchase:
These reports included a report published by Lazard Freres on
July 29, 1999 that had a potential value for the Company of $30
per share in twelve to eighteen months from the date of
publication. The Special Committee recognized, however, that this
report was prepared by Lazard Freres' research analyst, who did
not have the same familiarity with the Company's business or
access to non-public information as did the Special Committee,
the Board of Directors, Parent or their advisors.
(k) Item 11 is hereby amended by adding the following after the
last sentence of the second full paragraph on page 7 under "SPECIAL FACTORS
- - Recommendation of the Special Committee and the Board of Directors of the
Company; Fairness of the Offer and the Merger" in the Offer to Purchase:
The Board of Directors adopted the discussion of the factors
considered by the Special Committee in reaching its fairness
determination.
(l) Item 11 is hereby amended by adding the following language at
the end of the third paragraph, before the colon, on page 8 under "SPECIAL
FACTORS - Position of Suez, Parent and Purchaser Regarding Fairness of the
Offer and the Merger" in the Offer to Purchase as follows:
(each of which Suez, Parent and Purchaser believed supported its
conclusion regarding the fairness of the Offer and the Merger)
(m) Item 11 is hereby amended by adding the following language
after the first paragraph under "SPECIAL FACTORS - Position of Suez, Parent
and Purchaser Regarding Fairness of the Offer and the Merger" in the Offer
to Purchase:
The foregoing factors are the sole factors Suez, Parent and
Purchaser considered relevant in determining the fairness of the
Offer and the Merger to the Public Stockholders. Suez, Parent and
Purchaser did not consider net book value or liquidation value of
the Company, as Suez, Parent and Purchaser believe that those
methodologies are not considered appropriate valuation
methodologies by the financial community, absent special
circumstances. The Offer Price is substantially higher than the
net book value or liquidation value of the Company.
Suez, Parent and Purchaser recognize that the Offer and the
Merger were not structured to require the approval of a majority
of the Shares held by the Public Stockholders and that Parent
currently has sufficient voting power to approve the Offer and
the Merger without the affirmative vote of any other stockholder
of the Company. However, Suez, Parent and Purchaser believe that
the transactions are procedurally fair because of the following
factors:
(i) The Special Committee was appointed to represent the
interests of the Public Stockholders.
(ii) The Special Committee retained separate outside legal
counsel to assist it in evaluating and negotiating a potential
transaction with Parent.
(iii) The Special Committee retained CSFB as its independent
financial advisor to assist it in evaluating and negotiating a
potential transaction with Parent.
(iv) The Offer Price and the other terms and conditions of
the Offer and the Merger resulted from active arms-length
bargaining between representatives of the Special Committee, on
the one hand, and representatives of Parent, on the other hand.
(v) Any Public Stockholders desiring to do so may exercise
and perfect their appraisal rights under the DGCL and receive
"fair value" for their Shares as determined by the court.
(n) Item 11 is hereby amended by adding the following language
after the last sentence in the second full paragraph on page 9 under
"SPECIAL FACTORS - Position of Suez, Parent and Purchaser Regarding
Fairness of the Offer and the Merger" in the Offer to Purchase:
The affiliates of Suez that have engaged CSFB to provide these
services have agreed to pay CSFB a maximum fee of $900,000 for
its services in connection with the privatization project, and an
amount up to 0.35% of the total funds raised for its services in
connection with the monetization project. Suez, Parent and
Purchaser believe that the engagement of CSFB by certain
affiliates of Suez is immaterial to the Offer and the Merger and
neither supports nor detracts from its fairness determination.
(o) Item 11 is hereby amended by replacing the reference to
"Parent's personnel or any other person" with "Suez, Parent, Purchaser or
their respective personnel" in the last sentence of the carryover paragraph
on pages 10 and 11 under the caption "Other Analyses" under "SPECIAL
FACTORS - Analysis of Financial Advisor to Parent" in the Offer to
Purchase.
(p) Item 11 is hereby amended by amending the carryover paragraph
on pages 16 and 17 under "SPECIAL FACTORS - Company Financial Projections"
in the Offer to Purchase by (i) replacing every reference to "SUEZ, PARENT,
PURCHASER OR THE COMPANY OR ANY OTHER PERSON" with " SUEZ, PARENT,
PURCHASER, THEIR FINANCIAL ADVISOR OR CSFB OR ANY OF THEIR RESPECTIVE
OFFICERS AND DIRECTORS" and (ii) adding the following language after the
fourth sentence:
NEITHER THE COMPANY NOR ANY OF ITS OFFICERS AND DIRECTORS IS
MAKING ANY REPRESENTATIONS AS TO THE PROJECTIONS INCLUDED IN THIS
OFFER TO PURCHASE OTHER THAT THEY WERE PREPARED IN GOOD FAITH
BASED ON ASSUMPTIONS THAT WERE BELIEVED TO BE REASONABLE AT THE
TIME OF PREPARATION.
(q) Item 11 is hereby amended adding the following language after
the second sentence the first paragraph on page 18 under "SPECIAL FACTORS -
Purpose and Structure of the Offer and the Merger; Plans for the Company"
in the Offer to Purchase:
Parent has undertaken the transaction at this time for a number
of reasons, including the following: As indicated above, Parent
determined in late 1999 to request the resignation of Mr. Casten.
The Special Committee members upon learning of this decision,
requested that the Parent revive its going private proposal. See
"- Background of Offer and the Merger; Contacts with the
Company," above. Second, the Parent determined that the Company's
need for immediate capital to meet certain project related
funding requirements would be more easily implemented if the
Company was wholly owned by parent. Third, Parent believed that
the Company was at a critical time with respect to its
development and growth. While the Company has recently added a
number of significant customers and has a number of identified
but unsigned development contracts, Parent does not believe that
the Company's existing credit facilities could support the
additional capital requirements that these projects would demand,
or that these capital requirements could be achieved in the
public markets on terms compatible with the Company's
profitability objectives and current financial structure. Parent
believes that "going private" will allow the Company to have
access to better financing conditions and capital.
(r) Item 11 is hereby amended by adding the following language
after the last sentence of the carryover paragraph on pages 34 and 35 under
"SPECIAL FACTORS -Beneficial Ownership of Shares" in the Offer to Purchase:
The table also sets forth the same beneficial ownership
information concerning the remaining directors of the Company and
its executive officers. Except as indicated below, the executive
officers and directors of the Company do not own any Shares.
(s) Item 11 is hereby amended by adding the following language to
the table on page 35 under "SPECIAL FACTORS -Beneficial Ownership of
Shares" in the Offer to Purchase:
George F. Keane.......................... 27,275 30,000 *
Richard E. Kessel(4), (5) ............... 46,813 48,000 *
Charles E. Bayless....................... 9,949 10,000 *
Eugene E. Murphy(4), (5)................. 163,528 18,600 1.3%
Benoit Ansart (4)........................ 8,359 18,600 *
Daniel Fiore(4).......................... 6,523 9,000 *
Mark C. Hall(4), (5)..................... 7,053 9,000 *
Steven G. Smith(4), (5).................. 26,143 26,900 *
Stephen K. Swinson(4), (5)............... 19,964 18,700 *
Jean M. Malahieude(4).................... 39,503 36,600 *
Martin Stone(4), (5)..................... 13,125 9,000 *
James F. Lowry(4), (5)................... 17,541 21,500 *
Daniel J. Samela(4), (5)................. 2,169 11,000 *
Stephen T. Ward(4), (5).................. 2,239 11,000
All directors and executive
officers of the Company, as a group...... 1,490,303 408,000 12.0%
(t) Item 11 is hereby amended by adding the following language
after footnote (3) on page 35 under "SPECIAL FACTORS -Beneficial Ownership
of Shares" in the Offer to Purchase:
(4) On January 11, 2000, the following executive officers of the
Company were issued dividend reinvestment Shares in connection
with their restricted stock ownership: Benoit Ansart (14.459
Shares), Daniel Fiore (13.402 Shares), Mark C. Hall (13.382
Shares), Richard E. Kessel (56.508 Shares), James F. Lowry
(27.207 Shares), Jean M. Malahieude (56.508 Shares), Eugene E.
Murphy (27.207 Shares), Daniel J. Samela (2.930 Shares), Steven
G. Smith (37.672 Shares), Martin S. Stone (20.241 Shares),
Stephen K. Swinson (33.486 Shares) and Stephen T. Ward (2.930
Shares).
(5) On January 11, 2000, the following executive officers were
issued dividend reinvestment Shares in their individual 401(k)
Plan accounts maintained by Fidelity Management Trust Company, in
connection with the Company's common stock contributed to such
accounts under the Company's profit sharing plan: Mark C. Hall
(0.491 Shares), Richard E. Kessel (1.345 Shares), James F. Lowry
(0.909 Shares), Eugene E. Murphy (1.345 Shares), Daniel J. Samela
(1.140 Shares), Steven G. Smith (1.345 Shares), Martin S. Stone
(0.292 Shares), Stephen K. Swinson (1.298 Shares) and Stephen T.
Ward (1.133 Shares).
(u) Item 11 is hereby amended by the addition of the following
language at the end of the table encaptioned "Trigen Energy Corporation -
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA" page 47 under "THE
TENDER OFFER - Certain Information Concerning the Company" in the Offer to
Purchase:
Grays Ferry Cogeneration Partnership. As of December 31,
1999, the Company had an investment of $34.3 million in the Grays
Ferry Cogeneration Partnership (the Partnership"), representing a
one-half interest in the Partnership, which is accounted for
under the equity method. Cogen America Schuylkill Inc. owns the
other one-half interest in the Partnership. The Company derives a
significant portion of its income from the Partnership. The
summarized financial information presented below represents an
aggregation of 100% of the Partnership (in thousands).
<TABLE>
<CAPTION>
GRAYS FERRY COGENERATION PARTNERSHIP
SELECTED FINANCIAL AND OPERATING DATA
($ IN THOUSANDS)
YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
------------------------------ ---------------------------
1998 1997(1) 1999 1998
------------- ---------------- ------------ --------------
Statement of Operations: (unaudited)
<S> <C> <C> <C>
Revenues............................. $ 78,126 $ 62,358 $ 58,128
Operating expenses
Fuel and consumables............... 34,926 27,021 25,642
Production and operating costs..... 4,348 3,600 3,060
Depreciation....................... 7,402 5,674 5,164
General and administrative......... 5,146 5,412 3,615
--------- --------- ---------
Total operating expenses............. 51,822 41,707 37,481
--------- --------- ---------
Operating income..................... 26,304 20,651 20,647
Other income (expense)
Interest expense, net.............. (11,009) (5,756) (8,001)
Earnings before cumulative effect of a
change in an accounting principle..
15,295 14,895 12,646
Cumulative Effect of a Change in an
Accounting Principle............... -- (357) --
Net Income........................... $ 15,295 $ 14,538 $ 12,646
========= ========= =========
<CAPTION>
AS OF DECEMBER 31, AS OF SEPTEMBER 30,
------------------------------ ---------------------------
1998 1997 1999 1998
------------- ---------------- ------------ --------------
<S> <C> <C> <C> <C>
Balance Sheet Data:
Working capital (deficit)............ $(100,033) $(115,430) $ (88,500) $(112,294)
Property, plant and equipment, net... 143,895 144,328 138,342 144,099
Current assets....................... 33,393 10,092 32,567 35,441
Noncurrent assets.................... 6,875 6,545 15,433 16,283
Total assets......................... 184,163 160,965 186,342 195,823
Current liabilities.................. 133,426 125,522 121,067 147,735
Noncurrent liabilities............... - - - -
Partners' Capital.................... 50,737 35,443 65,275 48,088
- -----------------------------
<FN>
(1) Financial information regarding the operations Grey's Ferry
Cogeneration Partnership for the year ended December 31, 1997 are not
available because Commercial operations did not commence until January
9, 1998.
</FN>
</TABLE>
Additional financial information relating to the Partnership is
hereby incorporated by reference from the audited financial statements
for the Partnership's 1998 and 1997 fiscal years set forth in Exhibit
99 to the 1998 10-K. The exhibit and the report may be inspected at,
and copies may be obtained from, the same places and in the manner set
forth below under " - Available Information," below.
(v) Item 11 is hereby amended by replacing every reference to
"Purchaser, Parent, Suez, CAC, Societe Generale or, to the best of their
knowledge" with "the Company, Purchaser, Parent, Suez, CAC, Societe
Generale or, to the best of their respective knowledge" in the sixth and
seventh paragraph on page 48, the carryover paragraph on pages 48 and 49,
and the first full paragraph on page 49 under "THE TENDER OFFER -Certain
Information Concerning Purchaser, Parent, Suez, CAC and Societe Generale"
in the Offer to Purchase.
(w) Item 11 is hereby amended by amending the fourth paragraph on
page 50 under "THE TENDER OFFER - Conditions of the Offer" in the Offer to
Purchase by replacing the words "the acceptance of such Shares for payment
or the payment therefor" in the fourth line of such language with the words
"the Expiration Date."
(x) Item 11 is hereby amended by amending by adding the following
paragraph after the carryover paragraph on pages 53 and 54 under "THE
TENDER OFFER - Certain Litigation Matters; Regulatory Approvals" in the
Offer to Purchase:
On March 16, 2000 another reported class action styled Adam
Z. Rice v. Trigen Energy Corporation, Suez Lyonnaise Des Eaux,
Elyo S. A., T Acquisition Corporation, Christine Morin-Postel,
Richard E. Kessel, George Keane, Patrick Buffet, Oliver Degos,
Philippe Brongiart, Michel Bleitarch, Dominique Magin, D'Oince,
and Charles Bayless, Index No. 03668-00 (Supreme Court of the
State of New York, County of Westchester) was filed. The action
purports to be brought on behalf of a class consisting of all
holders of the Common Stock (except defendants and their
affiliates) and alleges that Parent has embarked on a course of
conduct designed to depress the value of the Shares, that the
consideration to be received for the Shares is inadequate, and
that the defendants have breached their fiduciary duties. The
action seeks, among other things, damages.
(y) Item 11 is hereby amended by adding the following language at
the end of Schedule I in the Offer to Purchase:
4. DIRECTORS AND OFFICERS OF THE COMPANY
Set forth below is the name, present principal occupation or
employment and material occupations, positions, offices or
employment for the past five years of each director and executive
officer of Trigen Energy Corporation. The principal address of
the Company and, unless indicated below, the current business
address for each individual listed below is c/o Trigen Energy
Corporation, 1 Water Street, White Plains, New York 10601.
Telephone: (914) 948-9150. Each such person is, unless indicated
below, a citizen of the United States.
Present Principal Occupation or
Name and Current Employment; Material Positions Held
Business Address Age During the Past Five Years
- ---------------------------------------------------------------------------
Christine Morin-Postel 53 Chief Executive Officer of Societe
Generale de Belgique (1997-present).
Director and Non-executive Chairman,
Trigen Energy Corporation
(2000-present); Chairman and Chief
Executive Officer, Compagnie
Hypothecaire (1995-1998); Chairman and
Chief Executive Officer, credisuez
(1995-1997); Managing Partner,
Financiere Indosuez (1995-1996). Ms.
Postel is a French citizen.
Patrick Buffet 46 Executive Vice President, Suez
Lyonnaise des Eaux (1998-present);
Director, Trigen Energy Corporation
(1998-present); Director of
International Holdings, Societe
Generale de Belgique (1994-1998). Mr.
Buffet is a French citizen.
George F. Keane 70 Director (1994-present), Trigen Energy
Corporation, Non-executive Chairman,
Trigen Energy Corporation (1994-2000);
President Emeritus and Senior
Investment Adviser, The Common Fund
(1993-1996); Board member, Universal
Stainless & Alloy Products, Global
Pharmaceutical, United Water
Resources, The Bramwell Funds,
Nicholas-Applegate Investment Trust
and Northern Trust of Connecticut.
Philippe Brongniart 61 Member of the Executive Board, Suez
Lyonnaise des Eaux (1997-present);
Director, Trigen Energy Corporation
(1997-present); Executive Vice
President, Lyonnaise des Eaux
(1993-1997). Mr. Brongniart is a
French citizen.
Olivier Degos 38 Treasurer and Secretary, T Acquisition
Corp. (2000-present); International
Director, Elyo (1999-present);
Director, Trigen Energy Corporation
(1999-present); Chief Financial
Officer, Elyo (1995-1998); Deputy
Chief Financial Officer; The SITA
Group (1994-1995).
Richard E. Kessel 50 Director, Trigen Energy Corporation
(1994-present), Chief Executive
Officer of Trigen Energy Corporation
(January 2000-present); Executive Vice
President and Chief Operating Officer,
Trigen Energy Corporation
(1993-January 2000).
Charles E. Bayless 56 Director, Trigen Energy Corporation
(1994-present); President and Chief
Executive Officer, Illinova Power
Company (1998-present); Chairman,
President and Chief Executive Officer,
UniSource Energy (1998-present);
Chairman, Tuscon Electric Power
Company (1992-1998).
Michel Bleitrach 54 President, T. Acquisition Corp. (2000-
present); Chairman and Chief Executive
Officer, Elyo (1993-present);
Director, Trigen Energy Corporation
(1995-present).
Dominique Mangin d'Ouince 50 Director, Trigen Energy Corporation
(1995-present); Executive Vice
President and Managing Director, Suez
Lyonnaise des Eaux (1995-present);
Managing Director, Business
Development, Suez Lyonnaise des Eaux
(1990-1997). Mr. Mangin d'Ouince is a
French citizen.
Jean M. Malahieude 61 Executive Vice President, Trigen
Energy Corporation (1997-Present);
Vice President, Trigen Energy
Corporation (1987-1997); Executive
Vice President, Cofreth American
Corporation (1987-present). Mr.
Malahieude is a French citizen.
James F. Lowry 61 President, Trigen Energy
Corporation (1995-present); Principal,
International Ventures Group
(1993-1995).
Eugene E. Murphy 65 Vice President and General Counsel,
Trigen Energy Corporation
(1986-present). Secretary, Trigen
Energy Corporation (1998-present).
Daniel J. Samela 52 Controller, Trigen Energy Corporation
(1995-present); Chief Financial
Officer, Dealer Division of Savin
Corporation (1991-1995).
Stephen T. Ward 57 Treasurer, Trigen Energy Corporation
(1995-present); Treasurer, [TI Group
Inc. (1988-1995).
Stephen K. Swinson 42 Vice President, Trigen Energy
Corporation (1998-present); President,
Technology Division, Trigen Energy
Corporation (1997-present); President,
Western Region, Trigen Energy
Corporation (1996-1997); President,
Trigen-Colorado Energy Corporation
(1995-1997); President, Trigen-Kansas
City Energy Corporation (1993-1997).
Steven G. Smith 58 Vice President, Trigen Energy
Corporation (1998-present); President,
Operations Division, Trigen Energy
Corporation (1997-present); President,
Trigen-Philadelphia Energy Company
(1990-present).
Martin S. Stone 64 Vice President and Chief Financial
Officer, Trigen Energy Corporation
(1998-present); Vice President,
Corporate Secretary, and other
positions, Helmsley Enterprises, Inc.
(1971-1997).
Benoit Ansart 39 Vice President, Trigen Energy
Corporation (1999-present); Director
of Engineering, Trigen Energy
Corporation (1993-1999).
Daniel Fiore 54 Vice President, Trigen Energy
Corporation (1999-present); Vice
President, Burns & Roe (1995-1999).
Mark Hall 32 Vice President, Trigen Energy
Corporation (1999-present); Director
of Government Affairs, Trigen Energy
Corporation (1997-1999); Manager of
Environmental Health and Safety,
Trigen Energy Corporation (1995-1997).
(z) Item 11 is hereby amended by amending the first paragraph of
Schedule III in the Offer to Purchase by (i) replacing every reference to
"Suez, Parent, Purchaser, the Company" with "Suez, Parent, Purchaser,
Lazard Freres, CSFB or any of their respective officers and directors," and
(ii) adding the following language after the sixth sentence:
Neither the Company nor any of its officers and directors is
making any representations as to the projections included in this
Offer to Purchase other that they were prepared in good faith
based on assumptions that were believed to be reasonable at the
time of preparation.
ITEM 12. Exhibits.
(a)(1)(i) Offer to Purchase, dated February 28, 2000.*
(a)(1)(ii) Letter of Transmittal.*
(a)(1)(iii) Notice of Guaranteed Delivery.*
(a)(1)(iv) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(a)(1)(v) Notice to the Company 401k Plan Participants from
Fidelity Management Trust Company.*
(a)(1)(vi) Solicitation/Recommendation Statement on Schedule 14D-9,
dated February 28, 2000 (incorporated by reference to the
Company's Schedule 14D-9 filed with the Commission on
February 28, 2000).*
(a)(2) Letter to stockholders from Richard E. Kessel, President
and Chief Executive Officer of the Company.*
(a)(3) Exhibit (a)(1)(i) is incorporated herein by reference.
(a)(4) Not applicable.
(a)(5)(i) Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees to Clients.*
(a)(5)(ii) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(5)(iii) Agreement and Plan of Merger dated as of January 19,
2000, among Elyo, T Acquisition Corp. and the Company.*
(a)(5)(iv) Audited financial statements for the Company's 1998 and
1997 fiscal years, beginning on page F-1 of the Company's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (incorporated by reference to the
Company's Annual Report on Form 10-K filed with the
Commission on March 31, 1999).*
(a)(5)(v) Pages 1 through 8, inclusive, of the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended
September 30, 1999 (incorporated by reference to the
Company's Quarterly Report on Form 10-Q filed with the
Commission on November 12, 1999).*
(a)(5)(vi) Audited financial statements for Grays Ferry Cogeneration
Partnership 1998 and 1997 fiscal years, set forth on
Exhibit 99 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998 (incorporated
by reference to the Company's Annual Report on Form 10-K
filed with the Commission on March 31, 1999).*
(a)(5)(vii) Joint Press Release, dated January 19, 2000.*
(a)(5)(viii) Joint Press Release, dated February 28, 2000.*
(a)(5)(ix) Joint Press Release, dated March 17, 2000.
(b) Not applicable.
(c)(i) Summary Presentation prepared for Parent by Lazard Freres
& Co., LLC, dated January 19, 2000.*
(c)(ii) Written Presentation prepared for the Special Committee
by Credit Suisse First Boston Corporation, dated January
19, 2000.*
(c)(iii) Opinion of Credit Suisse First Boston Corporation, dated
January 19, 2000 (incorporated by reference from Annex A
of the Solicitation/Recommendation Statement on Schedule
14D-9 of the Company, dated February 28, 2000).*
(d)(i) Tender and Voting Agreement dated as of January 19, 2000,
among Elyo, T Acquisition Corp. and the Stockholders.*
(d)(ii) Letter Agreement between Thomas R. Casten and Elyo, dated
January 19, 2000.*
(d)(iii) Separation Agreement and Release dated as of January 19,
2000, between Trigen Energy Corporation and Thomas R.
Casten.*
(f) Section 262 of the Delaware General Corporation Law
(included as Schedule II to the Offer to Purchase filed
herewith as Exhibit (a)(1)(i)).*
(g) Not applicable.
(h) Not applicable.
(i)(i) Power of Attorney, dated October 27, 1998.*
(i)(ii) Power of Attorney, dated October 27, 1998 (English
translation).
- -------------------
* Previously filed
<PAGE>
SIGNATURE
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.
T ACQUISITION CORP.
By: /s/ Michel Bleitrach
---------------------------------
Name: Michel Bleitrach
Title: President
ELYO
By: /s/ Michel Bleitrach
---------------------------------
Name: Michel Bleitrach
Title: Chief Executive Officer
SUEZ LYONNAISE DES EAUX
By: /s/ M. Patrice Herbet
---------------------------------
Name: M. Patrice Herbet*
Title: Authorized Representative
TRIGEN ENERGY CORPORATION
By: /s/ Eugene E. Murphy
---------------------------------
Name: Eugene E. Murphy
Title: Vice President, General
Counsel and Secretary
Dated: March 17, 2000
- -----------------------
* A Power of Attorney authorizing M. Patrice Herbet to sign on behalf of
Suez Lyonnaise des Eaux is filed herewith as Exhibit (i).
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER TITLE
- ------------ -----
(a)(1)(i) Offer to Purchase, dated February 28, 2000.*
(a)(1)(ii) Letter of Transmittal.*
(a)(1)(iii) Notice of Guaranteed Delivery.*
(a)(1)(iv) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(a)(1)(v) Notice to the Company 401k Plan Participants from
Fidelity Management Trust Company.*
(a)(1)(vi) Solicitation/Recommendation Statement on Schedule 14D-9,
dated February 28, 2000 (incorporated by reference to the
Company's Schedule 14D-9 filed with the Commission on
February 28, 2000).
(a)(2) Letter to stockholders from Richard E. Kessel, President
and Chief Executive Officer of the Company.*
(a)(3) Exhibit (a)(1)(i) is incorporated herein by reference.
(a)(4) Not applicable.
(a)(5)(i) Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees to Clients.*
(a)(5)(ii) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(5)(iii) Agreement and Plan of Merger dated as of January 19,
2000, among Elyo, T Acquisition Corp. and the Company.*
(a)(5)(iv) Audited financial statements for the Company's 1998 and
1997 fiscal years, beginning on page F-1 of the Company's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (incorporated by reference to the
Company's Annual Report on Form 10-K filed with the
Commission on March 31, 1999).
(a)(5)(v) Pages 1 through 8, inclusive, of the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended
September 30, 1999 (incorporated by reference to the
Company's Quarterly Report on Form 10-Q filed with the
Commission on November 12, 1999).
(a)(5)(vi) Audited financial statements for Grays Ferry Cogeneration
Partnership 1998 and 1997 fiscal years, set forth on
Exhibit 99 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998 (incorporated
by reference to the Company's Annual Report on Form 10-K
filed with the Commission on March 31, 1999).
(a)(5)(vii) Joint Press Release, dated January 19, 2000.*
(a)(5)(viii) Joint Press Release, dated February 28, 2000.*
(a)(5)(ix) Joint Press Release, dated March 17, 2000.
(b) Not applicable.
(c)(i) Summary Presentation prepared for Parent by Lazard Freres
& Co., LLC, dated January 19, 2000.*
(c)(ii) Written Presentation prepared for the Special Committee
by Credit Suisse First Boston Corporation, dated January
19, 2000.*
(c)(iii) Opinion of Credit Suisse First Boston Corporation, dated
January 19, 2000 (incorporated by reference from Annex A
of the Solicitation/Recommendation Statement on Schedule
14D-9 of the Company, dated February 28, 2000).*
(d)(i) Tender and Voting Agreement dated as of January 19, 2000,
among Elyo, T Acquisition Corp. and the Stockholders.*
(d)(ii) Letter Agreement between Thomas R. Casten and Elyo, dated
January 19, 2000.*
(d)(iii) Separation Agreement and Release dated as of January 19,
2000, between Trigen Energy Corporation and Thomas R.
Casten.*
(f) Section 262 of the Delaware General Corporation Law
(included as Schedule II to the Offer to Purchase filed
herewith as Exhibit (a)(1)(i)).*
(g) Not applicable.
(h) Not applicable.
(i)(i) Power of Attorney, dated October 27, 1998.*
(i)(ii) Power of Attorney, dated October 27, 1998 (English
translation).
- -------------------
* Previously filed
EXHIBIT 99(a)(5)(ix)
March 17, 2000
Elyo: Acquisition of Trigen Energy Corporation
BIDDERS ANNOUNCE AMENDMENT OF TENDER OFFER MATERIALS FOR SHARES OF TRIGEN
WHITE PLAINS, N.Y. and NANTERRE, France, March 17 /PRNewswire/ -- Trigen
Energy Corporation (NYSE: TGN) and ELYO, an energy subsidiary of the Suez
Lyonnaise des Eaux Group, jointly announced today that, in response to
comments made by the staff of the Securities and Exchange Commission, they
have supplemented certain disclosures made in connection with the
previously announced offer by T Acquisition Corp., an indirect, wholly
owned subsidiary of ELYO, to purchase any and all of the outstanding shares
of Trigen that ELYO does not already own for $23.50 a share in cash. All
terms of the tender offer remain unchanged from those disclosed in the
tender offer materials that were mailed to Trigen's shareholders on
February 28, 2000. The supplemental information has been filed with the
Securities and Exchange Commission, and is available to any Trigen
shareholder, free of charge, by contacting the Information Agent, Morrow &
Co., Inc. at (800) 566-9061.
Trigen is a leading developer, owner and operator of industrial,
commercial and institutional district energy and combined heat and power
(CHP) systems in North America. The company serves more than 1,500
customers with energy produced at 49 plants in 20 states, Canada and
Mexico.
CONTACT: Susan Odiseos, Director of Corporate Communications of Trigen
Energy Corporation, 914-286-6628; or Gilles Alligner, Director of
Communications of ELYO, +1-33-1-41-20-1293; or Jeffrey Zack of Morgen Walke
Associates, Inc, 212-850-5643.
Exhibit 99(i)(ii)
[SUEZ LYONNAISE DES EAUX LETTERHEAD]
Power of Attorney
The undersigned, Gerard Mestrallet, Chairman of the Board, by
resolutions of the Board of Directors dated June 30, 1997 and October 19,
1998, does hereby grant, with power of delegation, to
Mr. Philippe de Margeril, Secretary,
the power to:
o sign any present or future correspondence of the Company;
o contract for insurance, pay insurance premiums, and accept and
receive compensation;
o represent the Company in all trade associations or related groups
in which the Company participates or of which the Company is a
member;
o file all applications for the registration of all trademarks,
patents and other intellectual property rights, enter into
licensing arrangements, with the authority to delegate this power
to the Company's attorneys or other advisors;
o purchase supplies and furniture in furtherance of the Company's
objectives;
o enter into and cancel bailments and leases for real and personal
property;
o subscribe for, acquire or sell any capital stock or obligation of
any entity;
o open, in the Company's name, bank accounts with any private or
public banking organization;
o make deposits, withdrawals and transfers of funds on behalf of
the Company;
o sign all checks and other negotiable instruments in the name and
on behalf of the Company;
o establish and sign statements of account and promissory notes or
similar obligations which are or could be owed to the Company
from any source;
o collect on any amounts that may be due to the Company from any
source, and provide receipt thereof;
o pay all amounts due by the Company and obtain receipt thereof;
o take any action necessary to collect on amounts due to the
Company in the event of default or non-payment;
o take legal action on behalf of the Company against debtors of the
Company, respond to requests for information, and settle any
disputes;
o represent the Company in judicial proceedings as either plaintiff
or defendant, agree to venue, participate in motions, and defend
the Company before any competent court, sign and file complaints
or responsive pleadings, propose and accept any settlement
offers, satisfy all judgments against the Company, waive or drop
claims, and participate in appeals;
o make all appropriate declarations to taxing authorities, pay
taxes, petition or appeal any decision relating to tax exemptions
or returns, defend the Company before any competent tax court or
administrative body, sign and file complaints or responsive
pleadings, propose and accept any settlement offers, satisfy all
judgments against the Company, waive or drop claims, and
participate in appeals;
o take all action necessary for the Company to be and remain in
good standing under the laws of all jurisdictions in which the
Company operates or does business;
o contract on behalf of the Company; and
o be an officer of the Company with respect to the Company's
operations in France and abroad.
And to take all action necessary to effectuate the above-listed
powers.
This power of attorney hereby voids and supercedes the power of
attorney dated July 1, 1997 relating to the subject matter hereof.
/s/ Gerard Mestrallet
---------------------
Gerard Mestrallet
Nanterre, France, October 27, 1998
<PAGE>
[SUEZ LYONNAISE DES EAUX LETTERHEAD]
Power of Attorney
The undersigned, Philippe de Margerie, Secretary, by the power of
authority dated October 27, 1998 by Gerard Mestrallet, does hereby grant,
Mr. Patrice Herbet, French and International General Counsel
the power to:
o sign any present or future correspondence of the Company;
o file all applications for the registration of all trademarks,
patents and other intellectual property rights, enter into
licensing arrangements, with the authority to delegate this power
to the Company's attorneys or other advisors;
o establish and sign statements of account and promissory notes or
similar obligations which are or could be owed to the Company
from any source;
o take any action necessary to collect on amounts due to the
Company in the event of default or non-payment;
o take legal action on behalf of the Company against debtors of the
Company, respond to requests for information, and settle any
disputes;
o represent the Company in judicial proceedings as either plaintiff
or defendant, agree to venue, participate in motions, and defend
the Company before any competent court, sign and file complaints
or responsive pleadings, propose and accept any settlement
offers, satisfy all judgments against the Company, waive or drop
claims, and participate in appeals;
o take all action necessary for the Company to be and remain in
good standing under the laws of all jurisdictions in which the
Company operates or does business;
o negotiate and contract on behalf of the Company; and
o be an officer of the Company with respect to operations in France
and abroad.
And to take all action necessary to effectuate the above-listed
powers.
s/ Philippe de Margerie
-----------------------
Philippe de Margerie
Nanterre, France, October 27, 1998
