sctovtza
As filed with the Securities and Exchange Commission on March 7, 2007
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
TENDER OFFER STATEMENT
UNDER SECTION 14(D)(1) OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 3)
CLARK, INC.
(Name of Subject Company)
AUSA HOLDING COMPANY
AUSA MERGER SUB, INC.
AEGON N.V.
AEGON USA, INC.
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
181457102
(CUSIP Number of Class of Securities)
CRAIG D. VERMIE, ESQ.
AUSA HOLDING COMPANY
4333 EDGEWOOD ROAD, NE
CEDAR RAPIDS, IOWA 52499
(319) 355-8511
(Name, address and telephone number of person authorized to receive notices and
communications on behalf of filing persons)
COPIES TO:
WILLIAM J. KELTY, ESQ.
JANET O. LOVE, ESQ.
LORD, BISSELL & BROOK LLP
111 SOUTH WACKER DRIVE
CHICAGO, ILLINOIS 60606
(312) 443-0700
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* |
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AMOUNT OF FILING FEE** |
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$293,045,702 |
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$31,356 |
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Estimated for purposes of calculating the amount of the filing fee only. Calculated by
adding (a) the amount equal to the product of $17.21, the per share tender offer price, and
the difference between (i) the 17,708,177 outstanding shares of Common Stock as of October 31,
2006 less (ii) the 2,286,994 shares of Common Stock owned by AUSA Holding Company;
plus (b) the amount equal to the product of $17.21 by the 1,606,458 shares of Common Stock
underlying outstanding stock options as of October 31, 2006. |
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Calculated as 0.0107% of the transaction value pursuant to Rule 0-11(d). |
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Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify
the filing with which the offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of its filing. |
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Amount Previously Paid:
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$ |
31,356 |
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Filing Party:
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AUSA Holding Company |
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Form or Registration No.:
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Schedule TO
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Date Filed:
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December 13, 2006 |
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Check the box if the filing relates solely to preliminary communications made before the
commencement of a tender offer. |
Check the appropriate boxes to designate any transactions to which the statement relates:
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third-party tender offer subject to Rule 14d-1. |
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issuer tender offer subject to Rule 13e-4. |
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going-private transaction subject to Rule 13e-3. |
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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: o
SCHEDULE 13D
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NAMES OF REPORTING PERSONS:
AEGON, N.V. |
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
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(a) þ |
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(b) o |
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SEC USE ONLY: |
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SOURCE OF FUNDS (SEE INSTRUCTIONS): |
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WC |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
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o |
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CITIZENSHIP OR PLACE OF ORGANIZATION: |
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The Netherlands
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SOLE VOTING POWER: |
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| NUMBER OF |
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| SHARES |
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SHARED VOTING POWER: |
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| OWNED BY |
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16,830,844* |
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| EACH |
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SOLE DISPOSITIVE POWER: |
| REPORTING |
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| PERSON |
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| WITH |
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SHARED DISPOSITIVE POWER: |
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16,830,844* |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
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16,830,844* |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
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o
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
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94.5%** |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
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HC |
* Includes Shares tendered in the Offer by 5:00 p.m. New York City time on March 6, 2007, the Expiration Date of the Offer (including approximately 1,449,608 Shares tendered by Notice of Guaranteed Delivery).
** The calculation of the foregoing percentage is based on the number of Shares of Clark Inc. common stock outstanding as of February 28, 2007.
1
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NAMES OF REPORTING PERSONS:
AEGON USA, Inc. |
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
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(a) þ |
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(b) o |
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SEC USE ONLY: |
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SOURCE OF FUNDS (SEE INSTRUCTIONS): |
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WC |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
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o |
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CITIZENSHIP OR PLACE OF ORGANIZATION: |
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Iowa
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SOLE VOTING POWER: |
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| NUMBER OF |
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SHARED VOTING POWER: |
| BENEFICIALLY |
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| OWNED BY |
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16,830,844* |
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| EACH |
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SOLE DISPOSITIVE POWER: |
| REPORTING |
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| PERSON |
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SHARED DISPOSITIVE POWER: |
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16,830,844* |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
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16,830,844* |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
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o
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
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94.5%** |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
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HC |
* Includes Shares tendered in the Offer by 5:00 p.m. New York City time on March 6, 2007, the Expiration Date of the Offer (including approximately 1,449,608 Shares tendered by Notice of Guaranteed Delivery).
** The calculation of the foregoing percentage is based on the number of Shares of Clark Inc. common stock outstanding as of February 28, 2007.
2
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NAMES OF REPORTING PERSONS:
AUSA HOLDING COMPANY |
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
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(a) þ |
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(b) o |
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SEC USE ONLY: |
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SOURCE OF FUNDS (SEE INSTRUCTIONS): |
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WC |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
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o |
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CITIZENSHIP OR PLACE OF ORGANIZATION: |
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Maryland
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SOLE VOTING POWER: |
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| NUMBER OF |
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SHARED VOTING POWER: |
| BENEFICIALLY |
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| OWNED BY |
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16,830,844* |
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| EACH |
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SOLE DISPOSITIVE POWER: |
| REPORTING |
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| PERSON |
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SHARED DISPOSITIVE POWER: |
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16,830,844* |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
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16,830,844* |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
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o
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
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94.5%** |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
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HC |
* Includes Shares tendered in the Offer by 5:00 p.m. New York City time on March 6, 2007, the Expiration Date of the Offer (including approximately 1,449,608 Shares tendered by Notice of Guaranteed Delivery).
** The calculation of the foregoing percentage is based on the number of Shares of Clark Inc. common stock outstanding as of February 28, 2007.
3
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NAMES OF REPORTING PERSONS:
AUSA Merger Sub, Inc. |
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
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(a) þ |
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(b) o |
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SEC USE ONLY: |
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SOURCE OF FUNDS (SEE INSTRUCTIONS): |
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AF |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e): |
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o |
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CITIZENSHIP OR PLACE OF ORGANIZATION: |
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Delaware
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SOLE VOTING POWER: |
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| NUMBER OF |
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SHARED VOTING POWER: |
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| OWNED BY |
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16,830,844* |
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SOLE DISPOSITIVE POWER: |
| REPORTING |
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| PERSON |
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| WITH |
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SHARED DISPOSITIVE POWER: |
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16,830,844* |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: |
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16,830,844* |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): |
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o
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): |
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94.5%** |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): |
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CO |
* Includes Shares tendered in the Offer by 5:00 p.m. New York City time on March 6, 2007, the Expiration Date of the Offer (including approximately 1,449,608 Shares tendered by Notice of Guaranteed Delivery).
** The calculation of the foregoing percentage is based on the number of Shares of Clark Inc. common stock outstanding as of February 28, 2007.
4
TABLE OF CONTENTS
This Amendment No. 3 further amends and supplements the combined Tender Offer Statement and
Rule 13e-3 Transaction Statement on Schedule TO (the “Schedule TO”) originally filed with the
Securities and Exchange Commission (the “Commission”) on December 13, 2006, as amended February 20,
2007 and March 5, 2007, by AUSA Merger Sub, Inc., a Delaware corporation (“Purchaser”), AUSA
Holding Company, a Maryland corporation (“Parent”), AEGON USA, Inc., an Iowa corporation (“AEGON
USA”), and AEGON N.V., a limited liability stock company organized under the laws of The
Netherlands (“AEGON NV”). Purchaser is a wholly-owned subsidiary of Parent, Parent is a
wholly-owned subsidiary of AEGON USA, and AEGON USA is an indirect wholly-owned subsidiary of
AEGON NV, the ultimate parent company of Purchaser, Parent and AEGON USA. When referring to
Purchaser, Parent, AEGON USA and AEGON NV together, we refer to them as the “AEGON Group” or the
“Offerors.” This Amendment No. 3 relates to the Offer by the Purchaser to purchase the outstanding
shares (other than shares owned by Parent) of Common Stock, par value $0.01 per share (the “Common
Stock”), of Clark Inc., a Delaware corporation (the “Company”), including the associated rights
(“Rights”) to purchase shares of preferred stock of the Company issued pursuant to the Rights
Agreement, as amended (the “Rights Agreement”), dated as of July 10, 1998, between the Company and
The Bank of New York, as rights agent (the Common Stock, together with the Rights, the “Shares”).
The Offer Price is $17.21 per Share, net to the seller in cash, without interest thereon, upon the
terms and subject to the conditions set forth in the Offer to Purchase dated December 13, 2006, as
amended February 20, 2007 and March 5, 2007 (the “Offer to Purchase”) and in the related Letter of
Transmittal, copies of which are filed as Exhibits (a)(1)(A) and (a)(1)(B) to the Schedule TO,
respectively (which, together with the amendments contained in this Amendment No. 3 and any other
amendments or supplements thereto, collectively constitute the “Offer”). Capitalized terms used
and not otherwise defined in this Amendment No. 3 shall have the same meanings assigned to such
terms in the Schedule TO or the Offer to Purchase.
The information in the Offer to Purchase and the Letter of Transmittal is incorporated in this
Amendment No. 3 to the Schedule TO by reference in response to all of the applicable items in the
Schedule TO, except that such information is hereby amended and supplemented to the extent
specifically provided herein.
ITEM 4.
Item 4 of Schedule TO, which incorporates by reference information contained in the Offer to
Purchase, is hereby amended to add the following:
The Offer expired at 5:00 p.m. New York City time on Tuesday, March 6, 2007. Based on preliminary
information, the Depositary for the Offer has advised Parent that 13,094,241 Shares were validly
tendered and not withdrawn, and that approximately 1,449,608 Shares were tendered by notice of
guaranteed delivery. The tendered Shares, together with the Shares already owned by Parent or
Purchaser, represent approximately 94.5% of the Shares of Clark, Inc. Common Stock currently
outstanding. All validly tendered Shares have been accepted for payment in accordance with the
terms of the Offer.
Because the Shares tendered, together with the Shares already owned by Parent or Purchaser,
represent in excess of 90% of the outstanding shares of Clark, Inc., Parent will be able to effect
a short-form merger of Purchaser with and into the Company pursuant to the provisions of Section
253 of the Delaware General Corporation Law without the approval of the Stockholders of the
Company. As soon as practical following receipt by the Depositary of the remaining Shares tendered
through guaranteed delivery procedures and the closing of the Offer, Parent intends to effect such
merger of Purchaser with and into the Company. The Company will continue as the surviving entity
and will be wholly-owned by Parent. Pursuant to the Merger, any Shares of the Company not
purchased in the Offer, other than Shares owned by Parent, Purchaser or the Company (which Shares
will be cancelled) and Shares owned by persons who properly perfect appraisal rights under Delaware
law, will be converted into the right to receive $17.21 per share in cash.
ITEM 12. EXHIBITS
The list of exhibits under Item 12 of the Schedule TO is hereby amended to add the following additional exhibit:
(a)(5)(E) Press Release issued by AEGON NV on March 7, 2007.
5
SIGNATURES
After due inquiry and to the best of its knowledge and belief, each of the undersigned certifies
that the information set forth in this statement is true, complete and correct.
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AUSA Holding Company
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By: |
/s/ James A. Beardsworth
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Name: |
James A. Beardsworth |
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Title: |
President |
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AUSA Merger Sub, Inc.
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By: |
/s/ James A. Beardsworth
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Name: |
James A. Beardsworth |
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Title: |
President |
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AEGON N.V.
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By: |
/s/ Joseph B. M. Streppel
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Name: |
Joseph B. M. Streppel |
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Title: |
CFO, Member Executive Board |
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AEGON USA, Inc.
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By: |
/s/ James A. Beardsworth
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Name: |
James A. Beardsworth |
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Title: |
Treasurer, Senior Vice President
Corporate Development |
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Dated: March 7, 2007
6
EXHIBIT INDEX
(a)(5)(E) Press Release issued by AEGON NV on March 7, 2007.
7