UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 2)
VALASSIS COMMUNICATIONS, INC.
(Name of Subject Company)
V ACQUISITION SUB, INC.
(Offeror)
HARLAND CLARKE HOLDINGS CORP.
(Parent of Offeror)
(Names of Filing Persons)
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
918866108
(CUSIP Number of Class of Securities)
Judy C. Norris, Esq.
Senior Vice President and General Counsel
10931 Laureate Drive
San Antonio, Texas 78249
(210) 697-8888
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
with a copy to:
Adam O. Emmerich, Esq.
Andrew J. Nussbaum, Esq.
DongJu Song, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
(212) 403-1000
CALCULATION OF FILING FEE
Transaction Valuation* | Amount of Filing Fee** | |
$1,377,877,884.74 | $177,470.67 |
| * | Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by adding the sum of (i) 38,812,034 shares of common stock, par value $0.01 per share (the “Shares”), of Valassis Communications, Inc. (“Valassis”) outstanding (including 389,057 unvested restricted Shares) multiplied by the offer price of $34.04 per share and (ii) 3,853,852 Shares issuable pursuant to outstanding options with an exercise price less than the offer price of $34.04 per share, multiplied by the offer price of $34.04 per share minus the weighted average exercise price for such options of $19.32 per share. The calculation of the filing fee is based on information provided by Valassis as of December 31, 2013. |
| ** | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2014, issued August 30, 2013, by multiplying the transaction valuation by 0.00012880. |
| 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: $177,470.67 | Filing Party: | Harland Clarke Holdings Corp. and V Acquisition Sub, Inc. | ||
Form or Registration No.: Schedule TO | Date Filed: | January 6, 2013 |
| ¨ | 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. |
| ¨ | 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:¨
This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Harland Clarke Holdings Corp., a Delaware corporation (“Parent”), and V Acquisition Sub, Inc. (“Purchaser”), a Delaware corporation and a wholly owned subsidiary of Parent, with the Securities and Exchange Commission on January 6, 2014 (together with any subsequent amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, par value $0.01 per share (“Shares”), of Valassis Communications, Inc., a Delaware corporation, at a price of $34.04 per Share, net to the seller in cash, without interest thereon and less any applicable withholding taxes, upon the terms and conditions set forth in the offer to purchase dated January 6, 2014 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached as Exhibit (a)(1)(B), which, as each may be amended or supplemented from time to time, collectively constitute the “Offer.”
All information contained in the Offer to Purchase and the accompanying Letter of Transmittal, including all schedules thereto, is hereby incorporated herein by reference in response to Items 1 through 9 and Item 11 in the Schedule TO.
This Amendment is being filed to amend and supplement Items 11 and 12 as reflected below.
Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented as follows:
The information set forth in Section 16 — “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is hereby amended and supplemented to add the paragraph set forth below.
Litigation. On January 7, 2014 and January 8, 2014, two putative class action lawsuits on behalf of purported stockholders of Valassis were filed against Valassis and its directors in connection with the Offer. The first purported class action was filed in the Wayne County Circuit Court of the State of Michigan and is captionedLauren Beth Goff et al. v. Valassis Communications, Inc. et al. (January 7, 2014). The second purported class action, which additionally names Parent and Merger Sub as defendants, was filed in the Oakland County Circuit Court of the State of Michigan and is captionedThomas Carnevale et al. v. Valassis Communications, Inc. et al. (January 8, 2014). Each of the lawsuits alleges that the Valassis directors breached their fiduciary duties to Valassis’ stockholders in connection with their consideration and approval of the proposed transaction, and theCarnevalelawsuit additionally alleges that Valassis, Parent and Merger Sub aided and abetted such breaches. The lawsuits seek, among other things, equitable relief that would enjoin the consummation of the Offer and subsequent Merger, rescission of these transactions (to the extent already implemented), damages, attorneys’ fees and costs, and other relief.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
| (a)(5)(A) | Complaint filed by Lauren Beth Goff, on behalf of herself and all others similarly situated, on January 7, 2014, in the Wayne County Circuit Court, State of Michigan. |
| (a)(5)(B) | Complaint filed by Thomas Carnevale, individually and on behalf of all others similarly situated, on January 8, 2014, in the Oakland County Circuit Court, State of Michigan. |
SIGNATURES
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: January 10, 2014
| V ACQUISITION SUB, INC. | ||
| By: | /s/ Judy C. Norris | |
| Name: | Judy C. Norris | |
| Title: | Senior Vice President and General Counsel | |
| HARLAND CLARKE HOLDINGS CORP. | ||
| By: | /s/ Judy C. Norris | |
| Name: | Judy C. Norris | |
| Title: | Senior Vice President and General Counsel | |
EXHIBIT INDEX
Exhibit No. | Description | |
| (a)(1)(A) | Offer to Purchase, dated January 6, 2014.* | |
| (a)(1)(B) | Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number onForm W-9).* | |
| (a)(1)(C) | Form of Notice of Guaranteed Delivery.* | |
| (a)(1)(D) | Form of Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(E) | Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(F) | Joint Press Release issued by Harland Clarke Holdings Corp. and Valassis Communications, Inc. on December 18, 2013 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Harland Clarke Holdings Corp. with the Securities and Exchange Commission on December 18, 2013). | |
| (a)(1)(G) | Summary Advertisement as published in theNew York Times on January 6, 2014.* | |
| (a)(5)(A) | Complaint filed by Lauren Beth Goff, on behalf of herself and all others similarly situated, on January 7, 2014, in the Wayne County Circuit Court, State of Michigan. | |
| (a)(5)(B) | Complaint filed by Thomas Carnevale, individually and on behalf of all others similarly situated, on January 8, 2014, in the Oakland County Circuit Court, State of Michigan. | |
| (a)(1)(H) | Joint Press Release issued by Harland Clarke Holdings Corp. and Valassis Communications, Inc. on January 6, 2014.* | |
| (b)(1) | Amended and Restated Commitment Letter, dated as of January 3, 2014, among Credit Suisse Securities (USA) LLC, Credit Suisse AG, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Jefferies Finance LLC, PNC Bank, National Association, PNC Capital Markets LLC, Union Bank N.A. and Harland Clarke Holdings Corp.* | |
| (d)(1) | Agreement and Plan of Merger, dated as of December 17, 2013, by and among Harland Clarke Holdings Corp., V Acquisition Sub, Inc. and Valassis Communications, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Harland Clarke Holdings Corp. with the Securities and Exchange Commission on December 18, 2013). | |
| (d)(2) | Confidentiality Agreement, dated September 21, 2013, between MacAndrews & Forbes Holdings Inc. and Valassis Communications, Inc.* | |
| (g) | None. | |
| (h) | None. | |
| * | previously filed |