SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE TO/A

(Rule 14d-100)

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934.

(Amendment No. 10)

 

 

CASEY’S GENERAL STORES, INC.

(Name of Subject Company (Issuer))

 

 

ACT ACQUISITION SUB, INC.

ALIMENTATION COUCHE-TARD INC.

(Names of Filing Persons (Offerors))

Common Stock, No Par Value

(Title of Class of Securities)

147528103

(CUSIP Number of Class of Securities)

 

 

Alain Bouchard

President and Chief Executive Officer

Alimentation Couche-Tard Inc.

4204 Industriel Blvd.

Laval, Québec, Canada H7L 0E3

Telephone: (450) 662-6632

(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)

 

 

Copies to:

Morton A. Pierce, Esq.

Chang-Do Gong, Esq.

Dewey & LeBoeuf LLP

1301 Avenue of the Americas

New York, New York 10019

Telephone: (212) 259-8000

 

 

CALCULATION OF FILING FEE

 

Transaction Valuation*		Amount Of Filing Fee**
$1,907,277,666		$135,989

*

For purposes of calculating the amount of the filing fee only. Based on the offer to purchase up to 51,898,712 shares of common stock, no par value (the “Shares”), of Casey’s General Stores, Inc. (“Casey’s”), including the associated preferred stock purchase rights, at a purchase price of $36.75 per Share, net to the seller in cash, without interest and subject to any required withholding of taxes. Such number of Shares consists of (i) 50,939,162 Shares issued and outstanding as of June 24, 2010, as reported in Casey’s Annual Report on Form 10-K for the fiscal year ended April 30, 2010 (the “Casey’s Form 10-K”) and (ii) 959,550 Shares that may be issued before the expiration of the offer pursuant to the exercise of stock options based on the total number of stock options outstanding as of April 30, 2010 as reported in the Casey’s Form 10-K.

**	Calculated in accordance with Rule 0-11 promulgated under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #4 for Fiscal Year 2010, by multiplying the transaction value by 0.00007130.

 

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:        $133,182		Filing Parties:    ACT Acquisition Sub, Inc.         Alimentation Couche-Tard Inc.
Form or Registration No.:        SC TO-T		Date Filed:        June 2, 2010
Amount Previously Paid:        $2,807		Filing Parties:    ACT Acquisition Sub, Inc.         Alimentation Couche-Tard Inc.
Form or Registration No.:        SC TO-T/A		Date Filed:        July 22, 2010

 

¨	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:  ¨

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

 

¨

Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

 

¨

Rule 14d-1(d) (Cross-Border Third Party Tender Offer)

 

 

 

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SCHEDULE TO

This Amendment No. 10 to Schedule TO (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission (the “SEC”) on June 2, 2010, as amended by Amendment No. 1 filed with the SEC on June 7, 2010, Amendment No. 2 filed with the SEC on June 11, 2010, Amendment No. 3 filed with the SEC on June 17, 2010, Amendment No. 4 filed with the SEC on June 21, 2010, Amendment No. 5 filed with the SEC on July 12, 2010, Amendment No. 6 filed with the SEC on July 13, 2010, Amendment No. 7 filed with the SEC on July 22, 2010, Amendment No. 8 filed with the SEC on July 28, 2010 and Amendment No. 9 filed with the SEC on August 2, 2010 (as amended, the “Schedule TO”), by Alimentation Couche-Tard Inc., a corporation incorporated under the laws of the province of Québec, Canada (“Couche-Tard”), and ACT Acquisition Sub, Inc., an Iowa corporation and an indirect wholly owned subsidiary of Couche-Tard (“Purchaser”), relating to the offer by Purchaser to purchase (1) all issued and outstanding shares of common stock, no par value (the “Shares”), of Casey’s General Stores, Inc., an Iowa corporation (“Casey’s”), and (2) the associated rights to purchase shares of Series A Serial Preferred Stock, no par value, of Casey’s (the “Rights”) issued pursuant to the Rights Agreement, dated as of April 16, 2010 (the “Rights Agreement”), between Casey’s and Computershare Trust Company, N.A., as Rights Agent, at a price of $36.75 per Share (including the associated Rights), net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated June 2, 2010 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with the Offer to Purchase and any amendments or supplements thereto, constitute the “Offer”). Unless the context otherwise requires, all references herein to the “Shares” shall be deemed to include the associated Rights, and all references herein to the “Rights” shall be deemed to include the benefits that may inure to holders of Rights pursuant to the Rights Agreement. This Amendment is being filed on behalf of Couche-Tard and Purchaser.

The information set forth in the Offer to Purchase, including Schedule I thereto, is hereby incorporated by reference in answer to Items 1 through 11 of this Amendment. This Amendment should be read together with the Schedule TO.

 

ITEMS 1

THROUGH 11.

1. The following paragraph is hereby added at the end of Section 10 — “Background of the Offer” of the Offer to Purchase:

“On August 10, 2010, Casey’s issued a press release and filed an amendment to the Schedule 14D-9 relating to the Offer with the SEC, announcing the issuance of 5.22% Senior Notes due August 9, 2020 (together with any notes issued in substitution therefor, the “Notes”), in a private placement in an aggregate principal amount of $569 million pursuant to a Note Purchase Agreement, dated as of August 9, 2010, between Casey’s and the Purchasers named therein (the “Note Purchase Agreement”), the proceeds of which would be used to fund the purchase of Shares in the previously announced $500 million recapitalization plan of Casey’s and for certain other purposes.”

2. Clause (6) of Subsection (f) of Section 14 — “Conditions to the Offer” of the Offer to Purchase is hereby amended and restated in its entirety to read as follows:

“(6) incurred any debt otherwise than in the ordinary course of business consistent with past practice or any debt containing, in the reasonable judgment of Purchaser, burdensome covenants or security provisions, or failed to cause the Note Purchase Agreement, together with the Notes, to be amended to reflect terms and conditions reasonably satisfactory to Purchaser, including the deletion of any obligation of Casey’s to pay, or any right of the holders of the Notes to receive the payment of, a Make-Whole Amount (as defined in the Note Purchase Agreement) in connection with a Change in Control (as defined in the Note Purchase Agreement),”

 

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3. The following paragraph is hereby added after the fifth paragraph under the caption “Litigation” in Section 15 — “Certain Legal Matters; Antitrust; State Takeover Statutes; State Registration Requirements; the Rights Condition; Appraisal Rights; “Going-Private” Transactions” of the Offer to Purchase:

“On July 7, 2010, the Court ordered that any hearing on Casey’s application for a preliminary injunction shall be held on August 23, 2010, and that the parties shall complete discovery on any issue relating to the application for preliminary injunction by August 16, 2010. On July 12, 2010, Casey’s filed a motion to dismiss the Counterclaims. On July 14, 2010, Couche-Tard filed its opposition to Casey’s motion for a preliminary injunction and filed a motion for judgment on the pleadings. On July 29, 2010, Casey’s filed a reply brief in support of its motion for a preliminary injunction. On August 2, 2010, Casey’s filed its opposition to Couche-Tard’s motion for judgment on the pleadings. On August 11, 2010, Couche-Tard filed its opposition to Casey’s motion to dismiss the Counterclaims.”

4. The following paragraphs are hereby added at the end of Section 15 — “Certain Legal Matters; Antitrust; State Takeover Statutes; State Registration Requirements; the Rights Condition; Appraisal Rights; “Going-Private” Transactions” of the Offer to Purchase:

“On August 4, 2010, the Iowa State Court consolidated Howie v. Myers, et al. into Mercier v. Casey’s General Stores, Inc., et al. and appointed counsel in Mercier as lead counsel.

On August 8, 2010, a purported class action lawsuit captioned Oklahoma Law Enforcement Retirement System v. Myers, et al., Civil Action No. CL119217, was filed in the Iowa State Court against Casey’s and the members of the Board of Directors of Casey’s, alleging that the members of the Board of Directors of Casey’s have breached their fiduciary duties in connection with the Offer by, among other things, implementing coercive and preclusive defensive measures designed to impede the Offer in order to entrench themselves. The plaintiff seeks, among other things, an order (i) declaring that the Board of Directors of Casey’s breached its fiduciary duties, (ii) enjoining the Board of Directors of Casey’s from implementing any further defensive measures that would impede the plaintiff’s ability to consider or accept the Offer, (iii) requiring the Board of Directors of Casey’s to rescind or redeem the Rights, (iv) requiring the Board of Directors of Casey’s to terminate Casey’s recapitalization plan, (v) requiring the Board of Directors of Casey’s to make certain corrective disclosures in the Schedule 14D-9, (vi) requiring the Board of Directors of Casey’s to take all other action necessary to facilitate the tender of Shares into the Offer, (vii) requiring the Board of Directors of Casey’s to provide a fair process by which the plaintiff can evaluate potential strategic alternatives, (viii) imposing a constructive trust in favor of the plaintiff and the class and (ix) awarding plaintiff costs and fees.”

 

ITEM 12.

Item 12 of the Schedule TO is hereby amended and supplemented to add the following exhibit:

 

(a)(5)(M)		Press release issued by Alimentation Couche-Tard Inc. on August 12, 2010 regarding Couche-Tard’s statement in response to the private placement of notes in an aggregate principal amount of $569 million of Casey’s General Stores, Inc.

 

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SIGNATURE

After due inquiry and to the best of their knowledge and belief, the undersigned hereby certify as of August 12, 2010 that the information set forth in this statement is true, complete and correct.

 

 

 

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EXHIBIT INDEX

 

Exhibit No.		Description
(a)(1)(A)		Offer to Purchase, dated June 2, 2010.*
(a)(1)(B)		Letter of Transmittal.*
(a)(1)(C)		Notice of Guaranteed Delivery.*
(a)(1)(D)		Letter 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 Nominees.*
(a)(1)(F)		Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.*
(a)(1)(G)		Summary Advertisement published on June 2, 2010.*
(a)(5)(A)		Press Release issued by Alimentation Couche-Tard Inc. on June 2, 2010 announcing the commencement of the Offer.*
(a)(5)(B)		Press Release issued by Alimentation Couche-Tard Inc. on April 9, 2010 (previously filed in a Schedule TO-C on April 9, 2010).*
(a)(5)(C)		Investor Presentation, dated June 2010.*
(a)(5)(D)		Press Release issued by Alimentation Couche-Tard Inc. on June 7, 2010 announcing Couche-Tard’s notice of intent to nominate persons for election as directors and propose shareholder business at the 2010 annual meeting of shareholders of Casey’s General Stores, Inc.*
(a)(5)(E)		Press Release issued by Alimentation Couche-Tard Inc. on June 11, 2010 regarding Couche-Tard’s response to the lawsuit filed by Casey’s General Stores, Inc. against Couche-Tard and Purchaser.*
(a)(5)(F)		Press release issued by Alimentation Couche-Tard Inc. on July 12, 2010 announcing Couche-Tard’s extension of the Offer.*
(a)(5)(G)		Excerpts of press release issued by Alimentation Couche-Tard Inc. on July 13, 2010 regarding Couche-Tard’s fourth quarter and fiscal 2010 earnings release (incorporated by reference to the Schedule 14A filed with the SEC by Alimentation Couche-Tard Inc. and ACT Acquisition Sub, Inc. on July 13, 2010).*
(a)(5)(H)		Excerpts of script for earnings conference call held by Alimentation Couche-Tard Inc. on July 13, 2010 regarding Couche-Tard’s fourth quarter and fiscal 2010 earnings release (incorporated by reference to the Schedule 14A filed with the SEC by Alimentation Couche-Tard Inc. and ACT Acquisition Sub, Inc. on July 13, 2010).*
(a)(5)(I)		Press Release issued by Alimentation Couche-Tard Inc. on July 22, 2010 announcing the increase of the offer price and Couche-Tard’s plan to file a Preliminary Proxy Statement in respect of Casey’s General Stores, Inc.*
(a)(5)(J)		Preliminary Proxy Statement in respect of Casey’s General Stores, Inc. filed by Alimentation Couche-Tard Inc. and ACT Acquisition Sub, Inc. on July 22, 2010 (incorporated by reference to the Schedule 14A filed with the SEC by Alimentation Couche-Tard Inc. and ACT Acquisition Sub, Inc. on July 22, 2010).*
(a)(5)(K)		Press Release issued by Alimentation Couche-Tard Inc. on July 28, 2010 responding to Casey’s General Stores, Inc.’s rejection of its increased $36.75 all-cash tender offer.*
(a)(5)(L)		Press release issued by Alimentation Couche-Tard Inc. on August 2, 2010 announcing Couche-Tard’s extension of the Offer.*
(a)(5)(M)		Press release issued by Alimentation Couche-Tard Inc. on August 12, 2010 regarding Couche-Tard’s statement in response to the private placement of notes in an aggregate principal amount of $569 million of Casey’s General Stores, Inc.
(b)		Not applicable.
(d)		Not applicable.
(g)		Not applicable.
(h)		Not applicable.

 

*	Previously filed.

 

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