sctovt
As filed
with the Securities and Exchange Commission on May 11,
2011.
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
CNA
SURETY CORPORATION
Name of Subject Company
(issuer))
SURETY ACQUISITION
CORPORATION
(offeror)
a wholly owned subsidiary of
CONTINENTAL CASUALTY
COMPANY
a wholly owned subsidiary of
THE CONTINENTAL
CORPORATION
a wholly owned subsidiary of
CNA FINANCIAL
CORPORATION
Names of Filing Persons (other
person(s))
Common Stock, $0.01 Par
Value Per Share
(Title of Class of Securities)
12612L1008
(CUSIP Number of Class of
Securities)
Jonathan D. Kantor, Esq.
Executive Vice President, General Counsel and Secretary
CNA Financial Corporation
333 South Wabash Avenue
Chicago, Illinois
60604-4107
Telephone:
(312) 822-5000
With a copy to:
Gary Horowitz, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York
10017-3954
Telephone:
(212) 455-2000
(Name, address, and telephone
numbers of person authorized to receive notices and
communications on behalf of filing persons)
Calculation
of Filing Fee
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TRANSACTION VALUATION
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AMOUNT OF FILING FEE
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$466,255, 011
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$
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54,132.21
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*
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Estimated for purposes of
calculating the amount of the filing fee only. The calculation
assumes the purchase of all outstanding shares of common stock,
par value $0.01 per share (the “Shares”), of CNA
Surety Corporation, a Delaware corporation, other than Shares
owned by CNA Financial Corporation (“CNA Financial”)
and its subsidiaries, at a purchase price of $26.55 per Share,
net to the seller in cash. As of May 6, 2011, there were
44,986,541 Shares outstanding, of which
27,425,147 Shares are owned by subsidiaries of CNA
Financial. As a result, this calculation assumes the purchase of
17,561,394 Shares.
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**
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The amount of the filing fee is
calculated in accordance with Rule 0-11 of the Securities
Exchange Act of 1934, as amended, by multiplying the transaction
value by 0.00011610.
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Check 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: Not
applicable
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Filing Party: Not applicable
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Form or Registration No.: Not applicable
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Date Filed: Not applicable
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Check box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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Check the appropriate boxes to designate any transactions to
which this statement relates:
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þ third
party tender offer subject to
Rule 14d-1
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o going-private
transaction subject to Rule 13e-3
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o issuer
tender offer subject to
Rule 13e-4
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o amendment
to Schedule 13D under Rule 13d-2
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Check the following box if the filing is a final amendment
reporting the results of the tender
offer. o
If applicable, check the appropriate box(es) below to designate
the appropriate rule provision(s) relied upon:
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o Rule 13e-4(i)
(Cross-Border Issuer Tender Offer
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o Rule
14d-1(d) (Cross-Border Third Party Tender Offer
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This Tender Offer Statement filed on Schedule TO (this
“Schedule TO”) relates to the tender offer
by Surety Acquisition Corporation
(“Purchaser”), a Delaware corporation and an
indirect wholly-owned subsidiary of CNA Financial Corporation, a
Delaware corporation (“CNA Financial”) to
purchase all the outstanding shares of common stock, par value
$0.01 per share (the “Shares”), of CNA Surety
Corporation, a Delaware corporation (the “CNA
Surety”), other than Shares owned by CNA Financial and
its subsidiaries, at a purchase price of $26.55 per Share, net
to the seller in cash, without interest and less any applicable
withholding of taxes, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated
May 11, 2011 (as may be amended or supplemented from time
to time, the “Offer to Purchase”), a copy of
which is attached hereto as Exhibit (a)(1)(i), and the related
Letter of Transmittal (as may be amended or supplemented from
time to time, the “Letter of Transmittal”), a
copy of which is attached hereto as Exhibit (a)(1)(ii) (which,
as amended or supplemented from time to time, together
constitute the “Offer”). The information set
forth in the Offer to Purchase, including all schedules thereto,
and the related Letter of Transmittal are hereby expressly
incorporated by reference in response to all items of this
Schedule TO.
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Item 1.
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Summary
Term Sheet.
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Reference is made to the information set forth in the Offer to
Purchase under the heading “Summary Term Sheet” which
is incorporated herein by reference.
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Item 2.
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Subject
Company Information.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 7. Certain Information Concerning CNA Surety”
which is incorporated herein by reference.
(b) Reference is made to the information set forth in the
Offer to Purchase under the heading “Introduction”
which is incorporated herein by reference.
(c) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 6. Price Range of the Shares; Dividends” which
is incorporated herein by reference.
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Item 3.
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Identity
and Background of Filing Person.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the headings “Summary Term
Sheet,” “Introduction,” “The
Offer — Section 8. Certain Information Concerning
the CNA Financial Group” and
“Schedule A — Information Concerning
Directors and Executive Officers of the CNA Financial
Group” which is incorporated herein by reference.
(b) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 8. Certain Information Concerning the CNA Financial
Group” which is incorporated herein by reference.
(c) Reference is made to the information set forth in the
Offer to Purchase under the headings “The Offer —
Section 8. Certain Information Concerning the CNA Financial
Group” and “Schedule A — Information
Concerning Directors and Executive Officers of the CNA Financial
Group” which is incorporated herein by reference.
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Item 4.
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Terms
of the Transaction.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the headings “Summary Term
Sheet,” “Introduction,” “Special
Factors — Section 7. Effects of the Offer,”
“Special Factors — Section 9. Summary of the
Merger Agreement,” “The Offer —
Section 1. Terms of the Offer,” “The
Offer — Section 2. Acceptance for Payment and
Payment for Shares,” “The Offer —
Section 3. Procedures for Accepting the Offer and Tendering
Shares,” “The Offer — Section 4.
Withdrawal Rights,” “The Offer —
Section 5. Certain United States Federal Income Tax
Consequences” and “The Offer —
Section 12. Effect of the Offer on the Market for the
Shares; NYSE Listing; Exchange Act Registration; Margin
Regulations” which is incorporated herein by reference
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Item 5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 11. Transactions and
Arrangements Concerning the Shares,” “Special
Factors — Section 12. Certain Relationships
Between the CNA Financial Group and CNA Surety” and
“Schedule B — Security Ownership of Certain
Beneficial Owners” which is incorporated herein by
reference.
(b) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 1. Background” and
“Special Factors — Section 9. Summary of the
Merger Agreement” which is incorporated herein by reference.
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Item 6.
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Purposes
of the Transaction and Plans or Proposals.
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(a) and (c) (1) through (7) Reference is made to
the information set forth in the Offer to Purchase under the
headings “Special Factors — Section 2.
Purpose of and Reasons for the Offer; Plans for CNA Surety After
the Offer and the Merger,” “Special
Factors — Section 7. Effects of the Offer,”
“Special Factors — Section 8. Conduct of CNA
Surety’s Business if the Offer Is Not Completed,”
“Special Factors — Section 9. Summary of the
Merger Agreement” and “The Offer —
Section 12. Effect of the Offer on the Market for the
Shares; NYSE Listing; Exchange Act Registration; Margin
Regulations” which is incorporated herein by reference.
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Item 7.
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Source
and Amount of Funds or Other Consideration.
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(a), (b) and (d) Reference is made to the information
set forth in the Offer to Purchase under the headings
“Summary Term Sheet,” “Introduction” and
“The Offer — Section 9. Source and Amount of
Funds” which is incorporated herein by reference.
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Item 8.
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Interest
in Securities of the Subject Company.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the headings “Summary Term
Sheet,” “Introduction,” “Special
Factors — Section 11. Transactions and
Arrangements Concerning the Shares” and
“Schedule B — Security Ownership of Certain
Beneficial Owners” which is incorporated herein by
reference.
(b) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 11. Transactions and
Arrangements Concerning the Shares,” “Special
Factors — Section 9. Summary of the Merger
Agreement” and “Schedule B — Security
Ownership of Certain Beneficial Owners” which is
incorporated herein by reference.
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Item 9.
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Persons/Assets,
Retained, Employed, Compensated or Used.
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(a) Reference is made to the information set forth in the
Offer to Purchase under the heading “The Offer —
Section 14. Fees and Expenses” which is incorporated
herein by reference.
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Item 10.
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Financial
Statements.
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(a) Financial statements for the offeror are not material
because the consideration offered consists solely of cash, the
Offer is not subject to any financing condition and the Offer is
for all outstanding securities of the subject class.
(b) Pro forma financial information is not material to the
Offer.
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Item 11.
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Additional
Information.
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(a)(1) Reference is made to the information set forth in the
Offer to Purchase under the headings “Special
Factors — Section 1. Background,”
“Special Factors — Section 9. Summary of the
Merger Agreement” and “Special Factors —
Section 12. Certain Relationships Between the CNA Financial
Group and CNA Surety” which is incorporated herein by
reference.
(a)(2) through (4) Reference is made to the information set
forth in the Offer to Purchase under the headings “Special
Factors — Section 7. Effects of the Offer,”
“Special Factors — Section 10. Appraisal
Rights;
Rule 13e-3,”
“The Offer — Section 1. Terms of the
Offer,” “The Offer — Section 5. Certain
United States Federal Income Tax Consequences,” “The
Offer — Section 12. Effect of the Offer on the
Market for the Shares; NYSE Listing; Exchange Act Registration;
Margin Regulations,” “The Offer —
Section 13. Certain Legal Matters; Regulatory
Approvals,” “The Offer — Section 15.
Miscellaneous” and
“Schedule C— Section 262 of the
Delaware General Corporation Law” which is incorporated
herein by reference
(a)(5) None.
(c) Reference is made to the information set forth in the
Offer to Purchase and the Letter of Transmittal, which is
incorporated herein by reference.
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(a)(1)(i)
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Offer to Purchase, dated May 11, 2011.
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(a)(1)(ii)
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Letter of Transmittal.
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(a)(1)(iii)
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Notice of Guaranteed Delivery.
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(a)(1)(iv)
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Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
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(a)(1)(v)
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Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
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(a)(1)(vi)
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Summary Advertisement published in The New York Times on
May 11, 2011.
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(a)(5)(i)
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Joint Press Release, issued by CNA Financial and CNA Surety,
dated May 11, 2011.
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(a)(5)(ii)
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Joint Press Release, issued by CNA Financial and CNA Surety,
dated April 21, 2011 (incorporated by reference to
Exhibit 99.1 to CNA Financial’s Current Report on
Form 8-K
filed by CNA Financial on April 21, 2011).
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(b)
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None.
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(d)(1)
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Agreement and Plan of Merger, dated as of April 20, 2011,
by and among CNA Financial, CNA Surety and Purchaser
(incorporated by reference to Exhibit 2.1 to the
Form 8-K
filed by CNA Surety on April 21, 2011).
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(g)
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None.
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(h)
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None.
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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.
Dated: May 11, 2011
SURETY ACQUISITION CORPORATION
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By:
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/s/ Jonathan
D. Kantor
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Jonathan D. Kantor
Executive Vice President, General Counsel and
Secretary
CNA FINANCIAL CORPORATION
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By:
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/s/ Jonathan
D. Kantor
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Jonathan D. Kantor
Executive Vice President, General Counsel and
Secretary
CONTINENTAL CASUALTY COMPANY
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By:
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/s/ Jonathan
D. Kantor
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Jonathan D. Kantor
Executive Vice President, General Counsel and
Secretary
THE CONTINENTAL CORPORATION
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By:
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/s/ Jonathan
D. Kantor
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Jonathan D. Kantor
Executive Vice President, General Counsel and
Secretary