SC 13D 1 schedule13d-avert.txt SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 AVERT, INC. ----------- (Name of Issuer) COMMON STOCK, WITHOUT PAR VALUE ------------------------------- (Title of Class of Securities) 053596102 --------- (CUSIP Number) Richard S. Borisoff, Esq. Douglas A. Cifu, Esq. Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000 -------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) JUNE 15, 2001 ------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [_]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). This document consists of 10 pages 2 CUSIP NO. 053596102 -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON AUTOMATIC DATA PROCESSING, INC. (22-1467904) -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [_] -------------------------------------------------------------------------------- 3 SEC USE ONLY -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS 00 -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [_] -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF -0- SHARES ---------------------------------------- BENEFICIALLY OWNED 8 SHARED VOTING POWER BY EACH REPORTING PERSON 346,889 (1) WITH ---------------------------------------- 9 SOLE DISPOSITIVE POWER -0- ---------------------------------------- 10 SHARED DISPOSITIVE POWER -0- -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 346,889 -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.6% -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO -------------------------------------------------------------------------------- ------------------------ (1) No shares of common stock, without par value, of Avert, Inc. have been purchased, directly or indirectly, by the reporting person. Rather, the reporting person may be deemed to have beneficial ownership of the shares reported herein pursuant to a voting agreement (as described in the Introduction and in Items 3 and 4 of this Statement), entered into in connection with the proposed acquisition by the reporting person of all of the outstanding shares of Avert, Inc. Any such beneficial ownership is expressly denied by the reporting person. 3 INTRODUCTION No shares of common stock, without par value (the "COMMON STOCK"), of Avert, Inc., a Colorado corporation (the "ISSUER"), have been purchased, directly or indirectly, by the reporting person. Automatic Data Processing, Inc., a Delaware corporation ("ADP"), is making this filing solely because it may be deemed to have beneficial ownership of the shares reported herein pursuant to the Voting Agreement (as defined below). On June 15, 2001, the Issuer, ADP and ADP Colorado, Inc., a Colorado corporation and wholly owned subsidiary of ADP ("SUB"), entered into an Agreement and Plan of Merger, in the form attached hereto as Exhibit 1 (the "MERGER AGREEMENT"), which is incorporated herein by reference. Under the terms of the Merger Agreement, Sub will be merged with and into the Issuer (the "MERGER"), and in connection therewith each outstanding share of Common Stock will be converted into the right to receive $22.00 in cash (the "MERGER CONSIDERATION"). The amount of the Merger Consideration is subject to certain adjustments set forth in the Merger Agreement. Completion of the Merger is subject to the satisfaction of a number of conditions, including the approval of the Merger Agreement by the holders of shares of Common Stock of the Issuer. In connection therewith, ADP and Dean A. Suposs (the "SHAREHOLDER") have entered into a Voting Agreement, dated as of June 15, 2001, in the form attached hereto as Exhibit 2 (the "VOTING AGREEMENT"), which is incorporated herein by reference, whereby the Shareholder has agreed that, at any meeting of the shareholders of the Issuer, however called, and in any action by consent of the shareholders of the Issuer, the Shareholder will vote (or cause to be voted) the shares of Common Stock held of record (to the extent the Shareholder has the right to vote such shares) or beneficially owned (to the extent the Shareholder also has the right to vote such shares) by the Shareholder in favor of the Merger, the Merger Agreement (as amended from time to time) and the transactions contemplated by the Merger Agreement. The Shareholder has granted to ADP a proxy to vote his shares of Common Stock in a manner consistent with the covenants set forth in the Voting Agreement. The Shareholder has further agreed that, (i) he will not, or permit any person under his control to, enter into any voting agreement or grant a proxy or power of attorney with respect to the shares of Common Stock held of record or beneficially owned by him or form any "group" for purposes of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or the rules promulgated thereunder, in each such case, which is inconsistent with the Voting Agreement, and (ii) except as set forth in the Merger Agreement, the Shareholder will not (x) solicit, initiate, encourage (including by way of furnishing information or assistance) or take any other action to facilitate, any inquiry or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Acquisition Proposals (as defined in the Merger Agreement) or agree to or endorse any Acquisition Proposal or (y) propose, enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any other person any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to do or seek any of the foregoing. The Shareholder further agreed that, except as set forth in the Voting Agreement, he will not (i) tender any shares of Common Stock, (ii) sell, assign or transfer record or beneficial ownership of any of the shares of Common Stock, or (iii) further pledge, hypothecate or otherwise dispose of any shares of Common Stock; PROVIDED, that the Shareholder may transfer record ownership of any of the shares of Common Stock so long as the Shareholder maintains 4 beneficial ownership of such shares of Common Stock (including, without limitation, the unfettered right to vote such shares of Common Stock in the manner set forth in the Voting Agreement). The Voting Agreement terminates upon the earlier to occur of (i) the closing of the transactions contemplated by the Merger Agreement and (ii) the date the Merger Agreement is terminated in accordance with its terms; PROVIDED, HOWEVER, that if the Merger Agreement is terminated pursuant to any of Sections 7.1(d), (e) or (f) of the Merger Agreement and at the time of such termination the Termination Amount (as defined in the Merger Agreement) either is or may become payable pursuant to Section 7.5(b) of the Merger Agreement, the Voting Agreement shall terminate on the date which is six months after the date of termination of the Merger Agreement. Under the terms of the Voting Agreement, if the Shareholder acquires the right to vote any additional shares of Common Stock, the Voting Agreement shall be applicable to such additional shares. The description of the transactions summarized above are qualified in their entirety by reference to the Exhibits attached hereto. ITEM 1. SECURITY AND ISSUER. The class of equity securities to which this Statement on Schedule 13D (the "STATEMENT") relates is the common stock, without par value (defined above as the "COMMON STOCK"), of Avert, Inc., a Colorado corporation (defined above as the "ISSUER"). The principal executive offices of the Issuer are located at 301 Remington Street, Ft. Collins, Colorado 80203. ITEM 2. IDENTITY AND BACKGROUND. (a)-(c), (f). This Statement is filed by Automatic Data Processing, Inc., a Delaware corporation (defined above as "ADP"). The principal business of ADP is computing services. The address of the principal business and principal office of ADP is One ADP Boulevard, Roseland, New Jersey 07068. The name, residence or business address, present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted and citizenship of each executive officer and director of ADP are set forth in Schedule 1 hereto, which is incorporated herein by reference. (d) During the last five years, neither ADP nor, to the best of its knowledge, any of the persons listed on Schedule 1 hereto has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, neither ADP nor, to the best of its knowledge, any of the persons listed on Schedule 1 hereto has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. 5 ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. No shares of the Issuer's Common Stock have been purchased, directly or indirectly, by ADP. Rather, as an inducement and a condition to its entering into the Merger Agreement, ADP and the Shareholder have entered into the Voting Agreement, pursuant to which the Shareholder has agreed to vote his shares of Common Stock in favor of the Merger Agreement (as more fully described in the Introduction of this Statement, which is incorporated by reference herein). ITEM 4. PURPOSE OF TRANSACTION. No shares of the Issuer's Common Stock have been purchased, directly or indirectly, by ADP. ADP could be deemed to have "acquired" beneficial ownership of the shares of Common Stock to which this Statement relates only in the sense that it and the Shareholder have entered into the Voting Agreement (as described in the Introduction of this Statement, which is incorporated by reference herein) in order to facilitate the Merger pursuant to the Merger Agreement. Except as specifically set forth herein, ADP disclaims beneficial ownership over any shares of the Common Stock, including the power to vote, to direct the voting of, to dispose, or to direct the disposition of, any shares of the Common Stock. Each of Paragraphs (a) through (j) of Item 4 may be applicable to the transactions contemplated by the Merger Agreement. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) ADP may be deemed to beneficially own 346,889 shares of Common Stock as a result of entering into the Voting Agreement, which, based on calculations made in accordance with Rule 13d-3 promulgated under the Exchange Act and there being 3,266,705 shares of Common Stock outstanding on June 14, 2001 (as represented to ADP by the Issuer in the Merger Agreement), represents approximately 10.6% of the outstanding Common Stock. To the knowledge of ADP, none of the persons identified in Schedule 1 beneficially owns any securities of the Issuer. Except as specifically set forth herein, ADP disclaims beneficial ownership over any shares of the Common Stock, including the power to vote, to direct the voting of, to dispose, or to direct the disposition of, any shares of the Common Stock. ADP disclaims membership in any group with respect to the Common Stock, by virtue of ADP's execution of the Voting Agreement or otherwise. (b) As a result of entering into the Voting Agreement, ADP may be deemed to have shared power to vote or to direct the vote of the shares of Common Stock herein reported as beneficially owned by it. The Shareholder shares the power to vote the shares of Common Stock herein reported as beneficially owned by ADP. The following paragraphs provide the applicable information required by Item 2 with respect to the Shareholder, which information is based on information disclosed by the Issuer and the Shareholder in their respective public filings with the Securities and Exchange Commission and on information provided by the Shareholder to ADP. Dean A. Suposs is a citizen of the United States whose principal business address is 301 Remington Street, Ft. Collins, Colorado 80203. Mr. Suposs' principal occupation is serving as President of the Issuer. 6 To the knowledge of ADP, the person listed in response to this Item 5(b) has not during the last five years been convicted in any criminal proceeding excluding traffic violations or similar misdemeanors. To the knowledge of ADP, the person listed in response to this Item 5(b) has not during the last five years been a party to a civil proceeding or a judicial or administrative body of competent jurisdiction as a result of which he was or is subject to a judgment, decree or final order enjoining violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws. (c) Neither ADP nor, to its knowledge, any of the persons identified on Schedule 1, has effected any transactions in the Issuer's Common Stock during the past 60 days, except as set forth herein. (d) To the knowledge of ADP, only the Shareholder has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock of the Issuer reported herein as beneficially owned by ADP. (e) Paragraph (e) of Item 5 is inapplicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Reference is made to the Introduction and Item 5 of this Statement, which are incorporated by reference herein, for the description of the contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 of this Statement and between such persons and any person with respect to any securities of the Issuer, including but not limited to the transfer or voting of any of the securities, finder fees, joint ventures, loan or option agreements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 1 Agreement and Plan of Merger, dated as of June 15, 2001, among the Issuer, ADP and Sub Exhibit 2 Voting Agreement, dated as of June 15, 2001, between ADP and Dean A. Suposs. 7 SIGNATURE --------- After reasonable inquiry and to my best knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 25, 2001 AUTOMATIC DATA PROCESSING, INC. By: /s/ James B. Benson --------------------------------------- Name: James B. Benson Title: Corporate Vice President 8 SCHEDULE 1 ---------- INFORMATION WITH RESPECT TO DIRECTORS AND EXECUTIVE OFFICERS AND DIRECTORS OF ADP ------------------------------------------- The following information sets forth the name, business address and present principal occupation of each of the directors and executive officers of ADP. Except as indicated below, the business address of each director and executive officer of ADP is One ADP Boulevard, Roseland, New Jersey 07068-1728. Each of the directors and executive officers of ADP is a citizen of the United States. BUSINESS ADDRESS AND PRESENT NAME PRINCIPAL OCCUPATION DIRECTORS OF ADP ---------------- Gary C. Butler President and Chief Operating Officer of ADP Joseph A. Califano, Jr. Chairman of the Board and President, National Center on Addiction and Substance Abuse at Columbia University 152 West 57th Street, 12th Floor New York, New York 10019 Leon G. Cooperman Chairman and Chief Executive Officer of Omega Advisors, Inc., an investment partnership Wall Street Plaza 88 Pine Street, 31st Floor New York, New York 10004 George H. Heilmeier President and Chief Executive Officer of Telcordia Technologies (formerly Bellcore), a research and engineering consortium 445 South Street Morristown, New Jersey 07960 Ann Dibble Jordan Consultant 2940 Benton Place, N.W. Washington, DC 20008 Harvey M. Krueger Vice Chairman of Lehman Brothers, an investment banking firm American Express Tower, 17th Floor New York, NY 10285 9 BUSINESS ADDRESS AND PRESENT NAME PRINCIPAL OCCUPATION Frederic V. Malek Chairman of Thayer Capital Partners, a merchant banking firm 1455 Pennsylvania Avenue, N.W. Suite 350 Washington, DC 20004 Henry Taub Honorary Chairman and Chairman of the Executive Committee of the Board of ADP 300 Frank W. Burr Blvd., 7th Floor Teaneck, NJ 07666 Laurence A. Tisch Co-Chairman of Loews Corporation, which is engaged in the consumer products, hotel and insurance business 667 Madison Avenue, 7th Floor New York, New York 10021 Arthur F. Weinbach Chairman of the Board and Chief Executive Officer of ADP Josh S. Weston Honorary Chairman of the Board of ADP EXECUTIVE OFFICERS OF ADP ------------------------- John D. Barfitt President, Claims Services of ADP James B. Benson Vice President, General Counsel And Secretary of ADP Richard C. Berke Vice President, Human Resources of ADP Gary C. Butler President and Chief Operating Officer of ADP Raymond L. Colotti Vice President and Treasurer of ADP Richard J. Daly Group President, Brokerage Services of ADP Richard A. Douville Vice President, Finance of ADP G. Harry Durity Vice President, Worldwide Business Development of ADP Karen E. Dykstra Vice President, Comptroller of ADP Russell P. Fradin Group President, Employer Services of ADP Eugene A. Hall Senior Vice President and President of Finanicial and Technology Services, Employer Services - North America of ADP Richard J. Haviland Chief Financial Officer and Vice President of ADP John P. Hogan Group President, Brokerage Services of ADP Campbell Langdon Vice President, Strategic Development of ADP S. Michael Martone Group President, Dealer Services of ADP Arthur F. Weinbach Chairman and Chief Executive Officer of ADP 10 EXHIBIT INDEX ------------- EXHIBIT NO. DESCRIPTION --- ----------- 1 Agreement and Plan of Merger, dated as of June 15, 2001, among the Issuer, ADP and Sub. 2 Voting Agreement, dated as of June 15, 2001, between ADP and Dean A. Suposs.