UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington
D.C. 20549
Schedule
TO/A
(Rule 14d-100)
Tender Offer Statement under Section 14(d)(1)
of the Securities Exchange Act of 1934
(Amendment No. 18)
(Rule 14d-100)
Tender Offer Statement under Section 14(d)(1)
of the Securities Exchange Act of 1934
(Amendment No. 18)
RINKER
GROUP LIMITED
ABN 53 003 433 118
ABN 53 003 433 118
(Name
of
Subject Company (issuer)
CEMEX
Australia Pty Ltd
ACN 122 401 405
ACN 122 401 405
CEMEX,
S.A.B. de C.V.
(Names
of
Filing Persons (offerors))
Ordinary
shares
American Depositary Shares (each representing five ordinary shares)
American Depositary Shares (each representing five ordinary shares)
(Titles
of
Classes of Securities)
Ordinary
Shares, ISIN
AU000000RIN3
American Depositary Shares, CUSIP 76687M101, ISIN US76687M1018
American Depositary Shares, CUSIP 76687M101, ISIN US76687M1018
(CUSIP
and ISIN Numbers of Classes of Securities)
Mr.
Ramiro G. Villarreal Morales
General Counsel
Av. Ricardo Margain Zozaya #325,
Colonia Valle del Campestre,
Garza Garcia, Nuevo Leon, Mexico 66265
+52 81 8888 8888
General Counsel
Av. Ricardo Margain Zozaya #325,
Colonia Valle del Campestre,
Garza Garcia, Nuevo Leon, Mexico 66265
+52 81 8888 8888
(Name,
address and telephone number of
person authorized to receive notices and communications on behalf of filing persons)
person authorized to receive notices and communications on behalf of filing persons)
Copy
to:
Richard Hall
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
Richard Hall
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
CALCULATION OF FILING FEE
|
Transaction
Valuation(1)
|
Amount
of Filing Fee(2)
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$3,262,941,077
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$100,172
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(1)
Estimated solely for the purpose of calculating the filing fee in accordance
with Rule 0-11(d) under the Securities Exchange Act of 1934 (the “Exchange
Act”), the transaction valuation is calculated by multiplying (i) 895,059,958
ordinary shares, which is the maximum number of ordinary shares of Rinker Group
Limited, including 22,479,805 ordinary shares represented by 4,495,961 ADSs
(according to documents filed by Rinker with the Australian Stock Exchange),
subject to the Offer, by (ii) 23%, which is the percentage of US Holders of
Rinker Securities (according to Rinker’s annual report on Form 20-F filed on May
23, 2006), and by (iii) the purchase price of $15.85 in cash for each ordinary
share and $79.25 for each ADS. Terms used and not defined in the preceding
sentence are defined below.
(2) The amount of the filing fee, calculated in accordance with Rule
0-11
under the Securities Exchange Act of 1934, as amended, as modified by Fee
Advisory No. 6 for the fiscal year 2007, equals $30.70 per $1,000,000 of
transaction valuation. $286,357 was paid on November 14, 2006, in accordance
with Fee Advisory No. 3 for Fiscal Year 2007.
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⊠
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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: $286,357
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Form
or Registration No.: Schedule TO
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Filing
Party: CEMEX Australia Pty Ltd, ACN 122 401 405,
CEMEX, S.A.B. de C.V. |
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Date
Filed: November 14, 2006
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☐
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Check
the box if the filing relates solely to preliminary communications
made
before the commencement of a tender offer.
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1
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Check
the appropriate boxes below to designate any transactions to which
the
statement relates:
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⊠
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third-party
tender offer subject to Rule 14d-1.
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☐
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issuer
tender offer subject to Rule 13e-4.
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☐
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going-private
transaction subject to Rule 13e-3
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☐
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amendment
to Schedule 13D under Rule 13d-2
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2
This Amendment No. 18 amends and supplements the Tender Offer Statement on
Schedule TO filed with the Securities and Exchange Commission on November 14,
2006 (the “Schedule TO”) and amended thereafter. The Schedule TO, as amended,
relates to the offer by CEMEX Australia Pty Ltd (“Bidder”), a proprietary
company registered under the laws of Victoria, Australia and an indirect
wholly-owned subsidiary of CEMEX, S.A.B. de C.V. (“CEMEX”), to acquire all the
outstanding ordinary shares and American depositary shares of Rinker Group
Limited, a public company registered under the laws of New South Wales,
Australia (“Rinker”), upon the terms and subject to the conditions of the offer
(the “Offer”) (including, if the Offer is extended or amended, the terms and
conditions of any such extension or amendment), as described in the Bidder’s
Statement, dated October 30, 2006 (as amended, the “Bidder’s Statement”). Except
as specifically provided herein, this Amendment does not modify any of the
information previously reported on the Schedule TO, as amended. Capitalized
terms used herein that are not otherwise defined have the meanings given to
them
in the Bidder’s Statement.
Item
4. Terms of the Transaction.
On May 8, 2007, Bidder lodged a copy of the Sixth Supplementary Bidder’s
Statement, dated May 8, 2007 (the “Sixth Supplementary Bidder’s Statement”),
with the Australian Securities and Investment Commission. The Sixth
Supplementary Bidder’s Statement is to be read together with the Bidder’s
Statement. The Sixth Supplementary Bidder’s Statement is attached as Exhibit
(a)(1)(U).
Item
11. Additional Information.
On May 8, 2007, Bidder filed a notice with the Australian Stock Exchange stating
that the Offer has been extended to 7pm (Sydney Time)/5am (New York Time) on
June 8, 2007.
Item
12. Exhibits.
| Exhibit | Description | |
| (a)(1)(U) | Sixth Supplementary Bidder's Statement, dated May 8, 2007. |
3
SIGNATURES
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 8, 2007
| CEMEX Australia Pty Ltd | |||
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|
By:
|
/s/ Ramiro G. Villareal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | |||
| Title : Director | |||
| CEMEX, S.A.B. de C.V. | |||
|
|
By:
|
/s/ Ramiro G. Villareal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | |||
| Title: General Counsel | |||
4
Exhibit
Index.
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Exhibit
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Description
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(a)(1)(U)
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Sixth
Supplementary Bidder's Statement, dated May 8,
2007.
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0;
5
Exhibit
(a)(1)(U)
Chairman’s
Letter
8
May 2007
Dear
Rinker
Shareholder,
NOW IS
THE TIME TO ACCEPT CEMEX’S OFFER
Your
board has
unanimously recommended that you accept CEMEX’s Offer for your Rinker Shares, in
the absence of a superior proposal.
On
7 May 2007, CEMEX announced that:
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·
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it
will
extend the Offer by three weeks so that it will close at 7.00pm
(Sydney
time)/5.00am (New York time) on 8 June 2007;
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·
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it
will
declare its Offer to be unconditional if CEMEX’s aggregate interest in
Rinker Shares exceeds 50% on or before 8 June 20071;
and
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·
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you
will be
entitled to retain the A$0.25 final dividend announced by Rinker
on 27
April 2007.
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Perpetual
(which is
Rinker’s largest shareholder) has announced that it intends to accept the Offer
for all its Rinker Shares.
The
Offer price of
US$15.85 for each of your Rinker Shares, or US$79.25 for each of your Rinker
ADSs (each Rinker ADS represents five Rinker Shares) is CEMEX’s best and final
offer, in the absence of a superior proposal. You have the option of receiving
payment in US$ or A$, and the option of receiving a fixed amount of A$19.50
for
your first 2,000 Rinker Shares (or for all of your Rinker Shares if you hold
less than 2,000 shares). Accepting the Offer will not affect your right to
receive the Rinker dividend.
The
accompanying
document contains formal notification of the further extension to the Offer
Period, an update on CEMEX’s intentions in the event it acquires Rinker as a
controlled but not wholly-owned subsidiary, and further updated information
concerning the Offer.
I
encourage you to ACCEPT the Offer by following the instructions on the Share
Acceptance Form (for Rinker Shares) or ADS Letter of Transmittal (for Rinker
ADSs) which have been provided previously. You can obtain another copy of these
documents by calling the CEMEX Offer Information Line (see the telephone numbers
on the first page of the accompanying Statement).
Yours
faithfully,
Lorenzo
H.
Zambrano
Chairman
and
Chief Executive Officer
CEMEX,
S.A.B. de C.V.
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1 That
declaration will not be made before 18 May
2007.
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CEMEX
Australia Pty
Ltd ACN 122 401 405
a
wholly-owned subsidiary of CEMEX, S.A.B. de C.V.
Sixth
Supplementary
Bidder’s
Statement
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This
is a supplementary bidder’s statement under section 643 of the
Corporations Act. It also contains a combined notice under sections
630(2)
and 650D of the Corporations Act. It is the sixth
supplementary bidder’s statement issued by CEMEX Australia Pty
Ltd (Bidder) in relation to its off-market
takeover bid for Rinker Group Limited
(Rinker).
This
document (Statement) supplements the Bidder’s
Statement dated 30 October 2006 (as previously supplemented by the
First
Supplementary Bidder’s Statement dated 8 December 2006, the Second
Supplementary Bidder’s Statement dated 23 January 2007, the Third
Supplementary Bidder’s Statement dated 22 March 2007, the Fourth
Supplementary Bidder’s Statement dated 17 April 2007 and the Fifth
Supplementary Bidder’s Statement dated 18 April 2007 (together,
the Supplementary Statements)) issued by Bidder
and is to be read together with the Bidder’s Statement and Supplementary
Statements. This Statement will prevail to the extent of any inconsistency
with those documents.
A
copy of this Statement was lodged with ASIC on 8 May 2007. Neither
ASIC nor any of its officers takes any responsibility for the
contents of this Statement.
Words
and phrases defined in the Bidder’s Statement and the Supplementary
Statements have the same meaning in this Statement, unless the
context
requires otherwise.
Offer
closing time and date
7.00pm
(Sydney time)/5.00am (New York time) on 8 June 2007 (unless
extended).
CEMEX
Offer Information Line
Within
Australia: 1300 721 344 (local call)
Within
the US: (866) 244
1296
(for retail investors) or
(212) 750
5833 (for banks and brokers)
Elsewhere:
+61 3 9415 4344
Please
note that, to the extent required by the Corporations Act, calls
to these
numbers will be recorded.
How
do I accept the Offer?
You
may only accept the Offer for all your Rinker Securities. Acceptances
must
be received before the end of the Offer Period.
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For
Issuer Sponsored Holdings of Rinker Shares (Securityholder Reference
Number beginning with “I”)
To
accept the Offer, complete the Share Acceptance Form (previously
provided
to Rinker Shareholders) in accordance with the instructions on it and
return it in the enclosed envelope (where applicable) or to an
address on
the Share Acceptance Form
For
CHESS Holdings of Rinker Shares (Holder Identification Number beginning
with “X”)
To
accept the Offer, either contact your Controlling Participant (usually
your broker) and instruct them to accept the Offer for you, or complete
the Share Acceptance Form (previously provided to Rinker Shareholders)
in
accordance with the instructions on it and return it in the enclosed
envelope (where applicable) or to an address on the Share
Acceptance Form.
For
holdings of Rinker ADSs
To
accept the Offer, either:
(a) complete
and sign the yellow ADS Letter of
Transmittal (previously provided to ADS holders) in accordance
with the
instructions on it and:
(i) return
it, together with the ADRs evidencing your Rinker ADSs and any
other
documents required by the ADS Letter of Transmittal, in the envelope
provided to ADS holders previously (where applicable) or to an
address on the ADS Letter of Transmittal, or
(ii) tender
your Rinker ADSs pursuant to the procedures for book-entry transfer
set
out in Section 8.3(d) of the Bidder's Statement; or
(b)
contact your broker or other nominee, and instruct them to accept
the
Offer for you.
If
any of your Rinker ADSs are registered in the name of a broker or
other nominee, you must contact such nominee to accept the
Offer.
If
the ADRs evidencing your Rinker ADSs are not immediately
available, or you cannot comply with the procedures for book-entry
transfer set out in Section 8.3(d) of the Bidder’s Statement before
the end of the Offer Period, you may tender your Rinker
ADSs by following the procedures for guaranteed delivery set out
in Section 8.3(d) of the Bidder’s Statement.
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2
CEMEX Sixth Supplementary Bidder's Statement
1.
Extension
of Offer Period
1.1
New Offer closing date
Bidder
gives notice
that it varies the Offer by extending the Offer Period until 7.00pm (Sydney
time)/5.00am (New York time) on 8 June 2007.
This
variation may
have the effect of postponing, for more than one month, the time when Bidder
must meet its obligations to you if you have already accepted the Offer. In
that
case, under section 650E of the Corporations Act you may withdraw your
acceptance of the Offer by giving notice within one month beginning on the
day
after the day on which you receive a copy of this Statement.
Rinker
Securityholders who withdraw their acceptance must return any consideration
received for accepting the Offer. See Section 8.9 of the Bidder’s Statement for
instructions on how to withdraw an acceptance of the Offer.
If
a Rinker Securityholder withdraws an acceptance of the Offer in this manner,
Bidder must:
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·
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return
to the
Rinker Securityholder any documents that were sent to Bidder with
the
acceptance of the Offer within 14 days after the day it is given
the
withdrawal notice and any consideration is returned;
and
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·
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in
the case
of CHESS Holdings of Rinker Shares, transmit to ASTC a Valid Message
that
authorises the release of those securities from the Offer Accepted
Subposition in which the Holding has been
reserved.
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(Words
defined in the
ASTC Settlement Rules have the same meaning when used in this Section, unless
the context requires otherwise.)
1.2
New
date for giving notice on status of Defeating Conditions
Due
to the
extension of the Offer Period, the date for giving the notice on the status
of
the Defeating Conditions required by section 630(1) of the Corporations Act
has
changed from 10 May 2007 to 31 May 2007 (subject to variation in accordance
with
section 630(2) of the Corporations Act if the Offer Period is further
extended).
As
at the date of this Statement, the only Defeating Condition of the Offer which
has not been fulfilled or waived is the condition in Section 8.6(a) relating
to
90% minimum acceptance. CEMEX intends to waive that condition in the
circumstances described in Section 2 below.
2.
Update
on 90% minimum
acceptance
condition
As
at the date of this Statement, the Offer remains subject only to the 90% minimum
acceptance condition. However, Bidder will waive this condition and declare
the
Offer unconditional on a day that is no earlier than 18 May 2007 if and when
the
number of Rinker Shares in which Bidder and its associates has a relevant
interest represents more than 50% of the total number of Rinker Shares. In
that
case, CEMEX will acquire a majority of the Rinker Shares and you will be paid
for shares you have tendered for acceptance into the Offer in accordance with
the Offer terms. The earlier CEMEX receives acceptances for more than 50% of
the
Rinker Shares, the earlier payment will be made to you.
CEMEX
Sixth
Supplementary Bidder's Statement 3
If
Bidder’s voting power in Rinker increases to more than 50% after 1 June 2007 and
before 7.00pm (Sydney time)/5.00am (New York time) on 8 June 2007 (i.e. within
the last seven days of the Offer Period) there will be an automatic statutory
extension of the Offer Period for 14 days after that time. If the automatic
statutory extension period operates, Bidder reserves the right, but is not
obliged, to make further extensions to the Offer Period. The automatic statutory
extension period would constitute a “subsequent offering period” under US
securities law.
Bidder
will
terminate withdrawal rights which arise under Rule 14d-7 and Section 14(d)(5)
of
the Exchange Act, described in Section 7.3 of the Bidder’s Statement if, and on
the date that, the Offer is declared unconditional. Bidder will give notice
that:
| (a) |
if
Bidder’s
voting power in Rinker increases to more than 50% on or before
31 May
2007, then on a day that is no earlier than 18 May 2007 Bidder
will waive
the 90% minimum acceptance condition, declare the Offer unconditional
and
such withdrawal rights will lapse; or
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| (b) |
if
Bidder’s
voting power in Rinker increases to more than 50% on a date
after 31 May
2007 and on or before 8 June 2007, resulting in an automatic
statutory
extension of the Offer Period for 14 days after that time,
Bidder will
waive the 90% minimum acceptance condition, declare the Offer
unconditional and the Bidder will terminate such withdrawal
rights on such
date.
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3. Rinker
dividend
Bidder
will not
adjust the Offer price for the dividend of A$0.25 announced by Rinker on 27
April 2007. As the Offer is scheduled to close on the record date for that
dividend, you will remain a Rinker Shareholder on the record date even if you
have accepted the Offer. In that case, you will be paid that dividend by Rinker
on 3 July 2007. Even if the Offer becomes
unconditional before 8 June 2007, Bidder will not register a transfer of your
Rinker Shares until payment has been made under the Offer terms – which will be
after 8 June 2007. This will ensure you receive the dividend, regardless of
when
you accept the Offer. There is no reason to delay accepting the
Offer.
4. Perpetual’s
intention to accept
Perpetual
(which is
Rinker’s largest shareholder) has announced to the ASX that it intends to accept
the Offer for all its Rinker Shares.
5. Summary
of payment options
and
timing
5.1
Payment options
The
Offer is a US
dollar denominated offer of US$15.85 for each of your Rinker Shares, or US$79.25
for each of your Rinker ADSs (each ADS represents five Rinker Shares). However,
for your convenience, if you are a Rinker Shareholder you can choose one of
four
payment options. You will have to choose one of these options on the Share
Acceptance Form previously provided to you, or give instructions to your
broker.
4
CEMEX Sixth Supplementary Bidder's Statement
As
a Rinker Shareholder, your four options are summarised below.
OPTION
1:
A$ for all your Rinker Shares
You
will receive
the Australian dollar equivalent of US$15.85 per Rinker Share using the
average
exchange rate prevailing between the date the Offer becomes unconditional
(if
you accept before that date) or the date you accept (if you accept after the
Offer becomes unconditional) and three Business Days before you are sent
payment.1
OPTION
2:
Fixed A$ amount for your first 2,000 Rinker Shares, and A$ for any remaining
balance
You
will receive
A$19.50 for each of the first 2,000 of your Rinker Shares (or for all of your
Rinker Shares if you hold less than 2,000 shares). For any remaining balance,
you will receive the Australian dollar equivalent of US$15.85 per Rinker Share
using the average exchange rate prevailing between the date the Offer becomes
unconditional (if you accept before that date) or the date you accept (if you
accept after the Offer becomes unconditional) and three Business Days before
you
are sent payment. 2
OPTION
3:
US$ for all your Rinker Shares
You
will receive
US$15.85 for each of your Rinker Shares in US dollars.
OPTION
4:
Fixed A$ amount for your first 2,000 Rinker Shares, and US$ for any remaining
balance
You
will receive
A$19.50 for each of the first 2,000 of your Rinker Shares (or for all of your
Rinker Shares if you hold less than 2,000 shares). For any remaining balance,
you will receive US$15.85 for each of your Rinker Shares in US
dollars.
Note:
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·
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If
you are a
holder of Rinker ADSs, you can only choose Option 1 or Option
3.
Provisions for and instructions in respect of these options are
contained
in the ADS Letter of Transmittal previously provided to ADS
holders.
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·
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For
Options
1, 2 and 4, the consideration amount may be greater or less than
the Offer
price of US$15.85 on a per share basis in Australian dollar terms
depending on spot exchange rates during the calculation
period.
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·
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If
you make a
mistake and you choose more than one option or you do not choose
any
options, then your payment method will default to Option 3. However,
if
you are a Rinker Shareholder with a registered address in Australia
your
payment method will default to Option
1.
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5.2
Payment timing
If
you validly accept the Offer, you will be sent payment within one month after
the later of:
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·
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the
date that
your acceptance is received; and
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·
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the
date that
the Offer becomes or is declared
unconditional.
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In
any event,
assuming the Offer becomes or is declared unconditional, you will be sent
payment within 21 days after the Offer closes. See Section 8.8 of the Bidder’s
Statement for further details.
| 1 | The First Supplementary Bidder’s Statement dated 8 December 2006 provided full details of the currency conversion process and how the average exchange rate is determined under the terms of the Offer. | |
| 2 | See footnote above. |
CEMEX
Sixth
Supplementary Bidder's Statement 5
6. Intentions
upon acquiring less
than
90% of the Rinker Shares
6.1
Introduction
As
noted in Section 2 above, Bidder will waive the 90% minimum acceptance condition
and declare the Offer unconditional if it and its associates obtain a relevant
interest in at least 50% of the Rinker Shares. While it remains Bidder’s
objective to obtain a relevant interest in at least 90% of the Rinker Shares
under the Offer, so that it can proceed with compulsory acquisition and acquire
100% of the Rinker Shares, it is possible that the Offer will close when Bidder
has a relevant interest below 90% of Rinker Shares. In that case, Rinker will
continue as a controlled subsidiary of CEMEX.
This
Section 6
updates the disclosure in Section 3 of the Bidder’s Statement and Section 3.3 of
the Fifth Supplementary Bidder’s Statement in relation to CEMEX’s intentions
should those circumstances arise. You should read all of these
disclosures carefully because if Rinker becomes a controlled subsidiary of
CEMEX
and you do not accept the Offer, you will become a minority shareholder in
Rinker. (The possible implications for you of becoming a minority shareholder
include those outlined by Rinker in Section 5.9 of its Target’s Statement and
Section 1.3(c) of its First Supplementary Target’s
Statement.)
These
intentions
are based on information concerning Rinker, its business and the general
business environment which is known to CEMEX at the time of preparation of
this
Statement. Information known to CEMEX concerning Rinker and its business is
limited to publicly available information. Final decisions regarding these
matters will only be made by CEMEX in consideration of material information
and
circumstances at the relevant time. Accordingly, the statements set out in
this
Section 6 are statements of current intention only, which may change as new
information becomes available to CEMEX or as circumstances change. Any change
in
CEMEX’s intentions will be disclosed in the manner required by applicable
law.
Except
as otherwise
disclosed in this Section 6, CEMEX’s intentions for Rinker under the Offer
remain as disclosed in Section 3 of the Bidder’s Statement and Section 3.3 of
the Fifth Supplementary Bidder’s Statement.
CEMEX’s
intentions,
as set out in this Section 6, also reflect the intentions of
Bidder.
6.2
Overview of intentions
(a)
Rinker
Board of Directors
If
and when the Offer becomes or is declared unconditional, CEMEX intends to seek
the appointment of its nominees to the Rinker Board in place of the directors
currently on the Rinker Board, with minority Rinker Shareholders to be
represented by two directors independent of the CEMEX Group. None of those
nominees nor the two independent directors have yet been identified. CEMEX’s
intention is that its nominees to the Rinker Board will be appointed to the
Rinker Board on the condition they exercise their powers as Rinker directors
in
a manner that is consistent with all decisions made by CEMEX, subject to the
limitations noted in Section 6.3 below. CEMEX will ensure that the Rinker Board
establishes appropriate conflict management protocols, as set out in Section
3.4
of the Bidder’s Statement.
6
CEMEX Sixth Supplementary Bidder's Statement
(b)
Potential
de-listing of
Rinker
Although
it is
intended that Rinker would maintain its listing on ASX, subject to the
requirements for listing (including a sufficient spread of Rinker
Shareholders) continuing to be satisfied, CEMEX may, subject to
review at the time, propose, through its nominees on the Rinker Board, that
Rinker:
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·
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when
and to
the extent permitted by NYSE, seek to de-list from NYSE and
terminate its
ADR program; and
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·
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when
and to
the extent permitted by the US Exchange Act, seek to terminate
the
registration of Rinker Securities under the Exchange
Act.
|
CEMEX
notes that, in any event, the
liquidity of Rinker Shares
on ASX and Rinker ADSs on NYSE are likely to
be materially
diminished following the close of the Offer.
(c) Strategic
direction of Rinker
Subject
to
applicable law, CEMEX intends to procure (through its majority shareholding
and
via its nominees to the Rinker Board) that the strategic directions and
corporate objectives pursued by Rinker will be those determined by CEMEX, which
may relate solely to the Rinker Group or to the CEMEX Group as a
whole.
(d) Dividend
policy
Through
its
nominees on the Rinker Board, CEMEX will propose a review of Rinker’s capital management
policies, including its financing
and dividend policies.
However, CEMEX considers that it is unlikely to
propose that Rinker’s
dividend payout ratio
be maintained at, or increased beyond, its current
level.
(e) Implementation
of DOJ Settlement
CEMEX,
Rinker and
the United States Department of Justice (DOJ) have signed an Amended Hold
Separate Stipulation and Order, whereby CEMEX and Rinker have agreed to abide
by
and comply with the provisions of a proposed Final Judgment which, among other
things, provides that CEMEX must divest certain CEMEX and Rinker
assets.
6.3
Limitation on intentions
The
intentions and
statements of future conduct as set out in this Section 6 must be read subject
to:
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Rinker’s
constitution,
the
law (including the Corporations Act and the US Exchange Act)
and the ASX
Listing Rules and NYSE Listing Rules, including in particular
the
requirements in relation to conflicts
of
interest and
“related party”
transactions given that, if Bidder obtains control
of Rinker but
does not acquire all Rinker Shares, it and CEMEX will be
treated as
related parties of Rinker for these purposes;
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the
legal
obligations of Rinker’s
directors at the time, including any nominees of CEMEX,
to act in
good faith in the best interests of Rinker and for proper
purposes and to
have regard to the interests of all Rinker Shareholders;
and
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the
outcome
of the proposed operational and management reviews referred
to in Sections
3.3 and 3.4 of the Bidder’s
Statement.
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CEMEX
Sixth
Supplementary Bidder's Statement 7
7. Acquisition
of Rinker Securities
On
2 March 2007, the SEC granted classwide exemptive relief from the prohibition
in
Rule
14e-5 under the US Exchange Act which prohibits bidders and certain other
covered persons from directly or indirectly purchasing or arranging to purchase
subject securities or any related securities except as part of offers under
its
bid. Subject to certain conditions (including that no such purchases or
arrangements are made in the United States), which Bidder believes can be satisfied, the
effect of the
exemptive relief is to permit Bidder and its officers, affiliates and agents
to purchase or arrange to purchase Rinker Shares outside the Offer during the
Offer Period.
Subject
to applicable law and the
undertaking given by Bidder to the Takeovers Panel not to purchase or arrange
to purchase
Rinker Securities for Australian dollars outside the Offer during the Offer
Period (see Section 2 of the First Supplementary Bidder’s Statement), Bidder reserves
its right
(and the right of its officers, affiliates
and
agents) to purchase or arrange
to purchase Rinker
Shares outside the Offer.
Bidder
will
disclose information concerning any such purchases or arrangements to purchase
in the next notice of change of interests of substantial holder that it is
required to give to Rinker pursuant to Part 6C.1 of the Corporations Act and
disseminate those notices in the United States by filing them with SEC under
Schedule TO. Bidder will be required to give such a notice to Rinker each time
there is a movement of at least 1% in its holding of Rinker Shares. The notice
will include the number of Rinker Shares acquired, consideration given for
them
and manner in which they were acquired.
8. Consent
CEMEX
has given,
and has not before the date of this Statement withdrawn, its written consent
to:
| · |
be
named in this Statement in the
form and context in which it has been named;
and
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the
inclusion
of each statement it has made, and each statement which
is said in this
Statement to be based on a statement it has made, in the
form and context
in which the statements have been
included.
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9.
Approval
This
Statement has
been approved by a resolution passed by the directors of Bidder.
DATED
8 May
2007
SIGNED
for and on behalf of CEMEX Australia Pty Ltd
Hector
Medina
Director
8 CEMEX
Sixth
Supplementary Bidder's Statement