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. 11)
RINKER
GROUP LIMITED
ABN
53 003 433 118
(Name
of
Subject Company (issuer))
CEMEX
Australia Pty Ltd
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)
(Titles
of Classes of Securities)
Ordinary
Shares, ISIN AU000000RIN3
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
(Name,
address and telephone number of
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
CALCULATION
OF FILING FEE
|
Transaction
Valuation(1)
|
Amount
of Filing Fee(2)
|
|
$2,676,229,274
|
$286,357
|
(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 US$13.00 in cash for each
ordinary
share and US$65.00 for each ADS. Terms used and not defined in the preceding
sentence are defined below.
(2)
The
filing fee is calculated in accordance with Rule 0-11(d) of the Exchange
Act and
Fee Rate Advisory No. 3 for Fiscal Year 2007 issued by the Securities
and
Exchange Commission on September 29, 2006. Such fee equals .0107% of
the
transaction valuation.
|
x
|
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.
|
||
|
Amount
Previously Paid: $286,357
|
|||
|
Form
or Registration No.: Schedule TO
|
|||
|
Filing
Party: CEMEX Australia Pty Ltd, ACN 122 401 405,
CEMEX,
S.A.B. de C.V.
|
|||
|
Date
Filed: November 14, 2006
|
|||
|
o
|
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.
|
|
o
|
issuer
tender offer subject to Rule 13e-4.
|
|
o
|
going-private
transaction subject to Rule 13e-3
|
|
o
|
amendment
to Schedule 13D under Rule 13d-2
|
2
This
Amendment No. 11 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”), at a
purchase price of US$13 per ordinary share and US$65 per ADS in cash
(less any
applicable withholding taxes and without interest), 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 (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.
Item
4. Terms of the transaction
On
January 23, 2007, Bidder lodged a copy of the second supplementary
Bidder’s
statement, dated January 23, 2007 (the “Second Supplementary Bidder’s
Statement”), with the Australian Securities and Investment Commission. The
Second Supplementary Bidder’s Statement supplements and is to be read together
with the Bidder’s Statement, as amended by the first supplementary Bidder’s
statement, dated December 8, 2006. The Second Supplementary Bidder’s Statement
is attached as Exhibit (a)(1)(M).
Item
11.
Additional Information
On
January 23, 2007, Bidder filed a notice with the Australian Stock
Exchange
stating that (i) the Offer has been extended to 7pm (Sydney Time)
on 30 March
2007/5am (New York Time) on 30 March 2007 and (ii) Bidder and its
associates had
a relevant interest in 0.0001% of the ordinary shares in Rinker as
at 14
November 2006 and 0.20% as at 23 January 2007.
Item
12. Exhibits.
|
Exhibit
|
Description
|
|
|
(a)(1)(M)
|
Second
Supplementary Bidder’s Statement.
|
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:
January 23, 2007
| CEMEX Australia Pty Ltd | ||
| |
|
|
| By: | /s/ Ramiro G. Villarreal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | ||
| Title: Director | ||
| CEMEX, S.A.B. de C.V. | ||
| |
|
|
| By: | /s/ Ramiro G. Villarreal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | ||
| Title: General Counsel | ||
4
EXHIBIT
INDEX
|
Exhibit
|
Description
|
|
|
(a)(1)(M)
|
Second
Supplementary Bidder’s Statement.
|
5
Exhibit
(a)(1)(m)
Chairman’s
Letter
23
January
2007
Dear
Rinker
Shareholder,
In
November 2006,
CEMEX sent you a Bidder’s
Statement,
which
included an Offer to acquire all of your
Rinker Shares
for US$13.00 per share (equivalent to A$16.551)
and any Rinker
ADSs for US$65.00 per
ADS (each
Rinker ADS represents five
Rinker
Shares).
Subsequently, in December 2006, CEMEX sent
you a First
Supplementary Bidder’s
Statement
which
supplemented and corrected information contained in the Bidder’s
Statement
and
extended the Offer Period.
The
accompanying
Statement includes a notice that the Offer Period has been further extended
to
7pm
(Sydney time) on 30 March 2007 and an update on certain matters that have
occurred since the
First
Supplementary Bidder’s
Statement
was
lodged with ASIC on 8 December 2006.
CEMEX
believes the
Offer for Rinker is compelling for you as a shareholder.
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) that was enclosed with the First Supplementary Bidder’s
Statement.
You can
obtain another copy of these documents by calling the CEMEX Offer Information
Line
(see the telephone numbers on the last page of the accompanying Statement).
If
you change your mind about
accepting the
Offer (or your currency election), you may be able to withdraw your acceptance
under
the terms of the Offer (see Section 1.1 of the accompanying Statement and
Section 1.3 of the First Supplementary Bidder’s
Statement
for a
discussion of your withdrawal rights).
Yours
faithfully,
Lorenzo
H.
Zambrano
Chairman
and
Chief Executive Officer
CEMEX,
S.A.B. de C.V.
1. Based
on an exchange rate of A$1.00 to US$0.7856 which represents the average of
the
WM/Reuters Intraday Mid Spot Rates on 17 January 2007. See
Section 1.2 of
the First Supplementary Bidder’s Statement for a discussion of currency exchange
rates and exchange rate risk.
CEMEX
Australia Pty
Ltd ACN 122 401 405
a
wholly owned subsidiary of CEMEX, S.A.B. de C.V.
Second
Supplementary
Bidder’s
Statement
|
This
is
a
supplementary bidder’s
statement
under section
643
of the Corporations Act and a notice under sections
630(2) and 650D of the Corporations Act. It is
the
second
supplementary bidder’s
statement
issued by Bidder in relation
to
its
off-market
takeover bid
for
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) issued by Bidder and is
to
be read
together with
the
Bidder’s
Statement
|
and
the
First
Supplementary
Bidder’s
Statement.
This
Statement
will
prevail
to
the extent of any inconsistency with
those
documents.
A
copy of this
Statement
was
lodged with
ASIC
on
23
January
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
or
the First
Supplementary
Bidder’s
Statement
have the same meaning in this
Statement,
unless
the
context
requires otherwise.
|
1. Offer Period
1.1
Variation of Offer - extension of Offer Period
Bidder
gives notice
that it varies the Offer by extending the Offer Period until 7pm (Sydney
time)
on 30 March 2007 / 5am (New York time) on 30 March 2007.
This
variation has
the effect of postponing, for more than one month, the time when Bidder
must
meet its obligations for Rinker Securityholders who have already accepted
the Offer.
As
a result,
under
section 650E of the Corporations Act such Rinker Securityholders may
withdraw their
acceptance of
the Offer by giving notice within one month beginning on the day after
the
day on which they first
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:
· 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
· 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.
(Words defined
in the ASTC Settlement Rules have the same meaning when used in this section,
unless the context requires otherwise.)
CEMEX
Second
Supplementary Bidder's Statement 1
1.2
New date for
notice on the status
of the 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 23
January 2007 to
22 March 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 Offer has not been freed from any Defeating Condition
nor, so
far as the
Bidder knows, has any Defeating Condition been fulfilled
other
than the Defeating Condition
relating
to CEMEX shareholder approval (see Section 4.2 of the First
Supplementary Bidder’s
Statement).
2.
Funding arrangements
There
have been
changes to the committed funding arrangements, as summarised below.
2.1
Acquisition Facility
The
commitments of
the lenders under the Acquisition Facility have been syndicated to a
number
of banks. The terms of the Acquisition Facility have not been materially amended
since
that agreement was signed.
2.2
Bridge
Facility and Existing Committed Facilities
The
commitments
granted by the Bridge Facility Lenders under the Bridge
Facility
(which
was for
US$1.5 billion)
have been cancelled, effective 18 December 2006, by agreement
between
CEMEX, CEMEX
Netherlands and the Bridge
Facility
Lenders.
CEMEX
no longer
proposes to source any funds to be made available to Bidder to pay
the Offer
Amount (and
costs associated with the Offer) from the Existing Committed
Facilities
(from which US$1.1
billion had been reserved).
In lieu
of
the Bridge
Facility and the Existing Committed Facilities, CEMEX now proposes
to partly
source the
necessary funds to be made available to Bidder to pay the Offer Amount
(and
costs associated with the Offer) from:
| (a) | a new US$1 billion term loan facility (the US$1 billion Committed Facility) arranged by CEMEX, as borrower, with the lenders under the facility, which include ING Bank N.V., Société Générale, S.A., BNP Paribas, Calyon, New York Branch, Banco Santander, S.A. Instución de Banca Multiple Grupo Financiero Santander and Barclays Bank Plc; and |
| (b) | at least US$500 million in cash and cash equivalents which are not subject to security interests, rights of set off (other than customary rights of set off under CEMEX Group bank account terms and conditions) or any other arrangements that may materially affect CEMEX’s ability freely to use them towards payment of the Offer Amount (and costs associated with the Offer). |
CEMEX
Second Supplementary Bidder's
Statement 2
2.3
US$1 billion
Committed Facility
The
US$1 billion
Committed Facility is unsecured. It is, however, guaranteed by CEMEX México
and ETM. The facility is undrawn and is not required to meet any other
commitments of CEMEX and its subsidiaries.
Funds
are available
for drawdown under the US$1 billion Committed Facility for general corporate
purposes and purposes related to the Offer.
Other
relevant
provisions of the facility documents include the following.
(a)
The US$1 billion Committed Facility is available for drawdown until 12 November
2007 or shorter if the commitments under the facility are terminated in
accordance with its terms.
(b)
CEMEX’s
right
to make a drawing under the US$1 billion Committed Facility is subject to
satisfaction
of
various conditions precedent (which CEMEX considers to be customary
for
facilities of this nature and within its sole control) including:
(i) that no event of default or potential event of
default has occurred and is continuing or would result from such drawing;
and
(ii)
the accuracy
of the representations and warranties under the facility agreement and certain
related documents.
(c)
The US$1 billion Committed Facility is subject to events of default (which
CEMEX
considers to be customary for facilities of this nature),
including:
(i) payment
default
which is unremedied for three business days;
(ii) material
breach of
representations and warranties which is unremedied for 30 days;
(iii) default by CEMEX or a guarantor of the facility of its
obligations under the facility agreement and certain related documents (which,
in some cases, is unremedied for 30 days);
(iv)
default
by
CEMEX or a guarantor of the facility of its obligations under any indenture,
agreement or instrument relating to a material debt (US$75
million or
more) which results in the acceleration of that debt;
(v) certain
bankruptcy
events;
(vi)
failure
to
discharge or bond certain judgments in excess of US$50 million;
(vii)
obligations
of CEMEX, or a guarantor of the facility, under the facility fail to rank pari
passu with all of CEMEX’s
(or
the relevant guarantor’s)
other senior
unsecured
debt;
(viii)
CEMEX or
a
guarantor of the facility contests the validity of any liability under the
facility agreement or a related document;
(ix)
failure
to obtain or
revocation of a governmental authority necessary for the validity of the
facility agreement and related documents;
(x) expropriation,
moratorium or
limitation on
the availability of foreign exchange; and
(xi) certain
changes of
ownership in or control of CEMEX or a guarantor of the facility.
CEMEX
Second Supplementary Bidder's
Statement 3
(d)
Certain undertakings and representations are given by CEMEX and each guarantor
of the facility (which CEMEX considers to be customary for facilities
of this
nature),
including:
(i) representations as to:
| (A) |
corporate
existence and powers;
|
| (B) | the obligations under the facility agreement and certain related agreements being legal, valid, binding and enforceable obligations; |
| (C) |
the
entry
into and performance of the transactions contemplated by the facility
agreement and certain related agreements will not conflict with any
law, regulation, constitutional documents or any other agreement
binding
on it;
|
| (D) | in the case of CEMEX only, the consolidated balance sheet of CEMEX and its subsidiaries fairly present the consolidated financial condition of CEMEX and its subsidiaries as at the date of the balance sheet; |
| (E) | there is no pending or threatened litigation that would be reasonably likely to have a material adverse effect or purports to affect the legality, validity or enforceability of the facility agreement and certain related documents; and |
| (F) | no default event has occurred and is continuing; and |
(ii)
undertakings that it will not:
(A) consolidate
or
merge without complying with the terms of the facility agreement;
or
(B) sell
assets
or create liens
(other than in certain circumstances).
2.4
Provision of consideration
On
the basis of the
arrangements described in Section 4 of the Bidder’s
Statement
(as
supplemented by this Section 2 and by Section 4.1 of the First Supplementary
Bidder’s
Statement),
Bidder
and CEMEX believe that they have reasonable grounds for holding the
view, and
hold the view,
that Bidder will be able to provide the consideration offered under
the Offer.
CEMEX
Second Supplementary Bidder's
Statement 4
3.
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
·
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.
4.
Approval
This
Statement has
been approved by a resolution passed by the directors of Bidder.
DATED
23
January 2007
SIGNED
for and on behalf of CEMEX Australia Pty Ltd
Hector
Medina
Director
CEMEX
Second Supplementary Bidder's
Statement 5
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.