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. 9)
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.
|
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|
Date
Filed: November 14, 2006
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|||
|
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
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|
o
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amendment
to Schedule 13D under Rule 13d-2
|
2
This
Amendment No. 9 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
12. Exhibits.
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Exhibit
|
Description
|
|
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(a)(1)(K)
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Modified
Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other
Nominees.
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|
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(a)(1)(L)
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Modified
Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust
Companies and Other Nominees.
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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:
December 14, 2006
| CEMEX Australia Pty Ltd | ||
| |
|
|
| By: | /s/ Mr. Ramiro G. Villarreal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | ||
| Title: Director | ||
| CEMEX, S.A.B. de C.V. | ||
| |
|
|
| By: | /s/ Mr. Ramiro G. Villarreal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | ||
| Title: General Counsel | ||
4
Exhibit
Index
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Exhibit
|
Description
|
|
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(a)(1)(K)
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Modified
Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other
Nominees.
|
|
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(a)(1)(L)
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Modified
Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust
Companies and Other Nominees.
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5
Exhibit
(a)(1)(K)
OFFER
TO
PURCHASE FOR CASH
outstanding
ordinary shares and
American
depositary shares of
RINKER
GROUP LIMITED
on
the
basis of
US$13.00
for each ordinary share
US$65.00
for each American depositary share
by
CEMEX
Australia Pty Ltd
an
indirect
wholly-owned subsidiary of
CEMEX,
S.A.B. de C.V.
|
The
Offer will expire at 7 pm (Sydney time) on 31 January 2007, 3 am (New
York time) on 31 January 2007, unless the Offer is extended or
the Offer
is withdrawn.
|
December
2006
To
Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees:
We
have been
engaged by CEMEX Australia Pty Ltd (Bidder),
a proprietary
company organized under the laws of Victoria, Australia and an indirect
wholly-owned subsidiary of CEMEX, S.A.B. de C.V. (CEMEX),
to act as Lead
Financial Adviser to CEMEX in connection with Bidder’s offer (the Offer)
to acquire all
outstanding ordinary shares of Rinker (Rinker
Shares),
and all
outstanding American depositary shares which each represent an ownership
interest in five (5) Rinker Shares (Rinker
ADSs
and together with
the Rinker Shares, Rinker
Securities)
and are evidenced
by American depositary receipts (ADRs),
upon the terms
and subject to the conditions of the Offer (as extended and amended by the
First
Supplementary Bidder’s Statement and including, if the Offer is further extended
or amended, the terms and conditions of any such further extension or
amendment), as described in the Bidder's Statement, dated 30 October 2006 (the
Bidder’s
Statement),
the First
Supplementary Bidder’s Statement, the revised ADS Letter of Transmittal and the
revised ADS Notice of Guaranteed Delivery. Capitalized terms used but not
defined in this letter which are defined in the Bidder’s Statement shall have
the meanings given to them in the Bidder’s Statement.
The
Offer is
subject to a number of conditions. In summary, they include requirements
that:
|
1.
|
Bidder
obtains relevant interests in at least 90% of Rinker
Shares;
|
|
2.
|
all
regulatory approvals are obtained and no adverse regulatory actions
occur,
including no objections under Australian foreign investment laws
or US
antitrust (competition) laws;
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3.
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no
material
adverse change occurs in the Rinker
Group;
|
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4.
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no
mergers or
material acquisitions, disposals or new commitments are undertaken
by the
Rinker Group;
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5.
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no
material
change of control rights exist;
|
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6.
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the
S&P/ASX 200 Index does not fall below
4,800;
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7.
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CEMEX
is
granted equal access in certain circumstances to information about
the
Rinker Group;
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8.
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no
distributions are made by Rinker other than cash dividends declared
and
paid in the ordinary course; and
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9.
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no
Prescribed
Occurrences occur.
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A
more detailed
discussion of the conditions to the consummation of the Offer can be found
in
Section 8.6 of the Bidder’s Statement, “Offer terms”.
For
your
information and for forwarding to those of your clients for whom you hold Rinker
ADSs registered in your name or in the name of your nominee, we are enclosing
the following documents:
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1.
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Supplementary
Bidder’s Statement.
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|
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2.
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Revised
ADS
Letter of Transmittal to be used by Rinker ADSholders in accepting
the
Offer.
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3.
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Revised
ADS
Notice of Guaranteed Delivery to be used to accept the Offer if
certificates representing the ADSs are not immediately available
or the
ADSholder is not able to deliver the certificates and all other
required
documents to the Depositary before the Offer expires.
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|
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4.
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A
Letter to
Clients which may be sent to your clients for whose account you
hold
Rinker ADSs in your name or in the name of a nominee, with space
provided
for obtaining such client’s instructions and election with regard to the
Offer.
|
|
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5.
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Guidelines
of
the Internal Revenue Service for Certification of Taxpayer Identification
Number on Substitute Form W-9 included in the ADS Letter of
Transmittal.
|
|
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6.
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Return
envelope addressed to Computershare Trust Company, N.A., as US
Depositary.
|
Your
prompt
action is requested. We urge you to contact your clients as promptly as
possible. Please note that the Offer will expire at 7 pm (Sydney time) on
31
January
2007,
3 am (New
York time) on 31
January
2007,
unless
the Offer is extended or the Offer is withdrawn.
To
accept the
Offer, Rinker ADSholders must either: (i) complete and sign the yellow ADS
Letter of Transmittal in accordance with the instructions on it and (A) return
it, together with the ADRs evidencing their Rinker ADSs and any other documents
required by the ADS Letter of Transmittal, in the enclosed envelope (where
applicable) or to an address on the ADS Letter of Transmittal, or (B) tender
their Rinker ADSs pursuant to the procedures for book-entry transfer set out
in
Section 8.3(d) of the Bidder’s Statement; or (ii) contact their broker or other
nominee, and instruct them to accept the Offer for them. If any Rinker ADSs
are
registered in the name of a broker or other nominee, Rinker ADSholders must
contact such nominee to accept the Offer. If the ADRs evidencing Rinker ADSs
are
not immediately available, or Rinker ADSholders 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, they may tender their Rinker
ADSs
by following the procedures for guaranteed delivery set out in Section 8.3(d)
of
the Bidder’s Statement.
Subject
to the
Corporations Act 2001 (Cth) and the terms and conditions of the Offer (including
without limitation the conditions referred to in Section 8 of the Bidder’s
Statement, "Offer terms"), Bidder will pay the consideration for Rinker ADSs
validly deposited under the Offer and not properly withdrawn, on or before
the
earlier of: (i) the day that is one month after the later of the date of the
Rinker ADSholder’s acceptance or, if at the time of the Rinker ADSholder’s
acceptance the Offer is subject to a Defeating Condition, one month after any
contract resulting from the Rinker ADSholder’s acceptance of the Offer becomes,
or is declared, unconditional and (ii) the day that is 21 days after the end
of
the Offer Period. In any case, payment of the consideration under the Offer
shall not be made until the ADRs evidencing tendered Rinker ADSs or, in the
case
of a book-entry transfer, book-entry confirmation, in respect to which the
Offer
is being accepted and any other required documents have been received by the
US
Depositary at one of its addresses set forth on the first and last pages of
the
ADS Letter of Transmittal. Bidder will determine in its sole discretion all
questions as to the form of documents, including any notice of withdrawal and
the validity, eligibility (including time of receipt) and acceptance of tendered
Rinker ADSs. Bidder’s determination will be final and binding on all parties.
Under
no
circumstances will interest be paid on the Offer price for tendered Rinker
Securities, whether or not this Offer is further extended.
Please
note that
pursuant to the terms of the Offer, if a Rinker ADSholder elects to tender,
all
Rinker ADSs that the holder owns must be tendered.
Bidder
will not pay
any fees or commissions to any broker or dealer or other person (other than
the
Lead Financial Adviser and the Co-Financial Advisor as described in Section
7.16
of the Bidder’s Statement) in connection with the solicitation of tenders of
ADSs pursuant to the Offer. Bidder will, however, upon request, reimburse you
for customary mailing and handling expenses incurred by you in forwarding the
enclosed Offer materials to your customers. Bidder will pay or cause to be
paid
any Australian or US security transfer taxes payable on the transfer of Rinker
Securities to it, except as otherwise provided in the Offer.
Questions
and
requests for additional copies of the enclosed material may be directed to
the
US Information Agent at its address and telephone numbers set forth in the
enclosed Bidder’s Statement.
|
Very
truly
yours,
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||
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Citigroup
Global Markets Inc.
|
Nothing
contained herein or in the enclosed documents shall render you or any other
person the agent of Bidder, the US Depositary, the US Information Agent, the
Lead Financial Advisor or any affiliate thereof or authorize you or any other
person to give any information or make any representation on behalf of any
of
them with respect to the Offer other than the documents enclosed and the
statements contained therein.
Exhibit
(a)(1)(L)
OFFER
TO
PURCHASE FOR CASH
outstanding
ordinary shares and
American
depositary shares of
RINKER
GROUP LIMITED
on
the
basis of
US$13.00
for each ordinary share
US$65.00
for each American depositary share
by
CEMEX
Australia Pty Ltd
an
indirect
wholly-owned subsidiary of
CEMEX,
S.A.B. de C.V.
|
The
Offer will expire at 7 pm (Sydney time) on 31 January 2007, 3 am
(New York
time) on 31 January 2007, unless the Offer is extended or the Offer
is
withdrawn.
|
December
2006
To
Our Clients:
Enclosed
for your consideration is the Supplementary Bidder’s Statement by CEMEX
Australia Pty Ltd (Bidder),
a proprietary company organized under the laws of Victoria, Australia and
an
indirect wholly-owned subsidiary of CEMEX, S.A.B. de C.V. (CEMEX),
the related ADS Letter of Transmittal and ADS Notice of Guaranteed Delivery
relating to the Offer by Bidder to acquire all outstanding ordinary shares
of
Rinker (Rinker
Shares),
and all outstanding American depositary shares, which each represent an
ownership interest in five (5) Rinker Shares (Rinker
ADSs
and together with the Rinker Shares, Rinker
Securities),
and are evidenced by American depositary receipts (ADRs),
upon the terms and subject to the conditions of the Offer (as extended and
amended by the First Supplementary Bidder’s Statement and including, if the
Offer is further extended or amended, the terms and conditions of any such
further extension or amendment), as described in the Bidder's Statement,
dated
30 October 2006 (the Bidder’s
Statement),
the First Supplementary Bidder’s Statement, the revised ADS Letter of
Transmittal and the revised ADS Notice of Guaranteed Delivery. You
should
carefully read these documents in full prior to making any decision to accept
the Offer or otherwise deal with your Rinker Securities. Capitalized
terms used but not defined in this letter which are defined in the Bidder’s
Statement shall have the meanings given to them in the Bidder’s
Statement.
We
(or our nominees) are the holder of record of Rinker ADSs held by us for your
account. A tender of such Rinker ADSs can be made only by us as the holder
of
record and pursuant to your instructions. The ADS Letter of Transmittal is
furnished to you for your information only and cannot be used to tender Rinker
ADSs held by us for your account.
We
request instructions as to whether you wish to tender all of the Rinker ADSs
held by us for your account pursuant to the terms and conditions of the
Offer.
Your
attention is directed to the following:
|
1.
|
The
Offer is
being made for all issued and outstanding Rinker
Securities.
|
|
2.
|
You
can only
accept the Offer for all your Rinker
Securities.
|
|
3.
|
The
Offer
will expire at 7 pm (Sydney time) on 31
January
2007,
3 am (New
York time) on 31
January
2007,
unless the
Offer is further extended or the Offer is
withdrawn.
|
|
4.
|
The
Offer is
subject to a number of conditions. In
summary, they include requirements that:
|
|
(a)
|
Bidder
obtains relevant interests in at least 90% of Rinker
Shares;
|
|
(b)
|
all
regulatory approvals are obtained and no adverse regulatory actions
occur,
including no objections under Australian foreign investment laws
or US
antitrust (competition) laws;
|
|
(c)
|
no
material
adverse change occurs in the Rinker
Group;
|
|
(d)
|
no
mergers or
material acquisitions, disposals or new commitments are undertaken
by the
Rinker Group;
|
|
(e)
|
no
material
change of control rights exist;
|
|
(f)
|
the
S&P/ASX 200 Index does not fall below
4,800;
|
|
(g)
|
CEMEX
is
granted equal access in certain circumstances to information about
the
Rinker Group;
|
|
(h)
|
no
distributions are made by Rinker other than cash dividends declared
and
paid in the ordinary course; and
|
|
(i)
|
no
Prescribed
Occurrences occur.
|
A
more detailed discussion of the conditions to the consummation of the Offer
can
be found in Section 8.6 of the Bidder’s Statement, “Offer
terms”.
|
5.
|
Subject
to
the Corporations Act 2001 (Cth) and the terms and conditions of the
Offer
(including without limitation the conditions referred to in Section
8 of
the Bidder’s Statement, "Offer terms"), Bidder will pay the consideration
for Rinker ADSs validly deposited under the Offer and not properly
withdrawn, on or before the earlier of: (i) the day that is one month
after the later of the date of your acceptance or, if at the time
of your
acceptance the Offer is subject to a Defeating Condition, one month
after
any contract resulting from your acceptance of the Offer becomes,
or is
declared, unconditional and (ii) the day that is 21 days after the
end of
the Offer Period.
|
|
6.
|
In
any case,
payment of the consideration under the Offer shall not be made, until
the
ADRs evidencing tendered Rinker ADSs or, in the case of a book-entry
transfer, book-entry confirmation, in respect to which the Offer
is being
accepted and any other required documents have been received by the
US
Depositary at one of its addresses set forth on the first and last
pages
of the ADS Letter of Transmittal. Bidder will determine in its sole
discretion all questions as to the form of documents, including any
notice
of withdrawal and the validity, eligibility (including time of receipt)
and acceptance of tendered Rinker ADSs. Bidder’s determination will be
final and binding on all parties.
|
|
7.
|
If
you tender
your ADSs you will not be obligated to pay brokerage fees or commissions
to the US Depositary or the US Information
Agent.
|
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8.
|
The
consideration payable for the Rinker ADSs under the Offer will be
reduced
by applicable withholding taxes.
|
|
9.
|
Under
no
circumstances will interest be paid on the Offer price for tendered
Rinker
Securities, whether or not the Offer is further
extended.
|
If
you wish to have
us tender all the Rinker ADSs held by us for your account, please so instruct
us
by completing, executing, detaching and returning to us the instruction form
on
the detachable part hereof. An envelope to return your instructions to us is
enclosed. If you authorize the tender of your Rinker ADSs, all such Rinker
ADSs
will be tendered. Your
instructions should be forwarded to us in ample time to permit us to submit
a
tender on your behalf prior to the end of the Offer Period.
INSTRUCTIONS
WITH RESPECT TO THE
OFFER
TO
PURCHASE FOR CASH
outstanding
ordinary shares and
American
depositary shares of
RINKER
GROUP LIMITED
on
the
basis of
US$13.00
for each ordinary share
US$65.00
for each American depositary share
by
CEMEX
Australia Pty Ltd
an
indirect
wholly-owned subsidiary of
CEMEX,
S.A.B. de C.V.
The
undersigned
acknowledge(s) receipt of your letter, the Bidder’s Statement dated 30
October
2006, the
Supplementary Bidder’s Statement, the ADS Letter of Transmittal and the ADS
Notice of Guaranteed Delivery relating to the Offer by CEMEX Australia Pty
Ltd
(Bidder),
a proprietary
company organized under the laws of Victoria, Australia and an indirect
wholly-owned subsidiary of CEMEX, S.A.B. de C.V., to acquire all outstanding
ordinary shares of Rinker (Rinker
Shares),
and all
outstanding American depositary shares (Rinker
ADSs)
which each
represent an ownership interest in five (5) Rinker Shares and are evidenced
by
American depositary receipts (ADRs).
Capitalized
terms
used but not defined in this letter which are defined in the Bidder’s Statement
shall have the meanings given to them in the Bidder’s Statement.
This
will instruct
and direct you to tender all Rinker ADSs held by you for the account of the
undersigned, on the terms and subject to the conditions set forth in the Offer
documents furnished to the undersigned.
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Signature
|
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Number
of
Rinker ADSs held*
|
|
Account
Number
|
|
Name
|
|
Address
|
|
Area
Code and
Telephone Number
|
|
Taxpayer
Identification or Social Security
Number
|
Dated:
*
The Rinker ADSs to be tendered must be all your Rinker ADSs.