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. 15)
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)
|
|
$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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x
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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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||
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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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o
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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
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third-party
tender offer subject to Rule 14d-1.
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o
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issuer
tender offer subject to Rule 13e-4.
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o
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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
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1
This
Amendment No. 15 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
April
17, 2007, Bidder lodged a copy of the Fourth Supplementary Bidder’s Statement,
dated April 17, 2007 (the “Fourth Supplementary Bidder’s Statement”), with the
Australian Securities and Investment Commission. The Fourth Supplementary
Bidder’s Statement is to be read together with the Bidder’s Statement. The
Fourth Supplementary Bidder’s
Statement is attached
as Exhibit (a)(1)(Q).
Item
5. Past Contacts, Transactions, Negotiations and
Agreements
On
March 9, 2007, Mr. Lorenzo Zambrano, Chairman and CEO of CEMEX,
contacted Mr.
John Morschel, Chairman of Rinker, and proposed a meeting. On
March 21, 2007,
Mr. Zambrano, Mr. Hector Medina, Executive Vice President of
Planning and
Finance of CEMEX, Mr. Morschel, and Mr. Jack Thompson, a member
of the Rinker
board, met in San Francisco to discuss the Offer. On April 2,
2007, Mr. Zambrano
and Mr. Medina met again with Mr. Morschel and Mr. Thompson to
discuss the
potential terms of a revised Offer, the possibility of a recommendation
of such
revised Offer and the extent of any increase in the consideration
under such
revised Offer.
On
April 4, 2007, Mr. Morschel called
Mr. Zambrano to inform him of various issues to be resolved before
the Rinker
board would be willing to recommend the Offer at a negotiated
higher price and
with reduced defeating conditions. Mr. Zambrano and Mr. Morschel
agreed that CEMEX should be permitted to conduct limited due
diligence to
determine if it would be willing to raise the price in the Offer
and that legal
counsel to CEMEX and Rinker should be instructed to draft a suitable
agreement
to reflect the terms of any improved Offer. On April 5, 2007,
Rinker and CEMEX
entered into a confidentiality agreement. Ultimately, on the
evening of April 9,
2007 (New York Time), or April 10, 2007 (Sydney Time), the parties
executed the
Bid Agreement by and among CEMEX, Bidder, and Rinker (the “Bid
Agreement”),
which sets
forth, among other things, the terms and conditions upon which
Bidder would
amend the Offer.
On
April 16, 2007, Rinker, Bidder and
CEMEX entered into a letter agreement (the “Letter
Agreement”)
amending certain terms of the Bid Agreement relating to agreed
timing of the
issue of supplementary takeover documents. Bidder agreed to file
and disseminate
the supplementary Bidder’s
Statement to
Rinker Securityholders within 6 business days after the announcement
of the
variation of the Offer. The Rinker directors agreed, in the absence of a
superior proposal, to issue a supplementary target’s
statement on or
before the later of April 27, 2007 (Sydney Time) and 7 business
days after
Bidder files an amended Schedule TO and supplementary Bidder’s
Statement. The
Letter Agreement is attached as Exhibit (a)(1)(R).
Item
11. Additional Information
On
April 17, 2007,
Bidder filed a notice with the Australian Stock Exchange stating
that the Offer
Period has been extended until 5:00 AM (New York Time) / 7:00 PM
(Sydney Time)
on May 18, 2007.
2
Item
12. Exhibits.
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Exhibit
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Description
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(a)(1)(Q)
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Fourth
Supplementary Bidder’s
Statement.
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(a)(1)(R) |
Letter Agreement, dated April 16, 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:
April 17, 2007
| CEMEX Australia Pty Ltd | ||
| |
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|
| 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.
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Exhibit
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Description
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(a)(1)(Q)
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Fourth
Supplementary Bidder’s
Statement.
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(a)(1)(R) |
Letter Agreement, dated April 16, 2007 |
5
Exhibit
(a)(1)(Q)
Chairman’s
Letter
17
April 2007
Dear
Rinker
Shareholder,
On
10 April 2007, CEMEX announced a higher offer for your Rinker Shares. The Offer
price is now 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). CEMEX also announced
that it will make no adjustment to the Offer price for the A$0.16 dividend
paid
by Rinker to shareholders in December 2006.
You
will be
provided with further information regarding CEMEX’s higher offer for your Rinker
Shares shortly. The accompanying Statement contains formal notification of
the
increase in the Offer price, waiver of bid conditions other than the minimum
acceptance condition and the further extension of the Offer Period to 7.00pm
(Sydney time) on 18 May 2007/5.00am (New York time) on 18 May 2007.
This
Offer
price is CEMEX’s best and final offer, in the absence of a superior
proposal.
Rinker’s
directors
recommend that you ACCEPT that Offer, in the absence of a superior
proposal.
I
encourage you to accept the Offer. We will shortly send you a
revised Share Acceptance Form setting out your choices for
acceptance.
Yours
faithfully,
/s/
Lorenzo H.
Zambrano
Lorenzo
H.
Zambrano
Chairman
and
Chief Executive Officer
CEMEX,
S.A.B. de C.V.
CEMEX
Fourth
Supplementary Bidder's Statement 1
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CEMEX
Australia Pty Ltd ACN 122 401 405
a
wholly-owned subsidiary of CEMEX, S.A.B. de C.V.
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Fourth
Supplementary
Bidder’s
Statement
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This
is a
supplementary bidder’s statement under section 643 of the Corporations Act
and notice under section 650D of the Corporations Act. It also contains
a
combined notice under sections 630(2), 650D and 650F of the Corporations
Act that was lodged with ASIC on 10 April 2007. It is the fourth
supplementary bidder’s statement issued by CEMEX Australia Pty Limited
(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 and the Third
Supplementary Bidder’s Statement dated 22 March 2007) issued by Bidder and
is to be
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read
together
with the Bidder’s Statement, the First Supplementary Bidder’s Statement,
the Second Supplementary Bidder’s Statement and the Third 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 17 April 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, the First
Supplementary Bidder’s Statement, the Second Supplementary Bidder’s
Statement or the Third Supplementary Bidder’s Statement have the same
meaning in this Statement, unless the context requires
otherwise.
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2
CEMEX Fourth Supplementary Bidder's Statement
1.
Higher
Offer price for Rinker Securities
On
10 April 2007, Bidder announced an increase in its Offer price for your Rinker
Shares and Rinker ADSs. The Offer price is increased to US$15.85 for each of
your Rinker Shares and US$79.25 for each of your Rinker ADSs (each ADS
represents five Rinker Shares). This is a 22% increase from Bidder’s original
Offer and now represents a 45% premium to Rinker’s last traded share price
during normal trading on ASX on 27 October 2006.1
In
addition, Bidder will permit Rinker Securityholders who accept the Offer to
retain the whole of the interim dividend of A$0.16 per ordinary share (which
had
a record date of 24
November 2006)
previously paid by Rinker to its Securityholders on 11 December 2006, without
any reduction to the higher price payable to those who accept the
Offer.
Attached
to this
Statement is the formal notice that gives effect to the increase in Offer price
and Bidder’s undertaking not to exercise its rights under Section 8.8(e) of the
Bidder’s Statement in relation to the interim dividend.
2.
All
conditions other than minimum acceptance condition satisfied or
waived
On
10 April 2007, Bidder announced its Offer to be free from the Defeating
Conditions set out in Sections 8.6(e) to (n) of the Bidder’s Statement. All
Defeating Conditions of the Offer other than the 90% minimum acceptance
condition set out in Section 8.6(a) of the Bidder’s Statement have now been
satisfied or waived.
Attached
to this
Statement is the formal notice that gives effect to the satisfaction and waiver
of the remaining Defeating Conditions, other than the 90% minimum acceptance
condition.
1 Based
on converting the revised Offer Price into A$ at an exchange rate of A$1.00
to
US$0.8167 which represents the latest Reserve Bank Mid Point Rate available,
dated 5 April 2007.
CEMEX
Fourth
Supplementary Bidder's Statement 3
3.
Extension of Offer Period
3.1
Variation of Offer – extension of Offer Period
Bidder
gives notice
that it varies the Offer by extending the Offer Period until 7.00pm (Sydney
time) on 18 May 2007/5.00am (New York time) on 18 May 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:
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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.)
3.2
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 19 April 2007 to 10 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.
4
CEMEX Fourth Supplementary Bidder's Statement
4.
Consent
CEMEX
has given,
and has not before the date of this Statement withdrawn, its written consent
to:
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·
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be
named in
this Statement in the form and context in which it has been named;
and
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·
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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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5.
Approval
This
Statement has
been approved by a resolution passed by the directors of Bidder.
DATED
17
April 2007
SIGNED
for and on behalf of CEMEX Australia Pty Ltd
/s/
Hector
Medina
Hector
Medina
Director
CEMEX
Fourth
Supplementary Bidder’s Statement 5
CEMEX
Fourth
Supplementary Bidder's Statement 5
CEMEX
Offer
Information Line
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Within
Australia:
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1300
721 344
(local call)
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Within
the
US:
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(866)
244
1296 (for retail investors) or (212) 750 5833 (for banks and
brokers)
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Elsewhere:
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+61
3 9415
4344
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Please
note that,
to the extent required by the Corporations Act, calls to these numbers will
be
recorded.
6
CEMEX Fourth Supplementary Bidder's Statement
Attachment
–
Notice
of Variation
dated 10 April 2007
1.
Introduction
This
is a notice
issued pursuant to sections 630(4), 650D and 650F of the Corporations Act 2001
(Cth) by CEMEX Australia Pty Ltd (CEMEX Australia) in
relation to its offers dated 14 November 2006 under an off-market takeover
bid
for Rinker Group Limited (Rinker). Words and phrases
as defined in the Bidder’s Statement of CEMEX Australia 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 and the Third Supplementary Bidder’s Statement dated 22 March 2007) (the
Bidder’s Statement) have the same meaning in this
notice unless the context requires otherwise.
A
copy of this notice was lodged with ASIC on 10 April 2007. Neither ASIC nor
any
of its officers takes any responsibility for the contents of this
notice.
2.
Increase
in Offer Price
CEMEX
Australia
gives notice that it varies the Offer by increasing the price payable for each
Rinker Share from US$13.00 to US$15.85 and the price payable for each Rinker
ADS
from US$65.00 to US$79.25. Accordingly, all references in the Bidder’s Statement
to “US$13” when referring to the Offer as it relates to Rinker Shares are
replaced with references to “US$15.85”, all references in the Bidder’s Statement
to “US$65” when referring to the Offer as it relates to Rinker ADSs are replaced
with references to “US$79.25”, and the reference to “US$11,635,766,454” in
Section 4.1 of the Bidder’s Statement is replaced with a reference to
“US$14,186,700,355”.
CEMEX
Australia
will not exercise its rights under clause 8.8(e) of the Offer terms in respect
of the interim dividend of A$0.16 per Rinker Share declared by Rinker with
a
record date of 24 November 2006 but may exercise those rights in respect of
any
subsequent dividend.
3.
Satisfaction and waiver of defeating conditions – other than minimum acceptance
condition
CEMEX
Australia
gives notice that:
|
(a)
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the
defeating
condition to its offer set out in Section 8.6(d) of its Bidder’s Statement
relating to US antitrust approval has been fulfilled;
and
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(b)
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the
offer is
free from the defeating condition set out in Sections 8.6(e) to (n)
of the
Bidder’s Statement.
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The
condition in
Section 8.6(b) relating to CEMEX’s shareholders approval was satisfied on 2
December 2006 and the condition in Section 8.6(c) relating to foreign investment
approval in Australia was satisfied on 8 March 2007. The Offer remains subject
to the condition in Section 8.6(a) relating to minimum acceptance.
CEMEX
Australia has
voting power of 0.19% in Rinker as at the date of this Notice.
Dated:
10 April
2007
/s/
Ramiro G.
Villarreal
Ramiro
G.
Villarreal
Director
For
and on behalf
of CEMEX Australia Pty Ltd
CEMEX
Fourth
Supplementary Bidder's Statement
7
Exhibit
(a)(1)(R)
16
April
2007
Peter
Abraham
General
Counsel & Company Secretary
Rinker
Group Limited
Level
8,
Tower B
799
Pacific Highway
Chatswood
NSW 2067
Dear
Sir
Bid
Agreement - Changes to timetable
I
refer
to the Bid Agreement dated 10 April 2007 between Cemex Australia Pty Limited
(Bidder), Cemex, S.A.B. de C.V. and Rinker Group
Limited (Rinker). The purpose of this letter is to
confirm the following changes to the Bid Agreement which relate to timing
matters:
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●
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(supplementary
Bidder’s Statement) in clause 2.3(a), “5 Business Days” is
replaced by “6 Business Days”; and
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●
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(supplementary
Target’s Statement) in clause 2.2(b), the words “Within 5
Business Days after the Bidder varies the Takeover Offer in the
manner
referred to in clause 2.1(a) and files an amended Schedule TO and
supplementary Bidder’s Statement in the manner referred to in clause 2.3”
are replaced with “Within the later of 27 April (Sydney time) or 7
Business Days after the Bidder files an amended Schedule TO and
supplementary Bidder’s Statement in the manner referred to in clause 2.3”;
and
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|
●
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(supplementary
Target’s Statement) in clause 2.3(b), the words “the Target must,
as soon as practicable after the Bidder varies the Takeover Offer
in the
manner referred to in clause 2.1(a) and files a supplementary Bidder’s
Statement and an amended Schedule TO in the manner referred to
in this
clause 2.3” are replaced with “the Target must, within the later of 27
April (Sydney time) or 7 Business Days after the Bidder files an
amended
Schedule TO and supplementary Bidder’s Statement in the manner referred to
in this clause 2.3”.
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Yours
sincerely,
On
behalf
of Cemex Australia Pty Limited and Cemex, S.A.B. de C.V.
Ramiro
G
Villarreal, General Counsel
Rinker
Group Limited confirms and agrees with the timetable changes set out above.
Signed for and on behalf of Rinker Group Limited.
Peter
Abraham, General Counsel & Company
Secretary