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. 7)
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. 7 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
December 8, 2006, Bidder lodged a copy of the First Supplementary
Bidder’s
Statement, dated December 8, 2006 (the “First
Supplementary Bidder’s
Statement”),
with the
Australian Securities and Investment Commission. The First Supplementary
Bidder’s Statement supplements and is to be read together with the Bidder’s
Statement. The First Supplementary Bidder’s Statement is attached as Exhibit
(a)(1)(G).
On
December 7, 2006, the shareholders of CEMEX
approved
the Offer, thereby satisfying the Defeating Condition entitled “CEMEX
Shareholder
Approval”,
as
described in Section 8.6(b) of the Bidder’s Statement.
Item
7. Source and Amount of Funds or Other Consideration.
On
December 7, 2006, CEMEX, S.A.B. de C.V., New Sunward Holding B.V., J.P.
Morgan
Securities Inc. and JPMorgan Chase Bank, N.A. signed an Amendment Letter
to the
JPMorgan Commitment Letter, thereby amending the Commitment Letter dated
October
25, 2006 and amended by a Letter Agreement dated November 9, 2006. The
Amendment
Letter to the JPMorgan Commitment Letter is
attached as Exhibit (b)(1)(I).
Item
12. Exhibits.
|
Exhibit
|
Description
|
|
|
(a)(1)(G)
|
First
Supplementary Bidder’s Statement.
|
|
|
(b)(1)(I)
|
Amendment
Letter to the JPMorgan Commitment Letter between CEMEX, S.A.B.
de C.V.,
New Sunward Holding B.V., J.P. Morgan Securities Inc. and
JPMorgan Chase Bank, N.A.,
dated December 7, 2006.
|
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 8, 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
|
Exhibit
|
Description
|
|
|
(a)(1)(G)
|
First
Supplementary Bidder’s Statement.
|
|
|
(b)(1)(I)
|
Amendment
Letter to the JPMorgan Commitment Letter between CEMEX, S.A.B.
de C.V.,
New Sunward Holding B.V., J.P. Morgan Securities Inc. and
JPMorgan Chase Bank, N.A.,
dated December 7, 2006.
|
5
Ex.(a)(1)(G)
8
December 2006
Dear
Rinker Shareholder,
CEMEX
recently 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$16.531)
and any
Rinker ADSs for US$65.00 per ADS
(each
Rinker ADS represents five
Rinker
Shares).
Although
the Offer price is in US dollars, you may elect to have it converted into,
and
then paid to you in,
Australian dollars.
On
6
November 2006, Rinker made an application to the Takeovers Panel seeking an
order to set aside
certain
modification
instruments
issued by ASIC and a declaration of unacceptable circumstances concerning how
the Offer proposed to convert US dollars to Australian dollars.
After
considering Rinker’s
application
and submissions from Rinker, CEMEX and ASIC, the Takeovers
Panel:
|
·
|
revised
the modification
instruments
issued by ASIC, including, as part of the resolution of the Takeovers
Panel’s
concerns,
to permit variations to the Offer to change the currency conversion
process
set out in the Bidder’s
Statement
relating to the exchange rate that will be available to you
if, when
accepting the Offer, you elect to have the consideration under
the Offer
converted into, and then
paid to you in, Australian dollars;
|
|
|
·
|
required
CEMEX to make further disclosure concerning exchange rate risk
and certain
other matters relevant to conversion of the Offer price into Australian
dollars because the Takeovers Panel considered that the existing
disclosure on these issues was inadequate and it was minded to
make a
declaration
of unacceptable circumstances and orders if its concerns were not
adequately addressed
by
CEMEX; and
|
|
|
·
|
required
CEMEX to make further disclosure concerning the availability of
withdrawal
rights for Rinker Shareholders because the Takeovers Panel considered
that
the existing disclosure on these issues was inadequate and it was
minded
to make a declaration of unacceptable circumstances and orders
if its
concerns were not adequately addressed by
CEMEX.
|
The
accompanying Statement is a corrective statement which addresses these
deficiencies
with,
and
changes to, the Bidder’s
Statement.
In
addition to these further disclosures and variation to the Offer terms, the
accompanying Statement includes
notice that the Offer Period has been extended to 7pm (Sydney time) on 31
January 2007 and an
update
on certain matters that have occurred since the Bidder’s
Statement
was lodged with ASIC on
30
October 2006.
CEMEX
believes the Offer for Rinker is compelling for you as a shareholder.
I
encourage you to read the
accompanying Statement in its entirety. It includes corrections to certain
information in the Bidder’s
Statement.
I also encourage you to read the instructions on the enclosed Share Acceptance
Form (for Rinker
Shares) or ADS Letter of Transmittal (for Rinker ADSs). These documents have
been updated to reflect
the
variations to the Offer terms. If you have already accepted the Offer, you
do
not need to resubmit these documents. 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 1.3 of
the
accompanying Statement for a discussion of your withdrawal rights).
Yours
faithfully,
/s/
Lorenzo H. Zambrano
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$0.7863 which represents the
average of
the WM/Reuters Intraday Mid Spot Rates
on 6 December 2006. See Section 1.2 of this Statement for a discussion
of
currency exchange rates and exchange rate
risk.
|
CEMEX
First Supplementary Bidder's Statement 1
CEMEX
Australia Pty Ltd ACN 122 401
405
a
wholly-owned subsidiary of CEMEX, S.A.B. de C.V.
| First 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), 630(4) and 650D of the Corporations Act. It is
the
first
supplementary
bidder’s
statement
issued by Bidder in relation
to
its
off-market
takeover bid for Rinker.
This
document
(Statement)
supplements
and is
to
be read together with
the
Bidder’s
Statement
dated 30
October 2006 issued by Bidder.
This
Statement
will
prevail
to the extent of any inconsistency with
the
Bidder’s
Statement.
|
A
copy of this
Statement
was lodged with
ASIC
on 8
December 2006. 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
have the same meaning in this
Statement,
unless
the
context requires otherwise.
Information
contained in
or
otherwise accessible from any website referred to in
this
Statement
is
not
part of this
Statement.
|
| 1. | Payment of Offer consideration |
| 1.1 | Variation of Offer - currency election |
|
Bidder
gives notice that it varies the Offer by replacing the currency
election
provisions set out
in Section 8.8(d) of the Bidder’s
Statement
(which should now be disregarded) with the
new provisions set out below under the heading “Currency
election”.
|
|
The
new provisions will be relevant to you if you are a Rinker Securityholder
who, when accepting
the Offer, may want to elect to have your consideration under the
Offer
converted into,
and then paid to you in, Australian dollars (or if by reason of
you not
making a valid currency
election, you are a Rinker Shareholder in respect of whom this
would
occur), and
include a change to:
|
|
·
|
confirm
that
Bidder will pay any charges associated with such conversions;
and
|
|
|
·
|
the
exchange rate that will be used for such conversions. The exchange
rate
was previously
to be based on the rate obtainable by the relevant payment agent
on the
spot
market at approximately noon on the date consideration under the
Offer was
made available to the payment agent for delivery. The exchange
rate is now
to be based on the
average of the WM/Reuters Intraday Mid Spot Rates during the applicable
Exchange Rate
Reference Period (these terms
are explained in Section 1.1(a) of this Statement).
|
|
|
·
|
Some
of the information presented in the Bidder’s
Statement
(see Section 1.2(c) of this
Statement for further details) has been calculated using the Reserve
Bank
Mid-Point Rate
for illustrative and comparative purposes.
The Reserve Bank Mid-Point Rate is an indication
of market value only and may differ from exchange rates quoted
by
foreign exchange dealers
and from the WM/Reuters Intraday Mid Spot Rates used to
calculate the
exchange rate that will be used for the conversion of consideration
under
the Offer
(as set out in Section 1.1(a) of this Statement).
|
|
| The Takeovers Panel has varied a modification instrument issued by ASIC to allow these variations to be made. | ||
CEMEX
First Supplementary Bidder's Statement 2
| (a) | Currency election |
The
consideration under the Offer is priced in US dollars. However, you have the
right when
accepting the Offer to elect either to receive payment in US dollars or to
have
the consideration
under the Offer converted into, and then paid to you in, Australian
dollars.
Provision
for and instructions in respect of the currency election are contained in the
enclosed
Share Acceptance Form (for Rinker Shares) or ADS Letter of Transmittal
(for Rinker
ADSs). In
addition, to the extent you hold Rinker Shares
in a
CHESS Holding, the currency
election can be made by instructing your Controlling Participant to make such
an
election on your behalf. You should disregard the description of the currency
conversion
process
in the Share Acceptance Form or ADS Letter of Transmittal that was sent to
you
with
the Bidder’s
Statement
to the extent that it is inconsistent with the description set out
in this
Section 1.1. However, if you have already accepted the Offer, you do
not need to resubmit these documents.
If
you
accept the Offer but do not make a valid currency election, you will receive
payment
of
consideration under the Offer in US dollars for your Rinker Securities except
to
the extent
you are a Rinker Shareholder and your address, as recorded in Rinker’s
register
of
members,
is an Australian address,
in which
case consideration under the Offer for your Rinker Shares
will be
converted into, and then paid to you in, Australian dollars.
You
may
only make one currency election for your
Rinker Securities.
If,
when
accepting the Offer, you elect to have your consideration under the Offer
converted into,
and
then paid to you in, Australian dollars (or if by reason of you not making
a
valid
currency
election, you are a Rinker Shareholder in respect of whom this would occur),
Bidder will pay any charges associated with such conversion, and the exchange
rate at which your consideration under the terms
of the
Offer will be converted into Australian dollars will be the average of the
WM/Reuters Intraday Mid Spot Rates during the period (each an Exchange
Rate Reference Period):
|
·
|
if
you accept (and do not withdraw) the Offer before the date it is
declared
unconditional,
commencing on the date the Offer is declared unconditional and
ending
three Business Days prior to the date you are paid under the Offer;
or
|
|
|
·
|
if
you accept (and do not withdraw) the Offer on or after the date
it is
declared unconditional,
commencing on the date your acceptance is received by the
Australian Registry
(for Rinker Shares) or the US Depositary (for Rinker ADSs) and
ending
three
Business Days prior to the date you are paid under the Offer.
|
See
Sections 8.8(a) and (b) of the Bidder’s
Statement
for information on when you will be paid.
Bidder may (but is not obliged to) pay you earlier than the last day by
which
payment
must be
made as specified
in
these
sections.
CEMEX
will provide the required amounts of Australian dollars to the relevant
payment
agent
based upon the exchange rate described above.
WM/Reuters
Intraday Mid Spot Rates means
the
A$ to US$ mid rates calculated hourly by The
WM
Company from 6am
to
10pm
(London time) on each weekday (excluding certain
public
holidays when no calculations are made) based on information sourced from
Reuters Group PLC. The WM Company has been a provider of currency spot rates
since 1993 based on information primarily sourced from Reuters Group PLC and
currently provides
spot rate coverage for 157 currencies
against
US dollars, British pounds and the
euro.
Further information about The WM Company can be obtained from its website at
www.wmcompany.com.
CEMEX
First Supplementary Bidder's Statement 3
Information
on WM/Reuters Intraday Mid Spot Rates is available on a subscription basis
from
a
number of data distributors, including Bloomberg, Reuters and The WM
Company. From
the
date on which Bidder gives notice of its intention to terminate the US
Withdrawal
Rights
(see Section 1.3 of this Statement), CEMEX
will publish
an average of the WM/Reuters Intraday Mid Spot Rates for each day on its website
(www.cemex.com).
See
Section 1.2 of this Statement for a discussion of exchange rates and exchange
rate risk. In all cases, fluctuations
in
exchange rates are at the risk of Rinker Securityholders who
are
to receive payment of consideration under the Offer in Australian dollars.
Bidder shall
have no responsibility with respect to the payment of consideration under the
Offer
other
than to make payment in accordance with Section 8.8 of the Bidder’s
Statement
(as amended by these variations).
| (b) | Summary of the Offer and other important information - replacement |
As
a
result of the above variations, you should disregard the answer on page 1 of
the Bidder’s
Statement
to the question “What
is
the
Offer price?”
and
instead refer to the following answer:
|
What
is the Offer price?
|
Bidder
is offering to acquire all your Rinker Shares
for US$13.00 per
share and all your Rinker ADSs for US$65.00 per ADS (less
any applicable withholding taxes and without interest) on the terms
and
conditions set out in Section 8 of the Bidder’s
Statement
(as varied by Section 1.1(a) of this Statement).
|
|
|
Although
the Offer price is in US dollars, you may elect to have it
converted into, and then paid to you in, Australian dollars at
an
exchange rate calculated in the manner described in Section
1.1(a) of this Statement. If you do not make a valid election, you
will receive payment of the Offer price in US dollars for your
Rinker Securities unless you are a Rinker Shareholder with a registered address
in
Australia, in which case the Offer price for
your Rinker Shares will be converted into Australian
dollars.
|
| (c) | Compulsory acquisition |
If
Bidder
acquires relevant interests
in 90%
or more of Rinker Shares
and is
entitled to proceed
to compulsory acquisition of the remaining Rinker Shares
under
the Corporations
Act, it
intends to do so.
If
your
Rinker Shares
are to
be acquired compulsorily, Bidder will send a compulsory acquisition
notice to you and will be required by section 661C of the Corporations Act
to acquire
your Rinker Shares
on
the terms
that
applied to the acquisition of Rinker Shares
under
the Offer immediately before:
|
·
|
the
compulsory acquisition notice is given if it is given before
the end of
the Offer
Period; and
|
|
|
·
|
the
end of the Offer Period if it is
not.
|
Bidder
intends to extend to you the right to elect either to receive the consideration
to which
you
are entitled on compulsory acquisition in US dollars or to have the
payment
converted into, and then paid in, Australian dollars. Provision for and
instructions in respect
of the currency election will be contained in the compulsory acquisition
notice.
CEMEX
First Supplementary Bidder's Statement 4
If
you
elect to have your consideration on compulsory acquisition converted into,
and
then
paid in,
Australian dollars (or if by reason of you not making a valid currency election,
you are a Rinker Shareholder in respect of whom this would occur), Bidder will
pay any charges associated with such conversion, and the exchange rate at which
consideration will be converted into Australian dollars will be the average
of
the WM/Reuters Intraday Mid Spot Rates during the period commencing
on:
|
·
|
the
last day of the Offer Period; or
|
|
|
·
|
if
compulsory acquisition notices are given before the last day
of the Offer
Period, on the date they are
given,
|
and
ending three Business Days prior to the date Bidder makes payment in accordance
with the compulsory acquisition provisions of the Corporations Act.
| 1.2 | Discussion of currency exchange rates and exchange rate risk. |
As
a
result of the variations in Section 1.1 of this Statement and further disclosure
required by the Takeovers Panel, you should disregard Section 7.1 of the
Bidder’s
Statement
and consider instead the following.
| (a) | Offer priced in US dollars |
In
Rinker’s
annual
report for the year ended 31 March 2006, Rinker’s
directors
stated that they believe
US dollar reporting represents the best measure of overall Rinker group
performance. In
recognition of this and consistent with the location of the majority of
Rinker’s
assets,
CEMEX has priced the Offer in US dollars.
When
accepting the Offer, you may elect to have the Offer price converted from US
dollars
into
Australian dollars. The actual amount of Australian dollars received as a result
of a currency election will depend upon the WM/Reuters Intraday Mid Spot Rates
during your Exchange Rate Reference Period.
If
you
elect to have the Offer consideration converted into, and then paid to you
in,
Australian dollars, you should be aware that the WM/Reuters Intraday Mid Spot
Rates prevailing at the time you make your currency election may be different
from the WM/Reuters Intraday Mid Spot Rates during your Exchange Rate Reference
Period.
CEMEX
First Supplementary Bidder's Statement 5
The
chart
below shows the movements which have occurred in the Reserve Bank Mid-Point
Rate
and the daily average of the WM/Reuters Intraday Mid Spot Rates between 1 April
2003 (the day after Rinker Shares were first
listed
on
ASX) and 6 December 2006. You should note that the table reflects
historical
rates only and is not intended to imply the future direction of US dollar to
Australian dollar exchange rates.
— Reserve
Bank Mid-Point Rate
—
Daily average of WM/Reuters Intraday Mid Spot Rates
1.
Average of the WM/Reuters Intraday Mid Spot Rates on 6 December
2006.
Although
each Rinker Securityholder who accepts the Offer will be paid the Offer price
of
US$13.00 for each of their Rinker Shares (or US$65.00 for each of their Rinker
ADSs), if there were to be a significant
change
in
the value of the US dollar compared to the Australian dollar, this may have
an
impact on the value of the Offer price to you (in Australian dollar terms).
If
the US dollar appreciated against the Australian dollar, the value of the Offer
price may be higher in Australian dollar terms. If, instead, the US dollar
depreciated against the Australian dollar, the value of the Offer price may
be
lower in Australian dollar terms.
If,
when
accepting the Offer, you elect to have the Offer price converted into, and
then
paid to you in, Australian dollars then, as a result of fluctuations
in
WM/Reuters Intraday Mid Spot Rates, you may receive a different amount in
Australian dollars for each of your Rinker Securities than the amount received
by Rinker Securityholders who are subject to different Exchange Rate Reference
Periods because they accepted the Offer at different times from when you
accepted the Offer.
Rinker
Securityholders whose acceptances are received by the Australian Registry or
US
Depositary (as applicable) on the same day will be paid on the same day and,
to
the extent they are to have consideration under the Offer converted into, and
then paid to them in, Australian dollars, the Exchange Rate Reference Period
applicable to them will be the same and, therefore, conversion will be made
at
the same exchange rate.
CEMEX
First Supplementary Bidder's Statement 6
An
averaging of WM/Reuters Intraday Mid Spot Rates will
assist
in
smoothing the potential
impact
that exchange rate fluctuations
will
have
on the amount of Australian dollars you are paid under the Offer.
However,
the shorter
an
Exchange Rate Reference Period the greater
the
impact that exchange rate fluctuations
on
a
particular day will have on the calculation of the average of the WM/Reuters
Intraday Mid Spot Rates during that period. It is not possible to determine
the
precise length of your Exchange Rate Reference Period because that will depend
on when you accept the Offer and when consideration under the Offer is paid
to
you. In particular, you should note that:
|
·
|
Bidder
may pay you earlier than the last day by which payment must
be made as
specified
in
Sections 8.8(a) and (b) of the Bidder’s
Statement1,
and
earlier payment by Bidder
will shorten the Exchange Rate Reference Period from that which
would
have
otherwise applied had Bidder paid you on that last day. A shorter
Exchange
Rate Reference Period may result in a positive or negative
effect on the
exchange rate determined by reference to that period in accordance
with
Section 1.1(a) of this Statement, depending on the extent and
magnitude of
exchange rate fluctuations
during
that period.
|
|
|
·
|
A
Rinker Securityholder whose acceptance is received by the
Australian
Registry or
US Depositary (as applicable) on a particular day may have
a longer or
shorter
Exchange
Rate Reference Period applicable to him or her than another
Rinker
Securityholder
whose acceptance is received on a different day, depending
on how
soon
after their respective acceptances
Bidder makes payment to each of
them.
|
The
potential for
CEMEX’s
own
trading in Australian dollars to contribute to exchange rate fluctuations
is
discussed in Section 1.5 of this Statement.
| (b) | Receipt of payments under the Offer |
If
you
would like to accept the Offer, you should ensure that you are able to receive
payment
of the Offer price in the currency (US dollars or Australian dollars) in which
you wish
to
receive it. (See Section 1.4 of this Statement
for
information about making your
own
arrangements
to
convert US dollars into Australian dollars.)
Similarly,
if you are a beneficial
owner
of
Rinker Securities registered in the name of a broker or other nominee and would
like your nominee to accept the Offer for your Rinker Securities,
you should confirm
that
it
has the facilities to receive payment of the Offer price
(and
transfer that payment to you) in the currency (US dollars or Australian dollars)
in which you wish to receive it.
| 1. | Section 8.8(a) of the Bidder’s Statement provides: | |
| “Subject to this Section 8.8 and the Corporations Act, if you accept this Offer and the Defeating Conditions are fulfilled or waived, Bidder will pay you the consideration for your Rinker Securities under this Offer on or before the earlier of: | ||
|
(i)
|
the
day that is one month after the date of your acceptance or,
if at the time
of your acceptance this Offer is subject to a Defeating Condition,
one
month after any contract resulting from your acceptance of
this Offer
becomes, or is declared, unconditional; and
|
|
| (ii) |
the
day that is 21 days after the end of the Offer
Period.
|
|
No
interest will be payable on the consideration for your Rinker
Securities
under this Offer.”
Section
8.8(b) specifies when payment will be made if additional documents
are required from you
|
||
CEMEX
First Supplementary Bidder's Statement 7
| (c) | Impact of currency exchange rate movements on information presented in the Bidder's Statement |
Some
of
the information presented in the Bidder’s
Statement,
including the Australian dollar equivalent of the Offer price and premia
represented by the Offer price (see the Chairman’s
Letter
in, and pages 1, 6, 8 and 13 of, the Bidder’s
Statement),
has been calculated
using an exchange rate of US$1.00 to A$0.7645, which represents
the
Reserve
Bank
Mid-Point Rate on 27 October 2006.
This
information is sensitive to changes in the value of the US dollar compared
to
the
Australian dollar.
The
analysis below sets
out the
potential impact on this information from these changes. Care
should be taken in interpreting this analysis as it treats
exchange rate fluctuations
in isolation
of any other events, whereas
in
many cases
other
events may have a cumulative or
offsetting impact. This analysis is not intended to imply the future direction
of US dollar
to
Australian dollar exchange rates.
As
a
result of the adoption of the WM/Reuters Intraday Mid Spot Rate as the basis
for
conversion
of US dollars under the Offer (as set out in Section 1.1(a) of this Statement)
and
to
reflect
exchange
rate movements since 27 October 2006, the analysis below is based on an exchange
rate of A$1.00 to US$0.7863, which represents
the
average of the WM/Reuters
Intraday Mid Spot Rates on 6 December 2006. This has resulted in a
reduction
in the
Australian dollar equivalent of the Offer price (from A$17.00 to A$16.53)
and
the
premia represented by the Offer price because of the difference between
these rates.
| Sensitivity analysis - changes in WM/Reuters Intraday Mid Spot Rates |
|
Variation
|
(10.0%
|
)
|
(5.0%
|
)
|
(2.5%
|
)
|
0.0%
|
2.5%
|
5.0%
|
10.0%
|
||||||||||||
|
WM/Reuters
Intraday
Mid
Spot Rate
|
0.7076
|
0.7470
|
0.7666
|
0.78631
|
0.8059
|
0.8256
|
0.8649
|
|||||||||||||||
|
Change
in rate
|
0.0787
|
0.0393
|
0.0197
|
0.0000
|
0.0196
|
0.0393
|
0.0786
|
|||||||||||||||
|
Offer
price (US$)
|
13.00
|
13.00
|
13.00
|
13.00
|
13.00
|
13.00
|
13.00
|
|||||||||||||||
|
Offer
price (A$)
|
18.37
|
17.40
|
16.96
|
16.53
|
16.13
|
15.75
|
15.03
|
|||||||||||||||
|
1-mth
VWAP (A$)
|
14.13
|
14.13
|
14.13
|
14.13
|
14.13
|
14.13
|
14.13
|
|||||||||||||||
|
Premium
to 1-mth VWAP
|
30.0%
|
23.2%
|
20.0%
|
17.0%
|
14.2%
|
11.4%
|
6.4%
|
|||||||||||||||
|
3-mth
VWAP (A$)
|
13.47
|
13.47
|
13.47
|
13.47
|
13.47
|
13.47
|
13.47
|
|||||||||||||||
|
Premium
to 3-mth VWAP
|
36.4%
|
29.2%
|
25.9%
|
22.7%
|
19.7%
|
16.9%
|
11.6%
|
|||||||||||||||
|
6-mth
VWAP (A$)
|
14.74
|
14.74
|
14.74
|
14.74
|
14.74
|
14.74
|
14.74
|
|||||||||||||||
|
Premium
to 6-mth VWAP
|
24.7%
|
18.1%
|
15.1%
|
12.2%
|
9.5%
|
6.9%
|
2.0%
|
|||||||||||||||
|
Previous
close2
|
13.39
|
13.39
|
13.39
|
13.39
|
13.39
|
13.39
|
13.39
|
|||||||||||||||
|
Premium
to previous close
|
37.2%
|
30.0%
|
26.6%
|
23.5%
|
20.5%
|
17.6%
|
12.3%
|
|||||||||||||||
|
Broker
target share price
|
15.62
|
15.62
|
15.62
|
15.62
|
15.62
|
15.62
|
15.62
|
|||||||||||||||
|
Premium
to broker target share price
|
17.6%
|
11.5%
|
8.6%
|
5.9%
|
3.3%
|
0.8%
|
(3.7%
|
)
|
1 Average
of the WM/Reuters Intraday Mid Spot Rates on 6 December 2006.
2 Based
on the last traded price of Rinker Shares during normal trading
on ASX.
Following close of normal trading on 27 October 2006, a wire service
carried an
article speculating on a takeover bid by CEMEX for Rinker as a
result of which
the post close ASX auction trading system produced a closing price
of
A$14.70.
CEMEX
First Supplementary Bidder's Statement 8
| 1.3 | Discussion of withdrawal rates |
| (a) | Summary of withdrawal rights |
You
have
a right to withdraw your acceptance under the terms of the Offer set out in
Sections 8.7(a) and 8.9 of the Bidder’s Statement. Three types of withdrawal
rights may be available, such that you will be entitled to withdraw your
acceptance of the Offer:
| 1. |
at
any time prior to the fulfilment or waiver of the Defeating
Conditions in
Sections 8.6(b), (c) and (d) of the Bidder’s Statement (these relate to
CEMEX shareholder approval, Australian foreign investment
approval and US
antitrust approval, respectively);
|
|
|
|
|
|
| 2. | pursuant to section 650E of the Corporations Act if you accept the Offer and the Offer is then varied in a way which delays payment to you by more than one month; or | |
| 3. | in the circumstances contemplated by Rule 14d-7 under, and section 14(d)(5) of, the US Exchange Act (the US Withdrawal Rights), until such time as Bidder terminates the US Withdrawal Rights in accordance with any exemptive relief granted by SEC, |
in
each
case, by following the procedures set out in Section 8.9 of the Bidder’s
Statement.
The
withdrawal rights that may be available to you under the Offer are more
extensive than those ordinarily made available under Australian takeover bids
because of the availability of the US Withdrawal Rights.
| (b) | US Withdrawal Rights |
Although
the US Withdrawal Rights arise under US law, Bidder has made them available
to
all Rinker Securityholders irrespective of where they reside.
Rule
14d-7 under the US Exchange Act contemplates an acceptance being withdrawn
at
any time before the end of the Offer Period.
Section
14(d)(5) of the US Exchange Act contemplates an acceptance, for which payment
has not been made, being withdrawn at any time after 60 days from the
commencement of the Offer (i.e. at any time after 13 January 2007).
Bidder
has sought exemptive relief from SEC to permit Bidder, at its option, to
terminate the US Withdrawal Rights at any time on or after the later
of:
|
·
|
20
US Business Days following the date of commencement of
the Offer (i.e. 12
December 2006); and
|
|
|
·
|
the
day on which the Offer becomes wholly unconditional or
wholly
unconditional except for Prescribed Occurrences (see
Section 8.6(m) of the
Bidder’s Statement for a description of Prescribed
Occurrences),
|
subject
to Bidder giving at least five US Business Days’ notice of its intention to
terminate the
US
Withdrawal Rights (Bidder will not be able to terminate the US Withdrawal
Rights
without
giving such notice).
CEMEX
First Supplementary Bidder's Statement 9
| (c) | Management of exchange rate risk using withdrawal rights |
You
may
be able to use the withdrawal rights available to you as a limited
tool to
manage (but
not
eliminate) exchange rate risk. For example, if you accept the Offer
but, as a
result
of
subsequent fluctuations
in
exchange rates (or for any other reason), you later wish to revisit
that acceptance (or revisit the currency election you made at the time
of
acceptance) you
will
be able to do so by withdrawing your acceptance at any time withdrawal
rights
are
available to you under the Offer.
However,
it is strongly recommended that you proceed on the basis that no withdrawal
rights will be available to you after the Offer becomes unconditional or
unconditional except for Prescribed Occurrences and, in particular, that no
withdrawal rights will be available
to you during your Exchange Rate Reference Period. For example, if SEC
grants the
exemptive relief referred to above in relation to the US Withdrawal Rights
and
Bidder
gives
the requisite five
US
Business Days’
notice
of
termination, Bidder can terminate the US Withdrawal Rights effective on and
from
the day the Offer becomes wholly unconditional
or wholly unconditional except for Prescribed Occurrences (assuming
that
date is
later than 12 December 2006),
and
in
these circumstances
the US
Withdrawal Rights will not be available for any meaningful period during your
Exchange Rate Reference Period (although it is technically possible that
withdrawal rights may be available to some Rinker Securityholders under section
650E of the Corporations Act).
Although
a withdrawal cannot be rescinded, you could accept the Offer again by
following one
of
the procedures for acceptance described in Section 8.3 of the Bidder’s
Statement
(as
applicable) at any time prior to the end of the Offer Period.
| 1.4 | Can I make my own arrangements to convert US dollars into Australian dollars? |
If
you
elect to receive your Offer consideration in US dollars, you will receive
a US
dollar-denominated
cheque for the relevant amount drawn on Citibank, N.A. You could
then
make your own arrangements
to
convert this amount into Australian dollars; however,
the conversion rate that is available to you may differ from the conversion
rate that
would have applied if you had elected, when accepting the Offer, to
have your
Offer
consideration converted into, and then paid to you in, Australian
dollars.
If
you
have an Australian dollar-denominated bank account, your bank (or
other financial
institution)
may be prepared to accept a US dollar-denominated cheque as a deposit
into
your
account with them. In addition to confirming
with
your
bank (or other financial
institution)
that it is willing to accept such deposits you should also ask it to
confirm:
|
·
|
the
amount of any fees that it will charge you for making such
a
deposit;
|
|
|
·
|
how
long it is likely to take to clear the deposit and credit
cheque proceeds
to your account; and
|
|
| · | the rate and time at which US dollar cheque proceeds will be converted into Australian dollars. |
CEMEX
First Supplementary Bidder's Statement 10
| 1.5 | CEMEX's foreign exchange strategies |
CEMEX
will implement the most appropriate foreign exchange strategies in connection
with the Offer, taking into account all relevant circumstances, to ensure the
necessary Australian dollars are acquired to fulfil
all
Australian dollar payment obligations under the Offer, with the objective of
minimising the potential impact such acquisitions may have on Australian dollar
exchange rates.
Citigroup
and JPMorgan have been retained by CEMEX as its financial
advisers
in relation
to the
Offer, including to advise and assist with currency exchange issues. Citigroup
and JPMorgan are highly regarded and experienced participants in the Australian
dollar currency markets. CEMEX retains the right to execute its foreign exchange
strategies through its financial
advisers
or through any other institutions it deems appropriate.
A
broad
range of foreign exchange strategies are available to CEMEX, which may
include:
|
·
|
(Call
options) CEMEX may purchase call options that give
it the right
to acquire Australian dollars from a counterparty for
an agreed rate on
the date(s) stipulated in each
call option. These may include “deal
contingent” options
in which a premium will
only be payable for the option if it is exercised.
CEMEX may also
establish option spreads by purchasing or selling options
over Australian
dollars at different rates.
|
|
|
·
|
(Advance
purchases) CEMEX may purchase Australian dollars
in advance of
the dates on
which payment of consideration is expected to be
required either prior to
or during
any Exchange Rate Reference
Periods.
|
It
is
possible that the implementation of foreign exchange strategies by CEMEX may
not
be effective such that they cause or contribute to exchange rate fluctuations.
Currency
speculators may also cause or contribute to exchange rate fluctuations
should
they take positions in the Australian dollar based on their opinions as to
what
CEMEX’s
foreign
exchange strategies are likely to be and how and when they are likely to be
implemented.
Exchange
rate fluctuations
may
have
an adverse impact on Rinker Securityholders particularly if the period in which
these fluctuations
occur
coincides with:
|
·
|
for
a Rinker Securityholder who elects to have Offer consideration
converted
into Australian dollars under the currency election
option, the applicable
Exchange Rate Reference Period; or
|
|
|
·
|
for
a Rinker Securityholder who elects to have Offer
consideration paid in US
dollars and then make his or her own arrangements
to convert this amount
into Australian dollars, the period when conversion
is
made.
|
CEMEX
will take into account all relevant circumstances in determining the actual
foreign
exchange
strategies to be implemented by it, including its desire to minimise the impact
that the implementation of its strategies may have on Australian dollar exchange
rates.
CEMEX
First Supplementary Bidder's Statement 11
| 2. |
Acquisition
of Rinker Securities
Outside
the Offer
|
In
Section 2.6(c) of the Bidder’s
Statement,
Bidder reserved the right to purchase, or cause an affiliate
to
purchase, Rinker Shares outside the Offer at any time during the Offer Period,
subject to applicable laws and it obtaining a grant of exemptive relief by
SEC.
Bidder
has now undertaken to the Takeovers Panel, in its own right and for and on
behalf of CEMEX and every other associate of Bidder, that it, its associates
and
any other person acting for the account or benefit
of
Bidder
or its associates will not purchase or arrange to purchase Rinker Securities
for
Australian dollars outside the bid during the bid period.
Bidder
has no current intention to purchase Rinker Shares for Australian dollars on
ASX
and applicable law currently prevents it from doing so. Bidder is seeking
exemptive relief from SEC and, if that relief were granted, Bidder would have
the right to purchase Rinker Shares outside the bid, subject to compliance
with
applicable law, including, without limitation,
the conditions to that relief and sections 606 and 623 of the Corporations
Act.
If
Bidder sought to exercise this right, it would only make such purchases in
US
dollars.
| 3. | 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 7pm
(Sydney
time) on
31 January 2007 / 3am (New York time) on 31 January 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
First Supplementary Bidder's Statement 12
| 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 December 2006 to 23 January 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 this Statement).
| 4. | Update on other matters |
| 4.1 | Funding arrangements |
There
have been minor changes to some of the terms of the committed funding
arrangements, as summarised below.
| (a) | (Acquisition Facility) The Acquisition Facility (described in Section 4.4 of the Bidder’s Statement) has been signed. The differences between the Acquisition Facility as signed, and the indicative terms set out in the Commitment Letter which are material to the bid funding are: | |
|
·
|
BBVA
has been appointed an Acquisition Facility Mandated
Lead Arranger under
the Acquisition Facility in addition to Citigroup
Global Markets Limited
and The Royal Bank
of Scotland plc. A subsidiary of BBVA, BBVA Bancomer,
S.A. de C.V. is the
Newly
Committed Facility Lender (described in Section
4.5 of the Bidder’s
Statement).
Further information on BBVA can be found in Section
4.5 of the
Bidder’s
Statement;
|
|
|
·
|
the
Acquisition Facility is available for drawing
until (and including) the
date falling 364 days after that date, unless
that date is not a business
day, in which case the Acquisition
Facility will be available for drawing until
(and including) the
immediately
prior business day;
|
|
|
·
|
in
addition to the undertakings described in Section 4.4
of the Bidder’s
Statement,
Cemex España
has
undertaken not to dispose, and to ensure that none of
its subsidiaries
dispose, of assets representing more than 5% of the total
consolidated
assets of Cemex España
and
its subsidiaries, subject to a number of exceptions;
and
|
|
|
·
|
certain
events which were described in the Commitment Letter
as events of default
(described in Section 4.4(c) of the Bidder’s
Statement)
are only an event of default if the event has, or is
reasonably likely to
have, a material adverse effect on the business of CEMEX
or any of its
subsidiaries (taken as a whole), the rights of the finance
parties
or the ability of any obligor to perform its payment
obligations under the
Acquisition
Facility.
|
| (b) | (Bridge Facility) The parties to the Bridge Facility have agreed that the Bridge Facility shall be entered into on or before 21 December 2006 or such later date as agreed between them. The Bridge Facility shall be available for drawing at any time until the earlier of: | |
| (i) | 21 December 2007 (or such later date agreed between the parties); and | ||
| (ii) | 364 days after the entry into the facility. | ||
| The other conditions to drawing as described in Section 4.6 of the Bidder’s Statement remain unchanged. | ||
CEMEX
First Supplementary Bidder's Statement 13
| 4.2 | CEMEX shareholder approval |
On
7
December 2006 a general meeting of CEMEX shareholders
was held
at which all resolutions
necessary to approve, effect and implement the Offer and the acquisition
of
Rinker
Securities by Bidder or any other CEMEX Group member were duly
passed.
Bidder,
therefore, gives notice that the Defeating Condition set out in Section
8.6(c)
of the Bidder’s
Statement
has been fulfilled
such
that
the Offer is now free of this condition.
| 4.3 | Update on regulatory matters |
| (a) | Foreign investment approval - Australia |
On
4
December 2006, CEMEX received notice of an interim order made for
and on behalf
of the
Treasurer under section 22 of FATA prohibiting the proposed acquisition
of up to
all the Rinker
Securities by Bidder for a 90-day period that expires on 6 March
2007, to allow
the
Treasurer more time to examine the proposal. The Treasurer may not
require the
full 90-day period to complete his examination of the
proposal.
| (b) | Antitrust approvals - United States |
On
30
November 2006, CEMEX received a request from the Antitrust Division
for
additional
information and materials (the Second Request) pursuant
to the HSR Act. Issuance of the Second Request suspends
the
running of the waiting period under the HSR Act until CEMEX has
substantially
complied with it. Under the HSR Act, the waiting period will
expire
10
calendar days after CEMEX has substantially complied with the
Second
Request (unless
the tenth day is a weekend or US public holiday, in which case
it will expire on
the
next US
Business Day).
| (c) | ACCC |
On
20
November 2006, CEMEX received written confirmation
from
the
Australian Competition and Consumer Commission (ACCC)
advising
that ACCC does not propose to intervene
pursuant to section 50 of the Trade
Practices
Act 1974 (Cth)
in CEMEX’s
proposed
acquisition of Rinker Securities under the Offer.
CEMEX
First Supplementary Bidder's Statement 14
| 5. | Consent |
Citigroup
and JPMorgan have given, and have not before the date of this Statement
withdrawn,
their written
consents
to be
named in this Statement in the form and context in
which
they have been named.
The
WM
Company 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, namely the references
made to WM/Reuters Intraday Mid
Spot Rates in this Statement.
|
| 6. | Approval |
This
Statement
has been approved by a resolution passed by the directors
of Bidder.
DATED
8 December 2006
SIGNED
for and on behalf of CEMEX Australia Pty Ltd
/s/
Hector
Medina
Hector
Medina
Director
CEMEX
First Supplementary Bidder's Statement 15
| 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.
CEMEX
First Supplementary Bidder's Statement 16
Ex.(b)(1)(I)
EXECUTION
VERSION
AMENDMENT
LETTER TO JPMORGAN COMMITMENT LETTER
December
7, 2006
J.P.
Morgan Securities Inc.
JPMorgan
Chase Bank, N.A.
Letter
Agreement to the Commitment Letter
Reference
is made to the Commitment Letter dated 25 October, 2006 as amended by a Letter
Agreement dated 9 November, 2006 (together, the “Commitment
Letter”),
among
J.P. Morgan Securities Inc., JPMorgan Chase Bank, N.A. (together, “JPMorgan”)
and
New Sunward Holding B.V. and CEMEX, S.A.B. DE C.V. (together, “Cemex”),
and
the Summary of Terms and Conditions attached thereto as Exhibit A (the
“Term
Sheet”).
Capitalised terms used but not defined herein have the meanings assigned to
them
in the Commitment Letter and the Term Sheet (as applicable).
The
parties hereto agree that:
|
(i)
|
Paragraph
(c) which appears on page 3 of the Commitment Letter be deleted in
its
entirety and replaced with the
following:
|
“(c)
the
parties thereto shall have executed and delivered a credit agreement and other
related documentation by not later than December 21, 2006 (or such other later
date as agreed between the Commitment Parties, the Borrower and the Parent)
(such date of execution and delivery being, the “Credit
Agreement Effective Date”),
and
the closing of the Acquisition and Funding of the Bridge Facility on or before
the earlier of (i) December 21, 2007 (or such later date as is agreed between
the Commitment Parties, the Borrower and the Parent); or (ii) the 364th day
after the Credit Agreement Effective Date.”
|
(ii)
|
The
paragraph entitled “Maturity” in section 3 of the Termsheet be deleted in
its entirety and replaced with the
following:
|
|
“Maturity:
|
The
Bridge Loans shall become due and payable on or before the date that
is
the earlier of (i) December 21, 2007 (or such later date as is agreed
between the Commitment Parties, the Borrower and the Parent); or
(ii) the
364th day after the Credit Agreement Effective Date (the “Maturity
Date”).”
|
|
(iii)
|
The
text contained in Section 4 of the Term Sheet entitled “Conditions” be
deleted in its entirety and replaced with the
following:
|
“The
Bridge Facility shall become effective (the “Effective
Date”)
on the
date on which each party thereto shall have executed and delivered a
satisfactory credit agreement and any other related documentation (the
“Bridge
Facility Documentation”)
which
shall occur (if at all) by December 21, 2006 (or such later date as is agreed
between the Commitment Parties, the Borrower and the Parent). The Bridge
Facility shall be available for borrowing on a single day during the
Availability Period upon the satisfaction of the conditions set forth in the
Commitment Letter and in Exhibit C (the date upon which all such conditions
precedent shall be satisfied, the “Funding
Date”).”
This
letter agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
|
NEW
SUNWARD HOLDING B.V.
|
|||
|
By:
|
/s/ Mr. Agustin Blanco | ||
|
|
|||
| Name:
Mr. Agustin
Blanco Title: Attorney-in-Fact |
|
CEMEX,
S.A.B. DE C.V.
|
|||
|
By:
|
/s/ Mr. Agustin Blanco | ||
|
|
|||
| Name:
Mr. Agustin
Blanco Title: Attorney-in-Fact |
2
Accepted
and agreed to as of
the
date
first above written:
J.P.
MORGAN SECURITIES INC.
|
By:
|
/s/ Simon Noble |
|
|
|
|
Name: Simon
Noble
Title: Vice
President
|
JPMORGAN
CHASE BANK, N.A.
|
By:
|
/s/ Linda M. Meyer |
|
|
|
|
Name: Linda
M. Meyer
Title: Vice
President
|
3