Transaction
Valuation(1)
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Amount
of Filing Fee(2)
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$2,676,229,274
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$286,357
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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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||
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.
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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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Exhibit
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Description
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(a)(1)(G)
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First
Supplementary Bidder’s Statement.
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(b)(1)(I)
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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.
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CEMEX Australia Pty Ltd | ||
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By: | /s/ Mr. Ramiro G. Villarreal Morales | |
Name: Mr. Ramiro G. Villarreal Morales | ||
Title: Director |
CEMEX, S.A.B. de C.V. | ||
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By: | /s/ Mr. Ramiro G. Villarreal Morales | |
Name: Mr. Ramiro G. Villarreal Morales | ||
Title: General Counsel |
Exhibit
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Description
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(a)(1)(G)
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First
Supplementary Bidder’s Statement.
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(b)(1)(I)
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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.
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·
|
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;
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|
·
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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
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|
·
|
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.
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1.
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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.
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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.
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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.
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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”.
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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:
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·
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confirm
that
Bidder will pay any charges associated with such conversions;
and
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|
·
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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).
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·
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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).
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|
The Takeovers Panel has varied a modification instrument issued by ASIC to allow these variations to be made. |
(a) | Currency election |
·
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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
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|
·
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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.
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(b) | Summary of the Offer and other important information - replacement |
What
is the Offer price?
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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).
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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.
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(c) | Compulsory acquisition |
·
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the
compulsory acquisition notice is given if it is given before
the end of
the Offer
Period; and
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·
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the
end of the Offer Period if it is
not.
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·
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the
last day of the Offer Period; or
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·
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if
compulsory acquisition notices are given before the last day
of the Offer
Period, on the date they are
given,
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1.2 | Discussion of currency exchange rates and exchange rate risk. |
(a) | Offer priced in US dollars |
·
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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.
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·
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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.
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(b) | Receipt of payments under the Offer |
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)
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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
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(ii) |
the
day that is 21 days after the end of the Offer
Period.
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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
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(c) | Impact of currency exchange rate movements on information presented in the Bidder's Statement |
Sensitivity analysis - changes in WM/Reuters Intraday Mid Spot Rates |
Variation
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(10.0%
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)
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(5.0%
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)
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(2.5%
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)
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0.0%
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2.5%
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5.0%
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10.0%
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||||||||||||
WM/Reuters
Intraday
Mid
Spot Rate
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0.7076
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0.7470
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0.7666
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0.78631
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0.8059
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0.8256
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0.8649
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Change
in rate
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0.0787
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0.0393
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0.0197
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0.0000
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0.0196
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0.0393
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0.0786
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Offer
price (US$)
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13.00
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13.00
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13.00
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13.00
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13.00
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13.00
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13.00
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|||||||||||||||
Offer
price (A$)
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18.37
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17.40
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16.96
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16.53
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16.13
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15.75
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15.03
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1-mth
VWAP (A$)
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14.13
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14.13
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14.13
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14.13
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14.13
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14.13
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14.13
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|||||||||||||||
Premium
to 1-mth VWAP
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30.0%
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23.2%
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20.0%
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17.0%
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14.2%
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11.4%
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6.4%
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3-mth
VWAP (A$)
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13.47
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13.47
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13.47
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13.47
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13.47
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13.47
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13.47
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Premium
to 3-mth VWAP
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36.4%
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29.2%
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25.9%
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22.7%
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19.7%
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16.9%
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11.6%
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6-mth
VWAP (A$)
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14.74
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14.74
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14.74
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14.74
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14.74
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14.74
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14.74
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|||||||||||||||
Premium
to 6-mth VWAP
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24.7%
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18.1%
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15.1%
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12.2%
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9.5%
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6.9%
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2.0%
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Previous
close2
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13.39
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13.39
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13.39
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13.39
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13.39
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13.39
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13.39
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|||||||||||||||
Premium
to previous close
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37.2%
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30.0%
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26.6%
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23.5%
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20.5%
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17.6%
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12.3%
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Broker
target share price
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15.62
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15.62
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15.62
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15.62
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15.62
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15.62
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15.62
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Premium
to broker target share price
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17.6%
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11.5%
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8.6%
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5.9%
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3.3%
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0.8%
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(3.7%
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)
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1.3 | Discussion of withdrawal rates |
(a) | Summary of withdrawal rights |
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);
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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, |
(b) | US Withdrawal Rights |
·
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20
US Business Days following the date of commencement of
the Offer (i.e. 12
December 2006); and
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|
·
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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),
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(c) | Management of exchange rate risk using withdrawal rights |
1.4 | Can I make my own arrangements to convert US dollars into Australian dollars? |
·
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the
amount of any fees that it will charge you for making such
a
deposit;
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·
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how
long it is likely to take to clear the deposit and credit
cheque proceeds
to your account; and
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· | the rate and time at which US dollar cheque proceeds will be converted into Australian dollars. |
1.5 | CEMEX's foreign exchange strategies |
·
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(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.
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·
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(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.
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·
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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
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·
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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.
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2. |
Acquisition
of Rinker Securities
Outside
the Offer
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3. | Offer Period |
3.1 | Variation of Offer - extension of Offer Period |
·
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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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3.2 | New date for notice on the status of the Defeating Conditions |
4. | Update on other matters |
4.1 | Funding arrangements |
(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: |
·
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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;
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·
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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;
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·
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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
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|
·
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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.
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(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. |
4.2 | CEMEX shareholder approval |
4.3 | Update on regulatory matters |
(a) | Foreign investment approval - Australia |
(b) | Antitrust approvals - United States |
(c) | ACCC |
5. | Consent |
·
|
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, namely the references
made to WM/Reuters Intraday Mid
Spot Rates in this Statement.
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6. | Approval |
CEMEX Offer Information Line |
(i)
|
Paragraph
(c) which appears on page 3 of the Commitment Letter be deleted in
its
entirety and replaced with the
following:
|
(ii)
|
The
paragraph entitled “Maturity” in section 3 of the Termsheet be deleted in
its entirety and replaced with the
following:
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“Maturity:
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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”).”
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(iii)
|
The
text contained in Section 4 of the Term Sheet entitled “Conditions” be
deleted in its entirety and replaced with the
following:
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NEW
SUNWARD HOLDING B.V.
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|||
By:
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/s/ Mr. Agustin Blanco | ||
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|||
Name:
Mr. Agustin
Blanco Title: Attorney-in-Fact |
CEMEX,
S.A.B. DE C.V.
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By:
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/s/ Mr. Agustin Blanco | ||
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|||
Name:
Mr. Agustin
Blanco Title: Attorney-in-Fact |
By:
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/s/ Simon Noble |
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Name: Simon
Noble
Title: Vice
President
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By:
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/s/ Linda M. Meyer |
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Name: Linda
M. Meyer
Title: Vice
President
|