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. 8)
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.
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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
|
Check
the box if the filing relates solely to preliminary communications
made
before the commencement of a tender offer.
|
Check
the
appropriate boxes below to designate any transactions to which the statement
relates:
|
x
|
third-party
tender offer subject to Rule 14d-1.
|
|
o
|
issuer
tender offer subject to Rule 13e-4.
|
|
o
|
going-private
transaction subject to Rule 13e-3
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|
o
|
amendment
to Schedule 13D under Rule 13d-2
|
2
This
Amendment No. 8 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 modified versions of the ADS Letter
of
Transmittal (the “Modified ADS Letter of Transmittal”), the ADS Notice of
Guaranteed Delivery (the “Modified ADS Notice of Guaranteed Delivery”) and the
Share Transfer and Acceptance Form (the “Modified Share Transfer and Acceptance
Form”) with the Australian Securities and Investment Commission. The
Modified
ADS Letter of Transmittal (attached as Exhibit (a)(1)(H)), the
Modified ADS
Notice of Guaranteed Delivery (attached as Exhibit (a)(1)(I)) and
the Modified
Share Transfer and Acceptance Form (attached as Exhibit (a)(1)(J))
replace the
ADS Letter of Transmittal, the ADS Notice of Guaranteed Delivery,
and the Share
Acceptance Form, respectively, which were filed with the SEC on
November 14,
2006.
Item
12. Exhibits.
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Exhibit
|
Description
|
|
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(a)(1)(H)
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Modified
ADS Letter of Transmittal.
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|
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(a)(1)(I)
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Modified
ADS Notice of Guaranteed Delivery.
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| (a)(1)(J) | Modified Share Transfer and Acceptance Form. |
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 11, 2006
| CEMEX Australia Pty Ltd | ||
| |
|
|
| By: | /s/ Mr. Ramiro G. Villarreal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | ||
| Title: Director | ||
| CEMEX, S.A.B. de C.V. | ||
| |
|
|
| By: | /s/ Mr. Ramiro G. Villarreal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | ||
| Title: General Counsel | ||
4
Exhibit
Index
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Exhibit
|
Description
|
|
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(a)(1)(H)
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Modified
ADS Letter of Transmittal.
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(a)(1)(I)
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Modified
ADS Notice of Guaranteed Delivery.
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| (a)(1)(J) | Modified Share Transfer and Acceptance Form. |
5
Exhibit
(a)(1)(H)
ADS
LETTER
OF TRANSMITTAL
TO
TENDER
AMERICAN DEPOSITARY SHARES
EVIDENCED
BY AMERICAN DEPOSITARY RECEIPTS
of
RINKER
GROUP
LIMITED
Pursuant
to the
Bidder’s Statement dated October 30, 2006
(as
supplemented by
the First Supplementary Bidder’s Statement dated December 8, 2006)
by
CEMEX
Australia Pty Ltd
an
indirect
wholly-owned subsidiary of
CEMEX,
S.A.B. de
C.V.
|
The
Offer will expire at 7pm
(Sydney time)
on January 31, 2007 / 3am (New York time)
on
January 31, 2007, unless the Offer is extended or the Offer is
withdrawn.
|
THE
US DEPOSITARY
FOR THE OFFER IS:
Computershare
Trust Company, N.A.
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BY
MAIL:
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BY
OVERNIGHT
DELIVERY:
|
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Computershare
Trust Company, N.A.
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Computershare
Trust Company, N.A.
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CEMEX
Voluntary Offer
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CEMEX
Voluntary Offer
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P.O.
Box
43011
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250
Royall
Street
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Providence,
RI 02940-3011
|
Canton,
MA
02021
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Retail
Investors Call Toll Free: (866) 244-1296
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THE
US
INFORMATION AGENT FOR THE OFFER IS:
Innisfree
M&A Incorporated
501
Madison
Avenue, 20th Floor
New
York, NY
10022
Institutional
Investors, Banks and Brokers Call Collect: (212)
750-5833
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DELIVERY
OF THIS ADS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE US DEPOSITARY.
THIS ADS
LETTER OF TRANSMITTAL IS ONLY FOR USE IN ACCEPTING THE OFFER TO PURCHASE
RINKER ADSs (AS DEFINED BELOW). RINKER SHARES (AS DEFINED BELOW)
CANNOT BE
TENDERED BY MEANS OF THIS ADS LETTER OF TRANSMITTAL. IF YOU HOLD
RINKER
SHARES AND WISH TO ACCEPT THE OFFER, YOU SHOULD USE THE BLUE SHARE
ACCEPTANCE FORM.
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DESCRIPTION
OF RINKER ADSs TENDERED
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Name(s)
and Address(es) of Rinker ADSholder(s) (Please fill in, if blank,
exactly
as name(s) appear(s) on ADR certificate(s), if
applicable)
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Rinker
ADR(s) Tendered
(Attach
additional list if necessary)
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ADR
Certificate
Number(s)*
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Total
Number of Rinker
ADSs
Represented by
ADR(s)*
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Total
Number of Rinker
ADS(s)
Tendered**
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||
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* Need
not be completed for book-entry transfers.
** Pursuant
to the Offer, if the Rinker ADSholder elects to tender, all Rinker
ADSs
that the holder owns must be tendered. See Section 8.3(a) of the
Bidder’s
Statement.
o CHECK
HERE
IF ADR CERTIFICATE(S) HAVE BEEN LOST, DESTROYED OR STOLEN. SEE
INSTRUCTION
12.
Number
of Rinker ADSs represented by
lost, stolen or destroyed
ADRs:___________________________________________
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||
Please
read
this entire document and the instructions accompanying this document carefully
before completing this ADS Letter of Transmittal. You must sign this ADS Letter
of Transmittal in the appropriate space below unless an Agent’s Message (as
defined in the Bidder’s Statement) is utilized.
You
have received
this ADS Letter of Transmittal in connection with the Offer by CEMEX Australia
Pty Ltd (Bidder), a
proprietary company organized under the laws of Victoria, Australia and an
indirect wholly-owned subsidiary of CEMEX, S.A.B. de C.V.
(CEMEX), to
acquire all outstanding ordinary shares of Rinker (Rinker
Shares), and all
outstanding American depositary shares (Rinker ADSs)
which each represent an ownership interest in five
(5) Rinker
Shares and are evidenced by American depositary receipts
(ADRs), upon
the terms and subject to the conditions of the Offer (including as extended
and
amended by the First Supplementary Bidder’s Statement and, if the Offer is
further extended or amended, the terms and conditions of any such further
extension or amendment), as described in the Bidder’s Statement, dated October
30, 2006 and the First Supplementary Bidder’s Statement dated December 8,
2006.
This
ADS Letter of
Transmittal is to be used either if the ADRs evidencing Rinker ADSs are to
be
forwarded herewith or, unless an Agent’s Message is utilized, delivery of ADSs
is to be made by book-entry transfer to the US Depositary’s account at The
Depository Trust Company (DTC) pursuant to the
procedures for book-entry transfer set forth in Section 8.3(d) of the Bidder’s
Statement. Delivery of this ADS Letter of Transmittal to DTC does not constitute
delivery to Computershare Trust Company, N.A. (US
Depositary).
In
the event of an
inconsistency between the terms and procedures in this ADS Letter of Transmittal
and the Bidder’s Statement (as supplemented), the terms and procedures in the
Bidder’s Statement shall govern.
If
a Rinker
ADSholder (as defined in the Bidder’s Statement) wishes to tender into the Offer
and ADRs representing such ADSs or any other required documents cannot be
delivered to the US Depositary or the procedures for book-entry transfer cannot
be completed, in each case, before the end of the Offer Period, such holder’s
acceptance of the Offer may nevertheless be effected by following the procedures
for guaranteed delivery as described in Section 8.3(d) of the Bidder’s
Statement.
When
to
complete this ADS Letter of Transmittal. In order to effectively tender
Rinker ADSs pursuant to the Offer, this ADS Letter of Transmittal must be
properly delivered to the US Depositary prior to the end of the Offer Period
(as
defined in the Bidder’s Statement, Section 9.1).
How
to
complete this ADS Letter of Transmittal. After carefully reading this
entire document and all of the Instructions below, Rinker ADSholders
should:
| · |
Indicate
in
the table on page 1 the total number of Rinker ADSs that they own
and wish
to tender. Check any applicable boxes and provide any required
information.
|
| · |
Check
any
applicable boxes on page 3 and, if a box is checked, provide any
required
information.
|
| · |
Make
the
currency election by checking one of the two boxes on page
8.
|
| · |
Provide
special payment and/or special delivery instructions, if necessary,
in the
space provided on page 8.
|
| · |
After
carefully reviewing the entire ADS Letter of Transmittal, including
the
Instructions, sign this ADS Letter of Transmittal in the appropriate
space
provided below on page 7, unless an Agent’s Message is utilized. Also, if
necessary, procure any required signature guarantee, in the spaces
provided on page 7.
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| · |
Complete
the
Substitute Form W-9 on page
13.
|
| · |
Properly
submit this ADS Letter of Transmittal with all required information
to the
US Depositary as instructed.
|
Questions
and requests for assistance regarding the appropriate method for tendering
your
Rinker ADSs may be directed by institutional investors, banks and brokers to
Innisfree M&A Incorporated, the US Information Agent, and by retail
investors to Computershare Trust Company, N.A., the US Depositary, at the
appropriate telephone number or address set forth on the last page of this
ADS
Letter of Transmittal.
2
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¨
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CHECK
HERE IF ANY OR ALL TENDERED RINKER ADSs ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE US DEPOSITARY’S ACCOUNT AT DTC AND COMPLETE THE FOLLOWING
(ONLY DTC PARTICIPANTS MAY DELIVER ADSs BY BOOK-ENTRY
TRANSFER):
|
Name
of Tendering
Institution:
DTC
Participant
Number:
Transaction
Code
Number:
|
¨
|
CHECK
HERE IF ANY OR ALL TENDERED RINKER ADSs ARE BEING DELIVERED PURSUANT
TO AN
ADS NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE US DEPOSITARY
AND
COMPLETE THE FOLLOWING:
|
Name(s)
of
Registered
Holder(s):
Date
of Execution
of ADS Notice of Guaranteed
Delivery:
Name
of Institution
that Guaranteed
Delivery:
3
NOTE:
SIGNATURES MUST BE PROVIDED ON PAGES 7 (THIS ADS LETTER OF TRANSMITTAL) AND
13
(SUBSTITUTE
FORM W-9) BELOW.
PLEASE
READ
THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies
and
Gentlemen:
The
undersigned
hereby instructs the US Depositary to accept the Offer on behalf of the
undersigned with respect to the above-described Rinker ADSs (which shall be
deemed to include, without limitation, the Rinker Shares represented thereby),
upon the terms and subject to the conditions of the Offer (including as extended
and amended by the First Supplementary Bidder’s Statement and, if the Offer is
further extended or amended, the terms and conditions of any such further
extension or amendment).
The
undersigned
hereby acknowledges that delivery of this ADS Letter of Transmittal, ADRs
evidencing tendered Rinker ADSs, or any other required documents, or book-entry
transfer of ADSs, to the US Depositary in connection herewith, will (without
any
further action by the US Depositary) constitute acceptance, subject to the
withdrawal rights described in Section 8.9 of the Bidder’s Statement and in
Section 1.3 of the First Supplementary Bidder’s Statement, by the undersigned
with respect to such ADSs, upon the terms and subject to the conditions of
the
Offer (including as extended and amended by the First Supplementary Bidder’s
Statement and, if the Offer is further extended or amended, the terms and
conditions of any such further extension or amendment).
Upon
the terms and
subject to the conditions of the Offer (including as extended and amended by
the
First Supplementary Bidder’s Statement and, if the Offer is further extended or
amended, the terms and conditions of any such further extension or amendment),
and effective upon the end of the Offer Period, and if the undersigned has
not
validly withdrawn his or her acceptance, the undersigned hereby:
|
(a)
|
sells,
assigns and transfers all right, title and interest in and to the
above-described ADSs and, to the extent paid after the settlement
of the
Offer, any and all cash dividends, distributions, rights, other ADSs
or
other securities issued or issuable in respect to such ADSs (collectively,
Distributions); and
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(b)
|
irrevocably
constitutes and appoints the US Depositary as the true and lawful
agent
and attorney-in-fact of the undersigned with respect to such ADSs
and any
Distributions, with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest)
with
respect to such ADSs, (i) to deliver the ADRs evidencing such ADSs
and any
Distributions or, if tender is by book-entry transfer, accept transfer
of
such ADSs and any Distributions on the account books maintained at
DTC,
together, in any such case, with all accompanying evidences of transfer
and authenticity to, or upon the order of, Bidder, (ii) to surrender
such
ADSs to the depositary for Rinker’s ADR program and to instruct the
depositary for Rinker’s ADR program to deliver the Rinker Shares
underlying such ADSs and (iii) to receive all benefits and otherwise
exercise all rights of beneficial ownership of such ADSs (and any
Distributions).
|
The
undersigned
agrees that Bidder may instruct the US Depositary to take the actions specified
in clauses (b)(i) and (ii) from the immediately preceding paragraph prior to
acceptance by Bidder of those ADSs tendered in the Offer. Bidder shall not
have
the rights specified in clause (b)(iii) from the immediately preceding paragraph
until it has irrevocably accepted those ADSs tendered in the Offer. Upon
acceptance by Bidder of tendered ADSs in the Offer, subject to the withdrawal
rights described in Section 8.9 of the Bidder’s Statement and in Section 1.3 of
the First Supplementary Bidder’s Statement, the undersigned shall have no
further rights with respect to those ADSs, except that the undersigned shall
have the right to receive from Bidder the consideration in accordance with
the
Offer.
Subject
to the
fulfillment, or waiver prior to the end of the Offer Period, of all the
Defeating Conditions defined in the Bidder’s Statement, the undersigned hereby
irrevocably appoints Bidder and each of its directors and nominees severally
as
the attorney-in-fact and proxy of the undersigned to exercise all powers and
rights that the undersigned has as the registered holder of Rinker ADSs,
including:
|
(i)
|
attending
any meeting of Rinker, and voting at any meeting of Rinker’s security
holders, proposing or seconding any motion at any such meeting, and
demanding a poll for any vote at any such meeting;
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(ii)
|
requisitioning
the convening of any general meeting of Rinker and convening a general
meeting pursuant to any such requisition; and
|
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(iii)
|
signing
any form, notice, instrument or other document (including any proxy
appointment) relating to the tendered Rinker ADSs.
|
4
Such
appointment
specified in the immediately preceding paragraph will terminate on the earlier
of the withdrawal of your acceptance of the Offer or the end of the Offer Period
or, if all Defeating Conditions of the Offer have been fulfilled or waived,
the
registration of Bidder as the holder of your Rinker ADSs. This power of attorney
and this proxy are irrevocable and are granted in consideration of the
acceptance for payment of such ADSs upon the terms and subject to the conditions
of the Offer (including as extended and amended by the First Supplementary
Bidder’s Statement and, if the Offer is further extended or amended, the terms
and conditions of any such further extension or amendment). Such acceptance
for
payment shall, without further action, revoke any prior powers of attorney
and
proxies granted by the undersigned at any time with respect to such ADSs (and
any Distributions), and no subsequent powers of attorney, proxies, consents
or
revocations may be given by the undersigned with respect thereto (and, if given,
will not be deemed effective).
The
undersigned
hereby agrees that in exercising the powers and rights conferred by the power
of
attorney in Section 8.5(d) of the Bidder’s Statement, each attorney may act in
the interest of Bidder as the intended registered holder and beneficial owner
of
the tendered Rinker ADSs and the underlying Rinker Shares.
Except
as
contemplated by Section 8.5 of the Bidder’s Statement, and while the appointment
in that section continues and is in effect, the undersigned hereby agrees not
to
attend or vote in person or by proxy, attorney or corporate representative
at
any meeting of Rinker, or to exercise or purport to exercise (in person or
by
proxy, attorney, or corporate representative or otherwise) any of the powers
conferred by the power of attorney in Section 8.5(d) of the Bidder’s
Statement.
The
undersigned
hereby represents and warrants that the undersigned has full power and authority
to tender, sell, assign and transfer the beneficial ownership of the Rinker
ADSs
(and any Distributions) tendered hereby and that, when the same are accepted
for
payment by Bidder, Bidder will acquire good, marketable and unencumbered title
thereto (including any Distributions), free and clear of all liens,
restrictions, charges and encumbrances, and the same will not be subject to
any
adverse claims.
The
undersigned
shall, upon request, execute and deliver any additional documents deemed by
the
US Depositary or Bidder to be necessary or desirable to complete the sale,
assignment and transfer of the Rinker ADSs (and any Distributions) tendered
hereby.
Except
as provided
in the Bidder’s Statement, this tender is irrevocable. In addition, all
authority herein conferred or agreed to be conferred shall survive the death
or
incapacity of the undersigned, and any obligation of the undersigned hereunder
shall be binding upon the heirs, executors, administrators, personal
representatives, trustees in bankruptcy, successors and assigns of the
undersigned.
The
undersigned
understands that acceptance of the Offer pursuant to the procedures described
herein and the instructions hereto will, upon acceptance by Bidder, constitute
a
binding agreement between the undersigned and Bidder upon the terms and subject
to the conditions of the Offer (including as extended and amended by the First
Supplementary Bidder’s Statement and, if the Offer is further extended or
amended, the terms and conditions of any such further extension or amendment).
Without limiting the foregoing, if the consideration paid in the Offer is
amended, the consideration paid to the undersigned will be the amended
consideration notwithstanding the fact that a different consideration has been
stated in the Bidder’s Statement. The undersigned recognizes that under certain
circumstances set forth in the Bidder’s Statement, Bidder may not be required to
accept for payment any of the Rinker ADSs tendered hereby.
If
acceptance has
been made with respect to Rinker ADSs, then a separate acceptance with respect
to the Rinker Shares represented by such Rinker ADSs may not be
made.
In
the event that
the box entitled “Special Payment Instructions” is not completed, the
undersigned hereby instructs the US Depositary to (a) issue a check for the
consideration for the Rinker ADSs tendered and accepted for payment to the
undersigned and/or (b)(i) for Rinker ADSs not accepted for payment, in the
case
of Rinker ADSs held in certificated form, to issue or return any ADRs in the
name(s) of the undersigned or (b)(ii) for Rinker ADSs not accepted for payment,
in the case of Rinker ADSs held in book-entry form, to credit the account at
DTC
of the undersigned. In the event that the box entitled “Special Payment
Instructions” is completed, the undersigned hereby instructs the US Depositary
to (a) issue a check for the consideration for the Rinker ADSs tendered and
accepted for payment to the person(s) so indicated and/or (b)(i) for Rinker
ADSs
not accepted for payment, in the case of Rinker ADSs held in certificated form,
issue or return any ADRs in the name(s) of the person(s) so indicated or (b)(ii)
for ADSs not accepted for payment, in the case of Rinker ADSs held in book-entry
form, credit the account at DTC of the person(s) so indicated.
5
In
the event that
the box entitled “Special Delivery Instructions” is not completed, the
undersigned hereby instructs the US Depositary to mail (a) a check for the
consideration for the Rinker ADSs tendered and accepted for payment to the
undersigned and/or (b) for Rinker ADSs not accepted for payment, in the case
of
Rinker ADSs held in certificated form, any ADRs (and accompanying documents,
as
appropriate) to the undersigned at the address(es) shown below the undersigned’s
signature(s). In the event that the box entitled “Special Delivery Instructions”
is completed, the undersigned hereby instructs the US Depositary to mail (a)
a
check for the consideration for the Rinker ADSs tendered and accepted for
payment to the person(s) so indicated and/or (b) any ADRs for Rinker ADSs held
in certificated form not accepted for payment (and accompanying documents,
as
appropriate) to the person(s) so indicated.
In
the event that
no valid currency election is made on page 8, consideration for the Rinker
ADSs
will be distributed in US dollars. Consideration for your Rinker ADSs will
be
paid, net of any expenses incurred, to tendering holders of Rinker ADSs in
accordance with the timing of payment set forth in the Bidder’s Statement after
a properly submitted ADS Letter of Transmittal with all necessary attachments
is
received by the US Depositary.
Upon
the terms and
subject to the conditions of the Offer (including as extended and amended by
the
First Supplementary Bidder’s Statement and, if the Offer is further extended or
amended, the terms and conditions of any such further extension or amendment),
this ADS Letter of Transmittal shall not be considered complete and valid,
and
payment of the consideration under the Offer shall not be made, until the ADRs
evidencing tendered Rinker ADSs or, in the case of a book-entry transfer,
Book-Entry Confirmation (as defined below), in respect to which the Offer is
being accepted and any other required documents have been received by the US
Depositary at one of its addresses set forth on the first and last pages of
this
ADS Letter of Transmittal. Bidder will determine in its sole discretion all
questions as to the form of documents, including any notice of withdrawal and
the validity, eligibility (including time of receipt) and acceptance of tendered
Rinker ADSs. Bidder’s determination will be final and binding on all
parties.
The
terms and
conditions of the Offer contained in the Bidder’s Statement, as may be
supplemented or amended, shall be deemed to be incorporated in, and form part
of, this ADS Letter of Transmittal, which shall be read and construed
accordingly. In the event of any inconsistency between the terms and procedures
in this ADS Letter of Transmittal and the Bidder’s Statement, the terms and
procedures in the Bidder’s Statement shall govern.
6
|
IMPORTANT-
SIGNATURE SECTION
RINKER
ADSHOLDERS SIGN HERE
(PLEASE
ALSO COMPLETE SUBSTITUTE FORM W-9 INCLUDED HEREIN)
|
|
Sign
Here: &
#160;
|
|
Sign
Here: &
#160;
|
|
(Signature(s)
of Owner(s))
|
|
Dated:
|
|
Must
be
signed by registered holder(s) exactly as name(s) appear(s) on
the ADRs
evidencing the Rinker ADSs (if applicable) or by person(s) to whom
ADRs
surrendered have been assigned and transferred, as evidenced by
endorsement, stock powers and other documents transmitted herewith.
If
signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting
in a
fiduciary or representative capacity, please set forth full title
and see
Instruction 5.
|
|
Name(s):
0;
|
|
Capacity
(Full
Title):
;
|
|
Address
(including Zip
Code): <
/div>
&
#160;
|
|
Telephone
Number (including Area
Code):
|
|
Taxpayer
Identification or Social Security
Number:
|
|
GUARANTEE
OF SIGNATURE(S)
(See
Instructions 1 and 5)
FOR
USE BY FINANCIAL INSTITUTIONS ONLY.
PLACE
MEDALLION GUARANTEE IN SPACE BELOW
|
|
Authorized
Signature(s):
60;
|
|
Name:
;
|
|
Name
of
Firm:
;
|
|
Address
(including Zip
Code):
&
#160;
|
|
Telephone
Number (including Area
Code):
|
|
Dated:
________________________
|
7
|
SPECIAL
PAYMENT INSTRUCTIONS
(See
Instructions 1, 5, 6 and 7)
To
be
completed ONLY if (1) the check for the consideration with respect
to the
Rinker ADSs purchased is to be issued in the name of someone other
than
the undersigned on page 7, (2) ADRs for Rinker ADSs not accepted
for
payment are to be issued in the name of someone other than the undersigned
on page 7 or (3) Rinker ADSs tendered hereby and delivered by book-entry
transfer that are not accepted for payment are to be returned by
credit to
an account maintained at DTC other than the account indicated above
on
page 3.
Issue:
q
Payment q
Certificate(s) to
Name:
(Please
Print)
Address
(including Zip
Code):
;
(Taxpayer
Identification or Social Security
Number)
q Credit
unpurchased Rinker ADSs delivered by book-entry transfer to DTC
participant number set forth below:
(Account
Number)
|
SPECIAL
DELIVERY INSTRUCTIONS
(See
Instructions 1, 5, 6, and 7)
To
be
completed ONLY if the check for the consideration for Rinker ADSs
purchased or ADRs evidencing Rinker ADSs which are not purchased
are to be
mailed to someone other than the undersigned, or to the undersigned
at an
address other than shown above on page 7.
Mail:
q
Payment q
Certificate(s) to
Name:
(Please
Print)
Address
(including Zip
Code):
(Taxpayer
Identification or Social Security
Number)
|
|
|
CURRENCY
ELECTION
(see
Instruction 13)
(please
select one option)
|
||
|
¨ The
undersigned hereby elects to receive payment of consideration under
the
Offer in US dollars.
|
OR
|
¨ The
undersigned hereby elects to have payment of consideration under
the Offer
converted into, and then paid in, Australian
dollars.
|
8
INSTRUCTIONS
Forming
Part of the Terms and Conditions of the Offer
1.
Guarantee of Signatures. No signature guarantee is required on
this ADS Letter of Transmittal if (a) this ADS Letter of Transmittal is signed
by the registered holder(s) (which, for purposes of this section, includes
any
participant in DTC’s system whose name appears on a security position listing as
the owner of the Rinker ADSs) of Rinker ADSs tendered herewith, unless such
registered holder(s) has completed either the box entitled “Special Payment
Instructions” or the box entitled “Special Delivery Instructions” on this ADS
Letter of Transmittal or (b) such Rinker ADSs are tendered for the account
of a
financial institution (including most commercial banks, savings and loan
associations and brokerage houses) that is a member in good standing of a
recognized Medallion Program approved by the Securities Transfer Association,
Inc., including the Security Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Program and the Stock Exchange Medallion
Program (each, an Eligible Institution). In all other
cases, all signatures on this ADS Letter of Transmittal must be guaranteed
by an
Eligible Institution. See Instructions 5 and 7.
2.
Requirements of Tender. This ADS Letter of Transmittal is to be
completed by holders of Rinker ADSs either if ADRs evidencing Rinker ADSs are
to
be forwarded herewith or, unless an Agent’s Message is utilized, if tenders are
to be made pursuant to the procedure for tender by book-entry transfer as
described in Section 8.3(d) of the Bidder’s Statement. ADRs evidencing tendered
Rinker ADSs, this ADS Letter of Transmittal properly completed and duly executed
(with any required signature guarantees) and, in the case of a book-entry
transfer, an Agent’s Message, confirmation of a book-entry transfer into the US
Depositary’s account at DTC of Rinker ADSs delivered by book-entry transfer
(Book-Entry Confirmation), and/or any other documents
required by this ADS Letter of Transmittal, must be received by the US
Depositary at one of its addresses set forth on the first and last pages of
this
ADS Letter of Transmittal prior to the end of the Offer Period. If ADRs are
forwarded to the US Depositary in multiple deliveries, a properly completed
and
duly executed ADS Letter of Transmittal must accompany each such
delivery.
The
term
Agent’s Message means a
message, transmitted by DTC to, and received by, the US Depositary and forming
a
part of the Book-Entry Confirmation, which states that DTC has received an
express acknowledgment from the participant in the DTC’s systems tendering an
interest in the Rinker ADSs, that such participant has received and agrees
to be
bound by the terms of this ADS Letter of Transmittal and that Bidder may enforce
such agreement against the participant.
Rinker
ADSholders
who own ADRs, representing Rinker ADSs, that cannot be delivered to the US
Depositary, or who are unable to deliver any other required documents to the
US
Depositary, or who cannot complete the procedures for book-entry transfer,
in
each case, before the end of the Offer Period, may tender their Rinker ADSs
into
the Offer by properly completing and duly executing an ADS Notice of Guaranteed
Delivery pursuant to the procedures for guaranteed delivery as described in
Section 8.3(d) of the Bidder’s Statement. Pursuant to the procedures for
guaranteed delivery, (1) such tender must be made by or through an Eligible
Institution, (2) a properly completed and duly executed ADS Notice of Guaranteed
Delivery, in the form provided by Bidder, must be received by the US Depositary
prior to the end of the Offer Period and (3) within three New York Stock
Exchange trading days after the date of the receipt of the ADS Notice of
Guaranteed Delivery by the US Depositary, the following must be received by
the
US Depositary: (i) in the case of Rinker ADSs held in certificated form, the
ADRs evidencing such Rinker ADSs, in proper form for transfer, together with
a
properly completed and duly executed ADS Letter of Transmittal (with any
required signature guarantees) and any other documents required by this ADS
Letter of Transmittal, or (ii) in the case of Rinker ADSs held in book-entry
form, confirmation of a book-entry transfer of such Rinker ADSs to the account
of the US Depositary at DTC, together with (x) a properly completed and duly
executed ADS Letter of Transmittal (with any required signature guarantees)
or
an Agent’s Message and (y) any other documents required by the ADS Letter of
Transmittal.
The
method
of delivery of this ADS Letter of Transmittal, ADRs evidencing Rinker ADSs
and
any other required documents, including delivery through DTC, is at the sole
option and risk of the tendering holder of Rinker ADSs, and delivery will be
deemed valid and complete only when actually received by the US Depositary
(including, in the case of book-entry transfer, by Book-Entry Confirmation).
If
delivery is by mail, registered mail with return receipt requested along with
proper insurance is recommended. In all cases, sufficient time should be allowed
to ensure timely delivery before the end of the Offer
Period.
9
No
alternative,
conditional or contingent tenders will be accepted. All tendering holders of
Rinker ADSs, by execution of this ADS Letter of Transmittal, waive any right
to
receive any notice of the acceptance of their Rinker ADSs for
payment.
All
questions as to
the form and validity (including time of receipt) and acceptance for payment
of
any tender of Rinker ADSs will be determined by Bidder, in its sole discretion,
which determination shall be final and binding. Bidder reserves the absolute
right to reject any or all tenders of Rinker ADSs if Bidder determines such
Rinker ADSs are not in proper form or the acceptance for payment of or payment
for which may, in the opinion of Bidder’s counsel, be unlawful. Bidder also
reserves the absolute right to waive any defect or irregularity in any tender
of
Rinker ADSs. None of Bidder, Rinker, the US Depositary, the US Information
Agent
or any other person or party will be under any duty to give notification of
any
defect or irregularity in any tender or incur any liability for failure to
give
any such notification.
3.
Inadequate Space. If the space provided herein is inadequate,
the certificate numbers of the ADRs (if applicable), the total number of Rinker
ADSs evidenced by such ADRs, and any other required information should be listed
on a separate schedule attached hereto and separately signed on each page
thereof in the same manner as this ADS Letter of Transmittal is
signed.
4.
No
Partial Tenders. Pursuant to the terms of the Offer, Bidder is offering
to purchase all of your Rinker ADSs. Thus, partial tenders are not permitted.
All Rinker ADSs delivered to the US Depositary will be deemed to have been
tendered into the Offer. Any attempt to tender less than 100% of Rinker ADSs
owned by any Rinker ADSholder will be deemed to be a tender of all Rinker ADSs
owned by that Rinker ADSholder. For more information, see Sections 8.3(a) and
8.5(a) of the Bidder’s Statement.
5.
Signatures on ADS Letter of Transmittal, Stock Powers and Endorsements.
If this ADS Letter of Transmittal is signed by the registered holder(s)
of the Rinker ADSs tendered hereby, the signature(s) must correspond to the
name(s) as written on the face of the ADRs without alteration.
If
any of the
Rinker ADSs evidenced by ADRs tendered hereby are held of record jointly by
two
or more owners, each owner must sign this ADS Letter of
Transmittal.
If any of the tendered Rinker ADSs are registered in different names on several
ADRs, it will be necessary to complete, sign and submit as many separate ADS
Letters of Transmittal as there are different registrations of
ADRs.
If this
ADS Letter of
Transmittal or any certificates or stock powers are signed by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation
or
other person acting in a fiduciary or representative capacity, such person
should so indicate when signing, and submit proper evidence satisfactory to
Bidder of the authority of such person to so act.
If this
ADS Letter of
Transmittal is signed by the registered holder(s) of the Rinker ADSs listed
and
transmitted hereby, no endorsements of ADRs or separate stock powers are
required unless payment is to be made for ADRs or Rinker ADSs not accepted
for
payment are to be issued in the name of a person other than the registered
holder(s). Signatures on any such ADRs or stock powers must be guaranteed
by an
Eligible Institution.
If this
ADS Letter of
Transmittal is signed by a person other than the registered holder(s)
of the
ADRs listed and transmitted hereby, the ADRs must be endorsed or accompanied
by
appropriate stock powers, in either case signed exactly as the name(s)
of the
registered holder(s) appear(s) on the ADRs. Signature(s) on any such
ADRs or
stock powers must be guaranteed by an Eligible Institution.
6.
Stock Transfer Taxes. If payment of the consideration is to be
made to, or if ADRs representing Rinker ADSs not accepted for payment are
to be
issued in the name of, any person other than the registered holder(s), or
if
tendered ADRs are registered in the name of any person other than the person(s)
signing this ADS Letter of Transmittal, the amount of any stock transfer
taxes
(whether imposed on the registered holder(s) or such other person) payable
on
account of the transfer to such other person will be deducted from the
consideration paid for such tendered Rinker ADSs unless evidence satisfactory
to
Bidder of the payment of such taxes, or exemption therefrom, is
submitted.
Except
as provided
in this Instruction 6, it will not be necessary for transfer tax stamps to
be
affixed to the ADRs transmitted hereby.
10
7.
Special Payment and Delivery Instructions. If a check is to be
issued in the name of, and/or ADRs representing Rinker ADSs not accepted for
payment are to be issued or returned to, a person other than the person(s)
signing this ADS Letter of Transmittal or if a check and/or such ADRs are to
be
returned to a person other than the person(s) signing this ADS Letter of
Transmittal or to an address other than that shown in this ADS Letter of
Transmittal, the appropriate boxes on this ADS Letter of Transmittal must be
completed. Rinker ADSholders who hold their Rinker ADSs through DTC may request
that Rinker ADSs not accepted for payment be credited to an account maintained
at DTC as designated under “Special Payment Instructions.” If no such
instructions are given, such Rinker ADSs not accepted for payment will be
returned by crediting such holder’s account at DTC.
8.
Substitute Form W-9. Under US Federal income tax law, a
non-exempt holder of Rinker ADSs that is a US citizen or resident alien is
required to provide the US Depositary with such holder’s correct Taxpayer
Identification Number (TIN) (e.g.,social security
number or employer identification number) on the Substitute Form W-9 included
herewith. If Rinker ADSs are registered in more than one name or are not in
the
name of the actual owner, consult the enclosed Guidelines for Certification
of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance
on
which number to report. Failure to provide the information on the form may
subject the surrendering holder to a $50 penalty and to backup withholding
(at
the appropriate rate, currently 28%) on the payment of any cash.
The
tendering
Rinker ADSholder must check the box in Part 3 of the Substitute Form W-9 if
a
TIN has not been issued and the holder has applied for a number or intends
to
apply for a number in the near future. If a TIN has been applied for and the
US
Depositary is not provided with a TIN before payment is made, the US Depositary
will backup withhold (at the appropriate rate, currently 28%) on all payments
to
such surrendering holders of any consideration due for their former Rinker
ADSs.
Please review the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional details on what
TIN
to give the US Depositary.
Certain
Rinker
ADSholders (including, for example, corporations and certain foreign
individuals) are exempt from backup withholding requirements. Exempt holders
should indicate their exempt status on the Substitute Form W-9. In order for
a
foreign individual to qualify as an exempt recipient, such individual must
submit a statement on Internal Revenue Service Form W-8BEN, signed under
penalties of perjury, attesting to such individual’s exempt status. Rinker
ADSholders are urged to consult their own tax advisors to determine whether
they
are exempt from these backup withholding and reporting
requirements.
If
backup
withholding applies, the US Depositary is required to withhold up to 28% of
any
payments to be made to the Rinker ADSholder. Backup withholding is not an
additional US Federal income tax. Rather, the US Federal income tax liability
of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained by filing a tax return with the Internal Revenue Service. The US
Depositary cannot refund amounts withheld by reason of backup
withholding.
9.
Rinker Shareholders. Rinker Shares cannot be tendered by means
of this ADS Letter of Transmittal (which is exclusively for use in respect
of
Rinker ADSs). If you hold Rinker Shares, you should use the blue Share
Acceptance Form for tendering such Rinker Shares into the Offer by following
the
instructions set forth therein. To obtain a copy of the blue Share Acceptance
Form, contact the US Information Agent (for institutional investors, banks
and
brokers) or US Depositary (for retail investors) at the appropriate address
or
telephone number set forth on the last page of this ADS Letter of
Transmittal.
10.
Requests for Assistance or Additional Copies. Questions and
requests for assistance or additional copies of the Bidder’s Statement, any
supplements to the Bidder’s Statement, this ADS Letter of Transmittal, the ADS
Notice of Guaranteed Delivery and the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 may be directed to the US
Information Agent (for institutional investors, banks and brokers) or US
Depositary (for retail investors) at the appropriate address or telephone number
set forth on the last page of this ADS Letter of Transmittal.
11.
Waiver of Conditions. The conditions of the Offer may be waived
by Bidder at the times and in the manner described in Section 8.7(d) of the
Bidder’s Statement.
12.
Lost, Destroyed or Stolen Certificates. If any ADR(s)
representing Rinker ADS(s) has been lost, destroyed or stolen, the holder of
such Rinker ADR(s) should, in addition to checking the box on page 3 of this
ADS
Letter of Transmittal, promptly notify JPMORGAN CHASE BANK, N.A., the depositary
for the Rinker ADR program. The holder of the Rinker ADS will then be instructed
as to the steps that must be taken in order to replace the ADR(s). This ADS
Letter of Transmittal and any other required documents cannot be processed
until
the procedures for replacing lost, destroyed or stolen certificates have been
followed.
11
13.
Currency Election. Check one of the boxes on page 8 to indicate
the currency in which you wish to receive payment of consideration under the
Offer. If a Rinker ADSholder elects to have the consideration converted into
Australian dollars, Bidder will pay any charges associated with such conversion,
and the exchange rate at which 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 applicable Exchange Rate Reference Period.
If
no currency election is made, a Rinker ADSholder will receive payment of
consideration under the Offer in US dollars. The terms ‘WM/Reuters Intraday Mid
Spot Rates’ and ‘Exchange Rate Reference Period’ are defined in Section 1.1(a)
of the First Supplementary Bidder’s Statement.
IMPORTANT:
This
ADS
Letter of Transmittal (with any required signature guarantees) together with
ADRs evidencing tendered Rinker ADSs or, in the case of a book-entry transfer,
an Agent’s Message, or Book-Entry Confirmation, and any other required
documents, must be received by the US Depositary, in any case, no later than
7pm
(Sydney time) on January 31, 2007 / 3am (New York time) on January 31, 2007,
unless the Offer is extended or is withdrawn.
12
|
SUBSTITUTE
FORM
W-9
Department
of the
Treasury
Internal
Revenue Service
|
Part
1—PLEASE PROVIDE YOUR NAME AND TIN
IN
THE BOX AT
RIGHT AND CERTIFY BY
SIGNING
AND
DATING BELOW
|
Name
Social
Security Number(s)
OR
Taxpayer
Identification Number(s)
|
|
Part
2—Certification—Under penalties of perjury, I certify
that:
(1) the
number shown on this form is my correct Taxpayer Identification Number
(or
I am waiting for a number to be issued to me) and
(2)
I am not
subject to backup withholding because (a) I am exempt from backup
withholding or (b) I have not been notified by the Internal Revenue
Service (the “IRS”) that I am subject to backup withholding as a result of
a failure to report all interest or dividends or (c) the IRS has
notified
me that I am no longer subject to backup withholding.
|
||
|
Payer’s
Request for
Taxpayer
Identification
Number
(TIN)
|
Certification
instructions—You must cross out item (2) in Part 2 above if you have
been notified by the IRS that you are subject to backup withholding
because of under-reporting interest or dividends on your tax returns.
However, if after being notified by the IRS that you were subject
to
backup withholding you received another notification from the IRS
stating
that you are no longer subject to backup withholding, do not cross
out
such item (2). If you are exempt from backup withholding, check the
box in
Part 4 above.
|
Part
3—
Awaiting
TIN
q
Part
4—
Exempt
TIN
q
|
|
SIGNATURE DATE &#
160;
|
||
|
NOTE:
|
FAILURE
TO
COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP
WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
INFORMATION.
|
|
YOU
MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3
OF SUBSTITUTE FORM
W-9
|
|
CERTIFICATE
OF AWAITING TAXPAYER IDENTIFICATION NUMBER
|
|
I
certify
under penalties of perjury that a taxpayer identification number
has not
been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration
Office
or (b) I intend to mail or deliver such an application in the near
future.
I understand that if I do not provide a taxpayer identification number
to
the US Depositary, 28% of all reportable payments made to me will
be
withheld, but will be refunded if I provide a certified taxpayer
identification number within 60 days.
|
|
Signature Date
;
|
13
GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER
ON
SUBSTITUTE FORM W-9
Guidelines
for Determining the Proper Identification Number for the Payee (You) to Give
the
Payer.—Social Security numbers have nine digits separated by two
hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits
separated by only one hyphen: i.e., 00-0000000. The table below will help
determine the number to give the payer. All “Section” references are to the
Internal Revenue Code of 1986, as amended. “IRS” is the Internal Revenue
Service.
|
For
this type or account:
|
Give
the
TAXPAYER
IDENTIFICATION
NUMBER
of
|
For
this type or account:
|
Give
the
TAXPAYER
IDENTIFICATION
NUMBER
of
|
|
|
1. Individual
|
The
Individual
|
6.
A
valid trust, estate or pension trust
|
The
legal
entity(4)
|
|
|
2. Two
or more individuals (joint account)
|
The
actual
owner of the account or, if combined funds, the first individual
on the
account(1)
|
7.
Corporate or LLC electing corporate status on IRS Form
8832
|
The
corporation
|
|
|
3.
Custodian
account of a minor (Uniform Gifts to Minors Act)
|
The
minor(2)
|
8. Association,
club, religious, charitable, education, or other tax-exempt organization
account
|
The
organization
|
|
|
4. a. The
usual revocable savings trust account (grantor is also
trustee)
|
The
grantor-
trustee(1)
|
9. Partnership
or multi-member LLC
|
The
partnership
|
|
|
b. So-called
trust account that is not a legal or valid trust under state
law
|
The
actual
owner(1)
|
10. A
broker or registered nominee
|
The
broker or
nominee
|
|
|
5. Sole
proprietorship
|
The
owner(3)
|
11. Account
with the Department of Agriculture in the name of a public entity
(such as
a state or local government, school district, or prison) that receives
agricultural program payments
|
The
public
entity
|
|
(1)
|
List
first
and circle the name of the person whose number you furnish. If only
one
person on a joint account has a Social Security number, that person’s
number must be furnished.
|
|
(2)
|
Circle
the
minor’s name and furnish the minor’s Social Security
number.
|
|
(3)
|
You
must show
your individual name, but you may also enter your business or “doing
business as” name. You may use either your Social Security number or your
employer identification number (if you have
one).
|
|
(4)
|
List
first
and circle the name of the legal trust, estate, or pension trust.
(Do not
furnish the taxpayer identification number of the personal representative
or trustee unless the legal entity itself is not designated in the
account
title.)
|
Note: If
no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
14
GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER
ON
SUBSTITUTE FORM W-9
(continued)
|
Obtaining
a Number
If
you do not
have a taxpayer identification number, obtain Form SS-5, Application
for a
Social Security Card, at the local Social Security Administration
office,
or Form SS-4, Application for Employer Identification Number,
by calling
1(800)TAX-FORM, and apply for a number.
Payees
Exempt from Backup Withholding
Payees
specifically exempted from withholding include:
· An
organization exempt from tax under section 501(a) or an individual
retirement account (IRA), or a custodial account under Section
403(b)(7),
if the account satisfies the requirements of Section
401(f)(2).
· The
United States or a state thereof, the District of Columbia, a
possession
of the United States, or a political subdivision or wholly owned
agency or
instrumentality of any one or more of the foregoing.
· An
international organization or any agency or instrumentality
thereof.
· A
foreign government and any political subdivision, agency or
instrumentality thereof.
Payees
that may be exempt from backup withholding include:
· A
corporation.
· A
financial institution.
· A
dealer
in securities or commodities required to register in the United
States,
the District of Columbia, or a possession of the United
States.
· A
real
estate investment trust.
· A
common
trust fund operated by a bank under Section 584(a).
· A
trust
exempt from tax under Section 664 as described in Section
4947.
· An
entity registered at all times during the tax year under the
Investment
Company Act of 1940.
· A
middleman known in the investment community as a nominee or
custodian.
· A
futures commission merchant registered with the Commodity Futures
Trading
Commission.
· A
foreign central bank of issue.
Payments
of dividends and patronage dividends generally exempt from backup
withholding include:
· Payments
to nonresident aliens subject to withholding under Section
1441.
· Payments
to partnerships not engaged in a trade or business in the United
States
and that have at least one nonresident alien partner.
· Payments
of patronage dividends not paid in money.
· Payments
made by certain foreign organizations.
· Section
404(k) payments made by an ESOP.
· Payments
made to a nominee.
Payments
of interest generally exempt from backup withholding
include:
· Payments
of interest on obligations issued by individuals.
· Note:
You may be subject to backup withholding if this interest is
$600 or more
and is paid in due course of the payer’s trade or business and you have
not provided your correct taxpayer identification number to the
payer.
· Payments
of tax-exempt interest (including exempt-interest dividends under
Section
852).
|
· Payments
described in Section 6049(b)(5) to nonresident aliens.
· Payments
on tax-free covenant bonds under Section 1451. Payments made
by certain
foreign organizations.
· Mortgage
interest paid to you.
Certain
payments, other than payments of interest, dividends, and patronage
dividends, that are not subject to information reporting are
also not
subject to backup withholding. For details, see sections 6041,
6041A,
6042, 6044, 6045, 6049, 6050A and 6050N and the regulations
under those
sections. Exempt payees described above must file Form W-9 or a
substitute Form W-9 to avoid possible erroneous backup withholding.
FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION
NUMBER, WRITE “EXEMPT” ON THE FORM, AND RETURN TO THE PAYER. ALSO SIGN AND
DATE THE FORM. IF YOU ARE A NONRESIDENT ALIEN OR A FOREIGN
ENTITY NOT
SUBJECT TO BACKUP WITHHOLDING, FILE WITH A PAYER A COMPLETED
APPLICABLE
INTERNAL REVENUE FORM W-8 (CERTIFICATE OF FOREIGN STATUS).
Privacy Act Notice.—Section 6109 requires you to provide your correct taxpayer identification number to payers, who must report the payments to the IRS. The IRS uses the number for identification purposes and may also provide this information to various government agencies for tax enforcement or litigation purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold 28% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. Penalties
(1) Failure
to Furnish Taxpayer Identification Number.—If you fail to furnish
your taxpayer identification number to a payer, you are subject
to a
penalty of $50 for each such failure unless your failure is due
to
reasonable cause and not to willful neglect.
(2) Failure
to Report Certain Dividend and Interest Payments. If you fail to
include any portion of an includable payment for interest dividends
or
patronage dividends in gross income and such failure is due to
negligence,
a penalty of 20% is imposed on any portion of an underpayment
attributable
to the failure.
(3) Civil
Penalty for False Information With Respect to Withholding.—If you
make a false statement with no reasonable basis that results
in no backup
withholding, you are subject to a $500 penalty.
(4) Criminal
Penalty for Falsifying Information.—Willfully falsifying
certifications or affirmations may subject you to criminal penalties
including fines and/or imprisonment.
FOR
ADDITIONAL INFORMATION CONTACT YOUR TAX ADVISOR OR THE INTERNAL
REVENUE
SERVICE.
|
15
|
THE
US
DEPOSITARY FOR THE OFFER IS:
Computershare
Trust Company, N.A.
|
|
|
BY
MAIL:
Computershare
Trust Company, N.A.
CEMEX
Voluntary Offer
P.O.
Box
43011
Providence,
RI 02940-3011
|
BY
OVERNIGHT
DELIVERY:
Computershare
Trust Company, N.A.
CEMEX
Voluntary Offer
250
Royall
Street
Canton,
MA
02021
|
|
Retail
Investors and All Others Call Toll Free: (866)
244-1296
|
|
|
THE
US
INFORMATION AGENT FOR THE OFFER IS:
Innisfree
M&A Incorporated
501
Madison
Avenue, 20th Floor
New
York, NY
10022
Institutional
Investors, Banks and Brokers Call Collect: (212)
750-5833
|
|
|
Questions
and
requests for assistance may be directed by institutional investors,
banks
and brokers to the US Information Agent, and by retail investors
to the US
Depositary, at the appropriate telephone number or address set forth
above. Additional copies of the Bidder’s Statement, any supplements to the
Bidder’s Statement, this ADS Letter of Transmittal, ADS Notice of
Guaranteed Delivery and other related materials may also be obtained
from
the US Information Agent, and will be furnished promptly at Bidder’s
expense. You may also contact your broker, dealer, commercial bank,
trust
company or other nominee for assistance concerning the Offer.
|
|
16
Exhibit
(a)(1)(I)
ADS
NOTICE
OF GUARANTEED DELIVERY
TO
TENDER
AMERICAN DEPOSITARY SHARES
EVIDENCED
BY AMERICAN DEPOSITARY RECEIPTS
of
RINKER
GROUP
LIMITED
Pursuant
to the
Bidder’s Statement dated October 30, 2006
(as
supplemented by
the First Supplementary Bidder’s Statement dated December 8, 2006)
by
CEMEX
Australia Pty Ltd
an
indirect
wholly-owned subsidiary of
CEMEX,
S.A.B. de
C.V.
|
The
Offer will expire at 7pm (Sydney time) on January 31, 2007 / 3am
(New York
time) on
January
31, 2007, unless the Offer is extended or the Offer is
withdrawn.
|
THE
US DEPOSITARY
FOR THE OFFER IS:
Computershare
Trust Company, N.A.
|
BY
MAIL:
|
BY
OVERNIGHT
DELIVERY:
|
|
Computershare
Trust Company, N.A.
|
Computershare
Trust Company, N.A.
|
|
CEMEX
Voluntary Offer
|
CEMEX
Voluntary Offer
|
|
P.O.
Box
43011
|
250
Royall
Street
|
|
Providence,
RI 02940-3011
|
Canton,
MA
02021
|
BY
FACSIMILE
TRANSMISSION:
(FOR
ELIGIBLE
INSTITUTIONS ONLY)
(617)
360-6810
RECEIPT
OF
FACSIMILE MAY BE CONFIRMED ONLY
BY
TELEPHONE AT THE
FOLLOWING NUMBER:
(781)
575-2332
DELIVERY
OF
THIS ADS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OR FACSIMILE NUMBER OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE DELIVERY TO THE US
DEPOSITARY.
THIS
ADS
NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF
A
SIGNATURE ON AN ADS LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN
ELIGIBLE INSTITUTION (AS DEFINED BELOW) UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE ADS LETTER OF TRANSMITTAL.
.
Subject
to the
withdrawal rights described in Section 8.9 of the Bidder’s Statement and in
Section 1.3 of the First Supplementary Bidder’s Statement, this ADS Notice of
Guaranteed Delivery, or a form substantially equivalent hereto, may be used
to
accept the offer by CEMEX Australia Pty Ltd
(Bidder), a proprietary company
organized under the laws of Victoria, Australia and an indirect wholly-owned
subsidiary of CEMEX, S.A.B. de C.V. (CEMEX),
to acquire all outstanding ordinary shares
of Rinker (Rinker
Shares), and all outstanding American depositary shares
(Rinker
ADSs) which each
represent an ownership interest in five (5) Rinker Shares and are evidenced
by
American depositary receipts (ADRs), upon the
terms and subject to the conditions of 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, if:
1.
ADRs evidencing Rinker ADSs are not immediately available;
2.
The procedures for book-entry transfer cannot be completed prior to the end
of
the Offer Period (as defined in the Bidder's Statement); or
3.
Time will not permit the required documents to be received by Computershare
Trust Company, N.A. (the US
Depositary) prior to the end of the
Offer Period.
This
form may be
delivered by hand, transmitted via facsimile, or mailed to the US Depositary
and
must include a guarantee by an Eligible Institution.
In
the case of ADSs held through The Depository Trust Company
(DTC), this ADS Notice of Guaranteed
Delivery must be sent to the US Depositary by a participant in DTC’s system via
the book-entry confirmation system.
Bidder
intends to enforce all rights that it may have under applicable law against
any
Eligible Institution that completes this form and fails to deliver the
applicable ADSs by the deadline indicated above.
2
Ladies
and
Gentlemen:
The
undersigned
hereby tenders to Bidder, a proprietary company organized under the laws of
Victoria, Australia and an indirect wholly-owned subsidiary of CEMEX, upon
the
terms and subject to the conditions of the Offer (including as extended and
amended by the First Supplementary Bidder’s Statement and, if the Offer is
further extended or amended, the terms and conditions of any such further
extension or amendment), as described in the Bidder’s Statement dated October
30, 2006 and the First Supplementary Bidder’s Statement dated December 8, 2006,
receipt of which is hereby acknowledged, the number of Rinker ADSs indicated
below (which number shall be all ADSs owned by the undersigned, as required
by
the terms of the Offer) pursuant to the procedures for guaranteed delivery
as
described in Section 8.3(d) of the Bidder’s Statement.
|
Signature(s):
_____________________________________________
|
Address(es) (Including Zip Code): _______________________________ | |
| ________________________________________________________ | ________________________________________________________________ | |
| Name(s) of Record Holders: _________________________________ | _________________________________________________________ | |
| ________________________________________________________ | _________________________________________________________ | |
|
( Please
Type or Print)
|
||
| Number of ADSs*: ________________________________________________________ | r
Check if ADSs
will be tendered by book-entry transfer. |
|
| _________________________________________________________ | Account Number: _________________________________________________________ | |
| ADR No(s). (if available/applicable): ________________________________________________________ | ||
| _______________________________________________________________ | ||
*Pursuant
to the Offer, if the Rinker ADSholder (as defined in the Bidder’s Statement)
elects to tender, all Rinker ADSs that the ADSholder owns must be tendered.
See
Section 8.3(a) of the Bidder’s Statement.
3
THE
GUARANTEE SET FORTH BELOW MUST BE COMPLETED
GUARANTEE
(Not
to be
used for signature guarantee)
The
undersigned, a
member in good standing of a recognized Medallion Program approved by the
Securities Transfer Association, Inc., including the Security Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature Program
and
the Stock Exchange Medallion Program (each, an Eligible
Institution), hereby guarantees to deliver the ADRs evidencing the
Rinker ADSs tendered hereby, in proper form for transfer, or deliver the Rinker
ADSs by book-entry transfer to the US Depositary’s account at DTC, together with
the ADS Letter of Transmittal properly completed and duly executed (with any
required signature guarantees) or, in the case of book-entry transfer, an
Agent’s Message (as defined in the ADS Letter of Transmittal), and any other
required documents within three New York Stock Exchange trading days after
the
date hereof.
|
Name
of
Firm:
|
Authorized
Signature:
|
|
|
Address
(Including ZIP Code):
_________________________________________
|
Name:
|
|
|
(Please
Type
or Print)
|
||
|
Title:
|
||
|
Dated:
|
||
|
Area
Code and
Tel. No.:_______________________________________________
|
Note:
Do not send ADRs evidencing Rinker ADSs with this ADS Notice of Guaranteed
Delivery. ADRs evidencing Rinker ADSs should be sent with your ADS Letter of
Transmittal.
_________________________________________________________________________________________________________________________
4
Exhibit
(a)(1)(J)
Cemex
Australia Pty Ltd CAN 122 401 405 Computershare Please return completed form
to: Computershare Investor Services Pty Limited GPO Box 2237 Melbourne
Victoria 8060 Australia Enquiries (within Australia) 1300 721 344 (within the
US) (866) 244 1296 (elsewhere) 61 3 9415 4344 Facsimile 61 3 9473 2500
web.queries@computershare.com.au www.computershare.com Securityholder Reference
Number (SRN) A 000001 000 SAM MR JOHN SMITH 1 FLAT 123 123 SAMPLE STREET THE
SAMPLE HILL SAMPLE ESTATE SAMPLEVILLE VIC 3030 I 1234567890 I N D Use a
black pen. Print in CAPITAL letters inside the grey areas. A B C 1 2 3 Where
a
choice is required, mark the box with an ‘X’ X Share Transfer and Acceptance
Form - Cash Offer This
is an important document and requires your immediate attention. If you are
in
doubt about how to deal with it, please consult your financial, legal or other
professional advisor. Use this form to accept CEMEX Australia Pty Ltd (Bidder)
offer for all your ordinary shares in Rinker Group Limited B Consideration
The consideration applicable under the terms of this offer is US$13.00 per
Rinker Share. What CEMEX Australia Pty Ltd is offering to buy CEMEX
Australia Pty Ltd is offering to buy all your Rinker Shares, on the terms set
out in the Bidder’s Statement. What you will receive if you accept the
Offer If you accept the Offer you will, subject to the satisfaction of the
conditions of the Offer, receive US$13.00 for each of your Rinker Shares.
Currency election (please select one option) I/We elect to have payment of
consideration under the Offer converted into, and then paid to me/us in,
Australian dollars (See instructions overleaf for information concerning
the currency election.) OR I/We elect to receive payment of consideration
under the Offer in US dollars Securityholder details Subregister Issuer/CHESS
Your holding in Rinker Group Limited 123456789012 Cash consideration payable
to
you at US$13.00 per share US$000.00 C To be completed by Securityholder
You will be deemed to have accepted the Offer in respect of all your Rinker
Shares if you sign and return this form. If you hold your Rinker Shares in
a CHESS Holding (see “subregister” above), to accept the Offer you can either:
Instruct your Controlling Participant directly - normally your stockbroker
or Authorise CEMEX Australia Pty Ltd to contact your Controlling
Participant on your behalf, which you can do by signing and returning this
form.
By signing and returning this form you will be deemed to have authorised CEMEX
Australia Pty Ltd to contact your Controlling Participant directly via the
CHESS
system. D Contact details Please provide your contact details in case we
need to speak to you about this form. Name of contact person Contact person’s
daytime telephone number E Sign here - this section must be signed before we
can
process this form. I/We accept the Offer made by CEMEX Australia Pty Ltd in
respect of all my/our ordinary shares in Rinker Group Limited I/we hold and
I/we
agree to be bound by the terms and conditions of the Offer (including the
instructions as to acceptance of the Offer on the back of this form) and
transfer all of my/our Rinker Shares to CEMEX Australia Pty Ltd for the above
consideration. Individual or Securityholder 1 Individual or Securityholder
2
Individual or Securityholder 3 Sole Director and Sole Company Secretary Director
Director/Company Secretary The directors reserve the right to make
amendments to this form where appropriate. Please refer to the lodgement
instructions overleaf. See back of form for completion guidelines R I N 1 T
K A
C <Broker PID> 032475_00L85A
How
to complete this form Acceptance of the takeover offer A Registration Details
The Rinker Shares are currently registered in the name(s) printed on this form.
Your consideration will be issued in the name(s) as it appears on the Rinker
register of members. If you have already sold all your Rinker Shares shown
overleaf, do not keep or return this form. Please send this form to the broker
who sold them for you. B Consideration The cash consideration payable under
the
takeover offer is US$13.00 per share. Please place an “X” against one of the
boxes to indicate how you wish to receive payment of consideration under the
Offer. If you elect to have the consideration converted into Australian dollars,
Bidder will pay any charges associated with such conversion, and the exchange
rate at which 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 applicable Exchange Rate Reference Period. If you do not make a
valid
currency election, you will receive payment of consideration under the Offer
in
US dollars except if your address, as recorded in the Rinker register of
members, is an Australian address, in which case consideration under the Offer
will be converted into, and paid to you in, Australian dollars. The terms
'WM/Reuters Intraday Mid Spot Rates' and 'Exchange Rate Reference Period' are
defined in Section 1.1(a) of the First Supplementary Bidder's
Statement. C How to accept the Offer If your Rinker Shares are held in an
Issuer Sponsored Holding, simply complete and return this form to the Australian
Registry so that it is received by no later than 7:00pm (Sydney time) on 31
January 2007, unless extended. If your Rinker Shares are in a CHESS Holding,
you
may contact your Controlling Participant directly (normally your stockbroker)
with instructions to accept the Offer. If you do this, you will need to sign
and
return this form to your Controlling Participant. If you want CEMEX Australia
Pty Ltd to contact your Controlling Participant on your behalf via the CHESS
system, sign and return this form to the Australian Registry so that it is
received no later than 7:00pm (Sydney time) on 31 January 2007 unless extended.
If you sign and return this form to the Australian Registry either in respect
of
an Issuer Sponsored Holding or so that contact may be made with your Controlling
Participant on your behalf, you warrant to CEMEX Australia Pty Ltd (and
authorise CEMEX Australia Pty Ltd to warrant on your behalf) that you have
full
legal and beneficial ownership of your Rinker Shares and that CEMEX Australia
Pty Ltd will acquire them free from all Encumbrances. Neither CEMEX Australia
Pty Ltd nor Computershare Investor Services Pty Limited (‘CIS’) will be
responsible for any delays incurred by this process. You should allow sufficient
time for the preferred party to initiate the acceptance of the Offer on your
behalf. D Contact details Enter the name of a contact person and telephone
number. These details will only be used in the event that the Australian
Registry has a query regarding this form. E Signature(s) You must sign the
form
as follows in the space provided: Joint holding: where the holding is in more
than one name all of the securityholders must sign. Power of Attorney: to sign
under power of attorney, you must have already lodged this document with the
Australian Registry. Alternatively, attach a certified copy of the power of
attorney to this form when you return it. Deceased Estate: all executors must
sign and, if not already noted by the Australian Registry, a certified copy
of
probate or letters of administration must accompany this form. Companies: this
form must be signed by either 2 directors or a director and a company secretary.
Alternatively, where the company has a sole director and, pursuant to the
Corporations Act, there is no company secretary, or where the sole director
is
also the sole company secretary, that director may sign alone. Delete titles
as
applicable. Lodgement of Share Transfer and Acceptance Form This form must
be
received at the Melbourne office of CIS by no later than 7:00pm (Sydney time)
on
31 January 2007, unless extended. Return this form in the provided envelope
or
to: Postal Address Computershare Investor Services Pty Limited GPO Box
2237 MELBOURNE VIC 8060 OR Hand Delivery Computershare Investor Services Pty
Limited Yarra Falls 452 Johnston Street ABBOTSFORD VIC 3067 Privacy Statement
Personal information is collected on this form by CIS, as registrar for
securities issuers (“the issuer”), for the purpose of maintaining registers of
securityholders, facilitating distribution payments and other corporate actions
and communications. Your personal information may be disclosed to our related
bodies corporate, to external service companies such as print or mail service
providers, or as otherwise required or permitted by law. If you would like
details of your personal information held by CIS, or you would like to correct
information that is inaccurate, incorrect or out of date, please contact CIS.
In
accordance with the Corporations Act 2001, you may be sent material (including
marketing material) approved by the issuer in addition to general corporate
communications. You may elect not to receive marketing material by contacting
CIS. You can contact CIS using the details provided on the front of this form
or
E-mail privacy@computershare.com.au If you have any enquiries concerning the
Offer please contact CEMEX Offer Information Line on telephone 1300 721 344
(within Australia), (866) 244 1296 (within the US) or +61 3 9415 4344
(elsewhere). For legal reasons, all calls to these numbers will be
recorded. Please note this form may not be used to change your address.
Please return the completed form in the envelope provided or to the address
opposite: Computershare Investor Services Pty Limited GPO Box 2237 Melbourne
Victoria 8060 Australia