` SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(RULE 14D-100) TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
COMMERCIAL METALS COMPANY
(NAME OF SUBJECT COMPANY (ISSUER))
IEP Metals Sub LLC
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II L.P.
Icahn Partners Master Fund III L.P.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital L.P.
IPH GP LLC
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Carl C. Icahn
(NAMES OF FILING PERSONS)*
COMMON STOCK, PAR VALUE $0.01
(TITLE OF CLASS OF SECURITIES)
201723103
(CUSIP NUMBER OF CLASS OF SECURITIES)
KEITH L. SCHAITKIN, ESQ.
GENERAL COUNSEL
ICAHN CAPITAL LP
767 FIFTH AVENUE, 47TH FLOOR
NEW YORK, NEW YORK 10153
(212) 702-4380
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF FILING PERSONS)
CALCULATION OF FILING FEE
TRANSACTION VALUATION: AMOUNT OF FILING FEE:
---------------------- ---------------------
$1,560,210,000* $178,800.07**
* Calculated solely for purposes of determining the filing fee. The
transaction value was calculated as follows: 104,014,000 shares of common
stock of the Issuer multiplied by $15 per share. The number of shares used
in the transaction value calculation is based on the 115,539,000 shares
stated to be issued and outstanding according to the Issuer in its
Definitive Proxy Statement filed with the Securities and Exchange
Commission on December 6, 2011, less 11,525,000 shares beneficially owned,
as of December 9, 2011, by the Offeror and its affiliates.
** The amount of the filing fee was calculated in accordance with Rule 0-11
of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory
#3 for fiscal year 2012, issued September 29, 2011, by multiplying the
transaction value by 0.0001146.
/x/ Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount previously paid: Filing Party:
$178,800.07 Icahn Enterprises Holdings LP
Form or registration no.: Schedule TO-T Date Filed: December 9, 2011
/ / 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
/ / going-private transaction subject to Rule 13e-3
/ / issuer tender offer subject to Rule 13e-4
/X/ amendment to Schedule 13D under Rule 13d-2
Check the following box if the filing is a final amendment reporting the results
of the tender offer: / /
COMBINED SCHEDULE TO AND SCHEDULE 13D
* Introductory Note: IEP Metals Sub LLC and Icahn Enterprises Holdings L.P.
are co-bidders for all purposes in the Offer. IEP Metals Sub LLC is a
wholly-owned subsidiary of Icahn Enterprises Holdings L.P.
This Amendment No. 1 amends and supplements the Tender Offer Statement on
Schedule TO filed on December 9, 2011 (as amended, the "Schedule TO") relating
to the offer by IEP Metals Sub LLC, a Delaware limited liability company ("IEP
Metals Sub") and Icahn Enterprises Holdings L.P., a Delaware limited partnership
("Icahn Enterprises Holdings", and together with IEP Metals Sub, the "Offeror"),
to purchase for cash all of the issued and outstanding shares of common stock,
par value $0.01 per share (the "Common Stock") of Commercial Metals Company, a
Delaware corporation ("Commercial Metals"), including the associated rights
issued pursuant to the Rights Agreement, dated as of July 30, 2011, between
Commercial Metals and Broadridge Corporate Issuer Solutions, Inc., as Rights
Agent, that are issued and outstanding (the "Rights", and together with the
Common Stock, the "Shares") at a price of $15.00 per Share, without interest and
less any required withholding taxes, if any. Both IEP Metals Sub and Icahn
Enterprises Holdings are co-bidders for all purposes in the Offer. Capitalized
terms used herein and not otherwise defined have the respective meanings
ascribed in the Schedule TO.
The Offer is subject to the terms and conditions set forth in the Offer to
Purchase, dated December 9, 2011 (the "Offer to Purchase"). The Offer to
Purchase, the related Letter of Transmittal (the "Letter of Transmittal") and
Notice of Guaranteed Delivery, copies of which are attached hereto as Exhibits
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii), respectively, constitute the "Offer".
As permitted by General Instruction F to Schedule TO, the information set
forth in the entire Offer to Purchase, the Letter of Transmittal and the Notice
of Guaranteed Delivery, including all appendices, schedules, exhibits and
annexes thereto, is hereby expressly incorporated by reference in response to
Items 1 through 11 of this Schedule TO and is supplemented by the information
specifically provided herein.
As permitted by General Instruction G to Schedule TO, this Schedule TO is
also an amendment to the joint statement on Schedule 13D filed on July 28, 2011,
as amended, by Icahn Enterprises Holdings, Icahn Partners LP, a limited
partnership governed by the laws of Delaware, Icahn Partners Master Fund LP, a
limited partnership governed by the laws of the Cayman Islands, Icahn Partners
Master Fund II LP, a limited partnership governed by the laws of the Cayman
Islands, Icahn Partners Master Fund III LP, a limited partnership governed by
the laws of the Cayman Islands, High River Limited Partnership, a limited
partnership governed by the laws of Delaware, Hopper Investments LLC, a limited
liability company governed by the laws of Delaware, Barberry Corp., a
corporation governed by the laws of Delaware, Icahn Onshore LP, a limited
partnership governed by the laws of Delaware, Icahn Offshore LP, a limited
partnership governed by the laws of Delaware, Icahn Capital LP, a limited
partnership governed by the laws of Delaware, IPH GP LLC, a limited liability
company governed by the laws of Delaware, Icahn Enterprises Holdings L.P., a
limited partnership governed by the laws of Delaware, Icahn Enterprises G.P.
Inc., a corporation governed by the laws of Delaware, Beckton Corp., a
corporation governed by the laws of Delaware, and Carl C. Icahn (collectively,
the "Icahn Entities").
ITEMS 1-11
Items 1 through 11 of the Schedule TO are hereby amended and supplemented by the
addition of the following:
On December 9, 2011, Icahn Enterprises LP, the parent of the Offeror, issued a
press release relating to the Offer. A copy of this press release is filed
herewith as Exhibit (a)(5)(iii) and incorporated herein by reference.
ITEM 12. EXHIBITS
Exhibit No. Description
----------- -----------
(a)(5)(iii) Press Release issued by Icahn Enterprises LP, dated December
9, 2011
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.
ICAHN PARTNERS LP
By: /S/ EDWARD MATTNER
-------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
ICAHN PARTNERS MASTER FUND LP
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
ICAHN PARTNERS MASTER FUND II LP
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
ICAHN PARTNERS MASTER FUND III LP
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
HIGH RIVER LIMITED PARTNERSHIP
BY: HOPPER INVESTMENTS LLC, ITS
GENERAL PARTNER
BY: BARBERRY CORP., ITS SOLE MEMBER
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
HOPPER INVESTMENTS LLC
BY: BARBERRY CORP., ITS SOLE MEMBER
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
BARBERRY CORP.
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
ICAHN ONSHORE LP
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
ICAHN OFFSHORE LP
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
ICAHN CAPITAL LP
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
IPH GP LLC
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
ICAHN ENTERPRISES HOLDINGS L.P.
BY: ICAHN ENTERPRISES G.P. INC., ITS
GENERAL PARTNER
By: /S/ DOMINICK RAGONE
-------------------
Name: DOMINICK RAGONE
Title: CHIEF FINANCIAL OFFICER
IEP METALS SUB LLC
BY: ICAHN ENTERPRISES HOLDINGS L.P.,
ITS SOLE MEMBER
BY: ICAHN ENTERPRISES G.P. INC., ITS
GENERAL PARTNER
By: /S/ DOMINICK RAGONE
-------------------
Name: DOMINICK RAGONE
Title: CHIEF FINANCIAL OFFICER
/S/ CARL C. ICAHN
-----------------
Name: CARL C. ICAHN
Date: December 9, 2011
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
(a)(1)(i) Offer to Purchase, dated December 9, 2011*
(a)(1)(ii) Letter of Transmittal (including Guidelines for
Certification of Taxpayer Identification Number)*
(a)(1)(iii) Notice of Guaranteed Delivery*
(a)(1)(iv) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees*
(a)(1)(v) Letter to Clients*
(a)(5)(i) Summary Advertisement as published in the New York Times, by
the Offeror, on December 9, 2011*
(a)(5)(ii) Press Release of the Offeror, dated December 6, 2011
(incorporated by reference to Exhibit 1 to the Schedule TO-C
filed by the Offeror with the Securities and Exchange
Commission on December 6, 2011)*
(a)(5)(iii) Press Release of Icahn Enterprises L.P., dated December 9,
2011
(b) None.
(d) None.
(g) None.
(h) None.
______________________
* Previously Filed
EXHIBIT (a)(5)(iii)
ICAHN ENTERPRISES L.P.
ICAHN ENTERPRISES HOLDINGS L.P. LAUNCHES TENDER OFFER FOR ALL OF THE OUTSTANDING
SHARES OF COMMERCIAL METALS COMPANY AT $15 PER SHARE
URGES SHAREHOLDERS TO TENDER PROMPTLY
CONTACT: SUSAN GORDON (212) 702-4309
NEW YORK, NEW YORK, DECEMBER 9, 2011 - Icahn Enterprises Holdings L.P. (a
subsidiary of Icahn Enterprises LP (NYSE: IEP)) today stated that its
subsidiary, IEP Metals Sub LLC, has commenced the previously announced tender
offer (the "Offer") for all of the outstanding shares of common stock of
Commercial Metals Company (the "Company") at $15 per share net to the seller in
cash.
Mr. Icahn stated:
"We urge you to tender your shares early. I AM OPTIMISTIC THAT A SIGNIFICANT
AMOUNT OF TENDERS BY STOCKHOLDERS WILL BECOME A SELF FULFILLING PROPHECY, AND
WILL COMPEL THE BOARD TO DO THE RIGHT THING BY REDEEMING THE POISON PILL AND
WAIVING DELAWARE 203, SO THAT THE TENDER OFFER CAN CLOSE. All tendered shares
will have withdrawal rights, so that a tendering shareholder can freely
withdraw tendered shares."
If the Board, even after hearing from a majority of shareholders (including
Icahn), fails to lift the poison pill and waive Section 203, the Offer will
remain open while Icahn seeks a court order compelling the Board to redeem the
poison pill and waive Section 203 so that the shareholders can receive their
money. Mr. Icahn noted, "we will fight this case all the way to the Delaware
Supreme Court, and it is our belief, that we will prevail on the merits and that
the court would order the Board to redeem the pill and waive Section 203 so that
the shareholders can be paid."
The Offer price represents a premium of 31% over the $11.45 closing price of the
Common Stock on November 25, 2011, the day prior to Icahn's announced offer to
acquire the Company by merger. Additionally, it should be noted that the
average trading price for the 90 days prior to November 25, 2011 was $11.43. It
should also be noted that the Offer price represents a premium of 72.6% from the
$8.60 low for this year on October 3, 2011.
Closing of the Offer will not be subject to any due diligence or financing
conditions, but will be subject to the redemption by the Company's Board of
Directors of the recently adopted "poison pill" and waiver by the Board of
Directors of Section 203 of the Delaware General Corporation Law, as well as
other customary conditions. The tender offer will be subject to there being
validly tendered and not withdrawn at least 40.1% of the issued and outstanding
shares of the Company. That number of shares, when added to the shares already
owned by the offeror and its affiliates, represents a majority of the issued and
outstanding shares of the Company on a fully diluted basis. The Offer will
include withdrawal rights so that a tendering shareholder can freely withdraw
shares.
Additional information concerning the Offer is set forth in an advertisement
appearing in today's New York Times. The offering documents for the Offer are
being filed today with the Securities and Exchange Commission and may be
obtained by contacting the information agent for the Offer:
D.F. KING & CO., INC.
48 Wall Street,
22nd Floor
New York, NY 10005
Banks and Brokerage Firms Please Call Collect: (212) 269-5550
All Others Call Toll Free: (800) 967-7921
Email: information@dfking.com
ABOUT ICAHN ENTERPRISES L.P.
Icahn Enterprises L.P. (NYSE: IEP), a master limited partnership, is a
diversified holding company engaged in eight primary business segments:
Investment, Automotive, Gaming, Railcar, Food Packaging, Metals, Real Estate and
Home Fashion.
NOTICE TO INVESTORS
-------------------
This press release is neither an offer to purchase nor a solicitation of an
offer to sell securities. The offer to buy shares of Commercial Metals Company
(the "Company") common stock was made pursuant to an offer to purchase and
related materials that IEP Metals Sub LLC, ("Offeror"), an indirectly wholly
owned subsidiary of Icahn Enterprises Holdings LP, as co-bidder, filed with the
Securities and Exchange Commission (the "SEC") on December 9, 2011. On December
9, 2011, the Offeror and co-bidder also filed a tender offer statement on
Schedule TO with the SEC relating to the offer. The tender offer statement
(including an offer to purchase, a related letter of transmittal and other offer
documents) contain, and the solicitation/recommendation statement will contain,
when available, important information that should be read carefully and
considered before any decision is made with respect to the tender offer. The
tender offer materials will be sent free of charge to all stockholders of the
Company on or about December 9, 2011.
All of these materials (and all other materials filed by the Offeror or the
Company with the SEC) are available at no charge from the SEC through its
website at www.sec.gov. Investors and security holders may also obtain free
copies of the documents filed with the SEC by directing a request to D.F. King &
Co., Inc. by mail to 48 Wall Street, 22nd Floor, New York, New York 10005, or by
calling toll-free (800) 967-7921 or (212) 269-5550.
CAUTION CONCERNING FORWARD-LOOKING STATEMENTS
Results for any interim period are not necessarily indicative of results for any
full fiscal period. This release contains certain "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995, many
of which are beyond our ability to control or predict. Forward-looking
statements may be identified by words such as "expects," "anticipates,"
"intends," "plans," "believes," "seeks," "estimates," "will" or words of similar
meaning and include, but are not limited to, statements about the expected
future business and financial performance of Icahn Enterprises L.P. and its
subsidiaries. Among these risks and uncertainties are risks related to economic
downturns, substantial competition and rising operating costs; risks related to
our investment activities, including the nature of the investments made by the
private funds in which we invest, losses in the private funds and loss of key
employees; risks related to our automotive activities, including exposure to
adverse conditions in the automotive industry, and risks related to operations
in foreign countries; risk related to our gaming operations, including
reductions in discretionary spending due to a downturn in the local, regional or
national economy, intense competition in the gaming industry from present and
emerging internet online markets and extensive regulation; risks related to our
railcar activities, including reliance upon a small number of customers that
represent a large percentage of revenues and backlog, the health of and
prospects for the overall railcar industry and the cyclical nature of the
railcar manufacturing business; risks related to our food packaging activities,
including competition from better capitalized competitors, inability of its
suppliers to timely deliver raw materials, and the failure to effectively
respond to industry changes in casings technology; risks related to our scrap
metals activities, including potential environmental exposure; risks related to
our real estate activities, including the extent of any tenant bankruptcies and
insolvencies; risks related to our home fashion operations, including changes in
the availability and price of raw materials, and changes in transportation costs
and delivery times; and other risks and uncertainties detailed from time to time
in our filings with the Securities and Exchange Commission. Past performance in
our Investment segment is not necessarily indicative of future performance. We
undertake no obligation to publicly update or review any forward-looking
information, whether as a result of new information, future developments or
otherwise.