This
Amendment No. 14 amends and
supplements the Tender Offer Statement on Schedule TO filed with
the Securities
and Exchange Commission on November 14, 2006 (the “Schedule TO”) and amended
thereafter. The Schedule TO, as amended, relates to the offer by
CEMEX Australia
Pty Ltd (“Bidder”), a proprietary company registered under the laws of Victoria,
Australia and an indirect wholly-owned subsidiary of CEMEX, S.A.B.
de C.V.
(“CEMEX”), to acquire all the outstanding ordinary shares and American
depositary shares of Rinker Group Limited, a public company registered
under the
laws of New South Wales, Australia (“Rinker”), upon the terms and subject to the
conditions of the offer (the “Offer”) (including, if the Offer is extended or
amended, the terms and conditions of any such extension or amendment),
as
described in the Bidder’s Statement, dated October 30, 2006 (as amended by three
Supplementary Bidder’s Statements, the “Bidder’s Statement”). Except as
specifically provided herein, this Amendment does not modify any
of the
information previously reported on the Schedule TO, as amended. Capitalized
terms used herein that are not otherwise defined have the meanings
given to them
in the Bidder’s Statement.
Item
4. Terms of the
Transaction.
On
April 10, 2007, Bidder announced
that it had reached an agreement with Rinker (see Item 5 below) pursuant
to
which Bidder will increase its offer price to acquire all the outstanding
ordinary shares and American depositary shares of Rinker from US$13
per ordinary
share and US$65 per ADS in cash to US$15.85 per ordinary share and
US$79.25 per
ADS in cash, and waive all defeating conditions, with the exception
of the
defeating condition entitled “Minimum Acceptance”, as described in Section
8.6(a) of the Bidder’s Statement.
The Offer Period will be extended until 5:00 AM (New York Time) /
7:00 PM
(Sydney Time) on May 18, 2007.
Item
5. Past Contacts, Transactions, Negotiations and
Agreements
Following
discussions between representatives of CEMEX and Rinker, the parties
entered
into a Non Disclosure Agreement dated April 5, 2007. In the evening
(New York
Time) on April 9, 2007, following further negotiations, the parties
executed the Bid Agreement by and among CEMEX, Bidder, and Rinker
(the “Bid
Agreement”), which sets forth, among other things, the terms and conditions
upon
which Bidder will amend the Offer.
The
following is a summary of the Bid Agreement and the Non Disclosure
Agreement. It
does not purport to be complete and is subject to, and is qualified
in its
entirety by reference to, all the provisions of the Bid Agreement
and the Non
Disclosure Agreement. CEMEX intends to provide additional information
relating
to the Bid Agreement and the revised Offer in a Supplementary Bidder’s
Statement, which is expected to be issued shortly. The Bid Agreement
is attached
hereto as Exhibit (a)(1)(O). The Non Disclosure Agreement is attached
hereto as
Exhibit (a)(1)(P).
Bid
Agreement
The
Offer and Support for the Offer.
Bidder
agreed to increase the offer
price from US$13.00 per ordinary share and US$65 per ADS to US$15.85
per
ordinary share and US$79.25 per ADS in cash and to allow the Rinker
shareholders to retain the dividend of A$0.16 per ordinary share
(which had a
record date of November 24, 2006) that was previously paid to Rinker
shareholders, without a reduction in the consideration payable to
the Rinker
Shareholders under the Offer. In addition, Bidder agreed to waive
all of the
defeating conditions with the exception of the defeating condition
entitled
“Minimum Acceptance”, as described in Section 8.6(a) of the Bidder’s
Statement.
Bidder
agreed to lodge with the Australian Securities and Investments
Commission
(“ASIC”) and Rinker the required notice under section 650D of the Corporations
Act and lodge with the Australian Securities Exchange (“ASX”) the required
notice under section 650F of the Corporations Act as soon as practicable.
The
notice under section 650D will be sent to Rinker Shareholders no
later than the
time at which the supplementary Bidder’s Statement is sent to Rinker
Shareholders, which is 5 business days after the variation of the
Offer.
Bidder
also agreed to (a) promptly apply to ASIC for any modifications
required to give
Rinker Shareholders who accept the Offer the option (in addition
to the existing
options available under the Offer) to receive an Australian Dollar
price of
A$19.50, for the first 2,000 ordinary shares of Rinker held by
each Rinker
Shareholder or a nominee on behalf of such Rinker Shareholder based
on the
Rinker share register on April 12, 2007, (b) take all actions necessary
to
validly make such variation of the Offer, as soon as practicable
after the
receipt of the required modifications from ASIC, and (c) make a
public
announcement of such variation.
The
directors of Rinker agreed to release to ASX a public announcement,
immediately
following Bidder’s announcement required by the Bid Agreement, stating that the
Rinker board unanimously intends to recommend the Offer at the
higher price, in
the absence of a superior proposal, and that each Rinker director
intends to
accept the Offer with respect to his Rinker shares, in the absence
of a superior
proposal. The directors of Rinker agreed that within 5 business days
after Bidder varies the Offer and files an amended Schedule TO
and Supplementary
Bidder’s Statement, as required by the Bid Agreement, the Rinker directors
will,
in the absence of a superior proposal, issue a supplementary target’s statement
containing (a) a unanimous recommendation by the Rinker directors
to the Rinker
Shareholders to accept the Offer at the higher price (as modified
in accordance
with the Bid Agreement) and (b) a statement that each director
intends to accept
the Offer at the higher price with respect to his Rinker shares.
Other
Rinker Obligations.
Rinker
agreed that until the end of the Offer Period, Rinker will not
and will ensure
that its representatives do not, without the prior written consent
of Bidder,
(a) directly or indirectly solicit, initiate or invite discussions
or proposals
with respect to a Competing Proposal, as defined in the Bid Agreement
or (b)
negotiate or enter into, continue or participate in any discussions
or negations
with any third party with respect to a Competing Proposal. The
obligations in
clause (b) do not apply to the extent that they restrict Rinker
or the Rinker
board from taking or refusing to take any action provided that
the Rinker
directors have determined, in good faith after having consulted
with their
external legal and financial advisers, that failing to take, or
failing to
refuse to take, such action would or would be likely to constitute
a breach of
the Rinker directors’ fiduciary or statutory obligations.
Rinker
also agreed that if a Competing
Proposal is announced or is received by Rinker which the Rinker directors
consider superior to the Offer and the Rinker directors intend to
change or
withdraw their recommendation with respect to the Offer, Rinker will
notify
Bidder of the material terms of, but not the identity of the party
making, the
Competing Proposal (if it has not been publicly announced).
Rinker
and its affiliates agreed not to convert any or all or all of its
shares into a
larger or smaller number of shares or resolve to reduce its share
capital in any
way, or issue or agree to issue shares or convertible notes or
grant or agree to
grant an option over its shares. Further, Rinker and its affiliates
will conduct
business in the usual and ordinary course and will not (a) subject
to a lien, or
agree to subject to a lien, the whole or a substantial part of
its business or
property, (b) make any material acquisitions or disposals or undertake
any new
commitments which would have breached the condition set out in
clause 8.6(h) of
the Bidder’s Statement had it not been waived by Bidder, or (c) pay a dividend,
other than annual and half yearly dividends consistent with past
practice or
undertake a buy-back, capital return or other payment to shareholders
without
the consent of Bidder.
Rinker
agreed to use all reasonable
efforts to facilitate the Offer and the acceptance of the Offer by
the Rinker
Shareholders, subject to Bidder complying with its obligations and
in the
absence of a superior proposal.
If
Bidder receives acceptances under
the Offer of more than 50% of Rinker’s issued shares, Rinker agreed to allow not
more than 3 representatives, approved by Rinker acting reasonably,
to have
access to information of Rinker solely for the purpose of investigating
whether
assets of Rinker that are the subject of the DOJ Settlement can be
sold as self
sustaining entities. Before Rinker must allow Bidder’s representatives access to
any information, Bidder, CEMEX and each of the 3 representatives
referred to
above must enter into such confidentiality undertakings as may be
reasonably
required by Rinker and must comply with such other reasonable requirements
as
Rinker may direct in relation to such access.
DOJ
Settlement.
Rinker
agreed that at the direction of Bidder, but subject to Bidder complying
with its
obligations under the Bid Agreement and only following Bidder’s
acquisition of a
relevant interest in Rinker of not less than 90% and commencement
of the
compulsory acquisition process under the Corporations Act, Rinker
will sign and
become a party to an amended Hold Separate Stipulation and Order
containing the
same provisions as those contained in the Hold Separate, as defined
in Item 11
below.
In
addition, subject to Bidder complying with its obligations under
the Bid
Agreement, Rinker agreed, if requested by CEMEX, to discuss with
the Department
of Justice (“DOJ”)
an amended Hold
Separate Stipulation and Order and, if such an amended Hold Separate
Stipulation
and Order is mutually agreed among CEMEX, Rinker and the DOJ, Rinker
agreed to
enter into such an amended Hold Separate Stipulation and Order.
The Bid
Agreement provides that nothing in such an amended Hold Separate
Stipulation and
Order shall commit or require Rinker to make any divestiture (the
fact and terms
of any such divestiture of assets of Rinker shall require the approval
of
Rinker’s board (as reconstituted) after the occurrence of a Divestiture
Trigger,
as defined in the Bid Agreement) or require the Rinker board to
take or agree to
take any action, or refrain from taking any action, that would
or would be
likely to be inconsistent with its fiduciary or statutory duties
under
Australian law.
CEMEX
agreed to indemnify Rinker and each of its directors, pursuant
to the terms
outlined in the Bid Agreement, from any claim, action, damage,
loss, liability,
cost, expense or payment of whatever nature and however arising
which Rinker or
any of its directors suffers, incurs or is liable for in connection
with
Rinker’s entry into and performance of its obligations under any amended
Hold
Separate Stipulation and Order which it enters into under any provision
of the
Bid Agreement.
Representations
and Warranties
Each
party represented to the other
party that (a) its execution and delivery of the Bid Agreement
was properly authorized by all necessary corporate actions, and (b)
that it had full corporate power and lawful authority to execute,
deliver and
perform its obligations under this agreement.
Termination
The Bid Agreement will terminate upon the earliest of the close,
lapse or
withdrawal of the Offer or four months from the date of the Bid
Agreement.
Non
Disclosure Agreement
CEMEX
and
Rinker entered into a Non Disclosure Agreement, dated as of April
5, 2007,
pursuant to which Rinker has made available and may continue to
make available
confidential information to CEMEX to facilitate CEMEX’s due diligence with
respect to Rinker for the purpose of Bidder’s consideration of varying the
Offer.
Item
7. Source and Amount of Funds or Other Consideration.
In
addition to the facilities described
under Section 4 of the Bidder’s Statement, Bidder may use the facility described
below to finance the acquisition.
On
September 24, 2004, Cemex Espana,
S.A., the original borrower, the original guarantors, as defined
therein, Banco
Bilbao Vizcaya Argentaria S.A., Banco Santander Central Hispano,
S.A., Calyon
Corporate and Investment Bank and Citigroup Global Markets Limited,
collectively, the arranger, the Original Lenders, as defined therein,
and
Citibank International PLC, the agent, entered into a US$3,800,000,000
Revolving
Facilities Agreement (as amended on November 8, 2004 and February
25, 2005, and
amended and restated on July 4, 2005 effective as of July 7, 2005, the
“Facilities Agreement”). The amended and restated Facilities Agreement is
attached as Exhibit (b)(1)(M).
On
June 21, 2005, Cemex España
cancelled Facility 1 of the Facilities Agreement, which decreased
the amount of
the facilities under the Facilities Agreement to US$2,300,000,000.
On June 30,
2006, the parties entered into an amendment of the Facilities Agreement,
which,
among other things, decreased the amount of the facilities under
the Facilities
Agreement to US$2,100,000,000, such amendment is attached as Exhibit
(b)(1)(N).
Effective
October 30, 2006 the
guarantors of the Facilities Agreement were removed pursuant a Guarantor
Removal
Certificate dated October 17, 2006.
Item
11. Additional Information.
On
April
4, 2007, in connection with the Proposed Final Judgment, representatives
of
CEMEX and the Antitrust Division of the DOJ entered into a Hold
Separate
Stipulation and Order (the “Hold Separate”). Pursuant to the Hold Separate,
CEMEX agreed, among other things, to abide by and comply with the
provisions of
a proposed Final Judgment (the “Proposed Final Judgment”). The Proposed Final
Judgment provides, among other things, that CEMEX will divest certain
CEMEX and
Rinker assets in the event that CEMEX either acquires more than
50 percent of
the outstanding Rinker shares or elects a majority of the Rinker
board of
directors.
On
April 6, 2007, the Federal Trade
Commission granted early termination of the waiting period under
the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, thereby satisfying
the
Defeating Condition, entitled “Antitrust approvals - United States”, as
described in Section 8.6(d) of the Bidder’s Statement.
Item
12. Exhibits.
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(a)(1)(O)
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The
Bid Agreement.
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(a)(1)(P)
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Non
Disclosure Agreement between CEMEX and Rinker, dated
April 5,
2007.
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(a)(5)(C)
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Press
Release of CEMEX relating to the increased offer price
and variation of
the offer, dated April 9, 2007.
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(b)(1)(M)
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Amended
and Restated Revolving Facilities Agreement, dated July
4, 2005 effective
as of July 7, 2005.
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(b)(1)(N)
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Amendment
dated June 30, 2006 to the Amended and Restated Revolving
Facilities
Agreement, effective
as of July 7, 2005.
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