SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
(Amendment No. __)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[X] Soliciting Material Pursuant to 240.14a-12
Commercial Metals Company
(Name of Registrant as Specified In Its Charter)
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
James Unger
Steve Mongillo
George Hebard
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
(RULE 14D-100) TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 6)
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.: Date Filed:
Schedule TO-T 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 transactionsubject to Rule 13e-3
[ ] issuer tender offer subject to Rule 13e-4
[X] amendment to Schedule 13Dunder 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. 6 amends and supplements the Tender Offer Statement on
Schedule TO filed on December 9, 2011 (as amended by Amendment No. 1 filed on
December 9, 2011, Amendment No. 2 filed on December 19, 2011, Amendment No. 3
filed on December 27, 2011, Amendment No. 4 filed on January 5, 2012 and
Amendment No. 5 filed on January 5, 2012, 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 January 6, 2012, 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)(vii) and incorporated herein by reference.
ITEM 12. EXHIBITS
Exhibit Description
------- ------------
(a)(5)(vii) Press Release issued by Icahn Enterprises LP,dated January 6, 2012
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
ICAHN ENTERPRISES G.P. INC.
By: /S/ DOMINICK RAGONE
-------------------
Name: DOMINICK RAGONE
Title: CHIEF FINANCIAL OFFICER
BECKTON CORP.
By: /S/ EDWARD MATTNER
------------------
Name: EDWARD MATTNER
Title: AUTHORIZED SIGNATORY
/S/ CARL C. ICAHN
-----------------
Name: CARL C. ICAHN
Date: January 6, 2012
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 LP, dated December 9, 2011*
(a)(5)(iv) Press Release of Icahn Enterprises LP, dated December 27,2011*
(a)(5)(v) Press Release of Icahn Enterprises LP, dated January 4, 2012*
(a)(5)(vi) Press Release of Icahn Enterprises LP, dated January 5, 2012*
(a)(5)(vii) Press Release of Icahn Enterprises LP, dated January 6,
2012 (filed herewith)
(b) None.
(d) None.
(g) None.
(h) None.
________________________
* Previously Filed
EXHIBIT (a)(5)(vii)
FOR IMMEDIATE RELEASE
ICAHN ENTERPRISES LP
ICAHN SENDS OPEN LETTER TO COMMERCIAL METALS SHAREHOLDERS:
- IT'S BUSINESS AS USUAL AT COMMERCIAL METALS
- WHAT IS THE DOWNSIDE TO TENDERING?
CONTACT: SUSAN GORDON (212) 702-4309
NEW YORK, NEW YORK, JANUARY 6, 2012 - Icahn Enterprises Holdings LP
("Icahn") (a subsidiary of Icahn Enterprises LP (Nasdaq: IEP)) today released
the following letter to shareholders of Commercial Metals Company (the
"Company"), regarding the Icahn tender offer (as it may be extended from time to
time, the "Tender Offer") and proxy fight.
Dear Fellow Commercial Metals Shareholders:
Unfortunately, in today's conference call, the Company's message was clear
to us: Its business as usual at Commercial Metals. But, shareholders have a
unique opportunity right now to tender into our Tender Offer and send a mandate
to the Board to sell this Company NOW!
IT'S THE SAME BUSINESS AS USUAL AT COMMERCIAL METALS. TODAY'S CONFERENCE
CALL WAS ILLUSTRATIVE TO US THAT THE PROBLEMS AT COMMERCIAL METALS WILL
CONTINUE.
The Company continues to discuss their new strategies and how things are
going to get better, if only shareholders give them another chance. We believe
it is business as usual at Commercial Metals and that shareholders should
consider:
- Interestingly, the Company talks about having new management, but Joe
Alvarado, the CEO, has been a part of the executive management team
for almost two years - how is that new management? Did you listen to
today's conference call? We believe that there is nothing new or
changed about management's philosophy.
- The Company wants you to believe that they have a new strategy - but
all we see is more of the same, including risky international
adventures that have failed to succeed in the past and that we believe
will fail in the future. Amazingly, the Company has a continued focus
on non-core operations that we believe have been so destructive to
earnings in the past and that are distracting and damaging to
shareholder value. For example, the Company recently reported a $26.8
million reduction in operating income in their International Marketing
and Distribution division primarily due to a charge incurred on long
positions held on iron ore purchase contracts during the quarter. Do
shareholders believe that speculating on global iron ore prices is
truly a risk that a North American mini-mill should be taking? What
exactly has changed with this Company? Isn't there a major risk that
they will return to the same path of making ill-founded investments
that have been so devastating in the past?
WE ASK YOU -- WHAT IS THE DOWNSIDE TO TENDERING INTO THE TENDER OFFER?
In making your decision whether to tender, we believe you should consider:
- 40.1% of shares tendered (which which when added to the shares already
owned by us, represents a majority of Commercial Metals stock) will send a
clear message to the Board that it is incumbent upon them to conduct a
sales process to sell the Company NOW, and not take the risk that the past
will be repeated. Shareholders have a unique opportunity right now to send
a mandate to the Board - don't let this moment pass us by.
- The best way to find out if the Company is worth more than $15 per share
is to conduct a sales process, and we believe the only way to convince this
Board to conduct a sales process is for them to see at least 40.1% of
shares tendered.
- If the Company conducts a sales process, our Tender Offer provides a $15
floor and is essentially a free option to you.
- At any time prior to the expiration date of the Tender Offer (including as
it may be extended), you have the power and the choice to reject our Tender
Offer by withdrawing your shares from the Tender Offer allowing you to take
advantage of a higher offer if such an offer emerges.
- If the Board does not conduct a sales process and 40.1% of the shares are
tendered into the Tender Offer, we will continue our proxy fight and take
the Company to court in Delaware to fight for the ability to close the
Tender Offer. Again, at any time prior to the expiration date of the Tender
Offer (including as it may be extended), you have the power and the choice
to reject our Tender Offer by withdrawing your shares from the Tender
Offer.
WE URGE SHAREHOLDERS TO PROMPTLY TENDER YOUR SHARES INTO OUR TENDER OFFER
PRIOR TO THE CURRENT EXPIRATION DATE OF 12:00 MIDNIGHT ON JANUARY 10, 2012.
Tendering shareholders are reminded that if the conditions to the Offer,
including the poison pill condition and the Delaware 203 condition are satisfied
at the expiration date, then, if shareholders have not withdrawn their shares by
the expiration date, the bidder will purchase their tendered shares in
accordance with the terms of the Tender Offer.
ABOUT ICAHN ENTERPRISES L.P.
Icahn Enterprises L.P. (Nasdaq: 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
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO THE SOLICITATION OF PROXIES BY CARL C. ICAHN, JAMES UNGER, STEVE
MONGILLO, GEORGE HEBARD, HIGH RIVER LIMITED PARTNERSHIP, HOPPER INVESTMENTS LLC,
BARBERRY CORP., ICAHN PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS
MASTER FUND II L.P., ICAHN PARTNERS MASTER FUND III L.P., ICAHN ENTERPRISES G.P.
INC., ICAHN ENTERPRISES HOLDINGS L.P., IPH GP LLC, ICAHN CAPITAL L.P., ICAHN
ONSHORE LP, ICAHN OFFSHORE LP, BECKTON CORP. AND CERTAIN OF THEIR RESPECTIVE
AFFILIATES FROM THE STOCKHOLDERS OF COMMERCIAL METALS COMPANY FOR USE AT ITS
2012 ANNUAL MEETING BECAUSE THEY CONTAIN IMPORTANT INFORMATION, INCLUDING
INFORMATION RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION. ON OR
ABOUT DECEMBER 22, 2011, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WAS
MAILED TO STOCKHOLDERS OF COMMERCIAL METALS COMPANY AND WILL ALSO BE AVAILABLE
AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT
HTTP://WWW.SEC.GOV.
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 WERE 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.