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. 8)
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:[X]
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. 8 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, Amendment
No. 5 filed on January 5, 2012, Amendment No. 6 filed on January 6, 2012 and
Amendment No. 7 filed on January 9, 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 THROUGH 9 AND 11.
On January 11, 2012, the Offeror announced that the Offer had expired. The
press release regarding this announcement is attached hereto as Exhibit
(a)(5)(viii) and is incorporated herein by reference. The Offer expired at 12:00
midnight, New York City time, on Tuesday, January 10, 2012. No shares were
purchased by the Offeror in the Offer, and all shares previously tendered and
not withdrawn will be promptly returned.
ITEM 12.
Item 12 of the Schedule TO is hereby amended and supplemented as follows:
EXHIBIT NO. DESCRIPTION
---------- -----------
(a)(5)(viii) Press Release issued by Icahn Enterprises LP, dated
January 11,2012
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 11, 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*
(a)(5)(viii) Press Release of Icahn Enterprises LP, dated January 11, 2012
(b) None.
(d) None.
(g) None.
(h) None.
___________________
* Previously Filed
Exhibit (a)(5)(viii)
FOR IMMEDIATE RELEASE
ICAHN'S TENDER FOR COMMERCIAL METALS
COMPANY EXPIRES AND NOMINEES
IN PROXY CONTEST WITHDRAWN
CONTACT: SUSAN GORDON (212) 702-4309
NEW YORK, NEW YORK, JANUARY 11, 2012 - Icahn Enterprises Holdings LP
("Icahn") (a subsidiary of Icahn Enterprises LP (Nasdaq: IEP)) today announced
that the tender offer for all outstanding shares of common stock of Commercial
Metals Company (NYSE: CMC) (the "Company") for $15.00 per share in cash expired
at midnight, Tuesday, January 10, 2012. Approximately 23% of the shares were
tendered. No shares were purchased, and all shares previously tendered and not
withdrawn will be promptly returned.
Mr. Icahn stated: "We did not receive 40.1% of the shares, and therefore,
as previously disclosed, we will discontinue our proxy fight."
Mr. Icahn further stated: "Since we commenced our proxy fight and launched
our tender offer, the Company has made a number of promises to shareholders,
which shareholders appear to believe will be beneficial to the stock. We respect
the views of the shareholders and hopefully their decision not to tender will
prove to be the right one."
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.