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
COMMERCIAL METALS COMPANY
(NAME OF SUBJECT COMPANY (ISSUER))
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 (OFFEROR)
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:
Not applicable Not applicable
/ / 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: Not applicable Filing Party: Not applicable
Form or registration no.: Not applicable Date Filed: Not applicable
/X/ 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
/ / 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: / /
On December 6, 2011, Icahn Enterprises Holdings LP issued a press release
relating to Commercial Metals Company (the "Issuer"), a copy of which is filed
as Exhibit I hereto and is incorporated herein by reference.
THE ATTACHED PRESS RELEASE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT
CONSTITUTE AN OFFER TO PURCHASE NOR A SOLICITATION FOR ACCEPTANCE OF THE OFFER
DESCRIBED THEREIN. THE OFFER WILL BE MADE ONLY PURSUANT TO THE OFFER TO
PURCHASE, LETTER OF TRANSMITTAL AND RELATED MATERIALS THAT ICAHN ENTERPRISES
HOLDINGS L.P. AND CERTAIN OF ITS AFFILIATES (THE "ICAHN GROUP") WILL DISTRIBUTE
TO HOLDERS OF COMMON STOCK AFTER THESE DOCUMENTS ARE FILED WITH THE SEC AS
EXHIBITS TO ITS SCHEDULE TO. HOLDERS OF COMMON STOCK SHOULD READ CAREFULLY THE
OFFER TO PURCHASE, LETTER OF TRANSMITTAL AND RELATED MATERIALS BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION, INCLUDING THE VARIOUS TERMS OF, AND CONDITIONS
TO, THE OFFER. AFTER THE ICAHN GROUP FILES ITS SCHEDULE TO AND ASSOCIATED
EXHIBITS WITH THE SEC, HOLDERS OF COMMON STOCK MAY OBTAIN A FREE COPY OF THE
TENDER OFFER STATEMENT ON SCHEDULE TO, THE OFFER TO PURCHASE, LETTER OF
TRANSMITTAL AND OTHER DOCUMENTS THAT THE ICAHN GROUP WILL BE FILING WITH THE SEC
AT THE SEC'S WEB SITE AT WWW.SEC.GOV.
Exhibit I
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ICAHN ENTERPRISES LP
FOR IMMEDIATE RELEASE
ICAHN ENTERPRISES HOLDINGS LP TO MAKE TENDER OFFER FOR ALL OF THE OUTSTANDING
SHARES
OF COMMERCIAL METALS COMPANY AT $15 PER SHARE
CONTACT: SUSAN GORDON (212) 702-4309
NEW YORK, NEW YORK, DECEMBER 6, 2011 - Carl C. Icahn today announced that Icahn
Enterprises Holdings LP (a subsidiary of Icahn Enterprises LP (NYSE: IEP)),
intends to initiate a tender offer for all of the outstanding shares of common
stock of Commercial Metals Company (the "Company") at $15 per share.
Closing of the tender 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 tender offer
will include withdrawal rights so that a tendering shareholder can freely
withdraw any shares prior to the acceptance of such shares for payment under the
tender offer.
Mr. Icahn stated that: "It is disappointing that this Board and management team
rejected our all cash offer to buy Commercial Metals at $15 per share. I believe
it was incumbent on the Board, and that the Board's fiduciary duties required
it, to allow shareholders to decide whether they wished to sell their Company.
Our tender offer will be directed to shareholders and will require shareholder
action. After attempting to work with the Board, we are launching this tender
offer so that shareholders can decide for themselves what they wish to do with
their company."
We urge you to tender your shares. We have tried and failed to reason with the
Board and management, and now it is incumbent upon you to voice your view and
urge the Board to respond to shareholder demands. A strong tender offer response
will send an unmistakable message to the Board that they need to redeem the
poison pill and waive Section 203 so that the tender offer can close and
shareholders can be paid immediately. All tendered shares will have withdrawal
rights so that a tendering shareholder can freely withdraw any shares previously
tendered prior to the acceptance of such shares for payment under the tender
offer.
The tender offer price represents a premium of 31% over the stock's closing
price on November 25, 2011 (the trading day immediately prior to our previously
announced offer to acquire the Company), which was $11.45, and a premium of
72.6% from its low this year on October 3, 2011, which was $8.60. If a majority
of shareholders accept our tender offer (including shares already owned by the
offeror and its affiliates), we do not believe that even this Board will stand
in the way of allowing a majority of its shareholders from accepting this
premium if they wish to do so. However, if the Board, even after hearing from a
majority of shareholders, fails to lift the poison pill and waive Section 203,
we will leave the tender offer open and seek a court order compelling the Board
to redeem the poison pill and waive Section 203 so that the shareholders can
receive their money.
We hope that even this Board will not decide to waste time and money fighting
the will of shareholders in a courtroom battle. But, if they choose to do so,
please know that 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. Obviously, the greater the amount tendered, the
stronger our case will be.
Commercial Metals has consistently been at odds with good corporate governance
standards. Examples of the lack of good corporate governance that are blatantly
hostile to shareholders abound and include: (i) the retention of a staggered
board, (ii) the adoption of a poison pill without shareholder approval and at
the extremely low trigger of 10%, and (iii) the refusal by the Board to allow
shareholders to vote on whether our offer was sufficient.
In addition, the 2011 ISS Proxy Advisory Services Report for Commercial Metals
highlights numerous other areas of "High Concern". ISS also noted that
Commercial Metals sustained poor total shareholder return performance as
determined by ISS' standards. As a result of the Company's poor performance, it
is extremely important to send a clear message to the Board and management by
tendering your shares.
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.
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.
NOTICE TO INVESTORS
ICAHN ENTERPRISES HOLDINGS LP HAS NOT YET COMMENCED THE TENDER OFFER REFERRED TO
IN THIS PRESS RELEASE. UPON THE COMMENCEMENT OF ANY TENDER OFFER, ICAHN
ENTERPRISES HOLDINGS LP OR ONE OF ITS SUBSIDIARIES WILL FILE A TENDER OFFER
STATEMENT WITH THE SECURITIES AND EXCHANGE COMMISSION. THOSE DOCUMENTS WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE TENDER OFFER AND SHOULD BE READ BY
SECURITY HOLDERS. IF THE TENDER OFFER IS COMMENCED, SECURITY HOLDERS WILL BE
ABLE TO OBTAIN AT NO CHARGE (I) THE TENDER OFFER STATEMENT AND OTHER DOCUMENTS
WHEN THEY BECOME AVAILABLE ON THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE
AT HTTP://WWW.SEC.GOV, AND (II) THE OFFER TO PURCHASE AND ALL RELATED DOCUMENTS
FROM THE OFFERORS.
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 WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN
SUCH PROXY SOLICITATION. WHEN COMPLETED, A DEFINITIVE PROXY STATEMENT AND A
FORM OF PROXY WILL BE 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. INFORMATION RELATING TO THE PARTICIPANTS IN A
POTENTIAL PROXY SOLICITATION IS CONTAINED IN EXHIBIT 2 TO THE SCHEDULE 14A FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 19, 2011.