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. 3)
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. 3 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 and Amendment No. 2 filed on December 19, 2011, 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 27, 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)(iv) and incorporated herein by reference.
ITEM 11. ADDITIONAL INFORMATION
(b) Other Material Information
Item 11 of the Schedule TO and the Offer to Purchase, to the extent
incorporated by reference therein, are hereby amended and supplemented as set
forth below:
- Section 3 "Withdrawal Rights" of the Offer to Purchase is amended and
supplemented by adding the following thereto:
"Unless theretofore accepted for payment by the Offeror as provided
herein, Shares tendered may also be withdrawn on or after February 7,
2012."
ITEM 12. EXHIBITS
Exhibit No. Description
----------- -----------
(a)(5)(iv) Press Release of Icahn Enterprises L.P., dated December 27,
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
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: December 27, 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*
(a)(5)(iv) Press Release of Icahn Enterprises L.P., dated December 27,
2011 (filed herewith)
(b) None.
(d) None.
(g) None.
(h) None.
______________________
* Previously Filed