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EXHIBIT (a)(5)(B)
This announcement is neither an offer to purchase nor a solicitation of
an offer to sell Shares (as defined below). The Offer (as defined below) is made
only by the Offer to Purchase (as defined below), dated October 5, 2000, and the
related Letter of Transmittal (as defined below) and any amendments or
supplements thereto, and is not being made to (nor will tenders be accepted from
or on behalf of) holders of Shares in any jurisdiction in which the making of
the Offer or the acceptance thereof would not be in compliance with the laws of
such jurisdiction. In those jurisdictions where securities, blue sky or other
laws require the Offer to be made by a licensed broker or dealer, the Offer
shall be deemed to be made on behalf of Purchaser by Salomon Smith Barney Inc.,
the Dealer Manager (as defined below), or one or more registered brokers or
dealers licensed under the laws of such jurisdiction.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(Including the Related Rights to Purchase Preferred Stock)
of
Southdown, Inc.
at
$73.00 Net Per Share
by
CENA Acquisition Corp.,
an indirect subsidiary of
CEMEX, S.A. de C.V.
CENA Acquisition Corp., a Delaware corporation ("Purchaser") and an
indirect subsidiary of CEMEX, S.A. de C.V., a corporation organized under the
laws of the United Mexican States ("CEMEX"), is offering to purchase all
outstanding shares of common stock, par value $1.25 per share, including the
related rights to purchase preferred stock (the "Shares"), of Southdown, Inc., a
Louisiana corporation (the "Company"), at a price of $73.00 per Share, net to
the seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated October 5, 2000 (the "Offer
to Purchase"), and in the related Letter of Transmittal (the "Letter of
Transmittal," which, together with the Offer to Purchase and any amendments or
supplements thereto, collectively constitute the "Offer"). Tendering
shareholders who have Shares registered in their names and who tender directly
to Citibank, N.A. (the "Depositary") will not be charged brokerage fees or
commissions or, subject to Instruction 6 of the Letter of Transmittal, transfer
taxes on the purchase of Shares pursuant to the Offer. Shareholders who hold
their Shares through a broker or bank should consult such institution as to
whether it charges any service fees. Purchaser will pay all charges and expenses
of the Dealer Manager, the Depositary and MacKenzie Partners, Inc., which is
acting as the information agent (the "Information Agent"), incurred in
connection with the Offer. Following the consummation of the Offer, Purchaser
intends to effect the Merger (as defined below).
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:01 A.M., NEW YORK CITY
TIME, ON FRIDAY, NOVEMBER 3, 2000, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING
VALIDLY TENDERED (OTHER THAN BY GUARANTEED DELIVERY WHERE ACTUAL DELIVERY HAS
NOT TAKEN PLACE) AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER
A NUMBER OF SHARES THAT REPRESENTS AT LEAST TWO-THIRDS OF THE OUTSTANDING SHARES
ON A FULLY DILUTED BASIS (THE "MINIMUM CONDITION"), AND (2) ANY WAITING PERIOD
UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND
THE
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REGULATIONS THEREUNDER HAVING EXPIRED OR BEEN TERMINATED. THE OFFER IS ALSO
SUBJECT TO CERTAIN OTHER CONDITIONS CONTAINED IN THE OFFER TO PURCHASE. PLEASE
READ SECTIONS 1 AND 15 OF THE OFFER TO PURCHASE, WHICH SET FORTH IN FULL THE
CONDITIONS TO THE OFFER. PURCHASER'S OBLIGATION TO PURCHASE THE SHARES IS NOT
CONDITIONED ON ANY FINANCING ARRANGEMENTS OR SUBJECT TO ANY FINANCING CONDITION.
SEE SECTION 9 OF THE OFFER TO PURCHASE FOR A DESCRIPTION OF PARENT'S AND
PURCHASER'S FINANCING ARRANGEMENTS.
The Offer is being made pursuant to the Agreement and Plan of Merger,
dated as of September 28, 2000 (the "Merger Agreement"), among CEMEX, Purchaser
and the Company. The purpose of the Offer is for CEMEX, through Purchaser, to
acquire an at least two-thirds voting interest in the Company as the first step
in acquiring the entire equity interest in the Company. The Merger Agreement
provides that, among other things, Purchaser will commence the Offer and that as
promptly as practicable after the purchase of Shares pursuant to the Offer and
the satisfaction or waiver of the other conditions set forth in the Merger
Agreement and in accordance with relevant provisions of the General Corporation
Law of the State of Delaware and the Louisiana Business Corporation Law (the
"LBCL"), Purchaser will merge with and into the Company (the "Merger"), with the
Company continuing as the surviving corporation. At the effective time of the
Merger (the "Effective Time"), each Share issued and outstanding immediately
prior to the Effective Time (other than Shares owned by CEMEX, Purchaser, the
Company or any of their respective subsidiaries, all of which will be cancelled,
and other than Shares that are held by shareholders, if any, who properly
exercise their dissenters' rights under the LBCL) will automatically be
converted into the right to receive $73.00 in cash, without interest thereon.
Without limiting the foregoing, effective upon the acceptance for payment of
Shares pursuant to the Offer in accordance with the terms of the Merger
Agreement, the holders of such Shares will sell and assign to Purchaser all
right, title and interest in and to all of the Shares tendered (including, but
not limited to, such holder's right to any and all dividends and distributions
with a record date before, and a payment date after, the scheduled or extended
expiration date of the Offer).
THE COMPANY'S BOARD OF DIRECTORS, AT A SPECIAL MEETING HELD ON SEPTEMBER
28, 2000, UNANIMOUSLY (1) DETERMINED THAT THE MERGER AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE MERGER, ARE FAIR
TO THE COMPANY'S SHAREHOLDERS AND IN THE BEST INTERESTS OF THE COMPANY AND THE
COMPANY'S SHAREHOLDERS; (2) APPROVED AND ADOPTED THE MERGER AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE MERGER; AND (3)
RECOMMENDED THAT THE COMPANY'S SHAREHOLDERS (A) ACCEPT THE OFFER AND (B) IF
SHAREHOLDER APPROVAL IS NECESSARY, APPROVE THE MERGER AGREEMENT AND THE MERGER.
ACCORDINGLY, THE COMPANY'S BOARD OF DIRECTORS RECOMMENDS THAT YOU ACCEPT THE
OFFER AND TENDER ALL OF YOUR SHARES OF COMMON STOCK PURSUANT TO THE OFFER.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, the Shares validly tendered (other than by
guaranteed delivery where actual delivery has not taken place) and not properly
withdrawn as, if and when Purchaser gives oral or written notice to the
Depositary of Purchaser's acceptance of such Shares for payment pursuant to the
Offer. In all cases, on the terms and subject to the conditions of the Offer,
payment for Shares purchased pursuant to the Offer will be made by deposit of
the purchase price with the Depositary, which will act as agent for tendering
shareholders for the purpose of receiving payment from Purchaser and
transmitting such payment to tendering shareholders. Under no circumstances will
interest on the purchase price of Shares be paid by Purchaser because of any
delay in making any payment. Payment for Shares tendered and accepted for
payment pursuant to the Offer will be made only after the timely receipt by the
Depositary of (i) certificates for such Shares or timely confirmation of a book-
entry transfer of such Shares into the Depositary's account at the Book-Entry
Transfer Facility (as defined in the Offer to Purchase) pursuant to the
procedures set forth in the Offer to Purchase, (ii)
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a properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) with all required signature guarantees or, in the case of
book-entry transfer, an Agent's Message (as defined in the Offer the Purchase),
and (iii) any other documents required by the Letter of Transmittal.
Subject to the terms of the Merger Agreement, Purchaser may, without the
consent of the Company, extend the Expiration Date of the Offer:
(i) if, at the Expiration Date of the Offer, any of the
conditions to the Offer will not have been satisfied or, to the extent
permitted, waived, until such conditions are satisfied or, to the extent
permitted by the Merger Agreement, waived;
(ii) for any period required by any rule, regulation,
interpretation or position of the U.S. Securities and Exchange Commission or the
staff thereof applicable to the Offer or any period required by applicable law;
(iii) for up to 10 additional business days in increments of not
more than two business days each (but in no event beyond the Termination Date
(as defined in the Offer to Purchase)), if, immediately prior to the Expiration
Date, the Shares tendered and not withdrawn pursuant to the Offer constitute
more than 80% and less than 90% of the outstanding shares of common stock of the
Company, notwithstanding that all conditions to the Offer are satisfied as of
the Expiration Date; or
(iv) as contemplated in paragraph (c)(i) of "Termination" in
Section 11 of the Offer to Purchase;
provided, that, in the case of any extension under clause (iii), CEMEX and
Purchaser may not thereafter assert the failure of any of the conditions
provided for in clauses (a)(iii), (a)(iv), (a)(v), and (b)(ii) of Section 15 of
the Offer to Purchase, or for purposes of clause (b)(iii) or (c) of Section 15
of the Offer to Purchase, a Company Material Adverse Effect (as defined in the
Offer to Purchase) or a material breach of a representation or warranty, in each
such case, by reasons of an event other than a breach of a covenant by the
Company occurring after the initial extension under clause (iii). As agreed in
the Merger Agreement, if any condition to the Offer is not satisfied or waived
on the Expiration Date, subject to the terms of the Merger Agreement, Purchaser
must extend the Offer, if such condition or conditions could reasonably be
expected to be satisfied, until such conditions are satisfied or waived. See
Section 1 and "Termination" of Section 11 of the Offer to Purchase for more
details on our ability to extend the Offer. The term "Expiration Date" means
12:01 A.M., New York City time, on Friday, November 3, 2000, unless Purchaser
shall have extended the period of time for which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date at which
the Offer, as so extended by Purchaser, shall expire.
Purchaser has the right to include a "subsequent offering period" in the
event that the Minimum Condition has been satisfied but the Shares tendered and
not withdrawn pursuant to the Offer constitute less than 90% of the outstanding
common stock of the Company as of the Expiration Date. During a subsequent
offering period, shareholders may tender, but not withdraw, their Shares and
receive the Offer consideration. Under federal securities laws, Purchaser may
not extend the Offer during the subsequent offering period for less than three
business days or more than 20 business days (for all such extensions).
Any extension of the period during which the Offer is open will be
followed, as promptly as practicable, by public announcement thereof, such
announcement to be issued not later than 9:00 a.m., New York City time, on the
same day as the previously scheduled Expiration Date. During any such extension,
all Shares previously tendered and not properly withdrawn will remain subject to
the Offer, subject to the rights of a tendering shareholder to withdraw such
shareholder's Shares (except during the subsequent offering period.)
Shares tendered pursuant to the Offer may be withdrawn at any time prior
to the Expiration Date and, unless theretofore accepted for payment by Purchaser
pursuant to the Offer, may also be withdrawn at any time after December 3, 2000;
however, Shares
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tendered in a subsequent offering period may not be withdrawn. Except as
otherwise provided in Section 4 of the Offer to Purchase, tenders of Shares made
pursuant to the Offer are irrevocable. For a withdrawal to be effective, a
written, telegraphic or facsimile transmission notice of withdrawal must be
timely received by the Depositary at one of its addresses set forth on the back
cover of the Offer to Purchase. Any notice of withdrawal must specify the name,
address and taxpayer identification number of the person who tendered the Shares
to be withdrawn, the number of Shares to be withdrawn and the name of the
registered holder of such shares, if different from that of the person who
tendered the Shares. If certificates for Shares to be withdrawn have been
delivered or otherwise identified to the Depositary, then, prior to the physical
release of such certificates, the serial numbers shown on such certificates must
be submitted to the Depositary and, unless such Shares have been tendered for
the account of an Eligible Institution (as defined in the Offer to Purchase),
the signature on the notice of withdrawal must be guaranteed by an Eligible
Institution. If Shares have been tendered pursuant to the procedures for book-
entry transfer as set forth in Section 3 of the Offer to Purchase, any notice of
withdrawal must also specify the name and number of the account at the Book-
Entry Transfer Facility to be credited with the withdrawn Shares. All questions
as to the form and validity (including time of receipt) of notices of withdrawal
will be determined by Purchaser, in its sole discretion, and its determination
will be final and binding on all parties.
The exchange of Shares for cash pursuant to the Offer or the Merger will
be a taxable transaction for United States federal income tax purposes and
possibly for state, local and foreign income tax purposes as well. In general, a
shareholder who sells Shares pursuant to the Offer or receives cash in exchange
for Shares pursuant to the Merger will recognize gain or loss for United States
federal income tax purposes equal to the difference, if any, between the amount
of cash received and the shareholder's adjusted tax basis in the Shares sold
pursuant to the Offer or exchanged for cash pursuant to the Merger. Provided
that such Shares constitute capital assets in the hands of the shareholder, such
gain or loss will be capital gain or loss, and will be long-term capital gain or
loss if the holder has held the Shares for more than one year at the time of
sale. The maximum United States federal income tax rate applicable to individual
taxpayers on long-term capital gains is generally 20%, and the deductibility of
capital losses is subject to limitations. All shareholders should consult with
their own tax advisors as to the particular tax consequences of the Offer and
the Merger to them, including the applicability and effect of the alternative
minimum tax and any state, local or foreign income and other tax laws and of
changes in such tax laws. For a more complete description of certain United
States federal income tax consequences of the Offer and the Merger, see Section
5 of the Offer to Purchase.
The information required to be disclosed by Paragraph (d)(1) of Rule
14d-6 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended, is contained in the Offer to Purchase and is incorporated
herein by reference.
The Company has provided Purchaser with its list of shareholders and
security position listings for the purpose of disseminating the Offer to holders
of Shares. The Offer to Purchase, the related Letter of Transmittal and other
related materials are being mailed to record holders of Shares and will be
furnished to brokers, dealers, commercial banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on the shareholder
list or, if applicable, who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to beneficial owners of
Shares.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
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Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth below. Requests for copies of the Offer to Purchase, the Letter of
Transmittal and all other tender offer materials may be directed to the
Information Agent as set forth below and will be furnished promptly at
Purchaser's expense. Purchaser will not pay any fees or commissions to any
broker or dealer or any other person (other than the Dealer Manager) for
soliciting tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
MacKenzie Partners, Inc
156 Fifth Avenue
New York, New York 10010
Call Collect: (212) 929-5500
E-mail: [email protected]
or
Call Toll-Free (800) 322-2885
The Dealer Manager for the Offer is:
Salomon Smith Barney
388 Greenwich Street
New York, New York 10013
Call Toll Free: (877) 755-4456
October 5, 2000
