SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
SCHEDULE TO
(Amendment No. 2)
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
_______________
REFCO PUBLIC COMMODITY POOL, L.P.
(Name of Subject Company (Issuer))
RCP TenderCo LLC
CONTRARIAN FUNDS, L.L.C.
CONTRARIAN CAPITAL MANAGEMENT, L.L.C.
JON R. BAUER
(Names of Filing Persons (Offeror))
_______________
CLASS 1 UNITS (INCLUDING CLASS 1-O) AND CLASS 2 UNITS OF LIMITED PARTNERSHIP
(Title of Class of Securities)
_______________
None or unknown
(CUSIP Number of Class of Securities)
_______________
Jon R. Bauer RCP TenderCo LLC c/o Contrarian Capital Management, L.L.C. 411 West Putnam Avenue, Suite 425 Greenwich, CT 06830 (203) 862-8200 | Copy To: Abbe L. Dienstag, Esq. Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 (212) 715-9280 |
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Filing Persons)
_______________
CALCULATION OF FILING FEE
Transaction Valuation* | Amount of Filing Fee** | ||
$7,200,000 | $513.36 |
* | For purposes of calculating the filing fee only. This amount is based on the number of outstanding Units reported in the Subject Company’s Form 10-Q filed with the Commission on December 1, 2005 for the quarter ended September 30, 2005. |
** | The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, by multiplying the transaction valuation by 0.0000713. |
x | Check 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: $513.36 | Filing Party: RCP TenderCo LLC Contrarian Funds, L.L.C. Contrarian Capital Management, L.L.C. Jon R. Bauer | |
Form or Registration No.: Schedule TO | Date Filed: June 21, 2010 |
o 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: |
þ | third-party tender offer subject to Rule 14d-1. |
o | issuer tender offer subject to Rule 13e-4. |
o | going-private transaction subject to Rule 13e-3. |
o | 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: o |
This Amendment No. 2 (this “Amendment”) amends the Tender Offer Statement on Schedule TO filed by RCP TenderCo LLC (“Purchaser”) with the Securities and Exchange Commission on June 21, 2010, as amended (the “Original Schedule TO”). The Original Schedule TO, as amended by this Amendment, relates to the offer by Purchaser to purchase for cash all outstanding Class 1 units (including Class 1-O units) and Class 2 units (together, the “Units”), of Refco Public Commodity Pool, L.P., a Delaware limited partnership (the “Partnership”), at a purchase price of $120.00 per Unit, net to the seller in cash (subject to applicable withholding taxes), without interest, upon the terms and subject to the conditions set forth in Purchaser’s Amended Offer to Purchase, dated July 2, 2010, and the related Agreement to Transfer and Letter of Transmittal (the “Letter of Transmittal”). The Amended Offer to Purchase and the Letter of Transmittal, as each may be amended or supplemented from time to time, together constitute the “Offer”.
Except as set forth below, the terms of the Offer and the information contained in the Amended Offer to Purchase remain in effect. All capitalized terms used in this Amendment without definition have the meanings ascribed to them in the Original Schedule TO or the Amended Offer to Purchase. This Amendment should be read together with the Original Schedule TO, the Amended Offer to Purchase and the related Letter of Transmittal. The items of the Original Schedule TO set forth below are hereby amended and supplemented as follows:
Item 4. Terms of the Transaction.
The scheduled expiration time of the Offer has been extended to 5:00 P.M., New York City time, on Wednesday, August 11, 2010, from the previous expiration date of Tuesday, July 20, 2010.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
On July 19, 2010, Contrarian Funds entered into an agreement with the Partnership whereby Contrarian Funds agreed to pay the costs associated with printing and mailing to Unit Holders the Liquidating Trustee's letter that was filed as an exhibit to Amendment No. 1 to the Partnership’s Schedule 14D-9. The Partnership agreed to reimburse Contrarian Funds for these costs, which total approximately $5,000, at such time as the Partnership receives a distribution from SPhinX Managed Futures Fund SPC.
Item 11. Additional Information.
Affiliates of Purchaser may from time to time bid for and purchase, directly or indirectly, equity interests in or claims against members of the SPhinX Group of Companies. The purchase price for these equity interests may be different, and could be higher, than the price that Purchaser is offering to pay in the Offer. The purchase price in each case will depend on the assessments by affiliates of Purchaser of the nature of the claims or the claims represented by the equity interests, the place in the hierarchy of the SPhinX Group of Companies to which the claims pertain, competing claims at that level, the presence or absence of counterclaims, the costs to purchase the claims or equity interests, the costs of realizing on the claims and the overall likelihood of recovery. Some of these assessments are necessarily subjective, so that the prices offered or paid for other claims or equity interests may not be directly comparable to the purchase price in the Offer.
Item 12. Exhibits.
(a)(1)(A) | Amended Offer to Purchase, dated July 2, 2010.* |
(a)(1)(B) | Form of Agreement to Transfer and Letter of Transmittal.** |
(a)(1)(C) | Form of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.** |
(a)(1)(D) | Form of Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Nominees.** |
(a)(1)(E) | Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.** |
(a)(1)(F) | Reimbursement Agreement, dated July 19, 2010. |
(a)(1)(G) | Press Release, dated July 20, 2010. |
(a)(5)(A) | Form of Summary Advertisement, as published in Investor’s Business Daily on June 21, 2010.** |
(b) – (h) | Not applicable. |
* Previously filed as an Exhibit to Amendment No. 1 to Purchaser’s Schedule TO on July 2, 2010
** Previously filed as Exhibits to Purchaser’s Schedule TO on June 21, 2010
Item 13. Information Required by Schedule 13E-3.
Not applicable.
SIGNATURE
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.
Date: July 20, 2010
RCP TENDERCO LLC | |
CONTRARIAN FUNDS, L.L.C. | |
CONTRARIAN CAPITAL MANAGEMENT, L.L.C. | |
By: | /s/ Jon R. Bauer |
Name: Jon R. Bauer | |
Title: Managing Member of Contrarian Capital Management, L.L.C. (the manager of Contrarian Funds, L.L.C., the sole member and manager of RCP TenderCo LLC) | |
By: | /s/ Jon R. Bauer |
Jon R. Bauer | |
INDEX TO EXHIBITS
Exhibit Number | Exhibit |
(a)(1)(A) | Amended Offer to Purchase, dated July 2, 2010* |
(a)(1)(B) | Agreement to Transfer and Letter of Transmittal** |
(a)(1)(C) | Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees** |
(a)(1)(D) | Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Nominees** |
(a)(1)(E) | Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9** |
(a)(1)(F) | Reimbursement Agreement, dated July 19, 2010 |
(a)(1)(G) | Press Release, dated July 20, 2010 |
(a)(5)(A) | Form of Summary Advertisement, as published in Investor’s Business Daily on June 21, 2010** |
(b) – (h) | Not applicable |
* Previously filed as an Exhibit to Amendment No. 1 to Purchaser’s Schedule TO on July 2, 2010
** Previously filed as Exhibits to Purchaser’s Schedule TO on June 21, 2010