Exhibit 4.19
THE SCHEME OF ARRANGEMENT
IN THE HIGH COURT OF JUSTICE No. 6270 of 2004
CHANCERY DIVISION
COMPANIES COURT
IN THE MATTER OF
RMC GROUP p.l.c.
AND IN THE MATTER OF
THE COMPANIES ACT 1985
______________________________
SCHEME OF ARRANGEMENT
(under section 425 of the Companies Act 1985)
BETWEEN
RMC GROUP p.l.c.
AND
THE HOLDERS OF SCHEME SHARES
(as hereinafter defined)
______________________________
PRELIMINARY
(A) In this Scheme, unless inconsistent with the subject or context, the
following expressions bear the following meanings:
"Act" the Companies Act 1985 (as amended)
"Business Day" any day, other than a
Saturday, Sunday or public
holiday or bank holiday, on
which banks are open for
business in the City of London
"Cancellation Shareholders" holders of Cancellation Shares
"Cancellation Shares" Scheme Shares, other than
the Transfer Shares but including
Transfer Shares treated as
Cancellation Shares pursuant to
clause 3.2 of this Scheme
"CEMEX" CEMEX, S.A. de C.V.
"CEMEX Group" CEMEX and its subsidiary
undertakings
"CEMEX UK" CEMEX UK Limited, incorporated
in England and Wales with
registered number 05196131
"certificated" or
"in certificated form" a share which is not in
uncertificated form (that is, not
in CREST)
"Circular" the document dated 25 October 2004
sent by the Company to the holders
of its Ordinary Shares of which
this Scheme forms part
"Company" or "RMC" RMC Group p.l.c., incorporated in
England and Wales with registered
number 00249776
"Court" the High Court of Justice in
England and Wales
"Court Meeting" the meeting of the holders of
Ordinary Shares (other than
Ordinary Shares beneficially owned
by a member of the CEMEX Group)
convened by order of the Court
pursuant to section 425 of the
Companies Act 1985 to consider
and, if thought fit, approve this
Scheme, including any adjournment
thereof
"Court Order" the order of the Court sanctioning
the Scheme under section 425 of
the Act and confirming the
reduction of share capital under
section 137 of the Act provided
for by this Scheme
"CREST" the system for the paperless
settlement of trades in securities
and the holding of uncertificated
securities operated by CRESTCo
Limited in accordance with the
Uncertificated Securities
Regulations 2001 (SI 2001 No.
3755)
"CRESTCo" CRESTCo. Limited
"Effective Date" the date on which this Scheme
becomes effective in accordance
with clause 7 of this Scheme
"holder" includes any person entitled by
transmission
"Interim Dividend" the dividend of 9.4 pence per
Ordinary Share announced on 2
September 2004 in respect of the
six-month period ended 30 June
2004 payable on 1 December 2004 to
all holders of Ordinary Shares on
the register at the close of
business on 5 November 2004
"Loan Notes" the floating rate guaranteed
unsecured loan notes of CEMEX UK
to be issued pursuant to the Loan
Note Alternative, particulars of
which are summarised in Part VI of
the Circular
"Loan Note Alternative" the alternative consideration for
which a holder of Scheme Shares
(other than a Restricted Overseas
Person) may elect under clause 3
of this Scheme
"Loan Note Form of Election" the green form of election
relating to the Loan Note
Alternative and accompanying the
Circular
"members" members of the Company on the
register of members at any
relevant date
"Ordinary Shares" ordinary shares of 25 pence each
in the capital of the Company
"Restricted Overseas Person" a person (including an individual,
partnership, unincorporated
syndicate or organisation,
incorporated association, trust,
trustee, executor, administrator
or other legal representative) in
or resident in the United States,
Canada, Australia, Japan, Malaysia
or New Zealand or a U.S. Person
(as defined in Regulation S under
the U.S. Securities Act of 1933,
as amended)
"Scheme" this scheme of arrangement in its
present form or with or subject to
any modification, addition or
condition approved or imposed by
the Court
"Scheme Record Time" 6:00 p.m. on the Business Day
immediately preceding the
Effective Date
"Scheme Shares" (i) the Ordinary Shares in issue
at the date of this Scheme;
(ii) any Ordinary Shares issued
after the date of this
Scheme and before the
Voting Record Time; and
(iii) any Ordinary Shares issued
at or after the Voting
Record Time and before 6:00
p.m. on the day before the
date on which the Court
Order is made in respect of
which the original or any
subsequent holders thereof
are, or shall have agreed
in writing to be, bound by
this Scheme, in each case
other than any Ordinary
Shares beneficially owned
by the CEMEX Group
"Transfer Shares" Scheme Shares in respect of which
valid elections for the Loan Note
Alternative shall have been made
in accordance with this Scheme
"uncertificated" or
"in uncertificated form" recorded on the relevant register
as being held in uncertificated
form in CREST and title to which
may be transferred by means of
CREST
"U.S." or "United States" the United States of America, its
territories and possessions, any
State of the United States, and
the District of Columbia
"U.S. Securities Act" the United States Securities Act
of 1933 (as amended)
"Voting Record Time" 6:00 p.m. on the day which is two
days before the date of the Court
Meeting or, if the Court Meeting
is adjourned, 6:00 p.m. on the
second day before the day of such
adjourned meeting
and references to clauses are to clauses of this Scheme.
(B) The authorised share capital of the Company at the date of this Scheme
is (pound)100,000,000 divided into 400,000,000 Ordinary Shares, of
which, as at the close of business on 21 October 2004, 266,447,314
have been issued and are credited as fully paid and the remainder are
unissued.
(C) At the date of this Scheme the CEMEX Group beneficially owns
50,000,000 Ordinary Shares.
(D) CEMEX UK has agreed to appear by counsel on the hearing of the
petition to sanction this Scheme and to submit to be bound by and to
undertake to the Court to be bound by the Scheme and to execute and do
and procure to be executed and done all such documents, acts and
things as may be necessary or desirable to be executed or done by it
for the purpose of giving effect to this Scheme.
(E) CEMEX has agreed to procure that any holder (other than CEMEX UK) of
Ordinary Shares beneficially owned by a member of the CEMEX Group will
appear by counsel on the hearing of the petition to sanction this
Scheme and will undertake in respect of such Ordinary Shares to be
bound by this Scheme.
THE SCHEME
1 Cancellation of the Cancellation Shares
1.1 The capital of the Company shall be reduced by cancelling and
extinguishing the Cancellation Shares.
1.2 Subject to and forthwith upon the said reduction of capital taking
effect:
1.2.1 the authorised share capital of the Company shall be
increased to its former amount by the creation of such number
of Ordinary Shares as is equal to the number of Cancellation
Shares; and
1.2.2 the reserve arising in the books of account of the Company as
a result of the said reduction of capital shall be
capitalised and applied in paying up in full at par the
Ordinary Shares created pursuant to clause 1.2.1 of this
Scheme, which shall be allotted and issued credited as fully
paid to CEMEX UK and/or its nominees.
2 Consideration for cancellation of the Cancellation Shares
In consideration for the cancellation of the Cancellation Shares and the
allotment and issue of the Ordinary Shares as provided in clause 1 of this
Scheme, CEMEX UK shall (subject as hereinafter provided) pay to or for the
account of the holders of Cancellation Shares (as appearing in the register of
members of the Company at the Scheme Record Time):
for every Cancellation Share 855 pence in cash
3 Loan Note Alternative
3.1 If any holder of Scheme Shares shall validly so elect in respect of
all or some of his Scheme Shares, CEMEX UK shall, in consideration for
the transfer of the Transfer Shares (and subject as hereinafter
provided), allot and issue to such holder (as appearing in the
register of members at the Scheme Record Time) Loan Notes on the
following basis:
for every Transfer Share 855 pence nominal value of Loan Notes
provided that the Loan Note Alternative shall not be available to
Restricted Overseas Persons, or persons whom CEMEX UK believes to be
Restricted Overseas Persons.
3.2 If valid elections for the Loan Note Alternative would result in the
issue of less than (pound)10,000,000 nominal value of Loan Notes in
aggregate, CEMEX UK will not issue any Loan Notes. If no Loan Notes
are issued pursuant to this clause 3.2, any relevant Scheme Shares
whose holders have elected for the Loan Note Alternative shall be
treated as Cancellation Shares for the purposes of this Scheme, such
holders shall then receive the cash to which they would otherwise be
entitled under this Scheme, and clause 4 of this Scheme shall not
apply.
3.3 The Loan Notes shall be issued credited as fully paid and in amounts
and integral multiples of (pound)1 nominal. No fraction of a Loan Note
shall be issued to any holder of Scheme Shares and the cash
entitlement relating thereto shall be disregarded and not paid to such
holder.
3.4 The election referred to in clause 3.1 of this Scheme shall be made by
the completion and delivery of a Loan Note Form of Election in
accordance with the instructions thereon.
3.5 CEMEX UK shall be entitled, in determining whether a Loan Note Form of
Election is valid, or not, to exercise the powers and discretions
provided for in Part VII of the Circular.
3.6 Upon execution and delivery by a holder of Scheme Shares of a valid
Loan Note Form of Election such holder shall be bound by the terms and
provisions contained in the Loan Note Form of Election and in Part VII
of the Circular and in particular (but without prejudice to the
generality of the foregoing):
(i) shall be responsible for the representations and warranties
contained in Notes 2 and 4 on page 4 of the Loan Note Form of
Election and those set out in section 14 of Part VI of the
Circular; and
(ii) shall be bound by the provisions set out in section 14 of
Part VI and section 2 of Part VII of the Circular.
3.7 The Loan Notes will be constituted by an instrument substantially in
the form already prepared and initialled for the purpose of
identification by Linklaters solicitors, with such modifications or
additions, if any, as may prior to the execution thereof be agreed
between RMC and CEMEX UK.
3.8 The provisions of this clause 3 shall be subject to any prohibition or
condition imposed by law. Without prejudice to the generality of the
foregoing, if, in respect of any holder of Scheme Shares with a
registered address outside the United Kingdom or who is a citizen,
resident or national of a jurisdiction outside the United Kingdom,
CEMEX UK is advised that the issue of Loan Notes pursuant to this
clause 3 would or may infringe the laws of any such jurisdiction, or
would or may require CEMEX UK to observe any governmental or other
consent to any registration, filing or other formality with which
CEMEX UK is unable to comply or which CEMEX UK regards as unduly
onerous, CEMEX UK may determine that the Loan Note Alternative shall
not be available to such holder so that such holder shall be deemed to
be a Restricted Overseas Person and any Loan Note Form of Election
completed and delivered by such holder shall be invalid.
3.9
3.9.1 If at the Scheme Record Time the number of Scheme Shares held
by a person who has elected to receive Loan Notes is equal to
or exceeds the number of Scheme Shares in respect of which an
election for Loan Notes made by him would otherwise be
effective, the validity of his election shall not be affected
by any alteration in his holding of Scheme Shares between the
date on which he made such election and the Scheme Record
Time and any reductions in his holding shall, if applicable,
be treated as disposals of those Scheme Shares in respect of
which he did not elect to receive Loan Notes.
3.9.2 If at the Scheme Record Time the number of Scheme Shares held
by a person who has so elected to receive Loan Notes is less
than the number of Scheme Shares in respect of which the
holder has elected to receive such Loan Notes, he shall be
treated as having validly elected to receive Loan Notes in
respect of all of his Scheme Shares.
4 Acquisition of Transfer Shares
Forthwith and contingently upon the cancellation of the Cancellation Shares,
the allotment of the Ordinary Shares referred to in clause 1.2.2 of this Scheme
and the registration of such Ordinary Shares in the name of CEMEX UK but
subject to clause 3.2 of this Scheme, CEMEX UK shall acquire the Transfer
Shares fully paid, with full title guarantee, free from all liens, equities,
charges, encumbrances and other interests and together with all rights at the
date of this Scheme or thereafter attached thereto including the right to
receive and retain all dividends and other distributions declared, paid or made
thereon, on or after 27 September 2004, other than the Interim Dividend.
For such purposes, the Transfer Shares shall be transferred to CEMEX UK and/or
its nominees and to give effect to such transfer any person may be appointed by
CEMEX UK to execute as transferor an instrument or instruction of transfer of
any Transfer Shares and every instrument or instruction of transfer so executed
shall be as effective as if it had been executed by the holder or holders of
the Transfer Shares thereby transferred.
5 Payments
5.1 As soon as practicable after the Effective Date and in any event not
more than 14 days thereafter, CEMEX UK shall:
5.1.1 in the case of Cancellation Shares which at the Scheme Record
Time were in certificated form, despatch or procure the
despatch to the persons entitled thereto, or as they may
direct, in accordance with the provisions of clause 5.2,
cheques and/or warrants for the sums payable to them
respectively in accordance with clause 2 of this Scheme or,
in the case of Cancellation Shares which at the Scheme Record
Time are in uncertificated form, ensure that an assured
payment obligation in respect of the sums payable to the
persons entitled thereto is created in accordance with the
CREST assured payment arrangements PROVIDED that CEMEX UK
reserves the right to make payment of the said consideration
by cheque and/or warrant as aforesaid if, for any reason, it
wishes to do so; and
5.1.2 against the execution of any instrument or instruction of
transfer referred to in clause 4 of this Scheme, in the case
of Transfer Shares, issue the Loan Notes which it is required
to issue pursuant to clause 3 of this Scheme and deliver
certificates therefor to the persons entitled thereto, or as
they may direct.
5.2 All deliveries of cheques, warrants and certificates required
to be made pursuant to this Scheme shall be effected by
posting the same by first class post in pre-paid envelopes
addressed to the persons entitled thereto at their respective
addresses as appearing in the register of members of the
Company at the Scheme Record Time (or, in the case of joint
holders, at the address of that one of the joint holders
whose name stands first in the said register in respect of
such joint holding at such time) or in accordance with any
special instructions regarding communications, and neither
CEMEX UK nor the Company shall be responsible for any loss or
delay in the transmission of cheques, warrants or
certificates sent in accordance with this clause 5.2 which
shall be sent at the risk of the person entitled thereto.
5.3 All cheques and warrants shall be made payable to the person
to whom in accordance with the foregoing provisions or this
clause the envelope containing the same is addressed and the
encashment of any such cheque or warrant shall be a complete
discharge to CEMEX UK for the moneys represented thereby.
5.4 The provisions of this clause 5 shall be subject to any
prohibition or condition imposed by law.
6 Certificates and Cancellations
With effect from and including the Effective Date:
6.1 all certificates representing Scheme Shares shall cease to have effect
as documents of title to the Scheme Shares comprised therein and every
holder of Scheme Shares shall be bound at the request of the Company
to deliver up the same to the Company or as it may direct; and
6.2 CRESTCo shall be instructed to cancel the entitlements to Scheme
Shares of holders of Scheme Shares in uncertificated form.
7 Dividend Mandates
All mandates and other instructions to the Company in force at the Scheme
Record Time relating to Transfer Shares shall, unless and until revoked or
amended, be deemed as from the Effective Date to be valid and effective
mandates in relation to the payment of interest and capital and instructions to
CEMEX UK in relation to the Loan Notes issued in respect thereof.
8 The Effective Date
8.1 This Scheme shall become effective in accordance with its terms as
soon as an office copy of the Court Order sanctioning this Scheme
under section 425 of the Companies Act 1985 and confirming under
section 137 of the said Act the reduction of the capital provided for
by this Scheme shall have been delivered to the Registrar of Companies
for registration and, in the case of the confirmation of the reduction
of capital, shall have been registered by him.
8.2 Unless this Scheme shall become effective on or before 26 March 2005
or such later date, if any, as CEMEX UK and the Company may agree and
the Court may allow, this Scheme shall never become effective.
9 Modification
CEMEX UK and the Company may jointly consent on behalf of all concerned to any
modification of, or addition to, this Scheme or to any condition which the
Court may approve or impose.
Dated 25 October 2004