Unassociated Document
SECURITIES
AND EXCHANGE COMMISSION
SCHEDULE
13D
under
the
Securities Exchange Act of 1934
COLES
GROUP
LIMITED
(Name
of Issuer)
Ordinary
Shares
(Title
of Class of
Securities)
Q26203390
(CUSIP
Number)
Macquarie
Bank Limited
Level
7,
No. 1 Martin Place
Sydney,
New
South Wales 2000
Australia
Telephone:
61-2-8232-9799
(Name,
Address and
Telephone Number of Persons
Authorized
to
Receive Notices and Communications)
Copy
to:
Richard
Hall, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825
Eighth
Avenue
New
York,
New York 10019
Telephone:
(212)
474-1000
April
23,
2007
(Date
of Event
which Requires Filing of this Statement)
If
the filing
person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box [_].
NOTE:
Schedules
filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See Rule 240.13d-7 for other parties to
whom copies are to be sent.
*
The remainder of
this cover page shall be filled out for a reporting person’s initial filing on
this form with respect to the subject class of securities, and for any
subsequent amendment containing information which would alter disclosures
provided in a prior cover page.
The
information
required on the remainder of this cover page shall not be deemed to be “filed”
for the purpose of Section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the
Notes).
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1
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Names
of
Reporting Persons
I.R.S.
Identification Nos. of Above Persons (entities only)
Macquarie
Bank Limited
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2
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Check
the
Appropriate Box if a Member of a Group (See Instructions)
(a)
[
X ]
(b)
[ ]
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|
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3
|
SEC
Use
Only
|
|
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4
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Source
of
Funds (See Instructions) OO
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|
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5
|
Check
if
Disclosure of Legal Proceedings is Required
Pursuant
to
Items 2(d) or 2(e)
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□
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6
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Citizenship
or Place of Organization
Australia
|
|
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Number
of
Shares
Beneficially
Owned by
Each
Reporting Person
with
|
7
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Sole
Voting
Power
8,061,483
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8
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Shared
Voting
Power
144,581,288
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9
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Sole
Dispositive Power
8,061,483
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10
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Shared
Dispositive Power
NONE
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11
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Aggregate
Amount Beneficially Owned by Each Reporting Person
152,642,771
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|
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12
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Check if
the Aggregate Amount in Row (11) Excludes
Certain
Shares (See Instructions)
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□
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13
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Percent
of
Class Represented by Amount in Row (11)
12.74%
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14
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Type
of
Reporting Person (See Instructions)
CO
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Item
1. Security
and
Issuer.
This
Schedule 13D relates to the Ordinary Shares (the “Shares”) of Coles Group
Limited, a corporation organized under the laws of Australia (the “Company”).
The address of the Company’s principal executive office is 800 Toorak Road,
Tooronga, Victoria 3164, Australia.
Item
2. Identity
and
Background.
This
Schedule 13D is being filed by Macquarie Bank Limited (“Macquarie”), a
corporation organized under the laws of Australia (the “Reporting Person”).
Macquarie’s primary business is the provision of various banking and financial
services. The address of the principal business and principal office of
Macquarie is Level 7, No. 1 Martin Place, Sydney, New South Wales 2000,
Australia.
The
name,
citizenship, business addresses and principal occupation of each of the
executive officers and directors of the Reporting Person are set forth on
Exhibit 1, which is incorporated herein by reference.
During
the last
five years, neither the Reporting Person nor any person listed on Exhibit 1
has been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or has been a party to a civil proceeding of a judicial
or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such
laws.
Item
3. Source
and
Amount of Funds or Other Consideration.
The
Shares purchased
by the Reporting Person were purchased in the ordinary course of business over
time in Australia at then-prevailing market prices. The source of funds for
the
purchase of the Shares by the Reporting Person was funds managed by the
Reporting Person and its affiliates.
With
respect to the
proposed acquisition described in Item 4, the source and amount of funds or
other consideration necessary to consummate such acquisition with respect to
the
Reporting Person are yet to be determined.
Item
4. Purpose
of
Transaction.
On
April 2,
2007, ConsortiumCo Pty Limited (“ConsortiumCo”), a subsidiary of Wesfarmers
Limited (“Wesfarmers”), entered into a Share Sale Deed and a Conditional Share
Sale Deed with Premier Investments Limited (“Premier”) for the purchase of
Shares then owned by Premier. Under the Share Sale Deed, ConsortiumCo agreed
to
purchase 34,055,000 Shares from Premier at the price of A$16.47 per Share.
A copy of the Share Sale Deed is attached hereto as Exhibit 2. Under the
Conditional Share Sale Deed, ConsortiumCo agreed to purchase
35,445,000 Shares from Premier at the price of A$16.47 per Share. A copy of
the Conditional Share Sale Deed is attached hereto as Exhibit 3. The
purchase of the Shares by ConsortiumCo under the Share Sale Deed and the
Conditional Share Sale Deed was subject to certain post-
closing
adjustments, options to repurchase by Premier (as described below) and, in
the
case of the Conditional Share Sale Deed, to certain conditions precedent. The
sale and purchase of the Shares under the Share Sale Deed and Conditional Share
Sale Deed were consummated on April 23, 2007.
Under
the Share Sale
Deed and the Conditional Share Sale Deed, ConsortiumCo granted Premier the
option, for a period of 15 months from the date of such agreements, to
repurchase the Shares sold by Premier to ConsortiumCo under such agreements
if
(i) the Company lodges with the Australian Securities and Investments Commission
(“ASIC”) an information memorandum for a scheme of arrangement that, if approved
and implemented, would result in ConsortiumCo or an entity associated therewith
acquiring all of the Shares at a price above A$16.47 per Share, (ii)
ConsortiumCo or an entity associated therewith announces to the Australian
Securities Exchange a revised acquisition proposal for the entire issued capital
of the Company that raises the offer price per Share to above A$16.47 (or above
a previously revised offer price), (iii) a third party makes a takeover bid
for
the Company, or the Company lodges with ASIC an information memorandum for
a
scheme of arrangement resulting in a third party acquiring all of the Shares,
and such takeover bid becomes unconditional or such scheme of arrangement
becomes effective or (iv) ConsortiumCo or an entity associated therewith makes
a
takeover bid for the Company at a price above A$16.47 per Share and such
takeover bid becomes unconditional. In each case, Premier may exercise its
option to repurchase any or all of the Shares sold to ConsortiumCo under the
Share Sale Deed and the Conditional Share Sale Deed at the option exercise
price
of A$16.47 per Share, subject to adjustments under certain circumstances. If
Premier elects to exercise such repurchase option as a result of any of the
transactions described in clauses (i) through (iii) above, ConsortiumCo may,
in
lieu of reselling the Shares to Premier, cancel such repurchase option by paying
Premier a cancellation fee calculated based on the difference per Share between
A$16.47 and the final offer price per Share that ConsortiumCo, any entity
affiliated therewith or any other third party offered to purchase Shares under
the applicable transaction described in clauses (i) through (iii)
above.
On
April 3,
2007, Macquarie, along with Wesfarmers and funds advised by Pacific Equity
Partners and Permira Advisers (together, the “Consortium Partners”), publicly
announced a proposal to acquire the entire issued capital of the Company at
a
price of A$16.47 cash per Share, excluding dividend. The consideration may
be
paid either entirely in cash or a mixture of cash and newly-issued shares of
Wesfarmers constituting approximately 25% of the total value of the Shares
to be
acquired under the proposal. If the proposed acquisition is successful, it
is
anticipated that Macquarie and the Consortium Partners will restructure the
Company to result in Macquarie and the Consortium Partners owning the Company’s
food, liquor and general merchandise businesses, with Macquarie owning a
minority interest in such businesses. A copy of Wesfarmers’ press release (the
“Press Release”) announcing the proposal is attached as
Exhibit 4.
On
April 5, 2007, TW
Hedley (Investments) Pty Ltd and Hedley Shares Unit Trust (together, the “Hedley
Entities”) each executed and delivered to ConsortiumCo a power of attorney
(collectively, the “Hedley Powers of Attorney”) giving ConsortiumCo the power to
exercise all the voting power attached to the 17,863,339 Shares owned by the
Hedley Entities in favor of the acquisition proposal described above. The Hedley
Entities agreed to keep the Hedley Powers of Attorney in effect, and not to
dispose any of the Shares owned by them, until
the
earlier of (i)
12 months from the date of the Hedley Powers of Attorney and (ii) two months
after the expiration or withdrawal of any acquisition proposal by Wesfarmers
for
the shares of the Company. In consideration for the Hedley Powers of Attorney,
each of the Hedley Entities received A$1.00 from ConsortiumCo. A copy of the
power of attorney executed by TW Hedley (Investments) Pty Ltd is attached as
Exhibit 5, and a copy of the power of attorney executed by Hedley Shares Unit
Trust is attached as Exhibit 6.
No
assurance can be
given that any definitive agreement will be entered into in connection with
the
proposed acquisition described above or that the proposed acquisition will
be
consummated.
The
information set
forth in this Item 4 is qualified by reference to the Share Sale Deed, the
Conditional Share Sale Deed, the Press Release and the Hedley Powers of
Attorney, which are incorporated herein by reference.
The
transactions
described above could result in one or more of the actions enumerated in
paragraphs (a) through (j) of Item 4 of Schedule 13D, including
(if the proposed acquisition is consummated) the acquisition or disposition
of
additional securities of the Company, a takeover bid or scheme of arrangement
with respect to the Company, material changes to the capitalization, business
or
corporate structure of the Company, the termination of the listing of the Shares
on any stock exchange, the termination of the registration of the Shares under
the Act and changes in the composition of the Company’s board of
directors.
Other
than as set
forth herein or in the Share Sale Deed, the Conditional Share Sale Deed, the
Press Release and the Hedley Powers of Attorney, the Reporting Person currently
has no plans or proposals that relate to or would result in any of the actions
enumerated in paragraphs (a) through (j) of Item 4 of
Schedule 13D. However, the Reporting Person reserves the right to change
its plans at any time, as it deems appropriate, in light of its ongoing
evaluation of (a) its business and liquidity objectives, (b) the
Company’s financial condition, business, operations, competitive position,
prospects and/or share price, (c) industry, economic and/or securities
markets conditions, (d) alternative investment opportunities, and
(e) other relevant factors. Without limiting the generality of the
preceding sentence, the Reporting Person reserves the right (in each case,
subject to any applicable restrictions under law or contract) to at any time
or
from time to time (i) purchase or otherwise acquire additional Shares or
other securities of the Company, or instruments convertible into or exercisable
for any such securities (collectively, “Company Securities”), in the open
market, in privately negotiated transactions, by takeover bid or otherwise,
(ii) sell, transfer or otherwise dispose of Company Securities in public or
private transactions, (iii) cause Company Securities to be distributed in
kind to its investors, (iv) acquire or write options contracts, or enter
into derivatives or hedging transactions, relating to Company Securities, and/or
(v) encourage (including, without limitation, through communications with
directors, management, and existing or prospective security holders, investors
or lenders, of the Company, existing or potential strategic partners, industry
analysts and other investment and financing professionals) the Company to
consider or explore (A) sales or acquisitions of assets or businesses or
other extraordinary corporate transactions, such as a takeover bid or scheme
of
arrangement (including transactions in which the Reporting Person and/or its
affiliates may be proposed as acquirors), or (B) other changes to the
Company’s business or structure.
Item
5. Interest
in
Securities of the Issuer.
(a)-(b) The
Reporting Person is the indirect beneficial owner of 8,061,483 Shares (including
441,309 Shares beneficially owned in derivative form) (based on sole voting
power and sole dispositive power), which constitute approximately 0.67% of
the
Company’s outstanding Shares based on an aggregate of 1,198,250,655 Shares
outstanding as of April 2, 2007.
In
addition, by
virtue of the relationships and as a result of the matters described in the
other Items of this statement, the Reporting Person is deemed to constitute
a
“group” (within the meaning of Rule 13d-5(b) under the Act) with the
Consortium Partners and certain of their respective affiliates. The group is
deemed to beneficially own Shares that may be beneficially owned by any such
persons within the group, including 144,581,288 Shares that are
beneficially owned by Wesfarmers and certain of its affiliates (as reflected
in
Wesfarmers’ filings with the Australian Securities Exchange). Therefore, the
Reporting Person is deemed to be the beneficial owner of the 144,581,288 Shares
owned by Wesfarmers and certain of its affiliates. Taking the Wesfarmers Shares
into account, the Reporting Person is the beneficial owner of 152,642,771
Shares, which constitute approximately 12.74% of the outstanding Shares. Except
as referred to in this statement, the Reporting Person currently does not have
actual knowledge of beneficial ownership of Shares by any of the Consortium
Partners and the Reporting Person has no pecuniary interest with respect to
such
Shares.
(c) Exhibit
7 sets forth the transactions with respect to the Shares during the sixty days
prior to the date of this statement on Schedule 13D by the Reporting
Person.
(d)-(e)
Not
applicable.
Item
6. Contracts,
Arrangements, Understandings or Relationships with Respect to Securities of
the
Issuer.
The
responses to
Items 2, 3, 4 and 5 of this statement, and the Share Sale Deed, Conditional
Share Sale Deed, Press Release and Hedley Powers of Attorney, are incorporated
herein by reference.
Except
for the
arrangements described in the responses to Items 2, 3, 4 and 5 of this
statement and in the Share Sale Deed, Conditional Share Sale Deed, Press Release
and Hedley Powers of Attorney, to the best knowledge of the Reporting Person,
there are no contracts, arrangements, understandings or relationships (legal
or
otherwise) among the persons named in Item 2 of this statement and between
such persons and any other person with respect to any securities of the Company,
including but not limited to transfer or voting of any of the securities,
finder’s fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies.
Item
7. Material
to Be
Filed as Exhibits.
|
Exhibit
1
|
Executive
Officers and Directors of Macquarie Bank Limited
|
|
Exhibit
2
|
Share
Sale
Deed, dated April 2, 2007, between ConsortiumCo Pty Limited and
Premier Investments Limited
|
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Exhibit
3
|
Conditional
Share Sale Deed, dated April 2, 2007, between ConsortiumCo Pty
Limited and Premier Investments Limited
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|
Exhibit
4
|
Press
Release
of Wesfarmers Limited, dated April 3, 2007
|
|
Exhibit
5
|
Power
of
Attorney, dated April 5, 2007, from TW Hedley (Investments) Pty Ltd
to
ConsortiumCo Pty Limited
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|
Exhibit
6
|
Power
of
Attorney, dated April 5, 2007, from Hedley Shares Unit Trust (Trustee
TWH
(Qld) Pty Ltd) to ConsortiumCo Pty Limited
|
|
Exhibit
7
|
Transactions
in the Shares of Coles Group Limited by Macquarie Bank Limited and
its
Affiliates
|
SIGNATURES
After
reasonable
inquiry and to the best of my knowledge and belief, the undersigned certifies
that the information set forth in this statement is true, complete and
correct.
| Dated:
May 3, 2007 |
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| |
MACQUARIE
BANK LIMITED, |
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By: |
/s/
Robin
Bishop |
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|
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Name: Robin
Bishop |
| |
Title:
Executive Director |
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By: |
/s/
Tim
Joyce |
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|
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Name:
Tim
Joyce |
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Title:
Senior Manager |
INDEX
OF
EXHIBITS
|
Exhibit
Number
|
Title
|
Page
Number in
Sequentially
Numbered Statement
|
|
|
|
|
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1
|
Executive
Officers and Directors of Macquarie Bank Limited
|
10
|
|
|
|
|
|
2
|
Share
Sale
Deed, dated April 2, 2007, between ConsortiumCo Pty Limited and
Premier Investments Limited
|
14
|
|
|
|
|
|
3
|
Conditional
Share Sale Deed, dated April 2, 2007, between ConsortiumCo Pty
Limited and Premier Investments Limited
|
35
|
|
|
|
|
|
4
|
Press
Release
of Wesfarmers Limited, dated April 3, 2007
|
58
|
|
|
|
|
|
5
|
Power
of
Attorney, dated April 5, 2007, from TW Hedley (Investments)
Pty Ltd to
ConsortiumCo Pty Limited
|
62
|
|
|
|
|
|
6
|
Power
of
Attorney, dated April 5, 2007, from Hedley Shares Unit Trust
(Trustee TWH
(Qld) Pty Ltd) to ConsortiumCo Pty Limited
|
65
|
|
|
|
|
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7
|
Transactions
in the Shares of Coles Group Limited by Macquarie Bank Limited
and its
Affiliates
|
68
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Page
9