SEC Form SC 13E3/A filed by Turquoise Hill Resources Ltd. (Amendment)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
(Amendment No. 4)
RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e)
OF THE SECURITIES EXCHANGE ACT OF 1934
Turquoise Hill Resources Ltd.
(Name of the Issuer)
Turquoise Hill Resources Ltd.
Rio Tinto plc
Rio Tinto International Holdings Limited
7999674 Canada Inc.
46117 Yukon Inc.
535630 Yukon Inc.
(Names of Persons Filing Statement)
Common Shares, without par value
(Title of Class of Securities)
900435108
(CUSIP Number of Class of Securities)
| Dustin Isaacs Turquoise Hill Resources Ltd. Suite 3680 – 1 Place Ville Marie, Montreal, Quebec H3B 3P2, Canada, +1 514-848-1567 |
Steven Allen Company Secretary Rio Tinto plc 6 St James’s Square London SW1Y 4AD United Kingdom +44 (0) 20 7781 2000 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
With copies to
| Adam Givertz Ian Hazlett Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, New York 10019 +1 212-373-3000 |
Alex Moore Blake, Cassels & Graydon LLP 199 Bay St., Suite 4000 Toronto, Ontario M5L 1A9 +1 416-863-2400 |
Steve Malas Norton Rose Fulbright Canada LLP 1 Place Ville Marie Montreal, Quebec H3B 1R1 +1 514-847-4747 |
Shea Small McCarthy Tétrault LLP Box 48, Suite 5300 TD Bank Tower Toronto, Ontario M5K 1E6 +1 416-362-1812 |
Scott Miller Sullivan & Cromwell LLP 125 Broad Street New York, New York 10004 +1 212-558-4000 |
This statement is filed in connection with (check the appropriate box):
| a. |
☐ | The filing of solicitation materials or an information statement subject to Regulation 14A (§§240.14a-1 through 240.14b-2), Regulation 14C (§§240.14c-1 through 240.14c-101) or Rule 13e-3(c) (§240.13e-3(c)) under the Securities Exchange Act of 1934 (“the Act”). | ||
| b. |
☐ | The filing of a registration statement under the Securities Act of 1933. | ||
| c. |
☐ | A tender offer. | ||
| d. |
☒ | None of the above. | ||
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ☐
Check the following box if the filing is a final amendment reporting the results of the transaction: ☐
INTRODUCTION
This Amendment No. 4 to Schedule 13E-3 (together with the exhibits hereto, this “Amended Schedule 13E-3” or “Amended Transaction Statement”), which amends and supplements the Rule 13e-3 Transaction Statement on Schedule 13E-3 filed with the Securities and Exchange Commission (the “SEC”) on September 29, 2022 (as amended by Amendment No. 1 to Schedule 13E-3, filed with the SEC on October 12, 2022, Amendment No. 2 to Schedule 13E-3, filed with the SEC on November 3, 2022 and Amendment No. 3 to Schedule 13E-3, filed with the SEC on November 21, 2022, together, the “Initial Schedule 13E-3”), is being filed with the SEC pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), jointly by the following persons (each, a “Filing Person,” and collectively, the “Filing Persons”): (i) Turquoise Hill Resources Ltd. (formerly Ivanhoe Mines Ltd.), a corporation continued under the laws of Yukon, Canada and the issuer of the common shares, no par value (the “Shares”) that is subject to the Rule 13e-3 transaction (“Turquoise Hill” or the “Corporation”); (ii) Rio Tinto plc, a public limited company incorporated under the laws of England and Wales (the “Parent”); (iii) Rio Tinto International Holdings Limited, a company incorporated under the laws of England and Wales (“RTIH” or the “Purchaser”); (iv) 7999674 Canada Inc., a company incorporated under the federal laws of Canada (“7999674 Inc.”); (v) 46117 Yukon Inc., a company incorporated under the laws of Yukon, Canada (“46117 Inc.”); and (vi) 535630 Yukon Inc., a company incorporated under the laws of Yukon, Canada (“535630 Inc.” and, together with the Parent, the Purchaser, 7999674 Inc. and 46117 Inc., the “Rio Tinto Filers”).
On September 5, 2022 the Corporation, the Purchaser and the Parent entered into an Arrangement Agreement (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Arrangement Agreement”), which provides for, among other things, the acquisition by the Purchaser, a wholly owned subsidiary of the Parent, of all of the issued and outstanding Shares of the Corporation that the Parent or its affiliates do not directly or indirectly own for C$43.00 in cash per Share (the “Consideration”) through a Plan of Arrangement (the “Plan of Arrangement”) pursuant to Section 195 of the Business Corporations Act (Yukon) (“YBCA”), pursuant to which the Corporation would become an indirectly wholly owned subsidiary of the Parent (the “Arrangement”). A copy of the Plan of Arrangement is included as Appendix B to the Management Proxy Circular, which is attached as Exhibit (a)(2)(i) hereto (the “Circular”). A special meeting of the Corporation’s shareholders (the “Meeting”) was initially called for November 1, 2022 to consider and, if thought advisable, pass a special resolution approving the Arrangement in the form attached as Appendix A to the Circular (the “Arrangement Resolution”). The Corporation previously determined to postpone the Meeting, and correspondingly the deadline for the Shareholders to validly exercise Dissent Rights in connection with the Arrangement and the deadline for the submission of proxies by the Shareholders. The Circular has been provided to the Corporation’s shareholders pursuant to applicable Canadian law.
The Circular is supplemented by the supplement, dated November 24, 2022, to the Circular, which supplement is attached as Exhibit (a)(2)(vii) (the “Circular Supplement”). Pursuant to an amended interim order issued by the Supreme Court of Yukon on November 24, 2022 (the “Amended Interim Order”), the Meeting will be held on December 9, 2022 at 12:00 p.m. (Montréal time). On November 24, 2022, the Corporation, the Purchaser and the Parent entered into an amendment to the Arrangement Agreement (the “Arrangement Agreement Amendment”), in order to amend the Plan of Arrangement and give effect to the Irrevocable Commitments (as defined in the Circular Supplement). A copy of the Arrangement Agreement Amendment is attached hereto as Exhibit (d)(vii).
The cross-references in this Amended Transaction Statement are being supplied pursuant to General Instruction F to Schedule 13E-3 and show the location in the Circular Supplement of information required to be included in response to the items of Schedule 13E-3. Pursuant to General Instruction F to Schedule 13E-3, the information contained in the Circular Supplement, including all appendices thereto, is incorporated herein by reference, in its entirety and the responses to each item in this Amended Transaction Statement are qualified in their entirety by the information contained in the Circular Supplement and the appendices thereto. Capitalized terms used but not expressly defined in this Amended Schedule 13E-3 are given the respective meanings given to them in the Circular or the Initial Schedule 13E-3, as applicable.
All information set forth in this Amended Transaction Statement should be read together with the information contained or incorporated by reference in the Initial Schedule 13E-3.
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All information contained in, or incorporated by reference to, this Amended Transaction Statement concerning each Filing Person has been supplied by such Filing Person.
Item 4. Terms of the Transaction
Item 4 of the Initial Schedule 13E-3 is hereby amended and supplemented as follows:
(a)(2) Mergers or Similar Transactions.
The disclosure set forth in Items 4(d) and 8(a) of this Amended Schedule 13E-3 is hereby incorporated by reference. In addition, the information set forth in the Circular Supplement under following captions is incorporated herein by reference:
“Order Amending the Interim Order”
(c) Different Terms.
The disclosure set forth in Items 4(d) and 8(a) of this Amended Schedule 13E-3 is hereby incorporated by reference.
(d) Appraisal Rights.
The information set forth in the Circular Supplement under following captions is incorporated herein by reference:
“2. Irrevocable Commitments”
“5. Deadline for Dissent Notices”
“8. Dissenting Shareholders’ Rights”
“9. Background to the Irrevocable Commitments”
Item 5. Past Contracts, Transactions, Negotiations and Agreements
Item 5 of the Initial Schedule 13E-3 is hereby amended and supplemented as follows:
(e) Agreements Involving the Subject Company’s Securities.
The disclosure set forth in Items 4(d) and 8(a) of this Amended Schedule 13E-3 is hereby incorporated by reference.
Item 8. Fairness of the Transaction
Item 8 of the Initial Schedule 13E-3 is hereby amended and supplemented as follows:
(a), (b) Fairness; Factors Considered in Determining Fairness.
The disclosure set forth in Item 4(d) of this Schedule 13E-3 is hereby incorporated by reference. In addition, the information set forth in the Circular Supplement under following captions is incorporated herein by reference:
“10. Recommendation of the Special Committee and the Board”
Item 12. The Solicitation or Recommendation
Item 12 of the Initial Schedule 13E-3 is hereby amended and supplemented as follows:
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(e) Recommendation of Others
The information set forth in the Circular Supplement under following captions is incorporated herein by reference:
“10. Recommendation of the Special Committee and the Board”
Item 15. Additional Information
Item 15 of the Initial Schedule 13E-3 is hereby amended and supplemented as follows:
(c) Other Material Information.
The entirety of the Circular Supplement, including all appendices thereto, is incorporated by reference herein.
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Item 16. Exhibits
The following exhibits are filed herewith:
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| * | Previously filed. |
| ** | Certain portions of this exhibit have been redacted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment. |
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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.
| TURQUOISE HILL RESOURCES LTD. |
| By: /s/ Steve Thibeault |
| Name: Steve Thibeault |
| Title: Interim Chief Executive Officer |
Date: November 25, 2022
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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.
| RIO TINTO PLC |
| By: /s/ Steven Allen |
| Name: Steven Allen |
| Title: Company Secretary |
| Date: November 25, 2022 |
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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.
| RIO TINTO INTERNATIONAL HOLDINGS LIMITED | ||
| By: | /s/ Steven Allen | |
| Name: Steven Allen | ||
| Title: Director | ||
Date: November 25, 2022
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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.
| 7999674 CANADA INC. | ||
| By: | /s/ Steven Allen | |
| Name: Steven Allen | ||
| Title: Director | ||
Date: November 25, 2022
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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.
| 46117 YUKON INC. | ||
| By: | /s/ Steven Allen | |
| Name: Steven Allen | ||
| Title: Director | ||
Date: November 25, 2022
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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.
| 535630 YUKON INC. | ||
| By: | /s/ Steven Allen | |
| Name: Steven Allen | ||
| Title: Director | ||
Date: November 25, 2022
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