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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3/A
(AMENDMENT NO. 2)
RULE 13E-3 TRANSACTION STATEMENT
UNDER SECTION 13(e) OF
THE SECURITIES EXCHANGE ACT OF 1934
FORDING CANADIAN COAL TRUST
(Name of the Issuer)
FORDING CANADIAN COAL TRUST
FORDING (GP) ULC
TECK COMINCO LIMITED
(Names of Person(s) Filing Statement)
Units, no par value
(Title of Class of Securities)
345425102
(CUSIP Number of Class of Securities)
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Fording Canadian Coal Trust
Suite 1000, 205 9th Avenue SE
Calgary, Alberta T2G 0R3
Attention: James F. Jones
(403) 260-9800
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Fording (GP) ULC
Suite 1000, 205 9th Avenue SE
Calgary, Alberta T2G 0R3
Attention: James F. Jones
(403) 260-9800
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Teck Cominco Limited
Suite 600, 200 Burrard Street
Vancouver, British Columbia V6C 3L9
Attention: Peter C. Rozee
(604) 687-1117 |
(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices
and Communications on Behalf of the Persons Filing Statement)
With copies to
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Osler, Hoskin & Harcourt LLP
620 8th Avenue 36th floor
New York, New York 10018
Attention: Kevin D. Cramer, Esq.
(212) 991-2537
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Paul, Weiss, Rifkind, Wharton &
Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Edwin S. Maynard, Esq.
(212) 373-3000
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Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, Ontario M5L 1B9
Attention: William J. Braithwaite, Esq.
(416) 869-5500 |
This statement is filed in connection with (check the appropriate box):
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a.
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o
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The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934. |
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b.
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o
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The filing of a registration statement under the Securities Act of 1933. |
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c.
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o
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A tender offer. |
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d.
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None of the above. |
Check the following box if the soliciting materials or information statement referred to in
checking box (a) are preliminary copies: o
Check the following box if the filing is a final amendment reporting the results of the
transaction: o
CALCULATION OF FILING FEE
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Transaction valuation* |
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$ |
13,687,116,439.03 |
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Amount of filing fee |
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$537,904 |
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* |
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Set forth the amount on which the filing fee is calculated and state how it was determined. |
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Calculated solely for the purpose of determining the filing fee. The filing fee was
determined by adding (a) the product of (i) 150,175,327 Units, plus 18,632 Exchange Options
to acquire an equal number of Fording Units, plus 151,050 Phantom Units that can be settled
for an equal number of Fording Units and (ii) cash consideration of $82.00 per Fording Unit,
plus (b) $1,358,825,701.03, being the value of the 36,834,527 Teck Class B subordinate voting
shares issued to Fording Unitholders (including holders of Exchange Options and Phantom
Units), on the basis of 0.245 Class B subordinate voting shares per Fording Unit, based on the
average of the high and low prices of Tecks Class B subordinate voting shares on August 15,
2008 (i.e., $36.89) ((a) and (b) together, the Total Consideration). The payment of the
filing fee, calculated in accordance with Exchange Act Rule 0-11(b), was calculated by
multiplying the Total Consideration by 0.0000393. |
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Check the box if any part of the fee is offset as provided by Exchange Act 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. |
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Amount Previously Paid:
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$537,904 |
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Filing Party:
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Fording Canadian Coal Trust, Fording (GP)
ULC and Teck Cominco Limited |
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Form or Registration No.:
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Schedule 13E-3, File No. 005-62313
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Date Filed:
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August 21, 2008 |
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Introduction
This Amendment No. 2 to the Rule 13e-3 Transaction Statement on Schedule 13E-3 (Amendment No.
2) amends and supplements the Schedule 13E-3 filed with the U.S. Securities and Exchange
Commission (the SEC) by Fording Canadian Coal Trust, an unincorporated, open-ended mutual fund
trust governed by a Declaration of Trust and the laws of Alberta, Canada (Fording), Fording (GP)
ULC, an unlimited liability company organized under the Companies Act (Nova Scotia) (Fording
ULC), and Teck Cominco Limited, a company incorporated under the laws of Canada (Teck)
(collectively, the Filing Persons) on August 21, 2008 (the Original 13E-3), as amended by
Amendment No. 1 to the Original 13E-3 filed with the SEC on August 27, 2008 (Amendment No. 1).
This Amendment No. 2 relates to the Arrangement Agreement, dated July 29, 2008 (the
Arrangement Agreement), by and between Fording and Teck and the related plan of arrangement (the
Plan of Arrangement). A form of Fordings management information circular was filed as Exhibit
(a)(1) to the Original 13E-3. The Fording management information circular dated September 6, 2008
(the Circular) pursuant to which management of Fording is soliciting proxies from securityholders
of Fording in connection with a special meeting of Fordings securityholders to be held on
September 30, 2008 to approve the Plan of Arrangement, in the form mailed to securityholders, is
attached hereto as Exhibit (a)(9) to this Amendment No. 2.
Pursuant to General Instruction F to Schedule 13E-3, the information in the Circular,
including all annexes, exhibits and appendices thereto, is expressly incorporated by reference
herein in its entirety.
All information contained in, or incorporated by reference into, this Amendment No. 2
concerning each Filing Person was supplied by such Filing Person and no other Filing Person takes
responsibility for the accuracy of such information as it relates to any other Filing Person.
The filing of the Original 13E-3, Amendment No. 1 and Amendment No. 2 shall not be construed
as an admission by any Filing Person, or by any affiliate of a Filing Person, that Fording is
controlled by any Filing Person.
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Item 1. |
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Summary Term Sheet |
The information set forth in the sections of the Circular entitled Summary Term Sheet
Expected Timing of Arrangement, Summary Term Sheet Information for Participants in the Fording
DRIP, Summary Term Sheet Reasons for the Arrangement from Fordings and Fording ULCs
Perspectives, Summary Term Sheet Certain Effects of the Arrangement, Summary Term Sheet
Court and Regulatory Approvals and Summary Term Sheet Certain Canadian Federal Income Tax
Considerations is incorporated herein by reference.
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Item 5. |
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Past Contacts, Transactions, Negotiations and Agreements |
(e) Agreements involving the subject companys securities. The information set forth in the
section of the Circular entitled The Arrangement Arrangement Mechanics is supplemented by
disclosing that:
Amendments to the Declaration of Trust
The Plan of Arrangement provides that the Declaration of Trust will be amended to, among
other things, clarify that the income arising within Fording for purposes of the Tax Act in
2008 up to and including the time of the completion of the events described under
Arrangement Mechanics in this Circular will be deemed to have been made payable and paid
to those holders of Units who received distributions made by Fording in 2008 on or before
the Effective Date, including distributions described in paragraphs (k), (p) and (q) under
Arrangement Mechanics in this Circular, to the extent of such distributions, or, if such
distributions in total exceed such income, then to the extent of such income.
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The information set forth in the section of the Circular entitled The Arrangement Agreement
Amending Agreement is supplemented by disclosing that:
Amending Agreement
As of September 6, 2008 Fording and Teck entered into the Amending Agreement. The Amending
Agreement amended the Arrangement Agreement to, among other things, reflect the amendments
to the Plan of Arrangement described under The Arrangement Arrangement Mechanics in
this Circular and to amend the definition of Trading Day to reflect the expected trading and
settlement mechanics for the Units during the three business days prior to the Effective
Date.
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Item 7. |
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Purposes, Alternatives, Reasons and Effects |
(d) Effects. The information set forth in the sections of the Circular entitled Notice to
Securityholders in the United States, Summary Term Sheet Expected Timing of Arrangement,
Summary Term Sheet Certain Canadian Federal Income Tax Considerations, Special Factors
Certain Effects of the Arrangement, The Arrangement Arrangement Mechanics, Certain Tax
Considerations for Unitholders Certain Canadian Federal Income Tax Considerations and
Frequently Asked Questions About the Arrangement is amended by disclosing the following:
Unitholders should be aware of the Canadian income tax consequences of the Arrangement
including the treatment of amounts payable to Unitholders under the Arrangement. In
particular, for Canadian federal income tax purposes, Fording expects that all or
substantially all of the distributions and other amounts payable to Unitholders under the
Arrangement, including all cash amounts and the fair market value of any Class B Shares
received by Unitholders, will constitute ordinary income to Unitholders and, in the case of
non-resident Unitholders, will be subject to Canadian nonresident withholding tax. This
income inclusion cannot be offset by capital losses, if any, recognized as a result of the
Arrangement. Taxable Unitholders who are resident in Canada and who hold their Units on
capital account and Unitholders who are not residents of Canada will want to consider
disposing of their Units on the TSX or the NYSE with a settlement date that is prior to the
Effective Date of the Arrangement and should consult their own tax and investment advisors
with regard to this decision. Unitholders who decide to dispose of their Units are advised
that: (a) the TSX is expected to establish special trading rules for the three trading days
preceding the Effective Date to facilitate settlement prior to the Effective Date of trades
occurring on the TSX during that three day period; and (b) the NYSE is expected to halt
trading in the Units during the three trading days prior to the Effective Date and as such,
Unitholders will not be able to trade their Units on the NYSE during such three day period
and trades over the NYSE made prior to such three day period should settle in accordance
with the NYSEs typical T+3 settlement cycle prior to the Effective Date.
The information set forth in the sections of the Circular entitled Summary Term Sheet
Information for Participants in the Fording DRIP, The Arrangement Arrangement Mechanics, and
Information Concerning Voting at the Meeting Information for Participants in the Fording DRIP
is supplemented by disclosing that:
On August 18, 2008, the Trustees resolved to terminate the Fording DRIP contingent on the
approval of the Arrangement Resolution at the Meeting by the Requisite Level of Approval.
The Trustees resolved to terminate the Fording DRIP in order that the unitholdings of
participants in that plan could be certificated in advance of the Effective Date without
further action of such participants. Accordingly, if the Fording DRIP is terminated,
participants in the plan will receive a certificate representing the whole Units held by
such persons pursuant to such plan. Fractional unitholdings will be settled through a cash
payment in accordance with the terms of the Fording DRIP. Participants in the Fording DRIP
will receive a letter containing additional information regarding the foregoing.
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Item 8. |
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Fairness of the Transaction |
(a) Fairness; Factors considered in determining fairness. The disclosure throughout the
Circular has been revised to more clearly and consistently articulate the determination by the
Filing Persons that the going-private transaction is substantively and procedurally fair to
unaffiliated Unitholders.
The information set forth in the sections of the Circular entitled Summary Term Sheet
Reasons for the Arrangement from Fordings and Fording ULCs Perspectives and Special Factors
Reasons for the Arrangement from Fordings and Fording ULCs Perspectives is supplemented by
disclosing that:
In accordance with the practices of Canadian investment banks, the Fairness Opinion does not
address the fairness of the consideration available to Unitholders under the Arrangement
from a financial point of view to Teck and its affiliates as Teck is a party to the
Arrangement Agreement and is therefore receiving a
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material benefit different from other
Unitholders. The Fairness Opinion does address the fairness of the consideration available
from a financial point of view to all other Unitholders, including the Trustees, Directors
and executive officers of Fording (other than those who are affiliates of Teck). See
Special FactorsFairness Opinion. The holdings of Units and Phantom Units of the
Trustees, Directors and executive officers of Fording (other than those who are affiliates
of Teck) represent less than 0.2% of the total Units outstanding and such persons will not
receive any benefits under the Arrangement that are not described in this Circular other
than in their capacity as Unitholders and holders of Phantom Units. The Independent
Committees, the Trustees and the Directors relied upon the Fairness Opinion in determining
that the Arrangement is substantively fair to unaffiliated Unitholders and in recommending
that Unitholders vote for the Arrangement because the affiliated Unitholders (other than
Teck and its affiliates) would not receive any consideration for their Units or Phantom
Units, as the case may be, greater than that to be received by our unaffiliated Unitholders
and any benefits to be received by our affiliates (other than Teck and its affiliates) in
connection with the Arrangement would be incidental and, in the aggregate, immaterial in
value.
The information set forth in the section of the Circular entitled Special Factors Position
of Teck Regarding Fairness of the Arrangement is further supplemented by disclosing that:
As was reported in Tecks press release on July 29, 2008, in which it announced the
Arrangement, based on the 20 calendar day volume weighted average price of the Class B
Shares on the NYSE, the proceeds to Unitholders represent an 18% premium to the 20 calendar
day volume weighted average price of the Units on the NYSE, in each case for the period
ending July 25, 2008.
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Item 9. |
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Reports, Opinions, Appraisals and Negotiations |
(a) Report, opinion or appraisal. A new section of the Circular has been added entitled
Special Factors Material Projections Provided by Fording to RBC and National Bank Financial and
is incorporated herein by reference. In addition, the Circular has been supplemented by the
addition of Appendix L Summary of Material Projections provided by Fording relating to
Operating Costs, Capital Expenditures and Coal Production Volumes and is incorporated herein by
reference.
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Item 10. |
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Source and Amounts of Funds or Other Consideration |
(a) Source of funds. The information set forth in the section of the Circular entitled The
Arrangement Sources of Funds for the Arrangement is supplemented by disclosing that:
While the terms of any debt securities that may be issued under Tecks second amended and
restated base shelf prospectus have not been definitively established, Teck expects that any
such debt securities would be issued by Teck under an indenture to be entered into between
Teck and The Bank of New York Mellon, as trustee, and fully and unconditionally guaranteed
on an unsecured senior basis by Teck Metals. Teck expects that the debt securities and
guarantees would be unsecured obligations and would rank equally with other unsecured and
unsubordinated obligations of Teck and Teck Metals, respectively, from time to time
outstanding. The indenture for the debt securities and guarantees is expected to contain
customary covenants that, among other things, limit Tecks ability to create certain
security interests, limit Tecks ability to enter into certain sale and leaseback
transactions and restrict Tecks ability to amalgamate or merge with a third party or
transfer all or substantially all of its assets. The indenture is also expected to contain
customary events of default and provisions for mandatory or optional redemption in certain
circumstances.
The information set forth in the section of the Circular entitled The Arrangement Sources
of Funds for the Arrangement is further supplemented by disclosing under the subheading Sale of
Units that:
Other than in connection with its Top-Up Arrangements with Ontario Teachers Pension Plan
Board and Golden Apple, Teck has no current agreements or understandings with respect to
such sale. See Information Concerning TeckAgreements Involving Fordings Securities in
this Circular.
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Item 13. |
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Financial Statements |
The information set forth in the section of the Circular entitled Information Concerning
Fording Historical Selected Financial Data is supplemented by the summary financial information
found on page 79 of the Circular.
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Item 15. |
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Additional Information |
The information set forth in the sections of the Circular entitled Summary Term Sheet
Court and Regulatory Approvals and Principal Legal Matters Principal Regulatory Matters is
amended by disclosing that:
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on September 2, 2008, early termination of the HSR waiting period was granted; |
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on September 2, 2008, an Advance Ruling Certificate was issued under the
Competition Act; |
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the provisional date for EC clearance is September 19, 2008; |
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a pre-merger notification was filed with the Korea Fair Trade Commission on
August 22, 2008; |
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notification with the Turkish Competition Board was filed on August 21, 2008;
and |
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the TSX has conditionally approved the listing of the Class B Shares to be
issued pursuant to the Arrangement, subject to the satisfaction of the customary listing
requirements of the TSX. The NYSE has approved the listing of the Class B Shares to be
issued pursuant to the Arrangement, subject to official notice of issuance. |
(a)(9) Management Information Circular of Fording Canadian Coal Trust dated September 6, 2008,
as distributed to securityholders.
(d)(6) Amending Agreement dated as of September 6, 2008 between Fording and Teck amending
certain provisions of the Arrangement Agreement (incorporated herein by reference to Appendix B of
the Circular).
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SIGNATURE
After due inquiry and to the best of each of the undersigneds knowledge and belief, each of
the undersigned certifies that the information set forth in this statement is true, complete and
correct.
Dated as of September 9, 2008
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FORDING CANADIAN COAL TRUST
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By: |
/s/ Michael A. Grandin
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Name: |
Michael A. Grandin |
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Title: |
Chair and Chief Executive Officer |
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FORDING (GP) ULC
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By: |
/s/ Michael A. Grandin
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Name: |
Michael A. Grandin |
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Title: |
Chair and Chief Executive Officer |
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TECK COMINCO LIMITED
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By: |
/s/ Peter C. Rozee
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Name: |
Peter C. Rozee |
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Title: |
Senior Vice President, Commercial Affairs |
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EXHIBIT INDEX
(a)(9) Management Information Circular of Fording Canadian Coal Trust, dated September 6, 2008
as distributed to securityholders.
(d)(6) Amending Agreement dated as of September 6, 2008 between Fording and Teck amending
certain provisions of the Arrangement Agreement (incorporated herein by reference to Appendix B of
the Circular).
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