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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities
Exchange Act of 1934
(Amendment No.
1 )*
(Name of Issuer)
Common Shares, without par value
(Title of Class of Securities)
(CUSIP Number)
Ben Mathews
Rio Tinto plc
6 St. Jamess Square
London SW1Y 4LD
United Kingdom
+44 (0) 20 7930 2399
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
with a copy to:
George Karafotias
Shearman & Sterling LLP
Broadgate West, 9 Appold Street
London EC2A 2AP
United Kingdom
+44 (0) 20 7655 5576
(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. o
* The remainder of this cover page shall be filled out for a reporting persons 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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CUSIP No. |
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46579N |
SCHEDULE 13D |
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2 |
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of |
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18 Pages |
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1 |
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NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Rio Tinto plc |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) þ (See
Item 4) |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (See Instructions) |
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WC |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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England and Wales
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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0 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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175,447,400 common shares (see Items 3 and 5) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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0 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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175,447,400 common shares (see Items 3 and 5) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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175,447,400 common shares (see Items 3 and 5) |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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33.4 per cent (see Item 5) |
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14 |
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TYPE OF REPORTING PERSON (See Instructions) |
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HC, CO |
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CUSIP No. |
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46579N |
SCHEDULE 13D |
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3 |
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of |
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18 Pages |
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1 |
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NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Rio Tinto International Holdings Limited |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o |
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(b) þ (See item 4) |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (See Instructions) |
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AF |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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England and Wales
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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0 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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175,447,400 common shares (see Items 3 and 5) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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0 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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175,447,400 common shares (see Items 3 and 5) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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175,447,400 common shares (see Items 3 and 5) |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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33.4 per cent (see Item 5) |
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14 |
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TYPE OF REPORTING PERSON (See Instructions) |
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CO |
Item 1. Security and Issuer.
This Amendment No. 1 to Schedule 13D amends and supplements the statement on Schedule 13D
filed by Rio Tinto plc (Rio Tinto) and Rio Tinto International Holdings Limited
(RTIH) on November 3, 2006 (the Schedule 13D) with the Securities and Exchange
Commission (the SEC), relating to the common shares, without par value (the
Shares), of Ivanhoe Mines Ltd., a corporation continued under the laws of the Yukon
Territory, Canada (the Company).
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Schedule 13D is hereby amended and supplemented by replacing clause (i) of the
seventh paragraph of Item 3 with the following text:
(i) the 20th business day following the date, provided that such date is
within three years of the First Closing Date (the Approved OT Investment Contract
Date), that is the latest of (x) the date upon which the Company, or a subsidiary
of the Company, enters into an investment agreement with the Government of Mongolia in
respect of the Companys Oyu Tolgoi copper and gold mineral development project (the
OT Project) in Mongolias South Gobi region that is mutually acceptable to the
Company and RTIH (an Approved OT Investment Contract), (y) the date upon which
the Companys board of directors approves the Approved OT Investment Contract and (z)
the date upon which RTIH notifies the Company that the Approved OT Investment Contract
is acceptable and
Item 3 of the Schedule 13D is hereby amended and supplemented by adding the following text to
the end of the eighth paragraph of Item 3:
The Company Shareholder Approval of the Company Shareholder Approval Matter was
obtained on November 30, 2006, such date being within 60 days of the First Closing
Date.
Item 3 of the Schedule 13D is hereby amended and supplemented by adding the following text to
the end of the twelfth paragraph of Item 3:
The Company Shareholder Approval of the Company Shareholder Approval Matter was
received at the Special Meeting on November 30, 2006.
Item 3 of the Schedule 13D is hereby amended and supplemented by replacing clause (i) of the
thirteenth paragraph of Item 3 with the following text:
(i) the Approved OT Investment Contract Date; and
Item 3 of the Schedule 13D is hereby amended and supplemented by adding the following text to
the end of Item 3:
Page 4 of 18 Pages
Oyu Tolgoi Interim Funding Arrangement
On September 11, 2007, RTIH and the Company executed a legally binding Heads of
Agreement (the Heads of Agreement), pursuant to which a member of the Rio
Tinto group (the Lender), to be designated by RTIH, will provide the Company
with a $350 million non-revolving convertible credit facility (the Facility),
upon the terms and subject to the conditions set forth in the Heads of Agreement. A
copy of the Heads of Agreement is attached as Exhibit F hereto. The description of the
Heads of Agreement contained herein is qualified in its entirety by reference to Exhibit
F, which is incorporated herein by reference.
Subject to certain conditions to funding set forth in the Heads of Agreement, the
Facility will be available for drawdown from October 5, 2007, or such later date as (i)
all of the conditions to funding have been satisfied or, if permissible, waived by the
Lender and (ii) the initial drawdown notice has been given by the Finance Committee (as
defined in the Heads of Agreement) on behalf of the Company to the Lender, but which
date will be no later than November 30, 2007 (the Funding Date) until
September 12, 2010 (the Maturity Date). The initial drawdown under the
Facility must be for a minimum of $150 million. Subsequent drawdowns must be for a
minimum of the lesser of $25 million and the undrawn amount of the Facility. The
aggregate amount of drawdowns under the Facility may not exceed
$350 million. The Company and RTIH will establish a Finance Committee which will be responsible for drawdowns on the Facility.
Interest on the outstanding principal amount of the Facility (the Loan) will
accrue from and after the Funding Date until the Facility is repaid in full. The Loan
will bear interest during each three month period at LIBOR (as defined in the Heads of
Agreement) plus 3.3 per cent per annum calculated on an actual over 360 days basis. The first
interest period will commence on the Funding Date. If no Default (as defined in the
Heads of Agreement) has occurred and is continuing on the last date of an interest
period, the interest on the Loan then accrued will be added to the Loan. Once $108
million in interest on the Loan has been added to the Loan, all additional interest on
the Loan will be paid by the Company in immediately available funds to the Lender.
There will be no separate commitment fee for the Facility.
If any amount payable by the Company is not
paid when due (whether at the Maturity Date, by acceleration or otherwise), interest will accrue on such unpaid amount
at the aggregate of LIBOR, the then applicable margin and an additional margin of 2 per cent per annum.
After the Funding Date, the Lender will have the right, at any time and from time to
time upon three business days prior written notice to the Company, to convert all or
part of the outstanding principal of, and accrued interest, if any, on the Facility (the
Loan Amount) into Shares at a price of $10.00 per Share, subject to customary
adjustments for corporate actions (the Conversion Price). If the Loan Amount
has not previously been repaid in full and no Default has occurred and is continuing,
the Loan Amount will be automatically converted into Shares on the Maturity Date at the
Conversion Price.
The Heads of Agreement provides that on the Funding Date, the Company will issue to RTIH
or such other member of the Rio Tinto group as RTIH may direct, and RTIH or such member,
as the case may be, will subscribe for, share purchase warrants (the Series C
Warrants) exercisable to purchase an additional 35,000,000 Shares for an aggregate
subscription price of $1,000. RTIH expects to obtain the funds for the
purchase of the Series C Warrants from the working capital of Rio Tinto. Subject to
customary adjustment for corporate actions, each Series C Warrant will be exercisable to
purchase one Share at a price of $10.00 per Share during the period commencing on the
Funding Date and ending five years thereafter. RTIH expects to obtain the funds for the
purchase price payable upon the exercise of the Series C Warrants from the working
capital of Rio Tinto. At any time and from time to time and subject to customary
adjustment for corporate actions, only such number of Series C Warrants as is equal to
the number of Series C Warrants issued (whether or not outstanding) multiplied by the
Funding Proportion may be exercised. The Funding Proportion is equal to the lesser of
one and the result obtained by dividing (i) the sum of all drawdowns under the Facility
(whether or not outstanding) and all interest on the Facility added to the outstanding
principal amount of the Facility by (ii) $350 million.
Page 5 of 18 Pages
Item 4. Purpose of Transaction.
Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following text to
the end of the sixth paragraph of Item 4:
Bret Clayton, currently Chief Executive of the Copper Group at Rio Tinto has been
appointed to the Companys board of directors as the Rio Tinto Representative.
Item 4 of the Schedule 13D,
with effect from the Funding Date, shall be amended and supplemented by replacing the eighth
paragraph of Item 4 with the following text:
Pursuant to the Private Placement Agreement,
if, at any time prior to the exercise or
expiry of all of the Series A Warrants and Series B Warrants, RTIH exercises its right
to purchase all or part of the Anti-Dilution Shares to which it is entitled, RTIH will
also be entitled to receive, for no additional consideration, a number of additional
share purchase warrants (the Anti-Dilution Warrants) that would result in RTIH
having the right to acquire, pursuant to the exercise or conversion of all outstanding
Convertible Securities beneficially owned by one or more members of the Rio Tinto group,
a number of Shares that, upon issuance, would represent the same percentage of the
outstanding Shares that RTIH would have beneficially owned if all of the then
outstanding Convertible Securities owned by one or more members of the Rio Tinto group
had been fully exercised immediately before the issuance of the Dilutive Issuer Shares
and Anti-Dilution Shares. Each Anti-Dilution Warrant will entitle RTIH to purchase one
Share at a price equal to the issue price per share of the Anti-Dilution Shares. If,
when the Anti-Dilution Warrants are issued, any Series A Warrants remain unexercised and
outstanding, that number of the Anti-Dilution Warrants bearing the same proportion as
such outstanding number of Series A Warrants bears to the total number of Series A
Warrants and Series B Warrants outstanding will have the same terms and attributes as
the Series A Warrants and the remainder of the Anti-Dilution Warrants will have the same
terms and attributes as the Series B Warrants, provided that, notwithstanding the
foregoing, the expiry date of the Anti-Dilution Warrants will be at least one year from
the date of issuance.
Page 6 of 18 Pages
Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following text
after the ninth paragraph of Item 4:
Equity Financing Right of First Offer
The Heads of Agreement provides that, if, at any time and from time to time until five
years after the Funding Date, the Company is contemplating to, directly or indirectly,
offer, sell, contract to sell, grant any option or right to purchase, or issue any
Shares or Convertible Securities to any person other than a member of the Rio Tinto
group in any transaction (an Equity Financing Transaction), except for certain
exempt transactions, the Company may only effect such Equity Financing Transaction
subject to a right of first offer of RTIH (the Right of First Offer),
exercisable within 30 days of receipt of notice of the contemplated Equity Financing
Transaction.
Item 4 of the
Schedule 13D, with effect from the Funding Date, shall be
amended and supplemented by replacing clauses (ii) and (iii) of the
tenth paragraph of Item 4 with the following text:
(ii) prior to having fully exercised all of the
Series A Warrants and the Series B
Warrants, directly or indirectly acquire, alone or jointly or in concert with any other
person, any Shares or any securities convertible into or exchangeable
for Shares (Convertible Securities) (other than the Shares or Convertible Securities
acquired through an issuance made by the Company or, with the consent of the Company,
from Robert M. Friedland or any of his affiliates) representing, in the aggregate, more
than 6.65 per cent of the then issued and outstanding Shares from time to time, or
(iii) after having fully exercised all of the Series A Warrants and the Series B
Warrants, directly or indirectly acquire, alone or jointly or in concert with any other
person, any Shares if, following such acquisition, the Rio Tinto group and all persons
with whom the Rio Tinto group is acting jointly or in concert, would beneficially own or
exercise control or direction, or be deemed, under applicable law, to beneficially own,
or exercise control or direction over, (excluding any Shares issuable upon the
conversion, exchange or exercise of any Convertible Securities) more than 46.65 per cent
of the then issued and outstanding Shares.
Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following text
after the tenth paragraph of Item 4:
If the Company has terminated the Strategic Purchaser Covenant or given notice to RTIH
of its intention to terminate the Strategic Purchaser Covenant and, as a result of the
exercise of the Right of First Offer, the Rio Tinto group and all persons with whom the
Rio Tinto group is acting jointly or in concert, would beneficially own or exercise
control or direction, or be deemed, under applicable law, to beneficially own, or
exercise control or direction over (assuming the conversion, exchange or exercise of all
Convertible Securities held by them), more than 46.65 per cent of the then issued and
outstanding Shares, the foregoing restrictions as set forth in the Private Placement
Agreement will be deleted in their entirety.
Page 7 of 18 Pages
Item
4 of the Schedule 13D, with effect from the Funding Date, shall
be amended and supplemented by adding the following text after the
fourteenth paragraph of Item 4:
If,
at any time, the Rio Tinto group and all persons with whom the Rio Tinto group is
acting jointly or in concert, would beneficially own or exercise control or direction,
or be deemed, under applicable law, to beneficially own, or exercise control or
direction over (assuming the conversion, exchange or exercise of all Convertible
Securities held by them), more than 46.65 per cent of the then issued and outstanding
Shares, the restrictions described in the previous two paragraphs will not apply to the
Transfer of any Shares by any of them provided that after such Transfer the Rio Tinto
group and all persons with whom the Rio Tinto group is acting jointly or in concert
continue to beneficially own or exercise control or direction, or be deemed, under
applicable law, to beneficially own, or exercise control or direction over (assuming the
conversion, exchange or exercise of all Convertible Securities held by them), more than
45 per cent of the then issued and outstanding Shares.
Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following text
after the fifteenth paragraph of Item 4:
In February 2007, the Company established and transferred all of the Myanmar Assets to
a trust of which none of the Company, RTIH, Robert M. Friedland, their respective
affiliates, any person who owns more than 5 per cent of the Company, RTIH or their respective affiliates, any person
related to any of them or any person that is a resident of Myanmar or the United States or controlled by a resident
of Myanmar or the United States are trustees or beneficiaries.
Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following text
before the penultimate paragraph of Item 4:
Facility Agreement
The purpose of the Facility is for RTIH to provide to the Company interim financing with
respect to the development of the OT Project pending the execution of the Approved OT
Investment Contract.
Item 4 of the Schedule 13D is hereby amended and supplemented by replacing the penultimate
paragraph of Item 4 with the following text:
Although Rio Tinto and RTIH have no present intention to acquire securities of the
Company other than pursuant to the Private Placement Agreement, the Shareholders
Agreement or the Heads of Agreement, they intend to review their investment on a regular
basis and, as a result thereof and subject to the terms and conditions of the Private
Placement Agreement and the Heads of Agreement, may at any time or from time to time
determine, either alone or as part of a group, (i) to acquire additional securities of
the Company, through open market purchases, privately negotiated transactions or
otherwise, (ii) to dispose of all or a portion of the securities of the Company owned by
them in the open market, in privately negotiated transactions or
otherwise, or (iii) to
take any other available course of action, which could involve one or more of the types
of transactions or have one or more of the results described in the next paragraph of
this Item 4. Any such acquisition or disposition or other
transaction would be made in compliance with all applicable laws and regulations.
Notwithstanding anything contained herein, each of Rio Tinto and RTIH specifically
reserves the right to change its intention with respect to any or all
of such matters. In reaching any decision as to its course of action (as well as to the specific elements
thereof), each of Rio Tinto and RTIH currently expects that it would take into
consideration a variety of factors, including, but not limited to, the following: the
Companys business and prospects; other developments concerning the Company and its
businesses generally; other business opportunities available to Rio
Tinto and RTIH; the taxation implication of any such action;
changes in law and government regulations; general economic conditions; and money and
stock market conditions, including the market price of the securities of the Company.
Page 8 of 18 Pages
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the
Issuer.
Item 6 of the Schedule 13D is hereby amended and supplemented by adding the following text
after the first paragraph of Item 6:
Oyu Tolgoi Interim Funding Facility
The Company will not be permitted to make prepayments of the Loan Amount.
The Facility will rank in priority to other current and future indebtedness of the
Company, except for indebtedness incurred or to be incurred in relation to its
asset-backed commercial paper investments, provided that recourse in respect thereof is
limited solely to such investments and not to any other assets of the Company. The
Company must ensure that its subsidiaries do not incur any indebtedness except for
indebtedness incurred by non-material subsidiaries solely to finance their own
businesses and operations, including, without limitation, project-related finance debt,
provided that recourse in respect thereof is limited solely to the assets of such
non-material subsidiaries and not to the Company, any of the material subsidiaries or
any of their respective assets.
Security for the Facility will comprise (i) pledges of and first ranking charges over
the shares of the material subsidiaries of the Company other than Ivanhoe Mines Mongolia
Inc. LLC (the OT Subsidiary) and SouthGobi Energy Resources Ltd. and its
subsidiaries, (ii) first ranking charge over the 2 per cent net smelter returns royalty
that the Company purchased from BHP Exploration Pty. Ltd. and (iii) a general security
agreement between the Lender and the Company granting first ranking charges over all
assets of the Company, subject to the preceding paragraph. The security will terminate
(a) 60 days following the Approved OT Investment Contract Date if no Default has
occurred and is continuing at such time or (b) upon the repayment or conversion in full
of the Facility in accordance with the terms thereof.
The Lender may call the Loan Amount upon delivery of notice (the Demand
Notice) to the Company (i) contemporaneously or within 30 days of the completion of
the Second Tranche Private Placement, (ii) contemporaneously or within 30 days
after the exercise by RTIH of any Series A Warrants, Series B Warrants and/or Series C
Warrants having an aggregate exercise price equal to or greater than the Loan Amount on
the date of exercise, (iii) following a Change of Control, and (iv) upon an Event of
Default (as defined in the Heads of Agreement). If the Lender calls the Loan Amount,
the Company must repay the Loan Amount within five business days of receipt of the
Demand Notice and the Facility will be canceled.
Page 9 of 18 Pages
On or before the Funding Date, the Company, RTIH and the Lender will enter into an
agreement pursuant to which the Company will agree that the repayment of the Loan Amount
pursuant to a Demand Notice delivered in accordance with clauses (i) or (ii) of the
preceding paragraph may be satisfied by RTIH transferring to the Lender such amount of
the subscription price of the Second Tranche Private Placement or the exercise price of
any Series A Warrants, Series B Warrants or Series C Warrants as is necessary to repay
the Loan Amount.
Following and within 30 days after the completion of (i) an equity financing by the
Company or any of its subsidiaries (including a financing of debt convertible into
equity but excluding (x) a financing that is made solely to one or more members of the
Rio Tinto group or (y) a financing that is made by a subsidiary of the Company in which
the proceeds of such financing is solely to fund the operations of one or more mineral
exploration or mine development projects owned directly or indirectly by that subsidiary
(other than the OT Project) or (ii) the sale by the Company or any of its subsidiaries
of any assets (including shares of any subsidiary of the Company) with an aggregate
value in excess of $50 million, in each case, the Lender may deliver a notice to the
Company requiring the funds therefrom to be used to repay the Loan Amount or such
portion thereof as is equal to such proceeds (each such payment a Mandatory
Repayment). A Mandatory Repayment will not cancel the Facility.
The Heads of Agreement provides that until the
Funding Date, the Company (i) will not
cause or permit an Adjustment Event (as defined in the Private Placement Agreement) to
occur; and (ii) will not issue any Shares or Convertible Securities except pursuant to
certain exempt transactions. The Company has agreed to certain other covenants and also made certain representations pursuant to the Heads of Agreement.
The Heads of Agreement provides that, until five years after the Funding Date, the
Company will not, directly or indirectly, offer, sell, contract to sell, grant any
option or right to purchase, or issue any Shares or Convertible Securities to a person
who is not a retail investor or an institutional investor who meets certain prescribed
criteria under the Private Placement Agreement (any such person, a Strategic
Purchaser) if, following such acquisition, the Strategic Purchaser and all persons
with whom the Strategic Purchaser is acting jointly or in concert, would beneficially
own or exercise control or direction over, or be deemed, under applicable law, to
beneficially own, or exercise control or direction over, more than 5 per cent of the
then issued and outstanding Shares (the Strategic Purchaser Covenant). The
Company may terminate the Strategic Purchaser Covenant upon 60 days notice to RTIH.
The description of the Heads of Agreement contained herein is qualified in its entirety
by reference to Exhibit F, which is incorporated herein by reference.
Page 10 of 18 Pages
Equity Financing Right of First Offer
The Heads of Agreement provides that, if, at any time and from time to time until five
years after the Funding Date, the Company is contemplating to, directly or indirectly,
offer, sell, contract to sell, grant any option or right to purchase, or issue any
Shares or Convertible Securities to any person other than a member of the Rio Tinto
group in any Equity Financing Transaction, except for certain exempt transactions, the
Company may only effect such Equity Financing Transaction subject to the Right of First
Offer, exercisable within 30 days of receipt of notice of the contemplated Equity
Financing Transaction.
Item 6 of the Schedule 13D is hereby amended and supplemented by adding the following text after
the second
paragraph of Item 6:
Pursuant to the Heads of Agreement, the Company has agreed that it will apply all
amounts borrowed by it under the Facility exclusively on expenditures in accordance
with, as applicable, the Operations Budget and Plan or the Suspension Plan (each as
defined in the Heads of Agreement). No part of the amount borrowed by the Company under
the Facility may be spent on or in relation to any project other than the OT Project,
except that up to $17.5 million of such amount may be spent on or in relation to other
projects located in Mongolia. Any departure in the application of amounts borrowed
under the Facility from the Operations Budget and Plan or the Suspension Plan, as
applicable, must be agreed by the unanimous vote of the Technical Committee.
Notwithstanding the foregoing, if RTIH has appointed the chairman of the Technical
Committee, any departure in the application of amounts borrowed under the Facility from
the Operations Budget and Plan or the Suspension Plan may be agreed by a majority vote
of the Technical Committee. These obligations will survive any repayment, conversion or
cancellation of the Facility, except that upon a Mandatory Repayment resulting from the sale by the
Company or any of its subsidiaries of any assets with an aggregate value in excess
of $50 million, these obligations will not apply in respect of the amount of such Mandatory Repayment.
Pursuant to the Heads of Agreement, the Company has agreed that it will apply not less
than 90% of the proceeds from the exercise of the Series C Warrants to fund expenditures
in respect of operations at the OT Project.
Item 6
of the Schedule 13D, with effect from the Funding Date, shall be amended and supplemented by replacing the last sentence
of the third paragraph of Item 6 with the following text:
RTIHs right of first refusal is inoperative unless,
at the time the Company proposes to make any such disposition, Rio Tinto and its
affiliates beneficially own (disregarding any unissued Shares underlying unexercised
Series A Warrants or Series B Warrants), in the aggregate, a number of Shares that is
equal to or greater than the First Tranche Private Placement Shares.
Page 11 of 18 Pages
Item 6 of the Schedule 13D,
with effect from the Funding Date, shall be amended and supplemented by replacing the seventh
paragraph of Item 6 with the following text:
The Technical Committee will consist of two members from the Company, two members from
RTIH and a fifth member who will act as the chairman of the Technical Committee and as
the senior manager of the OT Project. The chairman of the Technical Committee will be
an individual reasonably acceptable to both the Company and RTIH. The Company has the
right to appoint the chairman of the Technical Committee during the (i) first five years
following the First Closing Date or (ii) first three years following the First Closing
Date if the Second Tranche Private Placement is completed during such three year period.
The Companys President and Chief Executive Officer, John Macken, will serve as the
first chairman of the Technical Committee and senior manager of the OT Project. RTIH
will have the right to appoint the chairman of the Technical Committee and senior
manager of the OT Project after (i) five years of the First Closing Date or (ii) three
years of the First Closing Date if the Second Tranche Private Placement is completed
during such three year period.
Item 6 of the
Schedule 13D,
with effect from the Funding Date, shall be amended and supplemented by replacing the last sentence
of the eighth paragraph of Item 6 with the following text:
Thereafter, RTIHs right to appoint members and be represented on the Technical
Committee will terminate if, at any time, the Rio Tinto group beneficially owns, in the
aggregate, a number of Shares that is less than the First Tranche Private Placement
Shares.
Item 6 of the Schedule 13D,
with effect from the Funding Date, shall be amended and supplemented by replacing the tenth paragraph
of Item 6 with the following text:
During the (i) five year period following the First Closing Date or (ii) three year
period following the First Closing Date if the Second Tranche Private Placement is
completed, the unanimous consent of all Technical
Committee members will be required for matters involving (a) asset or property
acquisitions or contractual commitments requiring expenditures exceeding $100 million,
(b) acquisitions of interests in land or mineralization within the geographical areas
comprising the OT Project requiring expenditures exceeding $10 million, or (c) any
material amendments to the existing OT Project long term mine plan or the adoption of
any new long term mine plan.
Upon and after the Funding Date, the Company will cause the OT Subsidiary to appoint a
nominee of RTIH as the Managing Director of the OT Subsidiary who (i) will report to the
chairman of the Technical Committee, (ii) will be responsible for the matters set out in
a position description to be agreed by the Company and RTIH
on or before the Funding Date and (iii) may be replaced by RTIH at any time and from
time to time.
Page 12 of 18 Pages
Upon and after the Funding Date, the Company will cause the OT Subsidiary to appoint a
nominee of RTIH as the Finance Director of the OT Subsidiary who (i) will report to the
Managing Director, (ii) will be responsible for the matters set out in a position
description to be agreed by the Company and RTIH on or before the Funding Date and (iii)
may be replaced by RTIH at any time and from time to time.
Item 7. Materials to be Filed as Exhibits.
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Exhibit No. |
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Description |
A
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Joint Filing Agreement between Rio Tinto plc and Rio Tinto
International Holdings Limited |
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E
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Amending Agreement between Rio Tinto International Holdings
Limited and Ivanhoe Mines Ltd. |
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F
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Heads of Agreement between Rio Tinto International Holdings
Limited and Ivanhoe Mines Ltd. |
Page 13 of 18 Pages
SIGNATURE
After reasonable 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.
Dated: September 12, 2007
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Rio Tinto plc |
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/s/ R.P. Dowding
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Signature
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R.P. Dowding / Deputy Secretary
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Name/Title
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Rio Tinto International Holdings Limited |
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/s/ I.C. Ratnage
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Signature
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I.C. Ratnage / Director
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Name/Title
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Page 14 of 18 Pages
SCHEDULE A
Rio Tinto plc
Directors and Executive Officers
The response set forth in Schedule A of the Schedule 13D is hereby amended and restated in its
entirety with the information below:
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Present Principal |
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Name |
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Occupation |
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Business Address |
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Citizenship |
Directors |
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Paul Skinner
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Chairman of Rio Tinto
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Tom Albanese
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Chief Executive of
Rio Tinto
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United States of America |
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Guy Elliott
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Finance Director of
Rio Tinto
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Sir Rod Eddington
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Chairman of JPMorgan
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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Australia |
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Ashton Calvert
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Non-executive
director of Rio
Tinto
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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Australia |
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Sir David Clementi
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Chairman of
Prudential plc
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Vivienne Cox
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Executive
Vice-President of BP
plc
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Mike Fitzpatrick
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Director of Squitchy
Lane Holdings
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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Australia |
Page 15 of 18 Pages
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Present Principal |
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Name |
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Occupation |
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Business Address |
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Citizenship |
Richard Goodmanson
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Executive Vice
President and Chief
Operating Officer of DuPont
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United States of America |
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Andrew Gould
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Chairman and Chief
Executive Officer of
Schlumberger Ltd.
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Lord Kerr
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Chairman of the
Court and Council of
Imperial College, London
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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David Mayhew
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Chairman of Cazenove
Group plc
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Sir Richard Sykes
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Director of Rio
Tinto and director
of Lonza Group Ltd.
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Executive Officers |
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Bret Clayton
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Chief Executive of
the Copper group
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United States of America |
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Preston Chiaro
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Chief Executive of
the Energy group
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United States of America |
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Eric Finlayson
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Head of Exploration
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Oscar Groeneveld
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Chief Executive of
the Aluminum group
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Level 33
55 Collins Street
Melbourne
Victoria 3000
Australia
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Australia |
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Keith Johnson
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Group Executive,
Business Resources
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
Page 16 of 18 Pages
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Present Principal |
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Name |
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Occupation |
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Business Address |
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Citizenship |
Andrew Mackenzie
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Chief Executive of
the Diamonds and
Minerals group
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Ben Mathews
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Company Secretary
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Grant Thorne
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Group Executive
Technology and
Innovation
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Comalco Place
12 Creek Street
Brisbane
QLD 4000
Australia
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Australia |
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Sam Walsh
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Chief Executive of
the Iron Ore Group
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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Australia |
Page 17 of 18 Pages
Rio Tinto International Holdings Limited
Directors and Executive Officers
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Present Principal |
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Name |
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Occupation |
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Business Address |
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Citizenship |
Directors |
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Dan Larsen
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Head of Controllers
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United States of America |
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Christopher Lenon
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Head of Taxation
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Ian Ratnage
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Head of Treasury
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Ben Mathews
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Director
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
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Executive Officers |
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Roger Dowding
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Deputy Secretary of
Rio Tinto plc
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6 St. Jamess Square
London SW1Y 4LD
United Kingdom
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United Kingdom |
Page 18 of 18 Pages