Schedule 13D/A

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CX6ZWfM2N9+9lmqBsPQKNiMHYczxIE5nCimN9dv4LARMHSXbK5S2cgsMOLNYfvMJ gLzFso3yg0bS8kUC7duHCA== 0001193125-09-037532.txt : 20090225 0001193125-09-037532.hdr.sgml : 20090225 20090225171655 ACCESSION NUMBER: 0001193125-09-037532 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20090225 DATE AS OF CHANGE: 20090225 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Lundin Mining CORP CENTRAL INDEX KEY: 0001377085 STANDARD INDUSTRIAL CLASSIFICATION: METAL MINING [1000] IRS NUMBER: 000000000 STATE OF INCORPORATION: A1 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-82167 FILM NUMBER: 09634699 BUSINESS ADDRESS: STREET 1: 150 KING STREET WEST, SUITE 1500 STREET 2: P.O. BOX 38 CITY: TORONTO STATE: A6 ZIP: M5H 1J9 BUSINESS PHONE: 416-342-5560 MAIL ADDRESS: STREET 1: 150 KING STREET WEST, SUITE 1500 STREET 2: P.O. BOX 38 CITY: TORONTO STATE: A6 ZIP: M5H 1J9 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HudBay Minerals Inc. CENTRAL INDEX KEY: 0001322422 STANDARD INDUSTRIAL CLASSIFICATION: METAL MINING [1000] IRS NUMBER: 000000000 STATE OF INCORPORATION: A6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 201 PORTAGE AVENUE, SUITE 1906 CITY: WINNEPEG STATE: A2 ZIP: R3B 3L3 BUSINESS PHONE: (204) 949-4261 MAIL ADDRESS: STREET 1: 201 PORTAGE AVENUE, SUITE 1906 CITY: WINNEPEG STATE: A2 ZIP: R3B 3L3 SC 13D/A 1 dsc13da.htm SCHEDULE 13D/A Schedule 13D/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934

(Amendment No. 2)

Lundin Mining Corporation

(Name of Issuer)

Common Shares

(Title of Class of Securities)

550372106

(CUSIP Number)

H. Maura Lendon

Vice President and General Counsel

HudBay Minerals Inc.

Dundee Place, Suite 2501

1 Adelaide Street East

Toronto, Ontario

M5C 2V9, Canada

416 362-8181

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

February 23, 2009

(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 §§240.1 3d-l(e), 240.13d-l(f) or 240.13d-l(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 §240.13d-7 for other parties to whom copies are to be sent.

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.

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CUSIP No. 550372106


1.		Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). HudBay Minerals Inc.
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.		SEC Use Only
4.		Source of Funds (See Instructions) WC
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization Canada


Number of Shares Beneficially Owned by Each Reporting Person With		7. Sole Voting Power 96,997,492 ⁽¹⁾
		8. Shared Voting Power
		9. Sole Dispositive Power 96,997,492
		10. Shared Dispositive Power


11.		Aggregate Amount Beneficially Owned by Each Reporting Person 96,997,492
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
13.		Percent of Class Represented by Amount in Row (11) 19.9 % ⁽²⁾
14.		Type of Reporting Person (See Instructions) CO

(1).	Represents common shares of Lundin Mining Corporation (“Lundin”) that HudBay Minerals Inc. has acquired in accordance with the Subscription Agreement.

(2).	Based on 390,436,279 common shares of Lundin outstanding as represented by Lundin in the Arrangement Agreement, and the issuance of 96,997,492 common shares of Lundin on December 11, 2008 pursuant to the Subscription Agreement.

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This Amendment No. 2 (this “Amendment”) amends and supplements the Schedule 13D filed by HudBay Minerals Inc. (“HudBay”) on December 1, 2008 (the “Schedule 13D”), with respect to the common shares (the “Common Shares”) of Lundin Mining Corporation (“Lundin”), as amended by Amendment No. 1 to the Schedule 13D filed by HudBay on December 15, 2008 (together, the “Initial Statement”). The Common Shares to which this Amendment relates are held directly by HudBay. This Amendment is being filed to update the Initial Statement in light of recent events.

Except as expressly provided herein, this Amendment does not modify any of the information previously reported in the Initial Statement. All capitalized terms used herein shall have the meanings given to them in the Initial Statement, and unless amended or supplemented hereby, all information previously filed remains in effect.

Item 3.

Source of Funds

Item 3 is hereby amended by deleting the previous response in its entirety and by adding the following:

On November 21, 2008, HudBay and Lundin entered into a letter agreement (the “Letter Agreement”, attached as Exhibit 2.1 to the Initial Statement) pursuant to which HudBay agreed to lend up to C$135,796,488.80 to Lundin on a subordinated basis for general corporate purposes, subject to both parties executing definitive documentation and Lundin obtaining any required waivers and consents from its senior lenders. HudBay and Lundin also entered into a subscription agreement (the “Subscription Agreement”, attached as Exhibit 2.2 to the Initial Statement). The proceeds of the private placement were to be used to repay the loan by HudBay. The completion of the private placement was subject to the issuance being completed in accordance with Canadian and U.S. law and approval of the issuance and conditional listing by the Toronto Stock Exchange of such Common Shares.

Concurrently with entry into the Letter Agreement and Subscription Agreement, HudBay and Lundin entered into an arrangement agreement (the “Arrangement Agreement”, attached as Exhibit 2.3 to the Initial Statement). Pursuant to the Arrangement Agreement, HudBay and Lundin agreed to implement an arrangement under Section 192 of the Canada Business Corporations Act (the “Arrangement”) in accordance with and subject to the terms and conditions of the Arrangement Agreement and the plan of arrangement included therein, as amended by its terms or upon the direction of the Ontario Superior Court of Justice (Commercial List). As an inducement to HudBay to enter into the Arrangement Agreement, and in consideration thereof, certain directors, officers and shareholders (each a “Shareholder”, and together the “Shareholders”) of Lundin entered into voting agreements, having similar form, with HudBay, each dated as of November 21, 2008 (the “Voting Agreements”, each of which is attached as Exhibits 2.4 through 2.15 to the Initial Statement), the purpose of which was to facilitate the consummation of the Arrangement. HudBay did not pay any cash consideration to the Shareholders in exchange for the Voting Agreements.

On December 11, 2008, Lundin issued 96,997,492 Common Shares to HudBay pursuant to the Subscription Agreement at C$1.40 per share for total gross proceeds to Lundin of C$135,796,488.80, representing a 19.9% interest in Lundin after the issuance. As a result of the issuance, the loan to Lundin contemplated by the Letter Agreement was not completed and the Letter Agreement was terminated without penalty by mutual agreement.

On February 23, 2009, HudBay and Lundin entered into a termination agreement (the “Termination Agreement”, attached hereto as Exhibit 2.16) pursuant to which the companies agreed to terminate the Arrangement Agreement. Pursuant to the Termination Agreement, HudBay and Lundin release each other in respect of any and all claims arising from the Arrangement Agreement, and agree that neither company will be liable for the payment of any termination fees to the other. Each of the Voting Agreements terminated automatically upon termination of the Arrangement Agreement. HudBay will continue to be bound by the terms of the Subscription Agreement.

Item 4.

Purpose of Transaction

Item 4 is hereby amended by deleting the previous response in its entirety and by adding the following:

(a) HudBay and Lundin are bound by a reciprocal standstill covenant for a period of twelve months from the date of the Termination Agreement. HudBay currently has no plan or proposal which relates to, or may result in, the acquisition or disposition by any person of securities of Lundin.

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(b) As described in Item 3, on February 23, 2009, HudBay and Lundin entered into a Termination Agreement pursuant to which the companies have agreed to terminate the Arrangement Agreement. Accordingly, HudBay currently has no plan or proposal which relates to, or may result in, an extraordinary corporate transaction, such as a merger, reorganization or liquidation involving Lundin or any of its subsidiaries.

(c) Pursuant to the Termination Agreement, HudBay shall have a right of first offer in the event of any proposed sale or transfer of material assets of Lundin during the six month period following the date of termination of the Arrangement Agreement.

(d) Pursuant to the Termination Agreement, as long as HudBay owns 10% or more of the outstanding Common Shares of Lundin, HudBay is entitled to have one nominee on the Board of Directors of Lundin. It has not yet been determined whether Lundin will expand its board of directors to accommodate HudBay’s nominee or if a current Lundin board member will resign. The timing of the appointment of HudBay’s nominee to Lundin’s board of directors has not yet been determined.

(e) HudBay currently has no plan or proposal which relates to, or may result in, a change in the present capitalization or dividend policy of Lundin.

(f) Pursuant to the Termination Agreement, as long as HudBay continues to own 10% or more of the outstanding Common Shares of Lundin, HudBay shall have the right to maintain its current level of ownership of the Common Shares of Lundin in the event of any public or private distribution of Common Shares by Lundin, subject to certain exceptions.

(g) Other than described in Item 4(d) and (f), HudBay has no plan or proposal which relates to, or may result in, changes to Lundin’s articles of incorporation or bylaws or other actions that may impede the acquisition of control of Lundin by any person.

(h) HudBay has no plan or proposal which relates to, or may result in, Lundin being delisted from the New York Stock Exchange.

(i) HudBay has no plan or proposal which relates to, or may result in, Lundin becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended.

(j) Other than as described above, HudBay currently has no plan or proposal which relates to, or may result in, any of the matters listed in Items 4(a) – (i) of this Schedule 13D (although HudBay reserves the right to develop such plans).

Except as stated in the above response to this Item 4, neither HudBay, nor to the knowledge of HudBay, any of the directors or executive officers of HudBay listed on Schedule I of the Initial Statement, has any present plans or intentions which relate to, or may result in, any of the actions described in subparagraphs (a) through (j) of Item 4 of this Schedule 13D.

The foregoing descriptions of the Arrangement Agreement, Voting Agreements, Letter Agreement, Subscription Agreement and Termination Agreement do not purport to be complete and are qualified in their entirety by reference to such agreements, respectively, and such agreements are incorporated by reference herein where references and descriptions of such agreements appear.

Item 5.

Interest in Securities of the Issuer

Item 5(a) – (b) is hereby amended by deleting the previous response in its entirety and by adding the following:

(a) – (b) HudBay is the sole beneficial owner of 96,997,492 Common Shares acquired pursuant to the Subscription

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Agreement, constituting approximately 19.9% of the issued and outstanding Common Shares, based on 390,436,279 common shares of Lundin outstanding as represented by Lundin in the Arrangement Agreement, and the issuance of 96,997,492 common shares of Lundin on December 11, 2008 pursuant to the Subscription Agreement.

Set forth in Schedule II to the Initial Statement are the number and percentage of Common Shares beneficially owned or deemed to be beneficially owned by each of the directors and executive officers of HudBay as at February 23, 2009.

Item 6.

Contracts, Agreements, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 is hereby amended by deleting the previous response in its entirety and by adding the following:

Except for the Subscription Agreement and Termination Agreement, and as otherwise described above, there are no contracts, arrangements, understandings or relationships among the persons named in Item 2 and between such persons and any person with respect to any securities of Lundin, including but not limited to, transfer and voting of any of the securities of Lundin, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies or a pledge or contingency the occurrence of which would give another person voting power or investment power over the securities of Lundin.

Item 7.

Material to be Filed as Exhibits



Exhibit 2.16		Termination Agreement

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SIGNATURES

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: February 25, 2009


HudBay Minerals Inc.

By:		/s/ David Bryson
Name:		David S. Bryson
Title:		Vice President, Finance and Chief Financial Officer

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EX-2.16 2 dex216.htm TERMINATION AGREEMENT Termination Agreement

Exhibit 2.16

TERMINATION AGREEMENT

THIS TERMINATION AGREEMENT (this “Termination Agreement”) dated February 23, 2009.

BETWEEN:

HUDBAY MINERALS INC., a corporation existing under the laws of Canada,

(“HudBay”)

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LUNDIN MINING CORPORATION, a corporation existing under the laws of Canada,

(“Lundin”)

RECITALS:

A.	HudBay and Lundin are parties to an arrangement agreement dated November 21, 2008 (the “Arrangement Agreement”).

On January 23, 2009 the Ontario Securities Commission ordered that HudBay shareholder approval of the Arrangement is required as a condition to the listing on the Toronto Stock Exchange of the HudBay shares to be issued to Lundin pursuant to the Arrangement, and prohibited HudBay from issuing any securities in connection with the Arrangement without HudBay having first obtained the approval of a simple majority of the votes cast by HudBay shareholders entitled to vote at a duly convened special meeting of its shareholders.

C.	HudBay and Lundin have determined that it is unlikely that HudBay’s shareholders will approve the Arrangement.

D.	In order to avoid the time and expense of HudBay holding a special meeting of its shareholders, HudBay and Lundin have agreed to terminate the Arrangement Agreement on the terms and conditions set out below.

THEREFORE the parties agree as follows:

1.	Capitalized terms used but not otherwise defined herein have the meaning ascribed to them in the Arrangement Agreement.

2.	The Arrangement Agreement is terminated in its entirety with no further force or effect as of the date of this Termination Agreement.

3.	Lundin agrees that, for so long as HudBay beneficially owns or controls 10% or more of the outstanding Lundin Shares, HudBay shall he entitled to designate one nominee for inclusion on Lundin’s management slate of nominees for election to Lundin’s board of

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directors; provided that the designation of such HudBay nominee: (a) is approved by Lundin’s Corporate Governance and Nominating Committee; and (b) does not result in the inclusion of more than two nominees on such management slate of nominees each of whom are also a director of HudBay or an affiliate of HudBay.

4.	The first paragraph of Section 6.4(a) of the subscription agreement dated November 21, 2009 between HudBay and Lundin (the “Subscription Agreement”) is deleted and replaced with the following:

(a)

From the Closing Date until the earlier of: (x) the Effective Time; (y) such date that HudBay directly or indirectly holds less than 10% of the issued and outstanding Common Shares; and (z) such time as a shareholder of the Company, other than the Founding Shareholder or HudBay (or its affiliates), either directly or indirectly, either alone or in concert with any one or more shareholders of the Company acquires or exercises control over 20% or more of the issued and outstanding shares in the capital of the Company, HudBay covenants, undertakes and agrees that it will:

For as long as HudBay owns or controls not less than 10% of the outstanding Lundin Shares (on a fully-diluted basis), HudBay shall have the right (the “Purchase Right”), in connection with, and as part of, any public offering or private placement of Lundin Shares or securities convertible into or exchangeable or exercisable for Lundin Shares (collectively, “Additional Lundin Securities” and such offering or placement, a “Lundin Offering”), to purchase that number of Additional Lundin Securities at the same price per Additional Lundin Security (or the equivalent value in the event of a sale for non-cash consideration), and on the same (or substantially similar) terms, as contemplated in the Lundin Offering to maintain its percentage ownership interest of outstanding Lundin Shares (on a fully-diluted basis) immediately prior to giving effect to such Lundin Offering; provided that the Purchase Right shall not apply to:

(a)

any issuance of Additional Lundin Securities pursuant to a duly approved subdivision, reorganization, rights offering or stock dividend;

(b)

any issuance of Additional Lundin Securities in connection with a bona fide direct or indirect acquisition of assets or shares by Lundin or any of its subsidiaries; and

(c)

any issuance of Additional Lundin Securities on the exercise of any options outstanding at the date of this Termination Agreement or granted at any time under any security-based compensation plan of Lundin.

For a period of six months following the date of this Termination Agreement, if Lundin decides to sell any of its material assets (being, for the purpose of this Section 6, Tenke, Neves-Corvo, Zinkgruvan or Aguablanca), it shall first notify HudBay and shall provide HudBay with an exclusive 21 calendar day period in which HudBay may submit a written offer capable of acceptance (each, a “HudBay Offer”). For a period of three months after receiving a HudBay Offer, Lundin shall have the right to sell the asset to: (a) HudBay pursuant to the HudBay Offer; or (b) a third party, provided that the price paid by the third party is greater than the price specified in the HudBay Offer. Nothing in this clause will supersede or override any contractual arrangements that Lundin has in respect

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of its assets (e.g. right of refusal held by Freeport in relation to Tenke). If Lundin does not receive a HudBay Offer within the foregoing 21 calendar day period, Lundin shall be free to sell the applicable material asset to any third party without limitation.

7.	Lundin represents and warrants that it has not breached Section 7.2 of the Arrangement Agreement as of the date of this Termination Agreement.

8.	HudBay represents and warrants to Lundin that:

(a)

it has not breached Section 7.4 of the Arrangement Agreement as of the date of this Termination Agreement; and

(b)

it is not in negotiation for, nor has it any agreement, understanding or commitment respecting, nor has it received any proposal with respect to, a transaction that would result in the sale of its Lundin Shares.

HudBay hereby irrevocably remises, releases and forever discharges Lundin, its affiliates and their respective directors, officers, employees, agents and successors (the “Lundin Releasees”) from any and all actions, causes of action, suits, debts, accounts, liabilities, obligations, covenants, damages, demands and all other claims whatsoever, whether contingent or otherwise, which HudBay ever had, now has or hereafter can, shall or may have, now or at any time in the future, against the Lundin Releasees in any way connected with, or arising out of, the Arrangement Agreement, including, without limitation, the payment of a Termination Fee or expenses pursuant to Section 7.5 of the Arrangement Agreement.

10.

Lundin hereby irrevocably remises, releases and forever discharges HudBay, its affiliates and their respective directors, officers, employees, agents and successors (the “HudBay Releasees”) from any and all actions, causes of action, suits, debts, accounts, liabilities, obligations, covenants, damages, demands and all other claims whatsoever, whether contingent or otherwise, which Lundin ever had, now has or hereafter can, shall or may have, now or at any time in the future, against the HudBay Releasees in any way connected with, or arising out of, the Arrangement Agreement, including, without limitation, the payment of a Termination Fee or expenses pursuant to Section 7.5 of the Arrangement Agreement.

11.

The confidentiality agreement dated November 6, 2008 between HudBay and Lundin (the “Confidentiality Agreement”) shall continue in full force and effect following the termination of the Arrangement Agreement, except that the standstill provisions in Section 8 of the Confidentiality Agreement shall terminate twelve months from the date of this Termination Agreement.

12.

This Termination Agreement, the Subscription Agreement and the Confidentiality Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties with respect to such subject matter.

13.	Each of the parties hereto shall with reasonable diligence do all such things and provide all such reasonable assurances as may be required to consummate the transactions

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contemplated by this Termination Agreement, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purpose of this Termination Agreement and carry out its provisions.

14.	This Termination Agreement shall enure to the benefit of and be binding upon HudBay and Lundin and their respective successors and permitted assigns.

15.

This Termination Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario. Any action, suit or proceeding arising out of or relating to this Termination Agreement shall be brought in the courts of the Province of Ontario and each of the parties hereby irrevocably submits to the jurisdiction of such courts.

16.	This Termination Agreement may be executed in any number of counterparts and may be delivered by facsimile or email, and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

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IN WITNESS OF WHICH the parties have executed this Termination Agreement effective as of the date first written above.


HUDBAY MINERALS INC.

By:	/s/ Allen J. Palmiere
	Name:	Allen J. Palmiere
	Title:	Chief Executive Officer

By:	/s/ R. Peter Gillin
	Name:	R. Peter Gillin
	Title:	Director

LUNDIN MINING CORPORATION

By:	/s/ Philip J. Wright
	Name:	Philip J. Wright
	Title:	President and Chief Executive Officer

By:	/s/ William A. Rand
	Name:	William A. Rand
	Title:	Director

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