FIFTH AMENDING AGREEMENT
Exhibit 2.2
THIS FIFTH AMENDING AGREEMENT made the 25th day of June, 0000
X X X X X X X:
INCO LIMITED,
a corporation existing under the laws
of Canada,
a corporation existing under the laws
of Canada,
(hereinafter called the “Offeror”),
- and -
FALCONBRIDGE LIMITED,
a corporation existing under the laws
of the Province of Ontario,
a corporation existing under the laws
of the Province of Ontario,
(hereinafter called the “Company”).
WHEREAS the Offeror mailed the Offer dated October 24, 2005 to purchase all outstanding Common
Shares of the Company in accordance with Section 1.1(b) of the Support Agreement dated October 10,
2005 entered into between the Offeror and the Company, as amended by Amending Agreement dated
January 12, 2006, Second Amending Agreement dated February 20, 2006, Third Amending Agreement dated
March 21, 2006 and Fourth Amending Agreement dated May 13, 2006 (as amended from time to time, the
“Support Agreement”);
AND WHEREAS the Offeror has entered into a combination agreement, dated as of June 25, 2006
(the “Combination Agreement”), with Xxxxxx Dodge Corporation (“Xxxxxx Dodge”), which
provides, among other things, for the amalgamation of the Offeror with a newly-formed, wholly-owned
subsidiary of Xxxxxx Dodge pursuant to a plan of arrangement;
AND WHEREAS, the board of directors of the Offeror, upon consultation with its financial and
legal advisors, has unanimously approved the terms of the Combination Agreement and the
transactions contemplated thereby;
AND WHEREAS the board of directors of the Offeror has determined, after receiving financial
and legal advice, that it would be advisable and in the best interests of the Offeror and its
shareholders to pursue the acquisition of the Company as contemplated by the Support Agreement by
amending the Offer in accordance with the amended terms and conditions contained herein (the
“Amended Offer”);
AND WHEREAS the Board of Directors has determined, after receiving financial and legal advice,
that it would be advisable and in the best interests of the Company for the Board of Directors to
support the Combination Agreement and the Amended Offer and to recommend acceptance of the Amended
Offer to Shareholders in writing and for the Company to continue to co-operate with the Offeror and
to use its reasonable best efforts to permit the Amended Offer to be successful;
AND WHEREAS the Offeror proposes to extend the expiry time of the Offer;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants and
agreements hereinafter set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party, the parties hereby covenant and agree
as follows:
1. Amendments to the Support Agreement
(a) Section 1.1(a) of the Support Agreement is hereby amended by:
(i) deleting the reference to Cdn. $51.17 where it appears in clause (i) of Section
1.1(a) and substituting therefor a reference to Cdn. $53.83;
(ii) deleting the reference to Cdn. $4,786,678,875 where it appears in Section 1.1(a)
and substituting therefor a reference to Cdn. $6,700,377,653;
(iii) deleting the reference to 0.6927 of a common share of the Offeror where it
appears in clause (ii) of Section 1.1(a) and substituting therefor a reference to 0.82419
of a common share of the Offeror; and
(iv) deleting the reference to 200,657,578 Offeror Shares where it appears in Section
1.1(a) and substituting therefor a reference to 213,171,558 Offeror Shares.
Accordingly, the first sentence of Section 1.1(a) shall now read as follows:
“The Offeror shall promptly publicly announce its intention to
make an offer and, subject to the terms and conditions set forth
below, either make, or cause a directly or indirectly wholly-owed
subsidiary of the Offeror (the “Acquisition Company”) to make,
either alone, or jointly
2
with the Offeror, an offer (the “Offer”) to purchase all
outstanding Common Shares (other than those owned directly or
indirectly by the Offeror), including Common Shares issuable (and
that, prior to the Expiry Time (as defined below) are actually
issued) upon the conversion, exchange or exercise of any
securities of the Company that are convertible into or
exchangeable or exercisable for Common Shares (the “Convertible
Securities”) at a price per Common Share of: (i) Cdn. $53.83 in
cash; or (ii) 0.82419 of a common share of the Offeror (the
“Offeror Shares”) and Cdn. $0.05 in cash, at the election of the
holder thereof, but subject to an aggregate maximum of Cdn.
$6,700,377,653 in cash (the “Cash Maximum”) and an aggregate
maximum of 213,171,558 Offeror Shares (the “Share Maximum”) in
accordance in all material respects with all applicable securities
Laws (as defined in Schedule B to this Agreement) in Canada and
the United States (collectively, “Securities Laws”).”
(b) Section 1.4 of the Support Agreement is hereby amended by deleting each reference to
0.6934 where it appears in Section 1.4 and substituting therefor a reference to 0.8250.
(c) Section 5.1 of the Support Agreement is hereby amended by adding at the end of such
Section the following new paragraph (i):
“(i) Subject to the conditions herein provided, the Company agrees
to use its reasonable best efforts to obtain all necessary
waivers, consents, rulings, orders and approvals, and to effect
all necessary registrations and filings, including, but not
limited to, filings under applicable Laws and submissions of
information requested by Governmental Entities with respect to the
transactions contemplated by the Combination Agreement. The
Company shall use its reasonable best efforts to co-operate with
the Offeror in taking such actions.”
(d) Article 5 of the Support Agreement is amended by adding the following subsections (j) to
Section 5.1:
(j) The Company will furnish to the Offeror all information
concerning it and its shareholders as may be required (and, in the
case of its shareholders, available to it) for the preparation,
filing and mailing of the Notice of
3
Variation (as hereinafter defined), the Inco Proxy Circular (as
defined in the Combination Agreement), the approval by the
shareholders of the Offeror of the transactions contemplated by
the Combination Agreement, the making of the regulatory filings
referred to in Section 7.5 of the Combination Agreement or
otherwise required to consummate the transactions contemplated
thereby, and the obtaining of all such regulatory approvals,
provided that the Offeror acknowledges that Falconbridge may
restrict access to any of its information to the extent that any
Law (including Laws relating to the exchange of information and
all applicable antitrust, competition and similar Laws, and
attorney-client and other privileges) applicable to the Company or
any confidentiality agreement (other than with Xxxxxx Dodge and
other than in connection with any take-over bid for the Company)
requires such party or its subsidiaries to restrict or prohibit
such access. The Company represents that none of the Company
information (“Falconbridge Information”) to be supplied by it in
writing by the Company or its Subsidiaries for inclusion in the
Inco Proxy Circular will, at the time of mailing of the Inco Proxy
Circular contain any untrue statement of a material fact or omit
to state a material fact required to be stated in any such
document or necessary in order to make any information so
furnished for use in any such document not misleading in the light
of the circumstances in which it is furnished; provided that the
Offeror has complied with section 7(ii) of the Fifth Amending
Agreement dated June 25, 2006 entered into between the Offeror and
the Company and provided further that if the Company notifies the
Offeror pursuant to the following sentence that it has become
aware that the Falconbridge Information in the Inco Proxy Circular
(as defined in the Combination Agreement) contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
contained therein not misleading in light of the circumstances in
which they are made, or that the Falconbridge Information in the
Inco Proxy Circular must otherwise be amended or supplemented, the
Offeror prepares and files a supplement or amendment to the Inco
Proxy Circular to correct such information in compliance with
applicable Securities Laws. The Company shall promptly notify the
Offeror if, at any
4
time before the Effective Time, it becomes aware that any
Falconbridge Information supplied in writing by the Company or its
Subsidiaries for inclusion in the Inco Proxy Circular contains any
untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements contained therein not misleading in light of the
circumstances in which it is made, or that the Falconbridge
Information must otherwise be amended or supplemented and, in such
event, shall cooperate with the Offeror in the preparation of a
supplement or amendment to the Inco Proxy Circular.
(e) Section 5.2(g) of the Support Agreement is amended by (i) deleting the reference to seven
business days where it appears in subparagraph (iii) and substituting therefor a reference to 10
business days; (ii) inserting at the beginning of subparagraph (v) thereof “if the Company proposes
to enter into a definitive agreement with respect to a Superior Proposal after complying with this
Section 5.2(g)”; (iii) inserting at the beginning of subparagraph (vi) thereof “in the case of (v)
above”; and (iv) adding as subparagraph (vii) “if the Company proposes to approve or recommend an
Acquisition Proposal in the circumstances where Section 5.3(d)(ii) is applicable, the Company has
previously, or concurrently will have, paid to the Offeror the Offeror Enhanced Expense Payment”
and accordingly, Section 5.2(g) shall now read as follows:
(g) The Company shall not accept, approve or recommend, nor enter
into any agreement relating to, an Acquisition Proposal (other
than a confidentiality agreement contemplated by Section 5.2(c)(D)
above) unless:
(i) the Acquisition Proposal constitutes a Superior Proposal;
(ii) the Company has complied with Sections 5.2(b) through 5.2(h),
inclusive;
(iii) the Company has provided the Offeror with notice in writing
that there is a Superior Proposal together with all documentation
related to and detailing the Superior Proposal (including a copy
of the confidentiality agreement between the Company and the
Person making the Superior Proposal if not previously delivered)
at least 10 business days prior to the date on which the Board of
Directors proposes to accept, approve, recommend or to enter into
any agreement relating to such Superior Proposal;
5
(iv) 10 business days shall have elapsed from the later of the
date the Offeror received notice of the Company’s proposed
determination to accept, approve, recommend or to enter into any
agreement relating to such Superior Proposal, and the date the
Offeror received a copy of the written proposal in respect of the
Acquisition Proposal and, if the Offeror has proposed to amend the
terms of the Offer in accordance with Section 5.2(h), the Board of
Directors (after receiving advice from its financial advisors and
outside legal counsel) shall have determined in good faith that
the Acquisition Proposal is a Superior Proposal compared to the
proposed amendment to the terms of the Offer by the Offeror;
(v) if the Company proposes to enter into a definitive agreement
with respect to a Superior Proposal after complying with this
Section 5.2(g), the Company concurrently terminates this Agreement
pursuant to Section 6.1(k);
(vi) in the case of (v) above, the Company has previously, or
concurrently will have, paid to the Offeror the Company
Termination Payment; and
(vii) if the Company proposes to approve or recommend an
Acquisition Proposal in the circumstances where Section 5.3(d)(ii)
is applicable, the Company has previously, or concurrently will
have, paid to the Offeror the Offeror Enhanced Expense Payment.
(f) Section 6.1(g) is hereby amended by deleting Section 6.1(g) in its entirety and
substituting the following therefor:
“by the Company, if (i) the Offeror has not complied in all
material respects with its covenants or obligations under this
Support Agreement or (ii) any representation or warranty of the
Offeror set out in Schedule B to this Support Agreement (without
giving effort to any materiality (including the word “material”)
or “Material Adverse Effect” qualification) shall have been at
October 10, 2005 untrue or incorrect or shall have become untrue
or incorrect at any time prior to the Expiry Time and such untrue
or incorrect representation or warranty is not curable or, if
curable, is not cured by the earlier of such date which
6
is 30 days from the date of notice of such breach and Expiry Time,
except, in each case, for any untrue or incorrect representations
or warranties which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect with
respect to the Offeror.”
(g) Section 6.1(h) is hereby amended by deleting Section 6.1(h) in its entirety and
substituting the following therefor:
“by the Offeror, if (i) the Company has not complied in all
material respects with any of its covenants or obligations under
this Support Agreement; or (ii) any representation or warranty of
the Company set out in Schedule C to this Support Agreement
(without giving effort to any materiality (including the word
“material”) or “Material Adverse Effect” qualification) shall have
been at October 10, 2005 untrue or incorrect of shall have become
untrue or incorrect at any time prior to the Expiry Time and such
untrue or incorrect representation or warranty is not curable or,
if curable, is not cured by the earlier of such date which is 30
days from the date of notice of such breach and the Expiry Time,
except, in each case for any untrue or incorrect representations
or warranties which, individually or in the aggregate, would not,
or would not reasonably be expected to, have a Material Adverse
Effect with respect to the Company or would not, or would not
reasonably be expected to, prevent or materially delay the
completion of the Offer prior to the Expiry Time or the completion
of a Contemplated Transaction, including any amalgamation of the
Offeror and the Company under a Subsequent Acquisition
Transaction.”
(h) Section 6.4 of the Support Agreement is hereby amended by deleting Section 6.4 in its
entirety and substituting the following therefor:
“For greater certainty, the parties agree that the compensation or
damages to be received pursuant to Section 5.3 of this Agreement
is the sole remedy in compensation or damages of the party
receiving such payment. In the event of termination of this
Agreement as provided in Section 6.1, this Agreement shall be of
no further force or effect, except that (i) for greater certainty,
Sections 1.3, 5.3 and 6.4 shall survive termination of this
7
Agreement; and (ii) nothing herein shall relieve or have the
effect of relieving any party in any way from liability for
damages incurred or suffered by a party as a result of an
intentional or wilful breach of this Agreement. Nothing herein
shall preclude a party from seeking injunctive relief to restrain
any breach or threatened breach of the covenants or agreements set
forth in this Agreement or otherwise to obtain specific
performance of any such covenants or agreements, without the
necessity of posting bond or security in connection therewith.”
(i) Section 7.8 of the Support Agreement is hereby amended by adding to such section the
following definitions:
“Combination Agreement” means the Combination Agreement, dated as
of June 25, 2006, between the Offeror and Xxxxxx Dodge, as the
same may be amended from time to time in accordance with its
terms.”
“Xxxxxx Dodge” means Xxxxxx Dodge Corporation.
2. Public Announcement of Fifth Amending Agreement. Each of the Offeror and the
Company agrees that, promptly after the entering into of this Agreement, it shall issue a press
release announcing the entering into of this Agreement and, in the case of the Offeror, its
intention to make the Amended Offer and consummate the transactions contemplated by the Combination
Agreement, which press release shall, in each case, be satisfactory in form and substance to the
other party acting reasonably.
3. Amended Offer. The Offeror shall vary the Offer in accordance with the terms
contained in Section 1 of this Agreement and shall mail the Amended Offer by way of a notice of
variation of the Offer (the “Notice of Variation”) in accordance in all material respects
with applicable Securities Laws to all registered shareholders as soon as reasonably practicable.
Prior to printing the Notice of Variation, the Offeror shall provide the Company with an
opportunity to review and comment on it, recognizing that whether or not such comments are
appropriate will be determined by the Offeror, acting reasonably.
4. Company Approval of the Amended Offer. The Company represents and warrants to and
in favour of the Offeror, and acknowledges that the Offeror is relying upon such representations in
entering into this Agreement, that as of the date hereof:
(a) The Board of Directors, upon consultation with its financial and legal advisors, has
unanimously determined to support the transactions contemplated by the Support Agreement, as
amended by this Agreement, and the Combination Agreement;
8
(b) CIBC World Markets Inc. has delivered an oral opinion to the Board of Directors to the
effect that the consideration to be received under the Amended Offer is fair from a financial point
of view to all Shareholders (other than the Offeror);
(c) the Board of Directors, upon consultation with its financial and legal advisors, has
unanimously determined that the price offered under the Amended Offer is fair from a financial
point of view to all Shareholders (other than the Offeror) and that it is in the best interests of
the Company for the Amended Offer to be made and the Board of Directors to support it and,
accordingly, has unanimously approved the entering into of this Agreement and the making of a
recommendation that Shareholders (other than the Offeror) accept the Amended Offer. Each member of
the Board of Directors has agreed to support the Amended Offer and has agreed that the press
release to be issued by the Offeror announcing the Amended Offer may so state and that references
to such agreement may be made in the Amended Offer, the Notice of Variation and any other documents
relating to the Offer; provided, however, that references herein to the unanimous determination and
approval of the Board of Directors and to the agreement of each of the Directors shall not include
Directors who have declared a conflict of interest and have not participated in any consideration
of the Offer; and
(d) the Company shall prepare and make available for distribution contemporaneously and
together with the Notice of Variation, in both the English and French languages as circumstances
may require, sufficient copies of a notice of change to its directors’ circular relating to the
Amended Offer (the “Notice of Change”), prepared in all material respects in accordance
with all applicable Securities Laws, which shall reflect the foregoing determinations and
recommendation, and the Company shall take all other reasonable action to support the Offer. Prior
to printing the Notice of Change, the Company shall provide the Offeror with an opportunity to
review and comment on it, recognizing that whether or not such comments are appropriate will be
determined by the Company, acting reasonably. The Company shall file the Notice of Change and any
other documents required by all applicable Securities Laws in connection with the Notice of Change
with applicable securities regulatory authorities within the times and in the manner required by
all applicable Securities Laws.
5. Confirmation of Support Agreement. The Offeror and the Company hereby confirm that
the Support Agreement remains in full force and effect, unamended except as provided for in this
Agreement.
6. Consistency with Support Agreement. The Company acknowledges to the Offeror that
the entry by the Offeror into the Combination Agreement and the performance by the Offeror of its
obligations thereunder in accordance with the terms of the Combination Agreement do not constitute
a breach by the Offeror of its obligations under the Support Agreement. The Offeror acknowledges
to the Company that the entry by the Company into a cooperation agreement with Xxxxxx Dodge
contemplated by the Combination Agreement and the performance by the Company of its obligations
9
thereunder in accordance therewith do not constitute a breach by the Company of its
obligations under the Support Agreement. Each of the Company and the Offeror (i) represents to the
other that it is not aware of: (A) any default or breach by the other of any of the other’s
covenants or obligations under the Support Agreement or (B) any representations or warranties of
the other in the Support Agreement which were as at October 10, 2005, or have become, untrue or
incorrect, including any default, breach, untruth or incorrectness that would entitle it to
terminate the Support Agreement whether before or after notice or failure to cure; and (ii)
expressly waives and hereby releases the other from all claims it may have with respect to any
possible default or breach of the other’s covenants under the Support Agreement in existence on or
prior to the date hereof and any untrue or incorrect representation or warranty by the other under
the Support Agreement on or prior to the date hereof, which in any case was known to it on the date
hereof.
7. Cooperation by Inco. Until the Company is a subsidiary of the Offeror: (i) the
Offeror shall consult with the Company in advance prior to entering into any amendment to the
Combination Agreement with Xxxxxx Dodge; and (ii) the Company shall be given an opportunity to
review and comment upon the Inco Proxy Circular prior to mailing, recognizing that whether or not
such comments are appropriate will be determined by the Offeror, acting reasonably.
8. Support Agreement Definition. For greater certainty, the Company agrees that the
definition of “Support Agreement” in the glossary of the Offer may be amended by the Offeror by
inserting after the date October 10, 2005 the words “as the agreement may be amended by Inco and
Falconbridge from time to time”.
9. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which taken together shall be deemed to
constitute one and the same instrument, and it shall not be necessary in making proof of this
Agreement to produce more than one counterpart.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date first above
written, by the duly authorized representatives of the parties hereto.
10
| INCO LIMITED |
||||
| By: | /s/ Xxxxx X. Hand | |||
| Name: | Xxxxx X. Hand | |||
| Title: | Chairman and Chief Executive Officer | |||
| By: | /s/ Xxxxx X. Fish | |||
| Name: | Xxxxx X. Fish | |||
| Title: | Executive Vice-President, General Counsel and Secretary | |||
| FALCONBRIDGE LIMITED |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and General Counsel | |||
11
