Amendment No. 5 to Schedule 13D

-----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, DJzw7cemNSkJdv/uDBP6h+HLQhQJQGsxQ60zd92alIZhJq7O/h90LM0kK4zPY3Gt MGW3ORXFMNGBmRchTskydQ== 0001193125-09-118437.txt : 20090526 0001193125-09-118437.hdr.sgml : 20090525 20090526164953 ACCESSION NUMBER: 0001193125-09-118437 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20090526 DATE AS OF CHANGE: 20090526 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: 09852325 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 AMENDMENT NO. 5 TO SCHEDULE 13D Amendment No. 5 to Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934

(Amendment No. 5)

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)

May 26, 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 §§240.13d-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.

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) ¨
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)	x
6.	Citizenship or Place of Organization Canada


Number of Shares Beneficially Owned by Each Reporting Person With		7. Sole Voting Power 0 ⁽¹⁾
		8. Shared Voting Power
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power


11.		Aggregate Amount Beneficially Owned by Each Reporting Person 0
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
13.		Percent of Class Represented by Amount in Row (11) 0%
14.		Type of Reporting Person (See Instructions) CO

(1).	Pursuant to a Share Purchase Agreement with GMP Securities L.P., dated as of May 11, 2009, HudBay Minerals Inc. disposed of all of its Common Shares of Lundin Mining Corporation on May 26, 2009.

This Amendment No. 5 (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, as amended by Amendment No. 2 to the Schedule 13D filed by HudBay on February 25, 2009, as amended by Amendment No. 3 to the Schedule 13D filed by HudBay on March 23, 2009, and as amended by Amendment No. 4 to the Schedule 13D filed by HudBay on May 12, 2009 (together, the “Initial Statement”). 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 and restated as follows:

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 for a private placement of 96,997,492 Common Shares to HudBay (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 the entry into the Letter Agreement and the 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 as Exhibit 2.16 to the Initial Statement) pursuant to which the companies agreed to terminate the Arrangement Agreement. Pursuant to the Termination Agreement, HudBay and Lundin released each other in respect of any and all claims arising from the Arrangement Agreement, and agreed 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.

On May 11, 2009, HudBay and Lundin entered into a consent agreement (the “Consent Agreement”, attached as Exhibit 2.17 to the Initial Statement) pursuant to which Lundin consented to the sale of all of the Common Shares held by HudBay notwithstanding the restriction on HudBay’s ability to sell its Common Shares pursuant to the Subscription Agreement. In consideration for Lundin’s consent, the companies agreed to terminate in their entirety all continuing rights and obligations of HudBay and Lundin under the Subscription Agreement and terminate the following rights under Sections 3, 5 and 6 of the Termination Agreement, all with effect upon completion of the sale of HudBay’s Common Shares: 1) HudBay’s right of first offer in the event of any proposed sale or

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transfer of material assets of Lundin during the six month period following the date of termination of the Arrangement Agreement; 2) HudBay’s entitlement to designate a nominee on the Board of Directors of Lundin, as long as HudBay owns 10% or more of the outstanding Common Shares; and 3) HudBay’s right to maintain its current level of ownership of the Common Shares in the event of any public or private distribution of Common Shares by Lundin, as long as HudBay owns 10% or more of the outstanding Common Shares. Pursuant to the Consent Agreement, effective upon completion of the sale of its Common Shares, HudBay and Lundin released each other in respect of any and all claims arising from the Subscription Agreement or Section 7 or 8 of the Termination Agreement, as applicable. The sale of HudBay’s Common Shares pursuant to the Share Purchase Agreement (as defined below) was completed on May 26, 2009.

Item 4.

Purpose of Transaction

Item 4 is hereby amended and restated as follows:

(a) HudBay entered into a share purchase agreement (the “Share Purchase Agreement”, attached as Exhibit 2.18 to the Initial Statement) with GMP Securities L.P. (“GMP”), dated as of May 11, 2009, pursuant to which HudBay agreed to sell all of its Common Shares to GMP for a purchase price of C$235,703,905.60. Pursuant to the terms of the Share Purchase Agreement, settlement of the purchase and sale of the Common Shares occurred on May 26, 2009.

HudBay has disposed of its Common Shares in accordance with the terms and conditions of the Share Purchase Agreement. HudBay reserves the right to acquire additional Common Shares and to dispose of or hold such Common Shares as it may determine in its sole discretion. Such determinations may change at any time and from time to time based on, among other things, (i) the financial condition, operations, prospects, capital structure and management of Lundin, (ii) the value and price of the Common Shares, (iii) relevant business developments, competitive and strategic matters and prevailing industry and market conditions, (iv) alternative investment opportunities available to HudBay, (v) its liquidity requirements and (vi) other investment considerations.

HudBay and Lundin are bound by a reciprocal standstill covenant for a period of twelve months from the date of the Termination Agreement.

(b) 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 Consent Agreement, HudBay’s 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 terminated upon completion of the sale of its Common Shares. Accordingly, HudBay currently has no plan or proposal which relates to, or may result in, a sale or transfer of a material amount of assets of Lundin or any of its subsidiaries.

(d) Pursuant to the Consent Agreement, HudBay’s entitlement to have one nominee for inclusion on Lundin’s management slate of nominees for election to the Board of Directors of Lundin as long as HudBay owns 10% or more of the outstanding Common Shares terminated upon completion of the sale of its Common Shares. Accordingly, HudBay currently has no plan or proposal which relates to, or may result in, any change in the present board of directors or management of Lundin.

(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 Consent Agreement, HudBay’s 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 as long as HudBay continues to own 10% or more of the outstanding Common Shares terminated upon completion of the sale of its Common Shares. Accordingly, HudBay currently has no plan or proposal which relates to, or may result in, any other material change in Lundin’s business or corporate structure.

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(g) HudBay currently 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) Lundin is neither listed on a national securities exchange nor authorized to be quoted on an inter-dealer quotation system of a registered national securities association.

(i) HudBay currently 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, Termination Agreement, Consent Agreement and Share Purchase Agreement 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 is hereby amended and restated as follows:

(a) – (b) Pursuant to the Share Purchase Agreement, HudBay disposed of all of its Common Shares on May 26, 2009. Accordingly, HudBay is no longer the holder of any Common Shares (and, as such, holds 0% of the outstanding Common Shares), nor is HudBay entitled to any rights as a shareholder of Lundin with respect to the Common Shares, including, but not limited to, any rights to vote or to direct the vote, sole power to dispose or to direct the disposition, or shared power to dispose or to direct the disposition of the Common Shares.

As set forth in Schedule II hereto, there are no Common Shares beneficially owned or deemed to be beneficially owned by any of the directors or executive officers of HudBay as of May 26, 2009.

(c) As described above under Item 4(a), on May 26, 2009, HudBay disposed of all of its Common Shares pursuant to the Share Purchase Agreement, dated as of May 11, 2009, with GMP. Pursuant to the Share Purchase Agreement, HudBay sold all of its 96,997,492 Common Shares to GMP for a purchase price of C$2.43 per Common Share, which amounts to C$235,703,905.60.

(d) Other than as described above, to the best knowledge of HudBay, its directors and executive officers, no person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, Common Shares in connection with the transactions described in this Schedule 13D.

(e) HudBay ceased to be the beneficial owner of more than five percent of the Common Shares on May 26, 2009.

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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: May 26, 2009


HudBay Minerals Inc.

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

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Schedule II

Schedule II to the Initial Statement is hereby amended and restated as follows:


Name	Number of Common Shares Beneficially Owned	Percentage of Common Shares Beneficially Owned
Directors

J. Bruce Barraclough	–	–

Brian D. Gordon	–	–

Alan Roy Hibben	–	–

W. Warren Holmes	–	–

Peter R. Jones	–	–

John Knowles	–	–

Alan Lenczner, Q.C.	–	–

G. Wesley Voorheis	–	–

Officers

David S. Bryson	–	–

Thomas A. Goodman	–	–

Alan T.C. Hair	–	–

H. Maura Lendon	–	–

Peter R. Jones	–	–

Michael D. Winship	–	–

Total	–	–

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