UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------------------------------
Schedule TO
(Amendment No. 2)
-------------------------------------------------------------
TENDER OFFER STATEMENT UNDER RULE 14(d)(1) or 13(e)(1)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
FAIRMONT HOTELS & RESORTS INC.
(Name of Subject Company (Issuer))
-------------------------------------------------------------
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN OFFSHORE LP
CCI OFFSHORE CORP.
ICAHN ONSHORE LP
CCI ONSHORE CORP.
CARL C. ICAHN
(Name of Filing Person (Offerors))
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Common Shares
(Title of Class of Securities)
------------------------------------------------------------
305204109
(CUSIP Number of Class of Securities)
-------------------------------------------------------------
Keith L. Schaitkin, Esq.
Associate General Counsel
Icahn Associates Corp. and Affiliated Companies
767 Fifth Avenue, 47th Floor
New York, New York 10153
(212) 702-4329
(Name, address (including zip code) and telephone number (including area code)
of person(s) authorized to receive
notices and communications on behalf of filing person)
-------------------------------------------------------------
CALCULATION OF FILING FEE
Transaction Valuation(1) Amount of Filing Fee(2)
US$1,185,936,000 US$126,895.15
- -----------------------------------------
(1) Estimated solely for the purpose of calculating the fee in accordance with
the Rule 0-11 of the Securities Exchange Act of 1934.
(2) The amount of the fee is based upon the product of 29,648,400 Fairmont
common shares and a price of US$40.00 per share.
|X| Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: US$126,895.15 Form or Registration No.: Schedule TO-T
Filing Party: Icahn Partners LP, Icahn Date Filed: December 9, 2005
Partners Master Fund LP, Icahn Offshore
LP, CCI Offshore Corp., Icahn Onshore LP,
CCI Onshore Corp. and Carl C. Icahn
|_| Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
|X| third-party tender offer subject to Rule 14d-1.
|_| issuer tender offer subject to Rule 13e-4.
|_| going-private transaction subject to Rule 13e-3
|X| amendment to Schedule 13D under Rule 13d-2
Check the following box if the filing is a final amendment reporting the results
of the tender offer: |_|
COMBINED SCHEDULE TO AND SCHEDULE 13D
CUSIP No. 3052041091
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund LP
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
3,985,534
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
3,985,534
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,985,534
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.53%
14 TYPE OF REPORTING PERSON*
PN
CUSIP No. 3052041091
1 NAME OF REPORTING PERSON
Icahn Offshore LP
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
3,985,534
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
3,985,534
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,985,534
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.53%
14 TYPE OF REPORTING PERSON*
PN
CUSIP No. 3052041091
1 NAME OF REPORTING PERSON
CCI Offshore Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
3,985,534
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
3,985,534
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,985,534
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.53%
14 TYPE OF REPORTING PERSON*
CO
CUSIP No. 3052041091
1 NAME OF REPORTING PERSON
Icahn Partners LP
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
3,137,066
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
3,137,066
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,137,066
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.35%
14 TYPE OF REPORTING PERSON*
PN
CUSIP No. 3052041091
1 NAME OF REPORTING PERSON
Icahn Onshore LP
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
3,137,066
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
3,137,066
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,137,066
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.35%
14 TYPE OF REPORTING PERSON*
PN
CUSIP No. 3052041091
1 NAME OF REPORTING PERSON
CCI Onshore Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
3,137,066
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
3,137,066
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,137,066
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.35%
14 TYPE OF REPORTING PERSON*
CO
CUSIP No. 3052041091
1 NAME OF REPORTING PERSON
Carl C. Icahn
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
7,122,600
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
7,122,600
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,122,600
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.88%
14 TYPE OF REPORTING PERSON*
IN
This Amendment No. 2 (this "Amendment") to Schedule TO is being filed on
behalf of Icahn Partners LP, a limited partnership governed by the laws of
Delaware, Icahn Partners Master Fund LP, a limited partnership governed by the
laws of the Cayman Islands, Icahn Offshore LP, a limited partnership governed by
the laws of Delaware, CCI Offshore Corp., a corporation governed by the laws of
Delaware, Icahn Onshore LP, a limited partnership governed by the laws of
Delaware, CCI Onshore Corp., a corporation governed by the laws of Delaware, and
Carl C. Icahn (collectively the "Offeror") and amends and supplements the
Schedule TO filed by the Offeror with the U.S. Securities and Exchange
Commission on December 9, 2005 and amended on December 27, 2005 by Amendment No.
1 (as amended, the "Schedule TO") relating to the offer by the Offeror to
purchase (i) up to 29,648,400 common shares (the "Fairmont Shares") of Fairmont
Hotels & Resorts Inc. ("Fairmont"); and (ii) the associated rights (the
"Rights") issued under the Fairmont Rights Plan (together with the Fairmont
Shares, the "Shares"), at a price of US$40.00 per Share. The offer by the
Offeror is only to purchase the Shares and is not made for any options, warrants
or other rights to acquire Shares (other than the Rights).
The offer is subject to the terms and conditions set forth in the Offer to
Purchase and Circular dated December 9, 2005 (the "Offer and Circular"). The
Offer and Circular and the related Letter of Acceptance and Transmittal (the
"Letter of Transmittal") and Notice of Guaranteed Delivery, copies of which were
previously filed with the Schedule TO as Exhibits (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) thereto, constitute the "Offer".
As permitted by General Instruction F to Schedule TO, the information set
forth in Exhibit (a)(5)(iii) to this Amendment and the entire Offer and
Circular, the Letter of Transmittal and the Notice of Guaranteed Delivery,
including all appendices, schedules, exhibits and annexes thereto, is hereby
expressly incorporated by reference in response to Items 1 through 11 of the
Schedule TO, as amended and supplemented by this Amendment. You should read this
Amendment together with the Schedule TO.
As permitted by General Instruction G to Schedule TO, this Amendment is
also an amendment to the joint statement on Schedule 13D filed on October 28,
2005 by the Offeror, as amended by the Offeror's Schedule TO-C filed on December
2, 2005 and the Schedule TO.
Items 1 through 11
Items 1 through 11 of the Schedule TO are hereby amended and supplemented
by adding thereto the following:
On January 31, 2006, the Offeror announced that it would allow the Offer to
expire. A copy of the press release issued by the Offeror in connection
therewith is filed herewith as Exhibit (a)(5)(iii) and incorporated herein by
reference.
Item 12. Exhibits
Items 12 of the Schedule TO is hereby amended and supplemented by adding
thereto the following exhibit:
Exhibit Description
- --------------------------------------------------------------------------------
(a)(5)(iii) Press Release, dated January 31, 2006, announcing expiration of
the Offer. (filed herewith)
Item 13. Information Required by Schedule 13E-3
Not applicable.
SIGNATURES
After due 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.
Date: January 31, 2006
ICAHN PARTNERS LP, by its General Partner, Icahn
Onshore LP, by its General Partner, CCI Onshore
Corp.
By: /s/ Keith Meister
----------------------
Name: Keith Meister
Title: President and Secretary
ICAHN PARTNERS MASTER FUND LP, by its General
Partner, Icahn Offshore LP, by its General
Partner, CCI Offshore Corp.
By: /s/ Keith Meister
----------------------
Name: Keith Meister
Title: President and Secretary
ICAHN ONSHORE LP, by its General Partner, CCI
Onshore Corp.
By: /s/ Keith Meister
----------------------
Name: Keith Meister
Title: President and Secretary
ICAHN OFFSHORE LP, by its General Partner, CCI
Offshore Corp.
By: /s/ Keith Meister
----------------------
Name: Keith Meister
Title: President and Secretary
CCI ONSHORE CORP.
By: /s/ Keith Meister
----------------------
Name: Keith Meister
Title: President and Secretary
CCI OFFSHORE CORP.
By: /s/ Keith Meister
----------------------
Name: Keith Meister
Title: President and Secretary
/s/ Carl. C. Icahn
------------------
Carl. C. Icahn
[Signature page to Amendment No. 2 to Schedule TO filed
with the SEC in connection with the Fairmont Tender Offer]
EXHIBIT INDEX
Exhibit Description
- ------------ ------------------------------------------------------------------
(a)(1)(i) Offer to Purchase and Circular, dated December 9, 2005.
(previously filed)
(a)(1)(ii) Letter of Acceptance and Transmittal. (previously filed)
(a)(1)(iii) Notice of Guaranteed Delivery. (previously filed)
(a)(1)(iv) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees. (previously filed)
(a)(1)(v) Letter to Clients. (previously filed)
(a)(5)(i) Summary Advertisement of the Offerors dated December 9, 2005.
(previously filed)
(a)(5)(ii) Letter, dated December 27, 2005, from Icahn Management LP to the
Board of Directors of Fairmont. (previously filed)
(a)(5)(iii) Press Release, dated January 31, 2006, announcing expiration of
the Offer. (filed herewith)
(h)(1)(i) Opinion of Osler, Hoskin & Harcourt LLP regarding Canadian Federal
Income Tax considerations dated December 9, 2005.
(previously filed)
(h)(1)(ii) Opinion of Osler, Hoskin & Harcourt LLP regarding United States
Federal Income Tax considerations dated December 9, 2005.
(previously filed)