Common use of The Tender Offer Clause in Contracts

The Tender Offer. (a) Subject to the terms hereof, on or before December 26, 2007, the Buyer shall publicly announce its intent to make a tender offer (the "Tender Offer") to acquire any and all of the outstanding Class A shares, Class B shares and ADSs (each ADS representing two Class B shares) not held by the Buyer or its Affiliates (as defined in Section 6.6), in each case at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS. The expiration date of the Tender Offer shall initially be twenty business days (as defined under the rules and regulations of the U.S. Securities and Exchange Commission), which may be extended by the Buyer as it deems appropriate subject to compliance with the other terms of this Agreement. Each such price per share or ADS, or any greater amount per share paid pursuant to the Tender Offer as it may be amended by the Buyer, is referred to as the "Tender Offer Price". The Buyer's obligation to accept for payment and to pay for any Class A shares, Class B shares or ADSs (each ADS representing two Class B shares) pursuant hereto shall be subject to no conditions other than those set forth in Article Five hereof. The Buyer expressly reserves the right to increase the Tender Offer Price, and it may decrease the Tender Offer Price provided it shall not decrease the Tender Offer Price below the Initial Purchase Price set forth in Section 1.2 hereof above. The Buyer and Seller agree that if more than 5,968,722 Class B shares (including Class B shares held in the form of ADSs) are tendered (and not withdrawn) as of the expiration of the Tender Offer (as that date may be adjusted in accordance herewith), the Tender Offer Price shall be adjusted by the Buyer to US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Each condition set forth in the Tender Offer may be waived by the Buyer, in whole or in part at any time and from time to time, in its sole discretion. (b) As soon as practicable following the announcement of its intent to make the Tender Offer, the Buyer shall file with the Luxembourg Commission de Surveillance du Secteur Financier (“CSSF”) a draft offer to purchase and ancillary documents. Once the CSSF has completed its review of the offer to purchase and ancillary documents, the Buyer will file with the Securities and Exchange Commission a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Tender Offer. The Buyer will cause the Schedule TO, the offer to purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder. (c) If (i) the Buyer terminates or abandons the Tender Offer, (ii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) (without Buyer having been instructed to do so by Seller), in each case for any reason other than the failure of the Tender Offer to have been consummated by the Termination Date as a result of one of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer) hereof, or (iii) this Agreement is terminated by Seller pursuant to Section 6.1(a)(iii) following a material default by Buyer of Buyer’s covenants, representations and warranties set forth in this Agreement, then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Furthermore, if (i) for any reason, following the commencement of the Tender Offer, the Seller does not tender, or the Seller withdraws, the Shares from the Tender Offer, (ii) the Tender Offer is terminated by Buyer at the instruction of the Seller pursuant to Section 6.1(b), or (iii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) due to failure of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer), then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS.

The Tender Offer. 2.1 The Tender Offer (a) Provided that this Agreement has not been terminated in accordance with ARTICLE 8 and none of the events referred to in paragraphs (a)-(h) of Annex A has occurred and is continuing (and shall not have been waived by Parent), as promptly as practicable, but in no event later than five (5) Business Days from the date hereof, Buyer shall (and Parent shall cause Buyer to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer for any and all Shares at the Offer Price, net to the seller in cash, without interest, less any required withholding taxes. The Offer initially shall expire at 9:00 a.m. Eastern time on the twenty-first Business Day following the date of commencement of the Offer (such date and time, as extended in accordance with the terms hereof, the "Expiration Date"). The obligation of Parent and Buyer to commence the Offer shall be subject only to the provisions of this Section 2.1 and the obligation of Parent and Buyer to accept for payment, purchase, and pay for any Shares validly tendered and not withdrawn pursuant to the Offer shall be subject only to the provisions of this Section 2.1 and the conditions set forth in ----------- Annex A hereto (the "Offer Conditions"). (c) Subject to the terms provisions of ARTICLE 8 and Section 2.1(d) hereof, if on or before December 26------------- the initial Expiration Date of the Offer, 2007, the Buyer shall publicly announce its intent to make a tender offer (the "Tender Offer") to acquire any and all of the outstanding Class A sharesOffer Conditions are not then satisfied or waived, Class B shares and ADSs (each ADS representing two Class B shares) not held Buyer may, from time to time, in its sole discretion, extend the Expiration Date. Without limiting the generality of the foregoing, Buyer may, without the consent of the Company, extend any then scheduled Expiration Date of the Offer for any period required by applicable rules, regulations, interpretations or positions of the SEC or the staff thereof applicable to the Offer or for any period required by applicable law. Buyer or its Affiliates may provide for a "subsequent offering periods" (as defined contemplated by Rule 14d-11 of the Exchange Act) of not less than three nor more than twenty Business Days following its acceptance of, and payment for, the Shares in Section 6.6)the Offer. (d) Notwithstanding the foregoing, in each case Buyer shall be obligated to extend the Offer from time to time until the Termination Date if, at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS. The expiration date of the Tender Offer shall Expiration Date as initially be twenty business days (as defined under the rules and regulations of the U.S. Securities and Exchange Commission), which may be extended by the Buyer as it deems appropriate subject to compliance with the other terms of this Agreement. Each such price per share or ADSscheduled, or any greater amount per share paid pursuant extension thereof, the Offer Conditions have not been satisfied or waived, provided, however, that Buyer shall not be required to extend the Tender Offer as it may be amended by provided in this sentence unless, in Parent's reasonable judgment, each such Offer Condition is reasonably capable of being satisfied; provided further, that the Buyer, foregoing proviso shall not apply (A) if the failure of Parent or Buyer to fulfill any obligation under the Agreement resulted in the failure of any such Offer Condition or (B) if the Offer Condition that has not been satisfied or waived is referred to as the "Tender Offer Price". The Buyer's obligation to accept for payment and to pay for any Class A shares, Class B shares or ADSs (each ADS representing two Class B shares) pursuant hereto shall be subject to no conditions other than those Condition set forth in Article Five clause (ii) or clause (iv) of Annex A. ------- (e) Subject to Section 2.1(b) hereof. The Buyer expressly reserves , the right to increase Parties agree that the Tender Offer Price, and it may decrease Conditions are for the Tender Offer Price provided it shall not decrease the Tender Offer Price below the Initial Purchase Price set forth in Section 1.2 hereof above. The sole benefit of Buyer and Seller agree that if more than 5,968,722 Class B shares (including Class B shares held in the form of ADSs) are tendered (and not withdrawn) as may be asserted by Buyer regardless of the expiration of the Tender circumstances giving rise to any such Offer (as that date may be adjusted in accordance herewith), the Tender Offer Price shall be adjusted by the Buyer to US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Each condition set forth in the Tender Offer Condition or may be waived by the Buyer, in whole or in part part, at any time and from time to time, in its sole discretion. The failure by Buyer at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to other facts or circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. (bf) Subject to the terms and conditions of the Offer and this Agreement, Buyer shall (and Parent shall cause Buyer to) accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Buyer becomes obligated to accept for payment and pay for pursuant to the Offer, as promptly as practicable after the Expiration Date. (g) As soon as practicable following on the announcement date of its intent to make commencement of the Tender Offer, the Parent and Buyer shall file or cause to be filed with the Luxembourg Commission de Surveillance du Secteur Financier (“CSSF”) a draft offer to purchase and ancillary documents. Once the CSSF has completed its review of the offer to purchase and ancillary documents, the Buyer will file with the Securities and Exchange Commission SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO") and a Statement on Schedule 13E-3 which shall be filed as part of the Schedule TO (together with respect to all amendments and supplements thereto and including the Tender Offerexhibits thereto, the "Schedule 13E-3"). The Buyer Schedule TO shall contain or shall incorporate by reference the offer to purchase, related letter of transmittal, summary advertisement and other ancillary offer documents and instruments pursuant to which the Offer will cause the be made (such Schedule TO, including the offer Schedule 13E-3 and the documents included therein pursuant to purchase and all which the Offer will be made, together with any supplements or amendments or supplements thereto (which together constitute thereto, the "Offer Documents") with respect to the Offer. Parent and Buyer will take all steps necessary to amend or supplement the Offer Documents to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Buyer agree that the Offer Documents shall comply as to form in all material respects with the Exchange Act and the rules and regulations promulgated thereunder. (c) If (i) . The Offer Documents, on the date filed with the SEC and on the date first published, sent or given to the Company Stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Buyer terminates with respect to information supplied by the Company or abandons any of its stockholders specifically for inclusion or incorporation by reference in the Tender OfferOffer Documents and not subsequently corrected prior to filing. Each of Parent, (ii) Buyer and the Tender Company agrees promptly to correct any information provided by it for use in the Offer is terminated by Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Buyer pursuant each further agrees to Section 6.1(b) (without Buyer having been instructed take all steps necessary to do so by Seller)amend or supplement the Offer Documents or the Schedule 13E-3 to be filed with the SEC and disseminated to the Company Stockholders, in each case for any reason other than the failure of the Tender Offer to have been consummated by the Termination Date as a result of one of the conditions in Section 5.1 or Section 5.2 (insofar as applicable and to the Tender Offerextent required by applicable Law. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable to counsel for Buyer) hereof, prior to their filing with the SEC or (iii) this Agreement is terminated by Seller pursuant to Section 6.1(a)(iii) following a material default by Buyer of Buyer’s covenants, representations and warranties set forth in this Agreement, then in each case (subject dissemination to the other conditions hereunder as applicable Company Stockholders. Parent and Buyer each agrees to provide the Company and its counsel any comments Parent, Buyer or their counsel may receive from the SEC or its staff with respect to the purchase and sale outside Offer Documents promptly after the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price receipt of US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Furthermore, if (i) for any reason, following the commencement of the Tender Offer, the Seller does not tender, or the Seller withdraws, the Shares from the Tender Offer, (ii) the Tender Offer is terminated by Buyer at the instruction of the Seller pursuant to Section 6.1(b), or (iii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) due to failure of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer), then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADSsuch comments.

The Tender Offer. (a) Subject to 1.1 The Offer. Provided that this Agreement has not been terminated in accordance with Section 8.1, the terms Parent will commence the Offer as promptly as practicable after the date hereof, on or before December 26but in no event later than November 14, 2007, the Buyer shall publicly announce its intent to make a tender offer (the "Tender Offer") to acquire any and all of the outstanding Class A shares, Class B shares and ADSs (each ADS representing two Class B shares) not held by the Buyer or its Affiliates (as defined in Section 6.6), in each case at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS1995. The Offer will have an initial expiration date of the Tender Offer shall initially be twenty which is 20 business days (as defined under in the relevant rules and regulations of the U.S. Securities and Exchange Commission), which may be extended by the Buyer as it deems appropriate subject to compliance with the other terms of this Agreement. Each such price per share or ADS, or any greater amount per share paid pursuant to the Tender Offer as it may be amended by the Buyer, is referred to as Commission (the "Tender Offer PriceCommission")) after the commencement thereof. The Buyer's obligation of the Parent to accept for payment and any Securities tendered pursuant to pay for any Class A shares, Class B shares or ADSs (each ADS representing two Class B shares) pursuant hereto shall the Offer will be subject only to no the satisfaction of the conditions other than those set forth in Article Five hereofAnnex I hereto. The Buyer Parent expressly reserves the right to increase the Tender Per Share Amount and the Per Warrant Amount to be paid in the Offer Priceor to extend the Offer if any condition thereto is not satisfied. Without the prior written consent of the Company, and it may the Parent will not (a) decrease the Tender Offer Price provided it shall not Per Share Amount or the Per Warrant Amount, (b) decrease the Tender number of Securities to be purchased in the Offer, (c) change the form of consideration payable in the Offer, (d) add to or change the conditions to the Offer Price below the Initial Purchase Price set forth in Section 1.2 hereof aboveAnnex I hereto, (e) change or waive the Minimum Condition (as defined in Annex I hereto) or (f) make any other change in the terms or conditions of the Offer which is materially adverse to the holders of the Securities. The Buyer and Seller agree that if more than 5,968,722 Class B shares (including Class B shares held in the form of ADSs) are tendered (and not withdrawn) as of the expiration of the Tender Offer (as that date may be adjusted in accordance herewith), the Tender Offer Price shall be adjusted by the Buyer to US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Each condition conditions set forth in Annex I are for the Tender Offer benefit of the Parent, and may be asserted by the Parent or, subject to the immediately preceding sentence, may be waived by the BuyerParent, in whole or in part part, at any time and from time to time, time in its sole discretion. (b) As soon as practicable following discretion and regardless of the announcement circumstances relating thereto. The Offer will be made by means of its intent to make the Tender Offer, the Buyer shall file with the Luxembourg Commission de Surveillance du Secteur Financier (“CSSF”) a draft an offer to purchase and ancillary documents. Once the CSSF has completed its review of the offer to purchase and ancillary documents, the Buyer will file with the Securities and Exchange Commission a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Tender Offer. The Buyer will cause the Schedule TO, the offer to purchase and all amendments or supplements thereto (which together constitute the "Offer Documentsto Purchase") to comply in all material respects with containing the Exchange Act and the rules and regulations thereunder. (c) If (i) the Buyer terminates or abandons the Tender Offer, (ii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) (without Buyer having been instructed to do so by Seller), in each case for any reason other than the failure of the Tender Offer to have been consummated by the Termination Date as a result of one of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer) hereof, or (iii) this Agreement is terminated by Seller pursuant to Section 6.1(a)(iii) following a material default by Buyer of Buyer’s covenants, representations and warranties terms set forth in this Agreement and only the conditions set forth in Annex I hereto. Subject to the terms of the Offer and this Agreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date of the Offer, the Parent will accept for payment and pay for all Securities validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such expiration date of the Offer. Subject to Section 8.1, if the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, then in each case (subject waived by the Parent, as of the date the Offer would otherwise have expired, the Parent will extend the Offer from time to time until the other conditions hereunder as applicable to earlier of the purchase and sale outside consummation of the Tender Offer) Offer or the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares date which is 60 days from Seller, at the respective Purchase Price of US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Furthermore, if (i) for any reason, following the commencement of the Tender Offer, the Seller does not tender, or the Seller withdraws, the Shares from the Tender Offer, (ii) the Tender Offer is terminated by Buyer at the instruction of the Seller pursuant to Section 6.1(b), or (iii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) due to failure of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer), then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS.

The Tender Offer. (a) Subject Conditions; Consideration; Schedule 14D-1. Parent and Merger Subsidiary shall (i) within five business days of delivery of the notice described in Section 1.4 commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Tender Offer for up to 100% (or such lesser percentage not less than 49.9% as Parent shall specify in the terms hereof, on or before December 26, 2007, the Buyer shall publicly announce its intent to make a tender offer (the "Tender Offer") to acquire any and all of the outstanding Class A sharesCommon Shares (excluding for all purposes in calculating such applicable percentage any outstanding Common Shares owned by Parent or Merger Subsidiary pursuant to the exercise of Parent's rights under the Stock Option Agreement), Class B shares and ADSs (each ADS representing two Class B shares) not held by together with the Buyer or its Affiliates associated New Rights (as defined in Section 6.65.1(q)) issued pursuant to the New Rights Agreement (as defined in Section 5.1(b)), at a purchase price of not less than $58.00, net to the seller in each case at cash, without interest thereon, per Common Share, upon the respective terms and subject to the conditions set forth in Annex I to this Agreement and such further customary terms as may be set forth in an Offer to Purchase Price and Letter of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS. The expiration date of Transmittal (the "Offer Documents") to be mailed by Merger Subsidiary in connection with the Tender Offer shall initially be twenty business days and (as defined under the rules and regulations of the U.S. Securities and Exchange Commission), which may be extended by the Buyer as it deems appropriate subject to compliance with the other terms of this Agreement. Each such price per share or ADS, or any greater amount per share paid pursuant to the Tender Offer as it may be amended by the Buyer, is referred to as the "Tender Offer Price". The Buyer's obligation to accept for payment and to pay for any Class A shares, Class B shares or ADSs (each ADS representing two Class B sharesii) pursuant hereto shall be subject to no conditions other than those set forth in Article Five hereof. The Buyer expressly reserves the right to increase the Tender Offer Price, and it may decrease the Tender Offer Price provided it shall not decrease the Tender Offer Price below the Initial Purchase Price set forth in Section 1.2 hereof above. The Buyer and Seller agree that if more than 5,968,722 Class B shares (including Class B shares held in the form of ADSs) are tendered (and not withdrawn) as of the expiration of the Tender Offer (as that date may be adjusted in accordance herewith), the Tender Offer Price shall be adjusted by the Buyer to US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Each condition set forth in the Tender Offer may be waived by the Buyer, in whole or in part at any time and from time to time, in its sole discretion. (b) As soon as practicable following the announcement of its intent to make the Tender Offer, the Buyer shall file with the Luxembourg Commission de Surveillance du Secteur Financier (“CSSF”) a draft offer to purchase and ancillary documents. Once the CSSF has completed its review of the offer to purchase and ancillary documents, the Buyer will file with the Securities and Exchange Commission SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO14D- 1") with respect to the Tender OfferOffer which will contain the Offer Documents as exhibits. The Buyer will cause Company shall have the opportunity to review the Schedule TO, the offer 14D-1 prior to purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects its being filed with the Exchange Act and SEC. Without the rules and regulations thereunder. (c) If (i) prior written consent of the Buyer terminates Company, Merger Subsidiary shall not decrease the price per Common Share or abandons change the form of consideration payable in the Tender Offer, (ii) decrease the number of Common Shares sought, impose additional conditions to the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) (without Buyer having been instructed to do so by Seller), in each case for or amend any reason other than the failure term of the Tender Offer in any manner adverse to have been consummated by the Termination Date holders of Common Shares; it being understood that Parent can reduce the Minimum Tender Condition (as defined in Annex I) to a result of one percentage not less than 35% of the conditions in Section 5.1 outstanding Common Shares on a fully-diluted basis (excluding for all purposes of such dilution calculation Common Shares purchased or Section 5.2 (insofar as applicable subject to purchase by Parent pursuant to the Tender Offer) hereof, or (iii) this Agreement is terminated by Seller pursuant to Section 6.1(a)(iii) following a material default by Buyer exercise of Buyer’s covenants, representations Parent's rights under the Stock Option Agreement). Upon the terms and warranties set forth in this Agreement, then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Furthermore, if (i) for any reason, following the commencement of the Tender Offer, Merger Subsidiary will accept for payment and will purchase, as soon as permitted under the Seller does not tender, or the Seller withdraws, the Shares from terms of the Tender Offer, (ii) all Common Shares validly tendered and not withdrawn prior to the Tender Offer is terminated by Buyer at the instruction expiration of the Seller pursuant to Section 6.1(b), or (iii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) due to failure of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer), then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS.

The Tender Offer. (a) Subject As promptly as practicable (but in no event later than three business days after the public announcement of the transactions contemplated by this Agreement), the Purchaser shall amend the Tender Offer to reflect the existence of this Agreement and amend the conditions to the terms hereof, on or before December 26, 2007, the Buyer shall publicly announce its intent to make a tender offer (the "Tender Offer") to acquire any and all of the outstanding Class A shares, Class B shares and ADSs (each ADS representing two Class B shares) not held by the Buyer or its Affiliates (as defined Offer in Section 6.6), in each case at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADSaccordance herewith. The expiration date of the Tender Offer (the "Expiration Date") shall initially be twenty the tenth business days (as defined under day from and after the rules and regulations of the U.S. Securities and Exchange Commission), which may be extended by the Buyer as it deems appropriate subject to compliance with the other terms of this Agreement. Each such price per share or ADS, or any greater amount per share paid pursuant to date the Tender Offer as it may is amended to provide for the purchase of all of the outstanding shares of ASARCO Common Stock in accordance with the terms hereof. The Tender Offer shall be amended by made pursuant to a supplement to the BuyerPurchaser's Offer to Purchase dated September 27, is referred to as 1999 and related letter of transmittal (together with any supplements or amendments thereto, collectively the "Tender Offer PriceDocuments") containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to ASARCO. The Buyer's obligation of the Purchaser to accept for payment and to pay for any Class A shares, Class B shares or ADSs (each ADS representing two Class B shares) pursuant hereto Shares validly tendered in the Tender Offer shall be subject only to no (i) the condition that there shall be validly tendered prior to the Expiration Date of the Tender Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent or the Purchaser, represents at least 80% of the total issued and outstanding Shares on the date such Shares are purchased pursuant to the Tender Offer (the "Minimum Condition") and (ii) the satisfaction of the other conditions other than those set forth in Article Five hereofAnnex A hereto. The Buyer expressly reserves Purchaser shall, on the right terms and subject to increase the prior satisfaction or waiver (except that the Minimum Condition may not be waived) of the conditions of the Tender Offer PriceOffer, accept for payment and pay for all Shares validly tendered and not withdrawn as soon as it may decrease is legally permitted to do so under applicable Law. (b) The Purchaser shall not amend or waive the Tender Offer Price provided it Minimum Condition and shall not decrease the Tender Offer Price below or decrease the Initial Purchase Price set forth in Section 1.2 hereof above. The Buyer and Seller agree that if more than 5,968,722 Class B shares (including Class B shares held in the form number of ADSs) are tendered (and not withdrawn) as of the expiration Shares sought, or amend any other condition of the Tender Offer in any manner adverse to the holders of the Shares (as that date may other than with respect to insignificant changes or amendments) without the prior written consent of ASARCO (such consent to be adjusted in accordance herewithauthorized by the ASARCO Board of Directors). Notwithstanding the foregoing, the Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Tender Offer Price shall be adjusted by at any time up to February 29, 2000 for one or more periods of not more than 10 business days each, if at the Buyer Expiration Date of the Tender Offer, or any extension thereof, the Minimum Condition or any of the conditions to US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Each condition the Tender Offer set forth in clauses (a), (b) or (e) of Annex A hereto are not satisfied or waived; provided, however, if all of the conditions to the Tender Offer are satisfied or waived but the number of shares of ASARCO Common Stock tendered (together with the Shares then owned by Parent and Purchaser) constitutes 80% or more, but less than 90%, of the then outstanding number of shares of ASARCO Common Stock, then the Purchaser shall extend the Tender Offer for an aggregate period of not more than three business days beyond the Expiration Date. In addition, the Offer Price may be increased and the Tender Offer may be waived extended to the extent required by Law in connection with such increase in each case without the Buyer, in whole or in part at any time and from time to time, in its sole discretionconsent of ASARCO. (bc) As soon promptly as practicable following (but in no event later than three business days after the public announcement of its intent to make the Tender Offertransactions contemplated by this Agreement), Parent and the Buyer Purchaser shall file with the Luxembourg Commission de Surveillance du Secteur Financier (“CSSF”) a draft offer to purchase and ancillary documents. Once the CSSF has completed its review of the offer to purchase and ancillary documents, the Buyer will file with the United States Securities and Exchange Commission a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TOSEC") with respect an amendment to the Schedule 14D-1. The Schedule 14D-1 shall reflect the existence of this Agreement, amend the conditions to the Tender OfferOffer in accordance herewith and contain the Tender Offer Documents. The Buyer Tender Offer Documents will cause the Schedule TO, the offer to purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act provisions of applicable federal securities Laws and, on the date filed with the SEC and on the rules and regulations thereunder. (c) If (i) date first published, sent or given to ASARCO shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the Buyer terminates statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or abandons the Tender Offer, (ii) Purchaser with respect to information supplied by ASARCO in writing for inclusion in the Tender Offer is terminated by Buyer pursuant Documents. Each of Parent and the Purchaser further agrees to Section 6.1(b) (without Buyer having been instructed take all steps necessary to do so by Seller)cause the Tender Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Parent and the Purchaser, on the one hand, and ASARCO, on the other hand, agrees promptly to correct any information provided by it for any reason other than the failure of use in the Tender Offer Documents if and to the extent that it shall have been consummated become false and misleading in any material respect and each of Parent and the Purchaser further agrees to take all steps necessary to cause the Tender Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. ASARCO and its counsel shall be given the Termination Date as a result of one of opportunity to review the conditions amendment to the Schedule 14D-1 before it is filed with the SEC. In addition, Parent and the Purchaser agree to provide ASARCO and its counsel in Section 5.1 writing with any comments or Section 5.2 (insofar as applicable other communications that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Tender Offer) hereof, Offer Documents promptly after the receipt of such comments or (iii) this Agreement is terminated by Seller pursuant to Section 6.1(a)(iii) following a material default by Buyer of Buyer’s covenants, representations and warranties set forth in this Agreement, then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Furthermore, if (i) for any reason, following the commencement of the Tender Offer, the Seller does not tender, or the Seller withdraws, the Shares from the Tender Offer, (ii) the Tender Offer is terminated by Buyer at the instruction of the Seller pursuant to Section 6.1(b), or (iii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) due to failure of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer), then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADScommunications.

The Tender Offer. (a) Subject to Conditions; Consideration; Schedule 14D-1. Parent and Merger Subsidiary shall within five business days of delivery of the terms hereofnotice described in Section 1.4 (i) commence (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, on or before December 26, 2007, the Buyer shall publicly announce its intent to make a tender offer as amended (the "Exchange Act")) the Tender Offer for (A) up to 100% (or such lesser percentage not less than a majority of the outstanding Common Shares as Parent shall specify in the Tender Offer) of the outstanding Common Shares (excluding for all purposes in calculating such applicable majority any outstanding Shares owned by Parent or Merger Subsidiary pursuant to the exercise of Parent's rights under the Stock Option Agreement), together with the associated Rights issued pursuant to the Rights Agreement, at a purchase price of not less than the Per Share Purchase Price per Common Share net to the seller in cash, without interest thereon, and (B) at Parent's election, up to 100% (or such lesser percentage as Parent shall specify in the Tender Offer) of the outstanding Preferred Shares at a purchase price equal to the Per Share Purchase Price multiplied by 1.9974 per Preferred Share, net to the seller in cash without interest thereon, with such Tender Offer being upon the terms and subject to the conditions set forth in Annex I to this Agreement and such further customary terms as may be set forth in an Offer to Purchase and Letter of Transmittal (the "Offer Documents") to acquire any and all of the outstanding Class A shares, Class B shares and ADSs (each ADS representing two Class B shares) not held be mailed by the Buyer or its Affiliates (as defined Merger Subsidiary in Section 6.6), in each case at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS. The expiration date of the Tender Offer shall initially be twenty business days (as defined under the rules and regulations of the U.S. Securities and Exchange Commission), which may be extended by the Buyer as it deems appropriate subject to compliance connection with the other terms of this Agreement. Each such price per share or ADS, or any greater amount per share paid pursuant to the Tender Offer as it may be amended by the Buyer, is referred to as the "Tender Offer Price". The Buyer's obligation to accept for payment and to pay for any Class A shares, Class B shares or ADSs (each ADS representing two Class B shares) pursuant hereto shall be subject to no conditions other than those set forth in Article Five hereof. The Buyer expressly reserves the right to increase the Tender Offer Price, and it may decrease the Tender Offer Price provided it shall not decrease the Tender Offer Price below the Initial Purchase Price set forth in Section 1.2 hereof above. The Buyer and Seller agree that if more than 5,968,722 Class B shares (including Class B shares held in the form of ADSs) are tendered (and not withdrawn) as of the expiration of the Tender Offer (as that date may be adjusted in accordance herewith), the Tender Offer Price shall be adjusted by the Buyer to US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Each condition set forth in the Tender Offer may be waived by the Buyer, in whole or in part at any time and from time to time, in its sole discretion. (b) As soon as practicable following the announcement of its intent to make the Tender Offer, the Buyer shall ; and (ii) file with the Luxembourg Commission de Surveillance du Secteur Financier (“CSSF”) a draft offer to purchase and ancillary documents. Once the CSSF has completed its review of the offer to purchase and ancillary documents, the Buyer will file with the Securities and Exchange Commission SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO14D- 1") with respect to the Tender OfferOffer which will contain the Offer Documents as exhibits. The Buyer will cause Company shall have the opportunity to review and comment on the Schedule TO, the offer 14D-1 prior to purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects its being filed with the Exchange Act and SEC. Without the rules and regulations thereunder. (c) If (i) prior written consent of the Buyer terminates Company, Merger Subsidiary shall not decrease the price per Share or abandons change the form of consideration payable in the Tender Offer, (ii) decrease the number of Common Shares sought, impose additional conditions to the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) (without Buyer having been instructed to do so by Seller), in each case for or amend any reason other than the failure term of the Tender Offer in any manner adverse to have been consummated by the Termination Date holders of Common Shares; it being understood that Parent can reduce the Minimum Tender Condition (as defined in Annex I) to a result of one percentage not less than 35% of the conditions in Section 5.1 outstanding Common Shares on a fully diluted basis (excluding for all purposes of such dilution calculation Common Shares purchased or Section 5.2 (insofar as applicable subject to purchase by Parent pursuant to the Tender Offer) hereof, or (iii) this Agreement is terminated by Seller pursuant to Section 6.1(a)(iii) following a material default by Buyer exercise of Buyer’s covenants, representations Parent's rights under the Stock Option Agreement). Upon the terms and warranties set forth in this Agreement, then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Furthermore, if (i) for any reason, following the commencement of the Tender Offer, Merger Subsidiary will accept for payment and will purchase, as soon as permitted under the Seller does not tender, or the Seller withdraws, the Shares from terms of the Tender Offer, (ii) all Shares validly tendered and not withdrawn prior to the Tender Offer is terminated by Buyer at the instruction expiration of the Seller pursuant to Section 6.1(b), or (iii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) due to failure of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer), then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS.

The Tender Offer. 2.1 TENDER OFFER. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Article X hereof and none of the terms events set forth in Annex A hereto shall have occurred or be existing (or, if any of such events has occurred or is existing, shall not have been waived in writing by Merger Sub), within fifteen business days of the date hereof, on or before December 26, 2007, the Buyer shall publicly announce its intent to make Merger Sub will commence a tender offer (the "Tender Offer") to acquire any and for all of the outstanding Class A sharesshares of Company Common Stock at a price of $6.00 per share in cash, Class B shares and ADSs net to the seller (each ADS representing two Class B shares) not held by the Buyer or its Affiliates (as defined in Section 6.6"Offer Price"), subject only to the conditions set forth in each case Annex A hereto. Subject to the terms and conditions of the Offer, which conditions may be waived by Merger Sub in its sole discretion, Merger Sub will accept for payment and promptly pay for all shares of Company Common Stock duly tendered and not withdrawn pursuant to the Offer at the respective Purchase Price earliest time following expiration of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADSthe Offer that all conditions to the Offer shall have been satisfied or waived by Merger Sub. The obligation of Merger Sub to commence the Offer shall be subject only to the conditions set forth in Annex A hereto and the obligation of Merger Sub to accept for payment, purchase and pay for Company Common Stock tendered pursuant to the Offer shall be subject only to such conditions, and to the further condition that a number of Company Common Stock representing not less than 50.1% of the combined voting power of the voting securities of the Company on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer. The Offer shall initially be twenty business days made by means of an offer to purchase (as defined under the rules "Offer to Purchase") containing the terms set forth in this Agreement and regulations the conditions set forth in Annex A hereto. Without the written consent of the U.S. Securities and Exchange Commission)Company, which may Merger Sub shall not decrease the Offer Price, change the number of shares of Company Common Stock sought to an amount less than 50.1% of the outstanding shares of Company Common Stock, change the form of consideration to be extended by the Buyer as it deems appropriate subject to compliance with the other terms of this Agreement. Each such price per share or ADS, or any greater amount per share paid pursuant to the Tender Offer or impose conditions to the Offer in addition to those set forth in Annex A hereto, or amend any other term or condition of the Offer in any manner, except as may be required pursuant to the SEC's rules with respect to the extension of time periods, which is adverse to the holders of shares of Company Common Stock; provided, however, that if on a scheduled expiration date of the Offer (as it may be amended by extended in accordance with the Buyerterms hereof), is referred all conditions to as the "Tender Offer Price". The Buyer's obligation to accept for payment and to pay for any Class A shares, Class B shares or ADSs (each ADS representing two Class B shares) pursuant hereto shall be subject to no conditions other than those set forth in Article Five hereof. The Buyer expressly reserves the right to increase the Tender Offer Price, and it may decrease the Tender Offer Price provided it shall not decrease the Tender Offer Price below the Initial Purchase Price set forth in Section 1.2 hereof above. The Buyer and Seller agree that if more than 5,968,722 Class B shares (including Class B shares held in the form of ADSs) are tendered (and not withdrawn) as of the expiration of the Tender Offer (as that date may be adjusted in accordance herewith)have been satisfied or waived, the Tender Offer Price shall be adjusted by the Buyer to US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Each condition set forth in the Tender Offer may be waived by the Buyer, in whole or in part at any time and extended from time to time, in its sole discretion. (b) As soon as practicable following time without the announcement of its intent to make the Tender Offer, the Buyer shall file with the Luxembourg Commission de Surveillance du Secteur Financier (“CSSF”) a draft offer to purchase and ancillary documents. Once the CSSF has completed its review consent of the offer Company for such period of time as is reasonably expected to purchase be necessary to satisfy the unsatisfied conditions and ancillary documents, the Buyer will file with the Securities and Exchange Commission provided further that if as of a Tender Offer Statement on Schedule TO (together with scheduled expiration date all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Tender Offer. The Buyer will cause the Schedule TO, the offer to purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder. (c) If (i) the Buyer terminates or abandons the Tender Offer, (ii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) (without Buyer having been instructed to do so by Seller), in each case for any reason other than the failure of the Tender Offer to have been consummated by the Termination Date as a result of one of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer) hereof, or (iii) this Agreement is terminated by Seller pursuant to Section 6.1(a)(iii) following a material default by Buyer Offer have been satisfied and in excess of Buyer’s covenants, representations and warranties set forth in this Agreement, then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Furthermore, if (i) for any reason, following the commencement 80% but less than 90% of the Tender Offeroutstanding shares of Company Common Stock have been tendered, Merger Sub may extend the Seller does not tender, or the Seller withdraws, the Shares from the Tender Offer, (ii) the Tender Offer is terminated by Buyer at the instruction of the Seller pursuant up to Section 6.1(b), or (iii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) due to failure of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer), then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADSan additional ten business days.

The Tender Offer. (a) Subject to the terms hereof, on or before December 26, 2007, the Buyer shall publicly announce its intent to make a tender offer (the "Tender Offer") to acquire any and all of the outstanding Class A shares, Class B shares and ADSs (each ADS representing two Class B shares) not held by the Buyer or its Affiliates (as defined in Section 6.6), in each case at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS. The expiration date of the Tender Offer shall initially be twenty business days (as defined under the rules and regulations of the U.S. Securities and Exchange Commission), which may be extended by the Buyer as it deems appropriate subject to compliance with the other terms of this Agreement. Each such price per share or ADS, or any greater amount per share paid pursuant to the Tender Offer as it may be amended by the Buyer, is referred to as the "Tender Offer Price". The Buyer's obligation to accept for payment and to pay for any Class A shares, Class B shares or ADSs (each ADS representing two Class B shares) pursuant hereto shall be subject to no conditions other than those set forth in Article Five hereof. The Buyer expressly reserves the right to increase the Tender Offer Price, and it may decrease the Tender Offer Price provided it shall not decrease the Tender Offer Price below the Initial Purchase Price set forth in Section 1.2 hereof above. The Buyer and Seller agree that if more than 5,968,722 Class B shares (including Class B shares held in the form of ADSs) are tendered (and not withdrawn) as of the expiration of the Tender Offer (as that date may be adjusted in accordance herewith), the Tender Offer Price shall be adjusted by the Buyer to US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Each condition set forth in the Tender Offer may be waived by the Buyer, in whole or in part at any time and from time to time, in its sole discretion. (b) As soon as practicable following the announcement of its intent to make the Tender Offer, the Buyer shall file with the Luxembourg Commission de Surveillance du Secteur Financier (“CSSF”) a draft offer to purchase and ancillary documents. Once the CSSF has completed its review of the offer to purchase and ancillary documents, the Buyer will file with the Securities and Exchange Commission a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Tender Offer. The Buyer will cause the Schedule TO, the offer to purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder. (c) If (i) the Buyer terminates or abandons the Tender Offer, (ii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) (without Buyer having been instructed to do so by Seller), in each case for any reason other than the failure of the Tender Offer to have been consummated by the Termination Date as a result of one of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer) hereof, or (iii) this Agreement is terminated by Seller pursuant to Section 6.1(a)(iii) following a material default by Buyer of Buyer’s covenants, representations and warranties set forth in this Agreement, then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.125 per Class A share, US$ 41.25 per Class B share and US$ 82.50 per ADS. Furthermore, if (i) for any reason, following the commencement of the Tender Offer, the Seller does not tender, or the Seller withdraws, the Shares from the Tender OfferOffer (except as provided in the second sentence of Section 1.1), (ii) the Tender Offer is terminated by Buyer at the instruction of the Seller pursuant to Section 6.1(b), or (iii) the Tender Offer is terminated by Buyer pursuant to Section 6.1(b) due to failure of the conditions in Section 5.1 or Section 5.2 (insofar as applicable to the Tender Offer), then in each case (subject to the other conditions hereunder as applicable to the purchase and sale outside the Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares from Seller, at the respective Purchase Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS.