AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of July 15, 1999, to the Rights Agreement
(the "Amendment"), dated as of February 28, 1999 by and between Cyprus Amax
Minerals Company (the "Company") and The Bank of New York (as Rights Agent) (the
"Rights Agreement").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof; and
WHEREAS, the Company intends to enter into an Agreement and Plan of
Merger (as it may be amended or supplemented from time to time, the "Merger
Agreement"), dated as of July 15, 1999, among the Company, ASARCO Incorporated,
ACA Holding Incorporated, ACO Acquisition Corp. and CAM Acquisition Corp., as
the same may be amended from time to time (all capitalized terms used in this
Amendment and not otherwise defined herein shall have the meaning ascribed
thereto in the Merger Agreement); and
WHEREAS, the Board of Directors has determined that the Merger and the
other transactions contemplated by the Merger Agreement are fair to and in the
best interests of the Company and its stockholders; and
WHEREAS, the Board of Directors has determined that it is in the best
interest of the Company and its stockholders to amend the Rights Agreement to
exempt the Merger Agreement and the transactions contemplated thereby from the
application of the Rights Agreement.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. The first sentence of Section 1(a) of the Rights Agreement is hereby
modified, amended and restated in its entirety as follows:
"'Acquiring Person' shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 15% or more of the Common Shares of the Company then
outstanding, but shall not include the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary
of the Company, or any entity holding Common Shares for or pursuant to
the terms of any such plan; provided, however, that, notwithstanding
the foregoing, neither ACA Holding Incorporated, a Delaware corporation
("Parent"), CAM Acquisition Corp., a Delaware corporation ("Sub"), nor
any other Person, shall be deemed to be an Acquiring Person by virtue
of the Agreement and Plan of Merger (as it may be amended or
supplemented from time to time, the "Merger Agreement") to be entered
into as of
July 15, 1999, among the Company, Parent, Sub, ASARCO Incorporated and
ACO Acquisition Corp., or as a result of the consummation of the
transactions contemplated thereby."
2. Section 7(a) of the Rights Agreement is hereby modified, amended and
restated in its entirety as follows:
"The registered holder of any Right Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein), in whole or in
part, at any time after the Distribution Date, upon surrender of the
Right Certificate, with the form of election to purchase on the reverse
side thereof duly executed, to the Rights Agent at the principal office
of the Rights Agent, together with payment of the Purchase Price for
each one one-hundredth of a Preferred Share as to which the Rights are
exercised, at or prior to the earliest of (i) the Close of Business on
March 1, 2009 (the "Final Expiration Date"), (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof (the "Redemption
Date"), (iii) the time at which such Rights are exchanged as provided
in Section 24 hereof, or (iv) the time immediately prior to the merger
of the Company and Sub contemplated by the Merger Agreement."
3. Section 15 of the Rights Agreement is hereby modified and amended to
add the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedy or
claim under this Agreement in connection with any transactions
contemplated by the Merger Agreement."
* * *
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
CYPRUS AMAX MINERALS COMPANY
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President
THE BANK OF NEW YORK (as Rights Agent)
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Assistant Treasurer
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