AMENDMENT TO 1998 RIGHTS AGREEMENT
Amendment Number Two, dated as of October 5, 1999, to the
Rights Agreement, dated as of January 28, 1998 (the "Rights Agreement"),
between ASARCO Incorporated, a New Jersey corporation (the "Company"), and
The Bank of New York, as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the
Rights Agreement specifying the terms of the Rights (as defined therein);
WHEREAS, the Company desires to amend the Rights Agreement in
accordance with Section 26 of the Rights Agreement;
WHEREAS, the Company proposes to enter into the Agreement and
Plan of Merger, dated as of October 5, 1999 (the "Xxxxxx Dodge Merger
Agreement"), among Xxxxxx Dodge Corporation, AAV Corporation and the
Company;
WHEREAS, the Board of Directors of the Company deems it
advisable and in the best interest of its shareholders to amend the Rights
Agreement to enable the Company to enter into the Xxxxxx Dodge Merger
Agreement and consummate the transactions contemplated thereby without
causing the Rights to become exercisable.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein and in the Rights Agreement, the parties hereby
agree as follows:
Section 1. Definitions. Capitalized terms used and not
otherwise defined herein shall have the meaning assigned to such terms in
the Rights Agreement.
Section 2. Amendments to Rights Agreement. The Rights
Agreement is hereby amended as set forth in this Section 2.
(a) The definition of "Acquiring Person" in Section 1(a)
of the Rights Agreement is hereby amended by adding the following
sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, none
of Xxxxxx Dodge Corporation, AAV Corporation or any Subsidiary of
either shall be deemed an Acquiring Person solely by reason or as
a result of the execution or delivery of the Xxxxxx Dodge Merger
Agreement, the Xxxxxx Dodge Offer or the consummation of the
Xxxxxx Dodge Offer or the Xxxxxx Dodge Merger or any other
transaction contemplated by the Xxxxxx Dodge Merger Agreement."
(b) The definition of "Stock Acquisition Date" in Section
1 of the Rights Agreement is hereby amended by adding the following
sentence to the end of paragraph (l) of Section 1:
"A Stock Acquisition Date shall not occur as a result of the
execution or delivery of the Xxxxxx Dodge Merger Agreement, the
Xxxxxx Dodge Offer or the consummation of the Xxxxxx Dodge Offer,
the Xxxxxx Dodge Merger or any other transaction contemplated by
the Xxxxxx Dodge Merger Agreement"
(c) Section 3 of the Rights Agreement is hereby amended
by adding the following sentence to the end of the paragraph (a) in
Section 3:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as a
result of the execution or delivery of the Xxxxxx Dodge Merger
Agreement, the Xxxxxx Dodge Offer, or the consummation of the
Xxxxxx Dodge Offer, the Xxxxxx Dodge Merger or any other
transaction contemplated by the Xxxxxx Dodge Merger Agreement."
(d) Section 7 of the Rights Agreement is hereby amended
by deleting in its entirety clause (ii) to paragraph (a) in Section 7
and inserting in lieu thereof the following new clause (ii) to
paragraph (a) in Section 7 as follows:
", (ii) the Effective Time (as such term is defined in the Xxxxxx
Dodge Merger Agreement)"
(e) The following definitions are hereby added to Section
1 of the Rights Agreement in the appropriate alphabetical order:
""Xxxxxx Dodge Merger" means the merger of the Company with and
into AAV Corporation upon the terms and conditions set forth in
the Xxxxxx Dodge Merger Agreement."
""Xxxxxx Dodge Merger Agreement" means the Agreement and Plan of
Merger, dated as of October 5, 1999, among Xxxxxx Dodge
Corporation, AAV Corporation and the Company."
""Xxxxxx Dodge Offer" means the exchange offer to acquire all of
the issued and outstanding shares of Common Stock on the terms
and conditions set forth in the Xxxxxx Dodge Merger Agreement."
Section 3. Miscellaneous.
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(a) The term "Agreement" as used in the Rights Agreement
shall be deemed to refer to the Rights Agreement as amended hereby.
(b) The foregoing amendment shall be effective as of the
date first above written, and, except as set forth herein, the Rights
Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
(c) This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but
all for which together shall constitute one and the same instrument.
(d) This Amendment shall be deemed to be a contract made
under the laws of the State of New Jersey and for all purposes shall
be governed by and construed in accordance with the laws of such
State applicable to contracts to be made and performed entirely
within such State.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Number Two to be duly executed and attested, all as of the day
and year first above written.
Attest: ASARCO INCORPORATED
By: ---------------------- By:/s/ Xxxxxxx X. XxXxxxxxxx
Name: Name: Xxxxxxx X. XxXxxxxxxx
Title: Title: Chairman of the Board
Attest: THE BANK OF NEW YORK
By: ---------------------- By: /s/ Xxx Xxxxx
Name: Name: Xxx Xxxxx
Title: Title: Vice President
