AMENDMENT TO 1998 RIGHTS AGREEMENT
Amendment Number Three, dated as of October 25, 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 25, 1999 (the "Grupo Mexico Merger
Agreement"), among Grupo Mexico, S.A. de C.V., ASMEX 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 Grupo Mexico 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 Grupo Mexico, S.A. de C.V., ASMEX 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
Grupo Mexico Merger Agreement, the Grupo Mexico Offer or the
consummation of the Grupo Mexico Offer or the Grupo Mexico
Merger or any other transaction contemplated by the Grupo Mexico
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 Grupo Mexico Merger Agreement, the
Grupo Mexico Offer or the consummation of the Grupo Mexico
Offer, the Grupo Mexico Merger or any other transaction
contemplated by the Grupo Mexico Merger Agreement"
(c) Section 3 of the Rights Agreement is hereby amended
by adding the following sentence at 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 Grupo Mexico Merger
Agreement, the Grupo Mexico Offer, or the consummation of the
Grupo Mexico Offer, the Grupo Mexico Merger or any other
transaction contemplated by the Grupo Mexico 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:
", (ii) the Effective Time (as such term is defined in the
Grupo Mexico Merger Agreement)
(e) The following definitions are hereby added to Section
1 of the Rights Agreement in the appropriate alphabetical order:
""Grupo Mexico Merger" means the merger of ASMEX Corporation
with and into the Company upon the terms and conditions set
forth in the Grupo Mexico Merger Agreement."
""Grupo Mexico Merger Agreement" means the Agreement and Plan of
Merger, dated as of October 25, 1999, among Grupo Mexico, S.A. de
C.V., ASMEX Corporation and the Company."
""Grupo Mexico Offer" means the tender offer to acquire all of
the issued and outstanding shares of Common Stock on the terms
and conditions set forth in the Grupo Mexico Merger Agreement."
Section 6. 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 Three to be duly executed and attested, all as of the day
and year first above written.
ASARCO INCORPORATED
By: /s/ Xxxxxxx X. XxXxxxxxxx
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Name: Xxxxxxx X. XxXxxxxxxx
Title: Chairman of the Board
THE BANK OF NEW YORK
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Vice President
