Exhibit 4(a)(2)
THIS THIRD AMENDMENT TO RIGHTS AGREEMENT, dated as of November 10, 1998,
is between BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), and THE BANK OF NEW YORK, as rights agent (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement dated as of November 10, 1988, as amended as of July 30,
1992 and as further amended and restated as of July 19, 1996 (the "Rights
Agreement");
WHEREAS, the parties desire to amend the Rights Agreement in accordance
with Section 26 of the Rights Agreement; and
WHEREAS, the Distribution Date in connection with the Rights Agreement
has not occurred.
NOW THEREFORE, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 1(a). The penultimate sentence of Section
1(a) is hereby amended by adding the following proviso immediately prior to
the period (.) at the end of such sentence:
"and PROVIDED, FURTHER, that neither the initial acquirer ("Acquirer
A"), nor the first subsequent acquirer from Acquirer A ("Acquirer B"
and together with Acquirer A, the "Subsequent Acquirer") of all
Exchangeable Shares (or Common Stock acquired in exchange therefor)
held by Noranda in connection with and as a result of the consummation
of the Arrangement referred to in the Combination Agreement or a block
of such shares in excess of twenty percent (20%) of the total combined
outstanding Common Stock and Exchangeable Shares as of the date of
such acquisition (such shares an "Exempted Block"), which Subsequent
Acquirer and its Affiliates or Associates do not beneficially own any
Exchangeable Shares or Common Stock at the time of such acquisition,
shall be or become an Acquiring Person solely as a result of the
Subsequent Acquirer becoming the Beneficial Owner of such shares
comprising the Exempted Block, but shall thereafter become an
Acquiring Person if (I) the Subsequent Acquirer or an Affiliate or
Associate of the Subsequent Acquirer shall purchase or otherwise
become the Beneficial Owner of any additional Exchangeable Shares or
shares of Common Stock or (II) any Person (or Persons) who is (or
collectively are) the Beneficial Owner of any Exchangeable Shares or
shares of Common Stock shall become an Affiliate or Associate of the
Subsequent Acquirer unless (x) in either such case the Subsequent
Acquirer together with all Affiliates and Associates of the Subsequent
Acquirer is not then the Beneficial Owner of 20% or more of the total
combined then outstanding shares of
Common Stock and Exchangeable Shares or (y) the Subsequent Acquirer's
increase in Beneficial Ownership of shares of Common Stock or
Exchangeable Shares is solely as a result of a reduction in the number
of shares of Common Stock or Exchangeable Shares outstanding due to the
purchase or other acquisition of Common Stock or Exchangeable Shares
outstanding by the Company or any Subsidiary thereof, and the Subsequent
Acquirer does not become the Beneficial Owner of any additional
Exchangeable Shares or shares of Common Stock after such reduction in
the number of outstanding shares."
2. AMENDMENT OF SECTION 1(i). Section 1(i) is hereby amended and
restated in its entirety to read as follows:
"(i) "Final Expiration Date" shall mean the close of business on
November 10, 2008."
3. AMENDMENT TO SECTION 26. The following shall be added as the final
sentence of Section 26:
"Notwithstanding the foregoing, the last proviso of the penultimate
sentence of Section 1(a) shall not be amended without the consent
(which consent shall not be unreasonably withheld) of (a) Noranda, if
such amendment is proposed prior to any Person's becoming a Subsequent
Acquirer or (b) Acquirer A if Acquirer A has acquired and continues to
hold an Exempted Block at the time such an amendment is proposed."
4. AMENDMENT OF EXHIBIT B TO THE RIGHTS AGREEMENT. Exhibit B to the
Rights Agreement, the Form of Rights Certificate, is hereby amended and replaced
in its entirety by Exhibit B hereto.
5. EFFECTIVENESS. This Amendment shall be deemed effective as of
November 10, 1998 as if executed on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
6. MISCELLANEOUS. This Amendment shall be deemed to be a contract made
under the laws of the State of Nevada 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. This Amendment may be
executed in any number of counterparts, each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument. If any provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
EXECUTED as of the date set forth above.
Attest: BATTLE MOUNTAIN GOLD COMPANY
/s/ Xxxxxxxxx X. Xxxx /s/ Xxx X. Xxxxx
--------------------------------- -------------------------------------
Name: Xxxxxxxxx X. Xxxx Name: Xxx X. Xxxxx
Title: Associate General Counsel Title: President and Chief Executive
and Assistant Secretary Officer
Attest: THE BANK OF NEW YORK
/s/ Xxxxxx Xxxxx /s/ Xxxxx Xxxxxx
--------------------------------- -------------------------------------
Name: Xxxxxx Xxxxx Name: Xxxxx Xxxxxx
Title: Assistant Treasurer Title: Assistant Vice President
