Exhibit 4.3
Amendment No. 1
to Stockholder Protection Rights Agreement
of
Freeport-McMoRan Sulphur Inc.
This Amendment No. 1 (the "Amendment") to the Stockholder
Protection Rights Agreement between Freeport-McMoRan Sulphur Inc.
(the "Company") and Mellon Securities Trust Company, as Rights
Agent (the "Rights Agent"), dated as of December 17, 1997 by and
between the Company and the Rights Agent (the "Rights Agreement")
is dated and effective as of August 1, 1998.
W I T N E S S E T H
WHEREAS, Section 5.4 of the Rights Agreement grants the
Board of Directors of the Company the exclusive power and
authority to amend the Rights Agreement;
WHEREAS, the Company intends to enter into an Agreement and
Plan of Mergers ("Merger Agreement") with McMoRan Oil & Gas Co.
("MOXY"), McMoRan Exploration Co. ("Parent"), and MOXY LLC and
Brimstone LLC, (collectively, the "Merger Subs"), both Delaware
limited liability companies wholly owned by the Parent.
WHEREAS, the Company's Board of Directors desires to amend
the Rights Agreement to permit MOXY, the Parent, the Merger Subs,
and the Company to enter into and consummate the transactions
contemplated by the Merger Agreement without triggering the
rights under the Rights Agreement.
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein, the parties agree as follows:
1. The last sentence of the definition of "Acquiring
Person" in Section 1.1 of the Rights Agreement is hereby amended
and restated so that said sentence shall read in its entirety as
follows:
In addition, none of (i) the Company, (ii)
any wholly-owned Subsidiary of the Company,
(iii) any employee benefit plan of the
Company, or (iv) McMoRan Oil & Gas Co., a
Delaware corporation, McMoRan Exploration
Co., a Delaware corporation, MOXY LLC, a
Delaware limited liability company, and
Brimstone LLC, a Delaware limited liability
company, and their respective Subsidiaries,
Affiliates, and Associates (hereinafter
collectively the "MOXY Parties") shall be
deemed to be an Acquiring Person.
2. The definition of the "Beneficial Owner," and to have
"Beneficial Ownership" of, and to "Beneficially Own" in Section
1.1 of the Rights Agreement is hereby amended by adding an
additional paragraph at the end of the definition reading as
follows:
Notwithstanding anything in this definition
of the "Beneficial Owner," and to have
"Beneficial Ownership" of, and to
"Beneficially Own" to the contrary, none of
the MOXY Parties, as defined in the last
sentence of the definition of "Acquiring
Person", shall be deemed to be the Beneficial
Owner of, nor to have Beneficial Ownership
of, nor to Beneficially Own any Common Stock
solely by reason of the approval, execution
or delivery by any party thereto, or by
reason of the amendment or consummation of,
an Agreement and Plan of Mergers by and among
the Company and the MOXY Parties dated August
1, 1998 (the "MOXY Merger Agreement").
3. Section 5.2 of the Rights Agreement is hereby amended
so as to read in its entirety as follows:
5.2 Expiration. The Rights and this
Agreement shall expire at the earlier of (a)
the Effective Date of the MOXY Merger
Agreement, as defined in the definition of
"Beneficial Owner," and to have "Beneficial
Ownership" of, and to "Beneficially Own" in
Section 1.1 hereof, or (b) the Expiration
Time and no Person shall have any rights
pursuant to this Agreement or any Right after
such date, except in the case of clause (b),
if the Rights are exchanged or redeemed, as
provided in Section 3.1(c), 3.1(d), 3.1(e),
3.2 or 5.1 hereof.
4. The Rights Agreement is hereby further amended by
adding at the end a new Section 5.19 reading as follows:
5.19 MOXY Merger Agreement. Notwithstanding
anything in this Agreement to the contrary,
none of the approval, execution, delivery,
amendment, or consummation of the MOXY Merger
Agreement, as defined in the definition of
"Beneficial Owner," and to have "Beneficial
Ownership" of and to "Beneficially Own," or
the transactions contemplated thereby or in
connection therewith, shall cause (a) any of
the MOXY Parties, as defined in the
definition of "Acquiring Person", to become
an Acquiring Person, (b) a Stock Acquisition
Date to occur, or (c) a Separation Time to
occur. Any Separation Time that might or
could otherwise occur related to the MOXY
Merger Agreement or the transactions
contemplated thereby or in connection
therewith under this Agreement shall be
indefinitely deferred until such time as the
Board of Directors may otherwise determine.
5. All capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to them in the
Rights Agreement.
6. Except as specifically amended by this Amendment, the
Rights Agreement shall remain in full force and effect.
7. Any reference to "this Agreement" or "the Rights
Agreement" shall be deemed to be a reference to the Rights
Agreement as amended hereby.
8. This Amendment, all rights hereunder and provisions
hereof, shall be governed by, and construed in accordance with,
the laws of the State of Delaware without giving effect to
principles of conflict of laws.
9. This Amendment may be executed by the parties in one or
more counterparts, all of which shall be deemed an original, but
all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Amendment effective as of the day and year first above
written.
Freeport-McMoRan Sulphur Inc.
Attest:
By:/s/Xxxxxxx X. Xxxxxxxxxx, Xx. By: /s/Xxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx, Xx. Xxxxxx X. Xxxxxxxx
Secretary President and Chief Executive Officer
MELLON SECURITIES TRUST COMPANY
Attest:
By: /s/Xxxxx X. XxXxxxxxx By: /s/Xxxxxx X. Xxxx
------------------------- ------------------------
Name:Xxxxx X. XxXxxxxxx Name:Xxxxxx X. Xxxx
Title:Assistant Vice President Title:Assistant Vice President
