AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 (this "Amendment No. 1"), dated as of September
27, 1999, amending the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of July 15, 1999, among ASARCO CYPRUS INCORPORATED, a
Delaware corporation ("Parent"), ACO ACQUISITION CORP., a New Jersey
corporation, CAM ACQUISITION CORP., a Delaware corporation, ASARCO
INCORPORATED, a New Jersey corporation ("ASARCO"), and CYPRUS AMAX MINERALS
COMPANY, a Delaware corporation ("Cyprus").
WHEREAS, each of ASARCO and Cyprus has determined to postpone
until October 7, 1999 the meeting of its respective shareholders to
consider and vote upon a proposal to approve and adopt the Merger
Agreement;
WHEREAS, the parties have agreed to permit one another for a
limited period of time to explore alternatives to the Merger Agreement;
WHEREAS, Section 7.4 of the Merger Agreement provides for the
amendment of the Merger Agreement in accordance with the terms set forth
therein; and
WHEREAS, the parties hereto desire to amend the Merger
Agreement in certain respects;
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Amendment No. 1, and
fully intending to be legally bound hereby, the parties agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings provided therefor in the Merger
Agreement.
2. Suspension of Certain Covenants. The parties hereto hereby
agree that the covenants of the parties contained in Sections 5.10(a),
(b)(iii) and (c) and 5.11(a), (b)(iii) and (c) of the Merger Agreement
shall be suspended and shall be of no force or effect during the period
(the "Suspension Period") beginning upon the execution and delivery of this
Amendment No. 1 and ending at 9:00 A.M., New York City time, on Tuesday,
October 5, 1999; provided, that Section 5.10(b)(iii) is suspended during
such period only to the extent necessary for Cyprus to enter into any
confidentiality agreement related to any Cyprus Takeover Proposal and
provided that Section 5.11(b)(iii) is suspended during such period only to
the extent necessary for ASARCO to enter into any confidentiality agreement
related to any ASARCO Takeover Proposal.
3. Right to Terminate. Either ASARCO or Cyprus may, at any time
prior to the expiration of the Suspension Period, unilaterally terminate
the Merger Agreement for any reason by delivery of a written notice to the
other party to such effect exercising such right; provided that
contemporaneously or prior to delivery of such notice the party terminating
the Merger Agreement shall pay to the non-terminating party $45 million in
the case that Cyprus is the terminating party and $40 million in the case
that ASARCO is the terminating party, payable by wire transfer of
immediately available funds; provided, further, that no termination
pursuant to Section 3 of this Amendment No. 1 shall be effective prior to
receipt by the non-terminating party of such payment. The right to
terminate the Merger Agreement provided in this Section 3 shall expire
simultaneously with the expiration of the Suspension Period. In the event
that the Merger Agreement is terminated pursuant to this paragraph 3,
neither party shall be entitled to any payment pursuant to Section 7.3 of
the Merger Agreement.
4. Postponement of Shareholders Meetings. The ASARCO
Shareholders Meeting and the Cyprus Shareholders Meeting, currently
scheduled to be held on September 30, 1999, shall be postponed until
October 7, 1999.
5. Reinstatement of Merger Agreement. In the event that the
Merger Agreement is not terminated pursuant to Section 3 above, the Merger
Agreement shall be reinstated in its entirety and the provisions of this
Amendment No. 1 shall be null and void and shall cease to be of any further
force or effect; provided, that any action taken or failure to act by
either party during the Suspension Period in reliance on this Amendment No.
1 shall be deemed to be in conformity with the Merger Agreement.
6. Miscellaneous. To the extent that any provision of this
Amendment No. 1 contravenes or is inconsistent with any provision of the
Merger Agreement, to the extent such latter provision would be effective or
operative during the Suspension Period, the provisions of this Amendment
No. 1 shall supercede any contrary or inconsistent provision contained in
the Merger Agreement. Except as otherwise provided hereby, the terms and
conditions of the Merger Agreement shall continue in full force and effect.
Wherever the Merger Agreement is referred to in the Merger Agreement or in
any other agreements, documents and instruments, such reference shall be to
the Merger Agreement as amended hereby.
7. Counterparts. This Amendment No. 1 may be executed in two or
more consecutive counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument, and shall become effective when one or more counterparts have
been signed by each of the parties and delivered (by telecopy or otherwise)
to the other parties.
8. Governing Law. This Amendment No. 1 shall be governed by and
construed in accordance with the laws of the State of Delaware, without
regard to the principles of conflicts of laws thereof, except to the extent
the provisions of this Amendment No. 1 are expressly governed by or derive
their authority from the NJBCA.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed and delivered as of the date first
above written.
ACA HOLDING INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman and Co-Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President and Co-Chief Executive Officer
ACO ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CAM ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Treasurer
ASARCO INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
CYPRUS AMAX MINERALS COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman and Chief Executive Officer