EX-4.1: AMENDMENT NO. 1 TO RIGHTS AGREEMENTInvestors Rights Agreement |
|
|
You are currently viewing: This Investors Rights Agreement involves
PHELPS DODGE CORP | Mellon Investor Services LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Investors Rights Agreement by:
Exhibit 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This
Amendment No. 1 to Rights Agreement (the “Amendment”), dated
as of November 18, 2006, is entered into by and between Phelps Dodge
Corporation, a New York corporation (the “Company”), and Mellon Investor
Services LLC as successor in interest to The Chase Manhattan Bank, as Rights
Agent (the “Rights Agent”).
WHEREAS,
the Company and the Rights Agent are parties to a Rights Agreement, dated as of
February 5, 1998 (the “Agreement”);
WHEREAS,
the Company wishes to amend the Agreement; and
WHEREAS,
Section 27 of the Agreement provides, among other things, that prior to
the Stock Acquisition Time (as defined in the Agreement) the Company may, and
the Rights Agent shall, if the Company so directs, amend any provision of the
Agreement without the approval of any holders of certificates representing
common shares of the Company.
NOW,
THEREFORE, the Company and the Rights Agent hereby amend the Agreement as
follows:
1. Capitalized
terms used in this Amendment without definition shall have the meanings given
to them in the Agreement.
2. Section 1(s)
of the Agreement is hereby amended by adding the following at the end of the
first sentence thereof immediately prior to the period:
“or
(with respect to acquisitions of Beneficial Ownership pursuant to a Permitted
Event only) Freeport or Freeport Merger Sub.
3. Section 1(jj)
is hereby amended to add the following at the end thereof immediately prior to
the period:
“(other
than a public announcement or communication that an Acquiring Person has become
such as a result of any Permitted Event)”.
4. Section 1
of the Agreement is hereby further amended by inserting the following defined
terms after Section 1(nn):
a.
“(oo) “Freeport” shall mean Freeport-McMoRan Copper &
Gold Inc., a Delaware corporation.”
b.
“(pp) “Freeport Merger Sub” shall mean Panther Acquisition
Corporation, a New York corporation and a wholly-owned subsidiary of Freeport.”
c.
“(qq) “Merger Agreement” shall mean the Agreement and Plan of
Merger, dated as of November 18, 2006, as the same may be amended from time to
time, by and among the Company, Freeport and Freeport Merger Sub, pursuant to
which Freeport Merger Sub will be merged with and into the Company.”
d.
“(rr) “Permitted Event” shall mean the execution and delivery
of the Merger Agreement, the performance of any obligation thereunder, and the
consummation of any one or more of the transactions contemplated thereby,
including, without limitation, the Merger (as defined in the Merger
Agreement).”
5. Section 3(a)
of the Agreement is hereby amended to add the following at the end of the first
sentence thereof immediately prior to the period:
“;
provided, however, that, notwithstanding anything in this
Agreement to the contrary, the acquisition of Beneficial Ownership of Common
Shares as a result of any Permitted Event shall not constitute or result in the
occurrence of the Distribution Date”.
6. Section 11(a)(ii)
of the Agreement is amended to add the following at the end thereof immediately
prior to the period:
“;
provided, however, that, notwithstanding anything in this
Agreement to the contrary, the acquisition of Beneficial Ownership of Common
Shares as a result of any Permitted Event shall not constitute or result in the
occurrence of a Section 11(a)(ii) Event”.
7. Section 13(a) of the Agreement is a
