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.”
