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Search Stock Repurchase Agreement by:
Exhibit 10.109
GENERAL CABLE CORPORATION
October 29, 2007
Freeport-McMoRan Copper & Gold Inc.
One North Central Avenue
Phoenix, Arizona 85004-2306
Attn: S. David Colton, Esq.
One North Central Avenue
Phoenix, Arizona 85004-2306
Attn: S. David Colton, Esq.
Phelps
Dodge Corporation
Phelps Dodge Industries, Inc.
Habirshaw Cable and Wire Corporation
c/o Freeport-McMoRan Copper & Gold Inc.
One North Central Avenue
Phoenix, Arizona 85004-2306
Attn: S. David Colton, Esq.
Phelps Dodge Industries, Inc.
Habirshaw Cable and Wire Corporation
c/o Freeport-McMoRan Copper & Gold Inc.
One North Central Avenue
Phoenix, Arizona 85004-2306
Attn: S. David Colton, Esq.
| Re: | Stock Purchase Agreement, dated as of September 12, 2007 (the “ Purchase Agreement ”), by and among Freeport-McMoRan Copper & Gold Inc. (“ Freeport ”), Phelps Dodge Corporation (“ PDC ”), Phelps Dodge Industries, Inc. (“ PDI ”), Habirshaw Cable and Wire Corporation (“ Habirshaw ”) and General Cable Corporation (“ GCC ”) |
Ladies
and Gentlemen:
Reference is made to the Purchase
Agreement. Capitalized terms used and not otherwise defined herein
have the respective meanings given to them in the Purchase
Agreement.
The parties to the Purchase Agreement
acknowledge, and each desires to amend the Purchase Agreement,
effective immediately prior to the Closing referred to in paragraph
1 below, to provide, among other things, that: (i) the Closing
with respect to the purchase and sale of the Shares will occur at
10:00 a.m., New York City time, on October 31, 2007;
(ii) certain covenants contained in the Purchase Agreement
relating to reorganization transactions with respect to shares of
Alcave no longer reflect the procedures to be carried out prior to
Closing; (iii) the covenant contained in the Purchase
Agreement relating to the assignment of political risk insurance no
longer reflects the procedures to be carried out prior to Closing;
(iv) a dividend payable by Alcave to PDC after the Closing
should be reimbursed by PDC to the Purchaser, net of certain Taxes
suffered, paid or payable by PDC or any Affiliate of PDC with
respect to such dividend; (v) Purchaser will not withhold any
withholding tax in respect of certain Shares and Sellers shall
indemnify Purchaser for any and all Taxes, fines, fees and
penalties imposed, up to the limit set forth below, by any
Panamanian or Venezuelan taxing authority on certain entities;
(vi) certain modifications be made to the Schedules and
Exhibit A to the Purchase Agreement;
and
(vii) the Table of Contents to the Purchase Agreement makes
reference to a Section of the Purchase Agreement which does not
exist.
In consideration of the foregoing and
of the mutual covenants and agreements set forth below,
notwithstanding any provision of the Purchase Agreement to the
contrary, the parties to the Purchase Agreement hereby agree as
follows, such agreement to be effective immediately prior to the
Closing referred to in paragraph 1 below:
1. The Closing with respect to
the purchase and sale of the Shares shall occur at 10:00 a.m.,
New York City time, on October 31, 2007.
2. (a) Section 1.3(c)
of the Purchase Agreement is hereby amended to add the following
sentence to the end thereof:
“Purchaser, at Sellers request, shall not deduct or withhold
any amount with respect to the making of any payment hereunder in
respect of Shares of any of the Companies under the Laws of Panama
or under the Laws of the Bolivarian Republic of
Venezuela.”
(b) Section 1.3(d)(iii)
of the Purchase Agreement is hereby amended as follows:
“At the
Closing, in furtherance but not in duplication of
Section 1.2(b), the Purchaser shall pay to the Sellers cash in
an aggregate amount equal to the Initial Amount less the
COCESA Amount, minus $24,120,297, which represents the
Estimated Netting Amount, plus $2,133,087 (the “
Estimated Cocesa Adjustment Amount ”), which
reflects the portion of such Estimated Netting Amount allocable to
the COCESA Shares (the “ Closing Payment
”).”
(c) Section 1.3(d)(iv)
of the Purchase Agreement is hereby amended as follows:
“Within
fifty (50) days after the Closing Date, the Purchaser shall
deliver to the Sellers, at the Purchaser’ sole cost and
expense, a statement setting forth the Closing Netting Amount (the
“ Closing Statement ”). Contemporaneously, the
Purchaser shall deliver to the Sellers a schedule setting forth a
calculation of the Purchase Price and the amount of any payment to
be made, and by whom, pursuant to
Section 1.3(d)(vi).”
(d) Section 1.3
(d)(vi) of the Purchase Agreement is hereby amended as
follows:
“No later
than the fifth (5th) Business Day following the determination of
the Closing Netting Amount, pursuant to Section 1.3(d)(v),
either (A) the Sellers shall pay the Purchaser the amount, if
any, by which the Aggregate Closing Payment exceeds the Purchase
Price (as reduced by the COCESA Amount and increased by the
Estimated COCESA Adjustment Amount), or (B) the Purchaser
shall pay the Sellers the amount, if any, by which the Purchase
Price (as reduced by the
COCESA Amount
and increased by the Estimated COCESA Adjustment Amount) exceeds
the Aggregate Closing Payment, in either case, together with simple
interest accruing on such payment at the Prime Rate from and after
October 31, 2007 through but not including the date of
payment, by wire transfer of immediately available funds to an
account designated by the receiving party. As used herein,
“Prime Rate” means, as of any date, the prime rate as
published in The Wall Street Journal on such date or, if not
published on such date, on the most recent date of
publication.”
3. Section 4.11 of the
Purchase Agreement is hereby amended as follows:
Political
Risk Insurance Policies . The Sellers shall, and shall cause
their respective Affiliates to, provide all cooperation reasonably
requested by the Purchaser in connection with the efforts of the
Purchaser to assume, or have assigned to it or any Affiliate of the
Purchaser, Policy No. 40-205005, issued by National Union Fire
Insurance Company of Pittsburgh, PA, to Phelps Dodge Corporation,
Wire and Cable Group, on December 11, 2005.
4. (a) Section 4.22(a)(i)(B)
of the Purchase Agreement is hereby amended as follows:
“Publish
the notice of commencement of the Chile Offer in at least two
nationally-circulated newspapers (such notice, the “Notice of
Commencement” and such date, the “Notice Publication
Date”);”
(b) Section 4.22(e)
of the Purchase Agreement is hereby amended as follows:
“Subject
to the terms and conditions of this Agreement and the Tender
Agreement, upon the tender by the Chile Offer Broker of the COCESA
Shares held of record or beneficially by the Sellers (“
Sellers’ COCESA Shares ”) in accordance with the
terms hereof, the Purchaser shall pay to each Seller, in cash in
the lawful currency of the United States of America, by wire
transfer of immediately available funds to the Habirshaw Account as
to Habirshaw and the PDC Account as to PDC, as applicable, a price
per COCESA Share of $0.936249 (the “ Per Share Amount
”), which shall be stated in the Notice of Commencement and
in the Prospectus, for each of the sixty seven million one hundred
forty seven thousand six hundred forty three Shares for Sale of the
Sellers, or an aggregate of $62,866,913 (the “ Aggregate
COCESA Share Price ”) to the Sellers. The Sellers shall
not request that the Purchaser or the Chile Offer Broker pay the
Aggregate COCESA Share Price in a currency or manner different than
that set forth in this Section 4.22, notwithstanding tha






