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Stock Purchase Agreement

Stock Repurchase Agreement

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This Stock Repurchase Agreement involves

Habirshaw Cable and Wire Corporation | Phelps Dodge Industries, Inc | Freeport-McMoRan Copper & Gold Inc

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Title: Stock Purchase Agreement
Governing Law: New York     Date: 11/7/2007
Industry: FABPRD     Law Firm: Debevoise Plimpton     Sector: Basic Materials

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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.
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.
  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

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