EXHIBIT 99.1
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
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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.
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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/ Milton H. Ward
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Name: Milton H. Ward
Title: Chairman and Co-Chief Executive Officer
By: /s/ Francis R. McAllister
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Name: Francis R. McAllister
Title: President and Co-Chief Executive
Officer
ACO ACQUISITION CORP.
By: /s/ Francis R. McAllister
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Name: Francis R. McAllister
Title: Vice President
CAM ACQUISITION CORP.
By: /s/ Gerald J. Malys
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Name: Gerald J. Malys
Title: President and Treasurer
ASARCO INCORPORATED
By: /s/ Francis R. McAllister
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Name: Francis R. McAllister
Title: Chairman and Chief Executive Officer
CYPRUS AMAX MINERALS COMPANY
By: /s/ Milton H. Ward
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Name: Milton H. Ward
Title: Chairman and Chief Executive Officer
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