AMENDMENT NO. 4 TO RIGHTS AGREEMENT
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AMENDMENT, dated as of December 14, 1995, to the Rights Agreement between
Cyprus Amax Minerals Company, a Delaware corporation (the "Company"), and
Society National Bank (the "Rights Agent"), dated as of February 23, 1989, and
amended as of September 21, 1989, as of January 22, 1990 and as of May 24, 1993
(the "Rights Agreement").
Pursuant to Section 27 of the Rights Agreement, the Company and the Rights
Agent may from time to time supplement or amend the Rights Agreement in
accordance with the provisions of said Section 27 subject to the terms and
conditions thereof. All acts and things necessary to make this Amendment a
valid agreement, enforceable according to its terms have been done and
performed, and the execution and delivery of this Amendment by the Company and
the Rights Agent have been in all respects duly authorized by the Company and
the Rights Agent.
In consideration of the foregoing and the mutual agreements set forth
herein, the parties hereto agree as follows:
1 . Section 1 (a) of the Rights Agreement is hereby amended by inserting
the following at end of such Section 1 (a):
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an Acquiring
Person, as defined pursuant to the foregoing provisions of this paragraph
(a), has become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that such Person would
no longer be an Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall not be deemed to
be an "Acquiring Person" for any purposes of this Agreement.
2. Section 1 (i)" of the Rights Agreement is hereby amended to read in its
entirety as follows: "Intentionally deleted."
3. Section 23 of the Rights Agreement is hereby amended to read in its
entirety as follows:
Section 23. Redemption. (a) The Board of Directors of the Company
may, at its option, at any time prior to such time as any Person becomes an
Acquiring Person, redeem all but not less than all the then outstanding
Rights at a redemption price of $.0l per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring
after February 23, 1989 (such redemption price being hereinafter referred
to as the "Redemption Price"). The redemption of the Rights by the Board of
Directors may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights pursuant to paragraph (a) of
this Section 23, and without any further action and without any notice, the
right to exercise the Rights will terminate and the only right thereafter
of the holders of Rights shall be to receive the Redemption Price. The
Company shall promptly give public notice of any such redemption; provided,
however, that the failure to give, or any defect in, any such notice shall
not affect the validity of such redemption. Within 10 days after such
action of the Board of Directors ordering the redemption of the Rights, the
Company shall mail a notice of redemption to all the holders of the then
outstanding Rights at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Shares. Any notice
which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption
Price will be made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any time
in any manner other than that specifically set forth in this Section 23 or
in Section 24 hereof, and other than in connection with the purchase of
Common Shares prior to the Distribution Date.
4. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with the laws of such
State applicable to contracts to be made and performed entirely within such
State.
5. This Amendment to the Rights Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument. Terms not defined herein
shall, unless the context otherwise requires, have the meanings assigned to such
terms in the Rights Agreement, as previously amended.
6. In all respects not inconsistent with the terms and provisions of this
Amendment to the Rights Agreement, the Rights Agreement is hereby ratified,
adopted, ap proved and confirmed. In executing and delivering this Amendment,
the Rights Agent shall be entitled to all the privileges and immunities afforded
to the Rights Agent under the terms and conditions of the Rights Agreement.
7. If any term, provision, covenant or restriction of this Amendment to
the Rights Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment to the Rights
Agreement, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
Attest: CYPRUS AMAX MINERALS COMPANY
By: /s/ Dale E. Huffman By: /s/ Philip C. Wolf
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Name: Dale E. Huffman Name: Philip C. Wolf
Title: Assistant Secretary Title: Senior Vice President
Attest: SOCIETY NATIONAL BANK
By: /s/ Ron Sorrentino By: /s/ Merryl K. Rapp
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Name: Ron Sorrentino Name: Merryl K. Rapp
Title: Senior Customer Title: Vice President
Service Representative
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