EX-10.109



 





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 that the Offer Documents may grant to the COCESA Shareholders the
option of requiring the payment of the Aggregate COCESA Share Price in a different
currency or manner.”



     5. (a) Article 8 of the Purchase Agreement is hereby amended to add new Section 8.2.9 as
follows:



 









 






“8.2.9 Withholding Indemnity. (a) From and after the Closing, the Sellers
shall, subject to the limit stated below, indemnify and hold harmless the Purchaser
and any of its Subsidiaries from and against any and all Damages incurred or
sustained by the Purchaser or any of its Subsidiaries as a result of the failure by
the Purchaser, at Sellers’ request, to deduct or withhold any amount with respect to
the making of any payment hereunder in respect of the sale or transfer of the Shares
of any of the Companies under the Laws of Panama. For purposes of this Section
8.2.9(a), Damages shall include any and all Taxes, fines, fees and penalties imposed
by any Governmental Authority of Panama on Purchaser or any of its Subsidiaries,
including Conducen, SA, Conducen S.R.L. and Alcap Commercial, SA, but shall not
exceed the amount of U.S. $6,464,650, or its equivalent in Panamanian Balboas
converted at the current spot rate, together with any fines, fees and penalties
imposed by any Governmental Authority of Panama with respect to such sale or
transfer.




(b) From and after the Closing, the Sellers shall, subject to the limit stated
below, indemnify and hold harmless the Purchaser and its Subsidiaries from and
against any and all Damages incurred or sustained by the Purchaser or any of its
Subsidiaries as a result of the failure by the Purchaser, at Sellers’ request, to
deduct or withhold any amount with respect to the making of any payment hereunder in
respect of the sale or transfer of the Shares of any of the Companies under the Laws
of the Bolivarian Republic of Venezuela. For purposes of this Section 8.2.9(b),
Damages shall include any and all Taxes, fines, fees and penalties imposed by any
Governmental Authority of the Bolivarian Republic of Venezuela on Purchaser or any
of its Subsidiaries, including Alambres y Cables Venezolanos, C.A., but shall not
exceed the amount of U.S. $5,580,050 or its equivalent in Venezuelan Bolívares
converted at the current spot rate, together with any fines, fees and penalties
imposed by any Governmental Authority of the Bolivarian Republic of Venezuela with
respect to such sale or transfer.”



          (b) Article 8 of the Purchase Agreement is hereby amended to add new Section 8.2.10 as
follows:





“8.2.10 Chile Offer Indemnity. From and after the Closing, in the event
that the Chile Offer fails due to the failure to satisfy either of the conditions
set forth in subsection (a) or (b) of Article Third, Section Four of the Agreement
to Tender, Irrevocable Mandate and Deposit and Custody Agreement, dated October 29,
2007, among PDC, Habirshaw, the Purchaser and Banchile Corredores de Bolsa S.A. (the
“Chile Offer Failure”), the Sellers shall indemnify and hold harmless the
Purchaser and General Cable Holdings (Spain), S.L. (the “Bidder”) from and
against fifty percent (50%) of any and all Damages incurred or sustained by the
Purchaser or the Bidder as a result of the failure of the shareholders of COCESA
(other than PDC or Habirshaw) to return to the Bidder all funds that the Bidder had
previously paid to such shareholders in connection with the Chile Offer. For
purposes of this Section 8.2.10, Damages shall include all reasonable costs related
to all actions taken by the Purchaser to obtain the return of such funds.”



 









 





          (c) Article 8 of the Purchase Agreement is hereby amended to add new Section
8.2.11 as follows:





“8.2.11 Legal Title Indemnity. For the avoidance of doubt, from and after
the Closing, the Sellers shall indemnify and hold the Purchaser and General Cable
Company harmless, pursuant to Section 8.2.1(ii), from and against any and all
Damages incurred or sustained by the Purchaser or General Cable Company as a result
of the failure by the Sellers at the Closing to transfer legal title, free and clear
of all Liens other than those created by the Purchaser, to the Shares of Phelps
Dodge Philippines, Inc. and Phelps Dodge Philippines Energy Products Corporation due
to the Sellers’ failure to obtain a tax clearance certificate from the Bureau of
Internal Revenue, Republic of the Philippines (the “Tax Certificate”).
Notwithstanding the foregoing, the Purchaser acknowledges that the rights of
indemnity provided in this Section 8.2.11, shall be unavailable to the Purchaser and
General Cable Company upon receipt by the Purchaser of a true and correct copy of
the Tax Certificate, except with respect to claims or actions for Damages that arose
prior to such receipt (regardless of whether any such claim or action is made or
commences prior to, on or after the date of such receipt).



          (d) Article 8 of the Purchase Agreement is hereby amended to add new Section
8.2.12 as follows:





“8.2.12 PD Brazil Performance Bond Indemnity. From and after the Closing,
the Purchaser shall indemnify and hold harmless the Sellers and any of its
Subsidiaries from and against any and all Losses suffered in connection with the
performance bond set forth on Exhibit A to the Letter Agreement, dated October 29,
2007, among the Sellers and the Purchaser.”



     6. Section 4.19(a) of the Purchase Agreement is hereby deleted in its entirety and replaced
with the following language: “[Intentionally omitted.]”



     7. PDC shall, or shall cause its Affiliate to, reimburse to Purchaser, by wire transfer of
immediately available funds to the account designated by Purchaser for such purpose, an amount
equal to any dividend or other distribution payable to PDC or any such Affiliate by Alcave (each,
an “Alcave Dividend”), in each case, net of Venezuelan withholding Taxes and any U.S. state
and local Taxes suffered, paid or payable by PDC or any such Affiliate with respect to such
dividend or other distribution. Such reimbursement of an Alcave Dividend shall be paid by PDC
within five Business Days following receipt by PDC or any of its Affiliates of such Alcave Dividend
provided that the Purchaser has given written notice to PDC thereof on the date such Alcave
Dividend is paid or, in the absence of such notice on such date, within five Business Days after
the Purchaser gives such notice.



     8. (a) Within ninety (90) days after the Final Closing Date, the Sellers shall deliver to the
Purchaser a true and correct copy of IRS Form 8832 evidencing the election by Conducen, S.R.L. to
be treated as a partnership for U.S. federal income tax purposes.



 









 





          (b) In connection with the Seller’s ability to claim the benefits under the Convention between
the Government of the United States and the Government of the Republic of Venezuela for the
Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes of Income
and Capital, within ninety (90) days after the Initial Closing Date, the Sellers shall deliver to
the Purchaser a true and correct copy of a certificate issued by the Internal Revenue Service (or
applicable IRS form), evidencing PDC as a resident of the United States for U.S. tax purposes.




     9. (a) Article 9 of the Purchase Agreement is hereby amended to add the following definitions:




“Estimated Cocesa Adjustment Amount: as defined in Section 1.3(d)(iii).”



          (b) The following definitions contained in Article 9 of the Purchase Agreement are hereby
deleted in their entirety:





“Venezuelan BV: as defined in Section 4.19.”




“Venezuelan Transfer: as defined in Section 4.19.”



     10. Article 10.8 of the Purchase Agreement is hereby amended to replace the notice information
for the Sellers with the following information:



“Freeport-McMoRan Copper & Gold Inc.

One North Central Avenue

Phoenix, Arizona 85004-2306

Fax Number: (602) 234-8050

Attention: General Counsel




and

Dan P. Kravets, Esq.,

Director of Business Development and Growth




with a copy to (which shall not constitute notice):




Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022

Fax Number: (212) 909-6836

Attention: Michael W. Blair, Esq.”




     11. Schedule 1.3(b) to the Purchase Agreement is hereby deleted in its entirety and the
information set forth on Schedule I attached hereto is inserted in substitution therefor.



     12. Schedule 2.7(a) to the Purchase Agreement is hereby amended to add the following contract:



 









 





     “Memorandum of Understanding, dated August 25, 2006, between Phelps Dodge International
Corporation and Belmont Technologies Limited.”



     13. Schedule 2.16(a) to the Purchase Agreement is hereby deleted in its entirety and the
information set forth on Schedule II attached hereto is inserted in substitution therefor.



     14. Schedule 2.26 to the Purchase Agreement is hereby deleted in its entirety and the
information set forth on Schedule III attached hereto is inserted in substitution therefor.



     15. Schedule 2.3(a) to the Purchase Agreement is hereby deleted in its entirety and the
information set forth on Schedule IV attached hereto is inserted in substitution therefor.



     16. The following reference set forth in the Table of Contents to the Purchase Agreement is
hereby deleted in its entirety:




“6.2.4 Tender Agreement Error! Bookmark not defined.”



     17. Exhibit A to the Purchase Agreement is hereby deleted in its entirety and the information
set forth on Schedule IV attached hereto is inserted in substitution therefor.



     This letter shall be governed by and construed in accordance with the laws of the State of New
York (without giving effect to conflicts of law principles) as to all matters, including validity,
construction, effect, performance and remedies.



     This letter may be executed by the parties in separate counterparts, each of which, when so
executed and delivered, shall be an original, but all such counterparts shall together constitute
one and the same instrument.



     Except as amended herein, the Purchase Agreement shall continue in full force and effect and
shall remain the valid and binding obligation of each party in accordance with its terms, provided
that, from and after the date hereof, any reference therein to the “Purchase Agreement” shall mean
the Purchase Agreement, as amended by this letter amendment.



[SIGNATURE PAGE FOLLOWS]




 









 








     Assuming you agree with the foregoing, please sign this letter in the space provided below to
confirm our mutual understandings and agreements as set forth in this letter and return a signed
copy to the undersigned.



Very truly yours,





Robert J. Siverd,

Executive Vice President

General Cable Corporation





	cc:  	 	Debevoise & Plimpton LLP

Attention: Michael W. Blair, Esq.





     ACCEPTED AND AGREED ON THIS 29TH DAY OF OCTOBER, 2007:



FREEPORT MCMORAN COPPER & GOLD INC.




By: /s/ Kathleen L. Quirk

Name: Kathleen L. Quirk

Title: Executive Vice President





PHELPS DODGE CORPORATION




By: /s/ Kathleen L. Quirk

Name: Kathleen L. Quirk

Title: Executive Vice President





PHELPS DODGE INDUSTRIES, INC.




By: /s/ Timothy R. Snider

Name: Timothy R. Snider

Title: President





HABIRSHAW CABLE AND WIRE CORPORATION





By: /s/ Timothy R. Snider




Name: Timothy R. Snider

Title: President