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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 31, 1997
PHELPS DODGE CORPORATION
(Exact name of registrant as specified in its charter)
New York 1-82 13-1808503
(State of (Commission File Number) (IRS Employer
Incorporation) Identification No.)
2600 North Central Ave. Phoenix, Arizona 85004-3014
(Address of principal executive offices) (Zip Code)
(602) 234-8100
(Registrant's telephone number)
None
(Former name or former address, if changed since last report.)
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Item 7. Exhibits. The following documents are filed with reference to the
Registration Statement and Post-Effective Amendment No. 1 on Form S-3
(Registration No. 33-44380 and Registration No. 333-36415) of Phelps Dodge
Corporation (the "Company"):
1 Underwriting Agreement, dated as of October 31, 1997, between the
Company and Morgan Stanley & Co. Incorporated.
4.1 Form of 6-3/8% Note due November 1, 2004 of the Company to be
issued pursuant to the Indenture, dated as of September 22, 1997
(the "Indenture"), between the Company and The Chase Manhattan Bank,
as Trustee, a form of which was filed as Exhibit 4.4 to such
Registration Statement.
4.2 Form of 7-1/8% Debenture due November 1, 2027 of the Company to be
issued pursuant to the Indenture, a form of which was filed as
Exhibit 4.4 to such Registration Statement.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
PHELPS DODGE CORPORATION
Dated: November 3, 1997 By:/s/ Gregory W. Stevens
----------------------
Gregory W. Stevens
Vice President and
Controller
(Principal Accounting
Officer)
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Exhibit Index
Exhibit Page
- ------- ----
1. Underwriting Agreement, dated as of October 31, 5
1997, between the Company and
Morgan Stanley & Co. Incorporated.
4.1 Form of 6-3/8% Note due November 1, 2004 34
of the Company to be issued pursuant to the
Indenture, dated as of September 22, 1997
(the "Indenture"), between the Company
and The Chase Manhattan Bank, as Trustee.
4.2 Form of 7-1/8% Debenture due November 1, 2027 of 40
the Company to be issued pursuant to the
Indenture.
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Exhibit 1
UNDERWRITING AGREEMENT
October 31, 1997
Phelps Dodge Corporation
2600 N. Central Avenue
Phoenix, Arizona 85004-3014
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Phelps Dodge
Corporation, a New York corporation (the "Company"), proposes to issue and sell
(i) $100,000,000 aggregate principal amount of its 6-3/8% Notes due November 1,
2004 (the "Notes") and (ii) $150,000,000 aggregate principal amount of its
7-1/8% Debentures due November 1, 2027 (the "Debentures" and, together with the
Notes, the "Offered Securities"). The Offered Securities will be issued pursuant
to the provisions of an Indenture dated as of September 22, 1997 (the
"Indenture") between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Offered Securities set forth below opposite their names at a purchase price of
(i) 98.741% of the principal amount of the Notes and (ii) 98.645% of the
principal amount of the Debentures, plus, in the case of each clause (i) and
(ii), accrued interest from November 1, 1997 to the date of payment and
delivery:
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<TABLE>
<CAPTION>
Principal Amount of Principal Amount of
6-3/8% Notes Due 7-1/8% Debentures
Name November 1, 2004 due November 1, 2027
---- ------------------- -------------------
<S> <C> <C>
Morgan Stanley & Co.
Incorporated $ 34,000,000 $ 50,000,000
Chase Securities Inc. 33,000,000 50,000,000
Citicorp Securities, Inc. 33,000,000 50,000,000
Total $100,000,000 $150,000,000
</TABLE>
The Underwriters will pay for the Offered Securities by wire transfer
in immediately available funds to the account designated by the Company upon
delivery of the Offered Securities at the office of Davis Polk & Wardwell, 450
Lexington Avenue, New York, New York at 10:00 a.m. (New York time) on November
5, 1997, or at such other time, not later than 3:00 p.m. (New York time) on
November 5, 1997, as shall be designated by the Manager. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated October 14, 1997, and the Prospectus Supplement dated October 31, 1997,
including the following:
(a) Terms of the Notes:
Maturity Date: November 1, 2004
Interest Rate: 6-3/8%
Redemption Provisions: None
Interest Payment Dates: May 1 and November 1, commencing
May 1, 1998 (Interest accrues from
November 1, 1997)
Form and Denomination: Book entry, $1,000 minimum
denomination and integral multiples
thereof
Public Offering Price of the Notes 99.366% plus accrued interest
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Dealer Concession: 0.375%
Reallowance Concession: 0.200%
(b) Terms of the Debentures:
Maturity Date: November 1, 2027
Interest Rate: 7-1/8%
Redemption Provisions: In whole or in part, at the option of the
Company at any time; redemption price to
be the greater of (i) 100% of the
principal amount or (ii) the sum of the
present values of the remaining scheduled
payments of principal and interest
discounted to the date of redemption on a
semi-annual basis, at the Treasury Yield
(as defined in the Prospectus Supplement)
plus ten (10) basis points, plus in
either case, interest accrued to the date
of redemption
Interest Payment Dates: May 1 and November 1, commencing on
May 1, 1998 (Interest accrues from
November 1, 1997)
Form and Denomination: Book entry, $1,000 minimum
denomination and integral multiples
thereof
Public Offering Price of the
Debentures: 99.520% plus accrued interest
Dealer Concession: 0.500%
Reallowance Concession: 0.250%
All provisions contained in the document entitled Phelps Dodge
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
October 31, 1997, a copy of which is attached hereto, are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein, except that (i) if any term defined
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in such document is otherwise defined herein, the definition set forth herein
shall control, (ii) all references in such document to a type of security that
is not an Offered Security shall not be deemed to be a part of this Agreement
and (iii) all references in such document to a type of agreement that has not
been entered into in connection with the transactions contemplated hereby shall
not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
Acting severally on behalf of themselves and the several
Underwriters named herein
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
---------------------------------
Name: Michael Fusco
Title: Vice President
Accepted:
PHELPS DODGE CORPORATION
By: /s/ T.M. St. Clair
--------------------
Name: T.M. St. Clair
Title: Senior Vice President
and Chief Financial Officer
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PHELPS DODGE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
October 31, 1997
From time to time, Phelps Dodge Corporation, a New York corporation
(the "COMPANY"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). The term "REGISTRATION STATEMENT" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "BASIC PROSPECTUS" means the prospectus included in
the Registration Statement. The term "PROSPECTUS" means the Basic Prospectus
together with the Prospectus Supplement. The term "PRELIMINARY PROSPECTUS" means
a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms "BASIC
PROSPECTUS," "Prospectus" AND "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"SUPPLEMENT" and "AMENDMENT" or "AMEND" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
The term "CONTRACT SECURITIES" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"DELAYED
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DELIVERY CONTRACTS"). The term "UNDERWRITERS' SECURITIES" means the Offered
Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants
to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, from the date of its effectiveness
through and including each Closing Date will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, from the date of
effectiveness of the Registration Statement through and including each
Closing Date will comply in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, from the date of effectiveness of the
Registration Statement through and including each Closing Date will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section 1(b)
do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of 1939, as amended (the "TRUST INDENTURE ACT"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to
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transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(g) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company
enforceable in accordance with their respective
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terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities and the Delayed Delivery
Contracts will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture, the
Offered Securities and the Delayed Delivery Contracts, except such as
have been obtained under the Securities Act and the Trust Indenture Act
and such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Offered
Securities.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(l) The Company is not an "INVESTMENT COMPANY" or an entity
"CONTROLLED" by an "INVESTMENT COMPANY," as such terms are defined in
the Investment Company Act of 1940, as amended.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the
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terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the Prospectus. On the Closing Date, the Company will pay to the Manager as
compensation for the accounts of the Underwriters the commission set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise provided (i) in this
Section 4, payment for the Underwriters' Securities shall be made in immediately
available funds at the time and place set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Underwriters' Securities, registered in such names and in
such denominations as the Manager shall request prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the
Underwriters' Securities to the Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities that are
Debt Securities in bearer form shall be effected by delivery of a single
temporary global Debt Security without coupons (the "GLOBAL DEBT SECURITY")
evidencing the Offered Securities that are Debt Securities in bearer form to a
common depositary for Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euro-clear System ("EURO-CLEAR"), and for Centrale de
Livraison de Valeurs Mobilieres S.A. ("CEDEL") for credit to the respective
accounts at Euro-clear or CEDEL of each Underwriter or to such other accounts as
such Underwriter may direct. Any Global
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Debt Security shall be delivered to the Manager not later than the Closing Date,
against payment of funds to the Company in the net amount due to the Company for
such Global Debt Security, by the method and in the form set forth in the
Underwriting Agreement. The Company shall cause definitive Debt Securities in
bearer form to be prepared and delivered in exchange for such Global Debt
Security in such manner and at such time as may be provided in or pursuant to
the Indenture; provided, however, that the Global Debt Security shall be
exchangeable for definitive Debt Securities in bearer form only on or after the
date specified for such purpose in the Prospectus.
5. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading,
nor shall any official notice have been given of any intended
or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities
by Moody's Investors Service Inc., Standard & Poor's
Corporation or Duff & Phelps Inc.; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, that, in the
reasonable judgment of the Manager, is material and adverse
and that makes it, in the reasonable judgment of the Manager,
impracticable to market the Offered Securities on the terms
and in the manner contemplated in the Prospectus.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
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(c) The Manager shall have received on the Closing Date an
opinion of Scott A. Crozier, General Counsel of the Company, dated the
Closing Date, to the effect set forth in Exhibit A.
(d) The Manager shall have received on the Closing Date an
opinion of Debevoise & Plimpton, counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, special counsel for the Underwriters,
dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "COMFORT LETTERS" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters contained herein, the Company covenants as follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Manager may reasonably
request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the reasonable opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the
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circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters, and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or supplemented,
will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to pay all expenses (including
fees and disbursements of counsel) in connection with such
qualification and in connection with (i) the determination of the
eligibility of the Offered Securities for investment under the laws of
such jurisdictions as the Manager may designate and (ii) any review of
the offering of the Offered Securities by the National Association of
Securities Dealers, Inc.; provided, however, the Company shall not be
obligated to qualify as a foreign corporation or file any general
consent to service of process under the laws of any such jurisdiction
or subject itself to taxation as doing business in any such
jurisdiction.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder, including Rule 158 thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt securities
of the Company substantially similar to the Offered Securities (other
than (i) the Offered Securities, (ii) commercial paper issued in the
ordinary course of business and (iii) bank borrowings), without the
prior written consent of the Manager.
(g) To pay all document production charges and expenses of
Davis Polk & Wardwell, special counsel to the Underwriters (but not
including their
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fees for professional services), in connection with the preparation of
this Agreement.
7. Covenants of the Underwriters.
Each of the several Underwriters represents and agrees with the Company
that:
(a) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D RULES"), (i) it has not offered or
sold, and during the restricted period will not offer or sell, Debt
Securities in bearer form (including any Debt Security in global form
that is exchangeable for Debt Securities in bearer form) to a person
who is within the United States or its possessions or to a United
States person and (ii) it has not delivered and will not deliver within
the United States or its possessions definitive Debt Securities in
bearer form that are sold during the restricted period;
(b) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer
form are aware that such Debt Securities may not be offered or sold
during the restricted period to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Securities in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer
form for the purpose of offering or selling such Debt Securities during
the restricted period, it will either (i) obtain from such affiliate
for the benefit of the Company the representations and agreements
contained in clauses (a), (b) and (c) or (ii) repeat and confirm the
representations and agreements contained in clauses (a), (b) and (c) on
such affiliate's behalf and obtain from such affiliate the authority to
so obligate it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into a
written contract, as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(4) for the offer or sale during the restricted
period of Debt Securities in bearer form; and
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(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may
be offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meaning given
to them by the U.S. Internal Revenue Code (the "CODE") and regulations
thereunder, including the D Rules. The restricted period is defined at U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(7).
8. Indemnification and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Manager expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company by such Underwriter in writing through the Manager expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be
14
<PAGE> 15
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to the second preceding paragraph, and by the Company, in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph in
this Section 8 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder,
15
<PAGE> 16
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amounts of Offered Securities purchased by each of
such Underwriters and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such
16
<PAGE> 17
fraudulent misrepresentation. The remedies provided for in this Section 8 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 8
and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
9. Termination. This Agreement shall be subject to termination, by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the Manager, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the reasonable judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner contemplated in the
Prospectus.
10. Defaulting Underwriters. If, on the Closing Date, any one or more
of the Underwriters shall fail or refuse to purchase Underwriters' Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Underwriters' Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names above bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the amount of Underwriters' Securities that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section
17
<PAGE> 18
10 by an amount in excess of one-ninth of such amount of Underwriters'
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Securities and the aggregate amount of Underwriters' Securities
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Underwriters' Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the purchase of
such Underwriters' Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Manager
or the Company shall have the right to postpone the Closing Date but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
11. Miscellaneous. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
18
<PAGE> 19
Exhibit A
Opinion of General Counsel
for the Company
The opinion of General Counsel for the Company, to be delivered
pursuant to Section 5(c) of the Underwriting Agreement shall be to the effect
that:
1. The statements (1) in "ITEM 3 - LEGAL PROCEEDINGS" of the Company's
most recent annual report on Form 10-K incorporated by reference in the
Prospectus and (2) in "ITEM 1 - LEGAL PROCEEDINGS" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual report, in each
case insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the information
called for under the Exchange Act with respect to such legal matters, documents
and proceedings.
2. Phelps Dodge Industries, Inc., Phelps Dodge Morenci, Inc., Phelps
Dodge Chino, Inc., Columbian Chemicals Company and Accuride Corporation have
been duly incorporated, and are validly existing as corporations in good
standing under the laws of the State of Delaware, and Phelps Dodge Refining
Corporation has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of New York. Each of Phelps Dodge
Industries, Inc., Phelps Dodge Morenci, Inc., Phelps Dodge Chino, Inc.,
Columbian Chemicals Company, Accuride Corporation and Phelps Dodge Refining
Corporation are duly qualified to transact business as a foreign corporation and
is in good standing under the laws of the States of Connecticut, Indiana and
Texas (in the case of Phelps Dodge Industries, Inc.), the State of Arizona (in
the case of Phelps Dodge Morenci, Inc.), the State of New Mexico (in the case of
Phelps Dodge Chino, Inc.), the States of Arkansas, Georgia, Louisiana, Kansas
and West Virginia (in the case of Columbian Chemicals Company), the State of
Kentucky (in the case of Accuride Corporation) and the State of Texas (in the
case of Phelps Dodge Refining Corporation).
3. To the best of my knowledge, I do not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
contracts or other documents that are required to be described in the
Registration Statement or the
A-1
<PAGE> 20
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
I am delivering this opinion to you pursuant to Section 5(c) of the
Underwriting Agreement, and no persons other than the several Underwriters are
entitled to rely on this opinion.
The opinions expressed herein are limited to the Federal laws of the
United States and the laws of the State of Arizona.
A-2
<PAGE> 21
Exhibit B
Opinion of Debevoise & Plimpton,
Counsel for the Company
The opinion of Debevoise & Plimpton, independent counsel for the
Company, to be delivered pursuant to Section 5(d) of the Underwriting Agreement
shall be to the effect that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New York, with full
corporate power and authority under such laws to own its properties and conduct
its business as described in the Prospectus, and is duly qualified to transact
business as a foreign corporation and is in good standing under the laws of the
States of Arizona and New Mexico.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except that such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws of general application
affecting the rights and remedies of creditors and by general equitable
principles.
4. The Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of the
Company, enforceable in accordance with their respective terms except that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws of general application affecting the
rights and remedies of creditors and by general equitable principles.
5. The Offered Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of
the Underwriting Agreement, in the case of Underwriters' Securities, or by
institutional investors in accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company enforceable in accordance with their respective terms except that such
enforceability may be limited by applicable bankruptcy, insolvency,
B-1
<PAGE> 22
reorganization, moratorium and similar law of general application affecting the
rights and remedies of creditors and by general equitable principles.
6. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture,
the Offered Securities and the Delayed Delivery Contracts will not contravene
any provision of applicable law or the Certificate of Incorporation or By-Laws
of the Company or, to the best of our knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or, to the best of our
knowledge, any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company. To the best of our knowledge, no
consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Company of
its obligations under the Underwriting Agreement, the Indenture, the Offered
Securities and the Delayed Delivery Contracts, other than the order of the
Securities and Exchange Commission making the Registration Statement effective
under the Securities Act and qualifying the Indenture under the Trust Indenture
Act of 1939, as amended, and except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of the
Offered Securities.
7. The statements (a) in the Prospectus under the captions
"DESCRIPTIONS OF DEBT SECURITIES", "PLAN OF DISTRIBUTION" and __________ and (b)
in the Registration Statement under Item 15, in each case insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for under the
Securities Act with respect to such legal matters, documents and proceedings.
8. The Company is not an "INVESTMENT COMPANY" or an entity "CONTROLLED"
by an "INVESTMENT COMPANY", as such terms are defined in the Investment Company
Act of 1940, as amended.
9. The Registration Statement and Prospectus (except for the financial
statements and other financial and statistical information and schedules
included therein or incorporated by reference as to which we express no opinion)
appear on their face to be appropriately responsive in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder.
10. Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial statements and
other financial and statistical information and schedules included therein or
B-2
<PAGE> 23
incorporated by reference as to which we express no opinion) appear on their
face to be appropriately responsive in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder.
We have not ourselves checked the accuracy and completeness of, or
otherwise verified, and are not passing upon and assume no responsibility for
the accuracy or completeness of, the statements contained in the Registration
Statement or the Prospectus except to the limited extent stated in paragraphs 7
and 9 above. In the course of our review and discussion of the contents of the
Registration Statement and the Prospectus with certain officers and employees of
the Company and its independent accountants, but without independent check or
verification, no facts have come to our attention which cause us to believe that
the Registration Statement (other than the financial statements and other
financial and statistical information contained therein or incorporated by
reference of the part of the Registration Statement that constitutes the Form
T-1, as to which we express no belief) at the time it became effective
contained, or as of the date hereof contains, an untrue statement of a material
fact or omitted, or as of the date hereof omits, to state a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading, or that the Prospectus (other than the financial
statements and other financial and statistical information contained therein or
incorporated by reference as to which we express no belief) contains any untrue
statements of a material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
We are delivering this opinion to you pursuant to section 5(d) of the
Underwriting Agreement, and no persons other than the several Underwriters are
entitled to rely on this opinion.
The opinions expressed herein are limited to the Federal laws of the
United States and the laws of the State of New York.
B-3
<PAGE> 24
Exhibit C
Opinion of Davis Polk & Wardwell,
Counsel for the Underwriters
The opinion of Davis Polk & Wardwell, counsel for the Underwriters, to
be delivered pursuant to Section 5(e) of the Underwriting Agreement shall be to
the effect that:
(i) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(ii) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms
except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(iii) the Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in
accordance with their respective terms except as (a) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may
be limited by equitable principles of general applicability;
(iv) the Offered Securities have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of the
Underwriting Agreement, in the case of the Underwriters'
Securities, or by institutional investors in accordance with
the terms of the Delayed Delivery Contracts, in the case of
the Contract Securities, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the
Company enforceable in accordance with their respective terms
except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) rights of acceleration, if any, and
C-1
<PAGE> 25
the availability of equitable remedies may be limited by
equitable principles of general applicability;
(v) the statements in the Prospectus under the
captions "DESCRIPTION OF DEBT SECURITIES" and "PLAN OF
DISTRIBUTION," insofar as such statements constitute summaries
of the legal matters or documents referred to therein, fairly
present the information called for with respect to such legal
matters and documents and fairly summarize the matters
referred to therein; and
(vi) such counsel (1) believes that (except for
financial statements and other financial and statistical
information and schedules as to which such counsel need not
express any belief and except for that part of the
Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration
Statement, when such part became effective did not, and as of
the date such opinion is delivered, does not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, (2) is of the
opinion that the Registration Statement and Prospectus (except
for financial statements and other financial and statistical
information and schedules included therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (3)
believes that (except for financial statements and other
financial and statistical information and schedules as to
which such counsel need not express any belief) the Prospectus
as of the date such opinion is delivered does not contain any
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(vii) With respect to clause (vi) above, such counsel
may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement
and the Prospectus and any amendments or supplements thereto
(other than the documents incorporated by reference) and upon
review and discussion of the contents thereof (including
documents incorporated by reference) but are without
independent check or verification, except as specified.
C-2
<PAGE> 26
Schedule I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs:
The undersigned hereby agrees to purchase from Phelps Dodge
Corporation, a New York corporation (the "COMPANY"), and the Company agrees to
sell to the undersigned the Company's securities described in Schedule A annexed
hereto (the "SECURITIES"), offered by the Company's Prospectus dated
__________________, 19__ and Prospectus Supplement dated ________________, 19__,
receipt of copies of which are hereby acknowledged, at a purchase price stated
in Schedule A and on the further terms and conditions set forth in this
Agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A. Each
such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "DELIVERY DATE."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
______________________________, New York, N.Y., at 10:00 a.m. (New York time) on
the Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "UNDERWRITERS") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the
C-3
<PAGE> 27
Company will mail or deliver to the undersigned as its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Yours very truly,
------------------------------------
(Purchaser)
By
---------------------------------
------------------------------------
(Title)
------------------------------------
------------------------------------
(Address)
Accepted:
PHELPS DODGE CORPORATION
By
------------------------------------
C-4
<PAGE> 28
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
<TABLE>
<CAPTION>
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
<S> <C> <C>
</TABLE>
C-5
<PAGE> 29
SCHEDULE A
Securities:
Principal Amounts or Numbers to be Purchased:
Purchase Price:
Delivery Dates:
C-6
<PAGE> 1
Exhibit 4.1
[FORM OF FACE OF NOTE]
6 3/8% Notes Due November 1, 2004
PHELPS DODGE CORPORATION
If the registered owner of this security is The Depository Trust
Company or a nominee thereof, the following legend is applicable: THIS SECURITY
IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF
THE DEPOSITORY TRUST COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY TO A NOMINEE OF THE DEPOSITORY
TRUST COMPANY OR BY A NOMINEE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITORY
TRUST COMPANY OR ANOTHER NOMINEE OF THE DEPOSITORY TRUST COMPANY OR BY THE
DEPOSITORY TRUST COMPANY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized representative of
DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
No. _________ $__________
Phelps Dodge Corporation, a corporation duly organized and existing
under the laws of the State of New York (herein called the "Company"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _____________ Dollars on November 1, 2004, and to pay interest
thereon from November 1, 1997 or from the most recent interest payment date to
which interest has
<PAGE> 2
been paid or duly provided for. Interest shall be payable on this Note
semiannually on May 1 and November 1 in each year, commencing on May 1, 1998, at
the rate of 6 3/8% per annum, until the principal hereof is paid or made
available for payment, and at the rate borne by this Note on any overdue
principal and (to the extent that the payment of such interest shall be legally
enforceable) on any overdue installment of interest. The interest so payable on
any interest payment date which is punctually paid or duly provided for on any
interest payment date will, as provided in the Indenture referred to below, be
paid to the person in whose name this Note is registered at the close of
business on the Regular Record Date for such interest, which shall be April 15
or October 15, as the case may be, preceding such interest payment date.
Interest payable on this Note which is not punctually paid or duly provided for
on any interest payment date shall forthwith cease to be payable to the person
in whose name this Note is registered on the relevant Regular Record Date, and
such defaulted interest shall instead be payable to the person in whose name
this Note is registered on the special record date or other specified date
determined in accordance with the Indenture referred to on the reverse hereof.
Payment of the principal of and interest on this Note will be made
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, the City of New York (which shall initially be the
Corporate Trust Office of the Trustee), in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
interest on the Notes may be paid (i) by check mailed to the address of the
person entitled thereto as such address shall appear in the register of Holders
of the Notes or (ii) by wire transfer to an account maintained by the person
entitled thereto as specified in the register of Holders of the Notes.
Reference is hereby made to the further provisions of this Note set
forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to below or be valid or
obligatory for any purpose.
2
<PAGE> 3
IN WITNESS WHEREOF, PHELPS DODGE CORPORATION has caused this
instrument to be executed in its corporate name by the manual or facsimile
signatures of its duly authorized officers named below.
Dated:
PHELPS DODGE CORPORATION
By:____________________________
Name:
Title:
By:____________________________
Name:
Title: Vice President and
Treasurer
3
<PAGE> 4
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of a series described in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By____________________________________
Authorized Signatory
[Corporate Seal]
4
<PAGE> 5
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of September 22, 1997 (herein called the
"Indenture"), from the Company to The Chase Manhattan Bank (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited to $100,000,000 in aggregate principal amount, and is
issued pursuant to resolutions of the Board of Directors of the Company adopted
on September 3, 1997 and actions taken by officers of the Company pursuant to
such resolutions.
The Securities of this series shall not be subject to redemption at the
option of the Company at any time and the Company shall have no obligation to
redeem or purchase the Securities pursuant to any sinking fund.
The Indenture contains provisions for defeasance and covenant defeasance
at any time of the indebtedness on this Security upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this
Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time outstanding, on
behalf of the Holders of all Securities of such series, to waive certain
existing defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
issued upon the
5
<PAGE> 6
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, and interest on, this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations as
therein set forth, the transfer of this Security is registrable on the Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Registrar
duly executed by the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name this Security is registered as the owner hereof for all
purposes (subject to the provisions hereof with respect to determination of the
person to whom interest is payable).
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
6
<PAGE> 1
Exhibit 4.2
[FORM OF FACE OF DEBENTURE]
7 1/8% Debentures Due November 1, 2027
PHELPS DODGE CORPORATION
If the registered owner of this security is The Depository Trust Company
or a nominee thereof, the following legend is applicable: THIS SECURITY IS IN
GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE
DEPOSITORY TRUST COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITORY TRUST COMPANY TO A NOMINEE OF THE DEPOSITORY TRUST
COMPANY OR BY A NOMINEE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITORY TRUST
COMPANY OR ANOTHER NOMINEE OF THE DEPOSITORY TRUST COMPANY OR BY THE DEPOSITORY
TRUST COMPANY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized representative of
DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
No. _________ $__________
Phelps Dodge Corporation, a corporation duly organized and existing
under the laws of the State of New York (herein called the "Company"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of __________ Dollars on November 1, 2027, and to pay interest
thereon from November 1, 1997 or from the most recent interest payment date to
which interest has
<PAGE> 2
been paid or duly provided for. Interest shall be payable on this Debenture
semiannually on May 1 and November 1 in each year, commencing on May 1, 1998, at
the rate of 7 1/8% per annum, until the principal hereof is paid or made
available for payment, and at the rate borne by this Debenture on any overdue
principal and (to the extent that the payment of such interest shall be legally
enforceable) on any overdue installment of interest. The interest so payable on
any interest payment date which is punctually paid or duly provided for on any
interest payment date will, as provided in the Indenture referred to below, be
paid to the person in whose name this Debenture is registered at the close of
business on the Regular Record Date for such interest, which shall be April 15
or October 15, as the case may be, preceding such interest payment date.
Interest payable on this Debenture which is not punctually paid or duly provided
for on any interest payment date shall forthwith cease to be payable to the
person in whose name this Debenture is registered on the relevant Regular Record
Date, and such defaulted interest shall instead be payable to the person in
whose name this Debenture is registered on the special record date or other
specified date determined in accordance with the Indenture referred to on the
reverse hereof.
Payment of the principal of and interest on this Debenture will be made
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, the City of New York (which shall initially be the
Corporate Trust Office of the Trustee), in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
interest on the Debentures may be paid (i) by check mailed to the address of the
person entitled thereto as such address shall appear in the register of Holders
of the Debentures or (ii) by wire transfer to an account maintained by the
person entitled thereto as specified in the register of Holders of the
Debentures.
Reference is hereby made to the further provisions of this Debenture set
forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to below by manual signature, this Debenture shall not be
entitled to any benefit under the Indenture referred to below or be valid or
obligatory for any purpose.
2
<PAGE> 3
IN WITNESS WHEREOF, PHELPS DODGE CORPORATION has caused this instrument
to be executed in its corporate name by the manual or facsimile signatures of
its duly authorized officers named below.
Dated:
PHELPS DODGE CORPORATION
By:___________________________
Name:
Title:
By:___________________________
Name:
Title: Vice President and
Treasurer
3
<PAGE> 4
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of a series described in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By________________________________
Authorized Signatory
[Corporate Seal]
4
<PAGE> 5
[FORM OF REVERSE OF DEBENTURE]
This Debenture is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of September 22, 1997 (herein called the
"Indenture"), from the Company to The Chase Manhattan Bank (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited to $150,000,000 in aggregate principal amount, and is
issued pursuant to resolutions of the Board of Directors of the Company adopted
on September 3, 1997 and actions taken by officers of the Company pursuant to
such resolutions.
The Securities of this series are subject to redemption prior to the
Stated Maturity, at any time upon not less than 30 days' notice by mail, in
whole or in part, at the option of the Company, at a redemption price equal to
the greater of (i) 100% of the principal amount of such Securities or (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest thereon discounted to the date of redemption on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus ten (10) basis points, plus, in the case of each clause (i) and (ii),
accrued interest to the date of redemption.
"Treasury Yield" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
5
<PAGE> 6
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Independent Investment Banker obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such Quotations.
"Independent Investment Banker" means an independent investment banking
institution of international standing appointed by the Company.
"Reference Treasury Dealer" means any primary U.S. Government securities
dealer in New York City selected by the Independent Investment Banker after
consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker by the
Reference Treasury Dealer at 5:00 p.m. on the third business day preceding such
redemption date.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of the Securities to be
redeemed.
The Company shall have no obligation to redeem or purchase the
Securities pursuant to any sinking fund.
The Indenture contains provisions for defeasance and covenant defeasance
at any time of the indebtedness on this Security upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this
Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
6
<PAGE> 7
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time outstanding, on
behalf of the Holders of all Securities of such series, to waive certain
existing defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, and interest on, this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations as
therein set forth, the transfer of this Security is registrable on the Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Registrar
duly executed by the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
7
<PAGE> 8
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name this Security is registered as the owner hereof for all
purposes (subject to the provisions hereof with respect to determination of the
person to whom interest is payable).
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
8
