<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 2000
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHELPS DODGE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
NEW YORK 13-1808503
(STATE OR OTHER JURISDICTION OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
2600 NORTH CENTRAL AVENUE S. DAVID COLTON, ESQ.
PHOENIX, AZ 85004-3089 SENIOR VICE PRESIDENT AND GENERAL COUNSEL
(602) 234-8100 PHELPS DODGE CORPORATION
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, 2600 NORTH CENTRAL AVENUE
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE PHOENIX, AZ 85004-3089
OFFICES) (602) 234-8100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
PD CAPITAL TRUST I
PD CAPITAL TRUST II
(EXACT NAMES OF REGISTRANTS AS SPECIFIED IN THEIR CERTIFICATES OF TRUST)
<TABLE>
<S> <C>
DELAWARE 51-6516595
(STATE OR OTHER JURISDICTION OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO. OF PD CAPITAL
TRUST I)
C/O PHELPS DODGE CORPORATION
2600 NORTH CENTRAL AVENUE 51-6516596
PHOENIX, AZ 85004-3089 (I.R.S. EMPLOYER IDENTIFICATION NO. OF PD CAPITAL
(602) 234-8100 TRUST II)
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE S. DAVID COLTON, ESQ.
OFFICES) SENIOR VICE PRESIDENT AND GENERAL COUNSEL
PHELPS DODGE CORPORATION
2600 NORTH CENTRAL AVENUE
PHOENIX, AZ 85004-3089
(602) 234-8100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
</TABLE>
COPY TO:
MICHAEL W. BLAIR, ESQ.
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NY 10022
(212) 909-6000
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
<PAGE> 2
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) PRICE (2) REGISTRATION FEE
-------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Phelps Dodge Corporation Common Shares............
-------------------------------------------------------------------------------------------------------------------
Phelps Dodge Corporation Preferred Shares.........
-------------------------------------------------------------------------------------------------------------------
Phelps Dodge Corporation Senior Debt Securities...
-------------------------------------------------------------------------------------------------------------------
Phelps Dodge Corporation Junior Subordinated Debt
Securities...................................
-------------------------------------------------------------------------------------------------------------------
Phelps Dodge Corporation Share Purchase Contracts
to purchase Common Shares of Phelps Dodge
Corporation..................................
-------------------------------------------------------------------------------------------------------------------
Phelps Dodge Corporation Share Purchase Units,
each representing ownership of a Share Purchase
Contract and Senior Debt Securities, Junior
Subordinated Debt Securities, Trust Preferred
Securities or debt obligations of third parties
-------------------------------------------------------------------------------------------------------------------
Phelps Dodge Corporation Warrants.................
-------------------------------------------------------------------------------------------------------------------
PD Capital Trust I Preferred Securities...........
-------------------------------------------------------------------------------------------------------------------
PD Capital Trust II Preferred Securities..........
-------------------------------------------------------------------------------------------------------------------
Phelps Dodge Corporation Guarantees of PD Capital
Trust I and PD Capital Trust II Preferred
Securities (3)...............................
-------------------------------------------------------------------------------------------------------------------
Total............................................. $750,000,000 $750,000,000 $198,000 (4)
=====================================================================================================================
</TABLE>
(1) An indeterminate number of common and preferred shares, share purchase
contracts, share purchase units and warrants of Phelps Dodge Corporation,
and an indeterminate principal amount of senior and junior subordinated
debt securities of Phelps Dodge Corporation and an indeterminate number of
preferred securities of PD Capital Trust I and PD Capital Trust II as may
from time to time be issued at indeterminate prices, with an aggregate
offering price not to exceed $750,000,000. Junior subordinated debt
securities may be issued and sold to PD Capital Trust I and PD Capital
Trust II, in which event the junior subordinated debt securities may later
be distributed to the holders of preferred securities.
(2) Estimated solely for the purpose of calculating the registration fee, which
is calculated in accordance with Rule 457(o) of the rules and regulations
under the Securities Act of 1933. Rule 457(o) permits the registration fee
to be calculated on the basis of the maximum offering price of all of the
securities listed and, therefore, the table does not specify by each class
information as to the amount to be registered, the proposed maximum
offering price per unit or the proposed maximum aggregate offering price.
(3) Includes the rights of holders of the preferred securities under the
applicable guarantee of preferred securities, the obligations of Phelps
Dodge Corporation under the applicable trust agreement of each of PD
Capital Trust I and PD Capital Trust II and the obligations of Phelps Dodge
Corporation under the indenture for the junior subordinated debt securities
and any related supplemental indenture, all of which are described in this
Registration Statement. No separate consideration will be received for any
of such guarantee or obligations.
(4) Pursuant to Rule 429 under the Securities Act of 1933, the amount of the
registration fee of $198,000 for the securities registered pursuant to this
Registration Statement is offset by $66,000 previously paid to the
Commission relating to $250,000,000 principal amount of debt securities
previously registered pursuant to Registration Statement on Form S-3 No.
333-36415 and which remain unissued at the close of business on the date of
this Registration Statement. Pursuant to Rule 429, the prospectus filed
with this Registration Statement is a combined prospectus that relates to
this Registration Statement, Registration Statement on Form S-3 No.
333-36415, declared effective on October 14, 1997 and Registration
Statement on Form S-3 No. 33-44380, declared effective on December 16,
1991. This Registration Statement also constitutes Post-Effective Amendment
No. 1 to the Registration Statement on Form S-3 No. 333-36415 and
Post-Effective Amendment No. 2 to the Registration Statement on Form S-3
No. 33-44380 and hereby deregisters all remaining unissued securities
registered pursuant to those registration statements. Such Amendments shall
become effective concurrently with the effectiveness of this Registration
Statement and in accordance with Section 8(c) of the Securities Act of
1933, as amended.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
<PAGE> 3
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
$750,000,000
[PHELPS DODGE CORPORATION LOGO]
COMMON SHARES
PREFERRED SHARES
SHARE PURCHASE CONTRACTS
SHARE PURCHASE UNITS
WARRANTS
SENIOR DEBT SECURITIES
JUNIOR SUBORDINATED DEBT SECURITIES
PD CAPITAL TRUST I
PD CAPITAL TRUST II
PREFERRED SECURITIES
GUARANTEED BY PHELPS DODGE CORPORATION
- By this prospectus, we may offer from time to time up to $750,000,000
of any combination of the securities described in this prospectus.
- We will provide you with the specific terms of the securities we are
offering in supplements to this prospectus. A supplement may also
change or update information contained in this prospectus.
- You should read this prospectus, including the documents and other
information we have referred to under the heading "Where You Can Find
More Information," and the prospectus supplement relating to the
specific issue of securities carefully before you invest.
- We may only use this prospectus to sell securities if it is accompanied
by a prospectus supplement.
- Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The date of this prospectus is ________ __, 2000.
<PAGE> 4
CAUTIONARY NOTE
GENERAL
You should rely only on the information contained or incorporated by
reference in this prospectus and in any supplement. "Incorporation by reference"
means that we can disclose important information to you by referring you to
another document filed separately with the SEC. We have not authorized any other
person to provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it. We will not
make an offer to sell these securities in any jurisdiction where the offer or
sale is not permitted. You should assume that the information appearing in this
prospectus and any supplement to this prospectus is current only as of the dates
on their covers. Our business, financial condition, results of operations and
prospects may have changed since that date.
PD Capital Trust I and PD Capital Trust II, each of which is referred to in
this prospectus as a trust and which are collectively referred to as the trusts,
have no independent function other than to issue securities and to purchase
junior subordinated debt securities. This prospectus does not contain separate
financial statements for the trusts. Phelps Dodge Corporation files consolidated
financial information with the SEC that will include financial information
regarding the trusts.
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents and
information incorporated by reference in them may contain forward-looking
statements within the meaning of the federal securities laws. We intend these
forward-looking statements to be covered by the safe harbor provisions for
forward-looking statements. You should be aware that these statements only
reflect our expectations and are not guarantees of performance. These statements
involve risks, uncertainties and assumptions. Actual events or results may
differ materially from our expectations. Important factors that could cause our
actual results to be materially different from our expectations include those
discussed under the caption "Risk Factors" in each prospectus supplement. In
some cases, you can identify these statements by our use of forward-looking
words such as "may," "will," "should," "anticipate," "estimate," "expect,"
"plan," "believe," "predict," "potential" and "intend". The safe harbor
provisions for forward-looking statements only apply to companies that have
previously offered securities to the public. Because each trust's offer of the
preferred securities constitutes each trust's initial public offering of
securities, the safe harbor provisions of the federal securities laws do not
apply to the trusts. We undertake no obligation to update or revise publicly any
forward-looking statements, whether as a result of new information, future
events or otherwise.
2
<PAGE> 5
PHELPS DODGE CORPORATION
The Corporation, incorporated under the laws of New York in 1885, is the
world's second largest producer of copper, among the world's largest carbon
black and magnet wire producers, and is the world's largest producer of
continuous-cast copper rod. On October 16, 1999, we acquired Cyprus Amax
Minerals Company (Cyprus Amax or Cyprus) thereby enhancing our copper assets
with significant operations in the United States and South America. As a result
of the acquisition, we also became the world's leading producer of molybdenum
and molybdenum products.
The Corporation comprises two divisions: (i) Phelps Dodge Mining Company
and (ii) Phelps Dodge Industries.
(i) Phelps Dodge Mining Company is a business segment that includes
our worldwide copper operations from mining through rod production, marketing
and sales; molybdenum operations from mining through manufacturing, marketing
and sales; other mining operations and investments; and worldwide mineral
exploration and development programs.
(ii) Phelps Dodge Industries includes our specialty chemicals segment
and our wire and cable segment.
In 1999, including production from the acquired Cyprus operations as of
October 16, Phelps Dodge Mining Company produced 890,100 tons of copper for our
account from worldwide mining operations, and an additional 191,200 tons of
copper for the accounts of our minority interest joint-venture partners. Gold,
silver, molybdenum, copper sulfate and sulfuric acid are by-products of our
copper operations. Production of copper for our own account from our U.S.
operations constituted approximately 35 percent of the copper mined in the
United States in 1999. Much of our U.S. cathode copper production, together with
additional copper purchased from others, is used to produce continuous-cast
copper rod, the basic feed for the electrical wire and cable industry. We also
explore for metals and minerals throughout the world.
Our international mining operations include Candelaria and El Abra, major
copper mines in Chile, the Cerro Verde mine in Peru, and other operations and
investments in Chile and Peru. These operations produce a variety of metals and
minerals including copper, gold and silver.
Molybdenum concentrate is produced at our Henderson mine in Colorado, and
as a by-product at several of our U.S. copper operations. The concentrate is
roasted to produce molybdenum oxide at one of our three roasting operations, and
various molybdenum metallurgical and chemical products are produced at our three
conversion facilities.
In addition to our mining interests, we produce engineered products
principally for the global energy, telecommunications, transportation and
specialty chemicals sectors through Phelps Dodge Industries.
We produce specialty chemicals at operations in North America, Europe,
Latin America and Asia through Columbian Chemicals Company, one of the world's
largest producers of carbon black. Carbon black is a reinforcing agent in
natural and synthetic rubber that increases the service life of tires, hoses,
belting and other products for the rubber industry. We also produce specialty
carbon black for other industrial applications such as pigments for printing,
coatings, plastics and other non-rubber applications.
Our wire and cable segment has operations in the United States, Latin
America, Asia, Europe and Africa. This segment produces magnet wire and other
copper products for sale principally to original equipment manufacturers for use
in electrical motors, generators, transformers and other products, and
manufactures energy and telecommunications cables and specialty conductors.
The Corporation's principal executive offices are located at 2600 North
Central Avenue, Phoenix, Arizona 85004-3089, and its telephone number is (602)
234-8100.
3
<PAGE> 6
THE TRUSTS
Phelps Dodge created each trust as a statutory Delaware business trust
pursuant to a trust agreement. Phelps Dodge will enter into an amended and
restated trust agreement for each trust, which will state the terms and
conditions for the trust to issue and sell its preferred securities and common
securities.
Each trust exists solely to:
- issue and sell to the public preferred securities, representing
undivided beneficial interests in the assets of the trust;
- issue and sell to Phelps Dodge common securities, representing
undivided beneficial interests in the assets of the trust;
- use the gross proceeds from the sale of its preferred and common
securities to purchase a series of junior subordinated debt securities
of Phelps Dodge;
- distribute the cash payments it receives from the junior subordinated
debt securities it owns to the holders of the preferred and common
securities; and
- engage in other activities that are necessary or incidental to these
purposes.
Phelps Dodge will purchase all of the common securities of each trust. The
common securities will represent an aggregate liquidation amount equal to at
least 3% of each trust's total capitalization. The preferred securities will
represent the remaining approximately 97% of each trust's total capitalization.
The common securities will have terms substantially identical to, and will rank
equal in priority of payment with, the preferred securities. Payments will be
made on both the common securities and the preferred securities when payments of
interest are made on the junior subordinated debt securities, upon redemption of
the junior subordinated debt securities or in some circumstances upon
liquidation of the trust. However, if a default on the payments on the related
junior subordinated debt securities occurs, then cash distributions and
redemption, liquidation and other amounts payable on the common securities will
be subordinate in priority of payment to the amounts payable on the preferred
securities.
Each of the trusts is a legally separate entity and the assets of one are
not available to satisfy the obligations of any of the others. The preferred
securities will be guaranteed by Phelps Dodge as described later in this
prospectus. We will appoint five trustees to conduct each trust's business and
affairs:
- First Union National Bank, which will act as the property trustee;
- First Union Trust Company, N.A., which will act as the Delaware
trustee; and
- Three Phelps Dodge officers, who will act as the administrative
trustees.
Phelps Dodge will pay all fees and expenses related to each trust and the
offering of the preferred securities and will pay all ongoing costs, expenses
and liabilities of each trust, except the trust's obligations under the
preferred and common securities.
The trusts will not have separate financial statements. The statements
would not be material to holders of the preferred securities because the trusts
will not have any independent operations and exist solely for the reasons
summarized above.
The principal offices of each trust will be located at c/o Phelps Dodge
Corporation, 2600 N. Central Avenue, Phoenix, Arizona 85004, and the telephone
number of each trust will be 602-234-8100.
4
<PAGE> 7
USE OF PROCEEDS
Unless stated otherwise in the applicable prospectus supplement, Phelps
Dodge will use the net proceeds from the sale of the securities for general
corporate purposes, which may include financing our acquisitions, capital
expenditures and daily operations and those of our subsidiaries, and refinancing
debt. We may also use the proceeds for temporary investments until we need them
for general corporate purposes. Unless stated otherwise in the applicable
prospectus supplement, the net proceeds from the sale of the securities offered
by each trust will be used by the trust to purchase a series of junior
subordinated debt securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
Phelps Dodge for each of the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
-------- ----------------------------------------------
2000 1999 1998 1997 1996 1995
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges (a)............. (b) (c) 4.4 8.2 10.5 16.2
</TABLE>
(a) For purposes of computing the consolidated ratio of earnings to fixed
charges, earnings consist of income before taxes, minority interests and
equity in net earnings (losses) of affiliated companies and cumulative
effect of accounting changes. Minority interests in majority-owned
subsidiaries were not deducted from earnings as all such subsidiaries had
fixed charges. Fixed charges consist of interest (including capitalized
interest) on all indebtedness, amortization of debt discount and expense,
and that portion of rental expense which Phelps Dodge believes to be
representative of interest. A statement setting forth the computation of
the unaudited ratios of earnings to fixed charges is filed as Exhibit 12.1
to the registration statement that includes this prospectus.
(b) Due to the loss recorded for the six-month period ended June 30, 2000, the
ratio coverage was less than 1:1. Phelps Dodge would have needed to
generate additional earnings of $9.3 million to achieve a coverage of 1:1
for the six-month period ended June 30, 2000.
(c) Due to the loss recorded in 1999, the ratio coverage was less than 1:1.
Phelps Dodge would have needed to generate additional earnings of $419.3
million to achieve a coverage of 1:1 in 1999.
ACCOUNTING TREATMENT
Each trust will be treated as a wholly-owned subsidiary of Phelps Dodge for
financial reporting purposes. Accordingly, each trust's financial statements
will be included in the consolidated financial statements of Phelps Dodge. The
preferred securities of each trust may be classified as a separate line item in
the consolidated balance sheet of Phelps Dodge following long-term debt but
preceding shareholders' equity or may be classified as debt, with appropriate
disclosures about the preferred securities included in the footnotes to the
consolidated financial statements. Phelps Dodge will record distributions
payable on preferred securities as interest expense or other non-operating
expense (consistent with the balance sheet classification) in the statement of
consolidated operations of Phelps Dodge. Included in a footnote to the
consolidated financial statements will be disclosure that the sole assets of
each trust are the junior subordinated debt securities, the principal amount,
interest rate and maturity date of the junior subordinated debt securities held.
The Financial Accounting Standards Board is in the process of drafting a
proposed exposure draft on liabilities and equity. The proposed exposure draft,
if issued, could alter the accounting treatment described above by requiring the
preferred securities of each trust to be classified as debt on the consolidated
statements of financial position of Phelps Dodge and the related distributions
payable as a component of interest expense in the consolidated statements of
operations of Phelps Dodge.
5
<PAGE> 8
DESCRIPTION OF THE COMMON SHARES
GENERAL
Pursuant to our Restated Certificate of Incorporation, we are authorized to
issue 200 million common shares having a par value of $6.25 per share. Our
common shares are listed on the New York Stock Exchange under the trading symbol
"PD." The transfer and dividend paying agent and registrar for our common shares
is ChaseMellon Shareholder Services, LLC.
We summarize below all of the material features of our common shares. The
summary is not complete and is qualified in its entirety by all of the
provisions of our Restated Certificate of Incorporation, our By-Laws and the
Rights Agreement. Those documents are incorporated by reference as exhibits to
the registration statement that includes this prospectus, and we encourage you
to read them.
The common shares when offered by this prospectus will, when issued, be
fully paid and nonassessable and will not have, or be subject to, any preemptive
or similar rights.
DIVIDENDS
Subject to the preferential rights of any holders of any outstanding series
of our preferred shares, each holder of common shares is entitled to receive
dividends, if declared by our board of directors, out of funds that we can
legally use to pay dividends.
VOTING RIGHTS
The holders of common shares will possess exclusive voting rights in our
company, except to the extent that our board of directors will have designated
voting power with respect to any preferred shares issued. Each holder of common
shares is entitled to one vote for each share registered in that holder's name
on our books on each matter submitted for a vote of holders of common shares.
LIQUIDATION RIGHTS
In the event of liquidation, dissolution or winding-up of our company, the
holders of common shares will be entitled to share proportionately in the
distribution of all assets of our company remaining after payment of all of our
company's debts and liabilities and of all sums to which holders of any
preferred shares may be entitled.
PREEMPTIVE RIGHTS
Holders of common shares are not entitled to preemptive rights with respect
to any shares of our capital stock or other securities convertible into or
carrying rights or options to purchase any of our shares.
RIGHTS AGREEMENT
Each of our common shares, including those that may be issued in an
offering under this prospectus, carries with it one preferred share purchase
right. If these rights become exercisable, each right entitles the registered
holder to purchase one two-hundredth of a Junior Participating Cumulative
Preferred Share (subject to a proportionate decrease in the fractional number of
Junior Participating Cumulative Preferred Shares that may be purchased if a
stock split, stock dividend or similar transaction occurs with respect to the
common shares and a proportionate increase in the event of a reverse stock
split). Until a right is exercised, the holder of the right has no right to vote
or receive dividends or any other rights as a shareholder as a result of holding
the right. The terms of the rights are described in the Rights Agreement, dated
as of February 5, 1998, between us and The Chase Manhattan Bank, as rights
agent. We have summarized all of the material features of the Rights Agreement.
The summary is not complete and is qualified in its entirety by all of the
provisions of the Rights Agreement. The Rights Agreement is incorporated by
reference as an exhibit to the registration statement that includes this
prospectus, and we encourage you to read it.
6
<PAGE> 9
The rights trade automatically with our common shares. A holder of common
shares may exercise the rights only under the circumstances described below. The
rights are designed to protect the interests of our company and shareholders
against coercive takeover tactics. The rights are also designed to encourage
potential acquirors to negotiate with our board of directors before attempting a
takeover and to increase the ability of our board of directors to negotiate
terms of any proposed takeover that benefit our shareholders. The rights may,
but are not intended to, deter potential acquirors from making takeover
proposals.
Junior Participating Cumulative Preferred Shares will rank junior to all
other series of our preferred shares, including any preferred shares offered
under this prospectus, if our board of directors, in creating such preferred
shares, provides that they will rank senior to the Junior Participating
Cumulative Preferred Shares.
The purchase price for each one two-hundredth of a Junior Participating
Cumulative Preferred Share is $210. We must adjust the purchase price if
specified events occur, such as:
- if we pay stock dividends on the Junior Participating Cumulative
Preferred Shares or effect a stock split or reverse stock split with
respect to the Junior Participating Cumulative Preferred Shares; or
- if we issue any shares of our capital stock in a reclassification of
the Junior Participating Cumulative Preferred Shares.
Holders may exercise their rights only following a distribution date. A
distribution date will occur on the earlier of the following: (1) ten days after
a public announcement or notice to Phelps Dodge that a person or group has
acquired 20% or more of our outstanding common shares or (2) ten business days
(or such later date as may be determined by our board of directors) after a
person or group makes or announces an offer to purchase our common shares,
which, if successful, would result in that person or group owning 20% or more of
our outstanding common shares. However, a distribution date will not occur, and
the rights cannot be exercised, as long as our board of directors has the
ability to redeem the rights, as described below.
The rights have some additional features that will be triggered upon the
occurrence of specified events, including:
- if a person or group acquires 20% or more of our outstanding common
shares, holders of the rights, other than such person or group, may
purchase our common shares (instead of our Junior Participating
Cumulative Preferred Shares) at 50% of the market value of the
purchased common shares;
- if a person or group acquires 20% or more of our outstanding common
shares, our board of directors may, at any time before the person or
group acquires 50% or more of the outstanding common shares, exchange
all or part of the rights (other than rights held or previously held
by the 20% or greater shareholder) for common shares at an exchange
ratio equal to one common share per right, subject to adjustment; and
- if our company is involved in specified business combinations or the
sale of 50% or more of our assets or earning power, the holders of the
rights may purchase common shares of the acquiror or an affiliated
company at 50% of market value.
Any time before a person or group acquires 20% or more of the outstanding
common shares, our board of directors may redeem the rights in whole, but not in
part, at a rights redemption price of $0.01 per right, subject to adjustment for
stock dividends, stock splits and similar transactions. Our board of directors
in its sole discretion may establish the effective time, basis and conditions of
the redemption. Immediately upon redemption of the rights, the holder (1) can no
longer exercise such rights and (2) can only receive the redemption price.
The rights will expire on February 24, 2008, unless we redeem them before
then. At any time before a person or group acquires 20% or more of our
outstanding common shares, our board of directors may amend the terms of the
rights without the consent of the holders of the rights in any manner our board
of directors deems desirable. Thereafter, our board of directors may amend the
terms of the rights without the consent of the holders of the rights only if the
amendment does not adversely affect the interests of the holders of the rights.
7
<PAGE> 10
DESCRIPTION OF THE PREFERRED SHARES
We are authorized by our Restated Certificate of Incorporation to issue 6
million preferred shares having a par value of $1.00 per share, of which 400,000
have been designated Junior Participating Cumulative Preferred Shares and are
described below. As of today, we have not issued any preferred shares.
We summarize below all of the material features of our preferred shares.
The summary is not complete and is qualified in its entirety by all of the
provisions of our Restated Certificate of Incorporation, our By-Laws and the
Rights Agreement. Those documents are incorporated by reference as exhibits to
the registration statement that includes this prospectus, and we encourage you
to read them.
Subject to limitations prescribed by the New York Business Corporation Law,
our Restated Certificate of Incorporation and our By-Laws, our board of
directors is authorized to fix the number of shares constituting each series of
preferred shares and the designations, preferences, rights and limitations
related to each series, including those provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
resolution of our board of directors or a committee authorized by our board of
directors. The preferred shares when offered by this prospectus will, when
issued, be fully paid and nonassessable and will not have, or be subject to, any
preemptive or similar rights. As described above under "Description of the
Common Shares - Rights Agreement," each of our common shares carries with it one
preferred share purchase right. The rights are designed to protect the interests
of our company and shareholders against coercive takeover tactics. The rights
are also designed to encourage potential acquirors to negotiate with our board
of directors before attempting a takeover and to increase the ability of our
board of directors to negotiate terms of any proposed takeover that benefit our
shareholders. The rights may, but are not intended to, deter potential acquirors
from making takeover proposals.
We will describe in a prospectus supplement some or all of the following
terms of the series of preferred shares being offered:
- title;
- the number of shares offered;
- the liquidation preference per share;
- the purchase price;
- the dividend rates, periods and/or payment dates or methods of
calculation of the dividend rates;
- whether dividends will be cumulative or non-cumulative and, if
cumulative, the date from which dividends will accumulate;
- the procedures for any auction or remarketing, if any;
- the provisions for a sinking fund, if any;
- the provisions for redemption, if applicable;
- any listing of the preferred shares on any securities exchange or
market;
- the terms and conditions, if applicable, upon which the preferred
shares will be convertible into our common shares, including the
conversion price, or manner of calculation of the conversion price,
and conversion period;
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- the terms and conditions, if applicable, upon which preferred shares
will be exchanged into debt securities, including the exchange price,
or manner of calculating the exchange price, and the exchange period;
- voting rights, if any;
- the relative ranking and preferences of the preferred shares as to
dividend rights upon liquidation, dissolution or winding up of our
affairs;
- any limitations on issuance of any series of preferred shares ranking
senior to or equal to the series of preferred shares as to dividend
rights upon liquidation, dissolution or winding up of our affairs; and
- any other specific terms, preferences, rights, limitations or
restrictions.
The applicable prospectus supplement will describe all of the material
United States federal income tax considerations applicable to the particular
series of preferred shares being offered.
Unless otherwise specified in the prospectus supplement, the preferred
shares will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of our company, rank:
- senior to all series of our common shares, and to all equity
securities issued by us the terms of which specifically provide that
such equity securities rank junior to the preferred shares with
respect to dividend rights or rights upon liquidation, dissolution or
winding up of our company;
- equal to all equity securities issued by us, the terms of which
specifically provide that those equity securities will rank equal to
the preferred shares with respect to dividend rights or rights upon
liquidation, dissolution or winding up of our company; and
- junior to all equity securities issued by us, the terms of which
specifically provide that those equity securities rank senior to the
preferred shares with respect to dividend rights or rights upon
liquidation, dissolution or winding up of our company.
JUNIOR PARTICIPATING CUMULATIVE PREFERRED SHARES
GENERAL
In connection with the Rights Agreement, 400,000 Junior Participating
Cumulative Preferred Shares have been reserved and authorized for issuance by
our Board of Directors. No Junior Participating Cumulative Preferred Shares are
outstanding as of the date of this prospectus. We summarize below all of the
material features of our Junior Participating Cumulative Preferred Shares. The
summary is not complete and is qualified in its entirety by all of the
provisions of our Restated Certificate of Incorporation and the certificate of
designation relating to the Junior Participating Cumulative Preferred Shares.
Those documents are incorporated by reference as exhibits to the registration
statement that includes this prospectus, and we encourage you to read them.
RANKING
The Junior Participating Cumulative Preferred Shares shall rank junior to
all other series of our preferred shares as to the payment of dividends and the
distribution of assets, unless the terms of any such series shall provide
otherwise.
DIVIDENDS AND DISTRIBUTIONS
Subject to the prior and superior rights of the holders of any share of any
series of preferred shares ranking prior to and superior to the Junior
Participating Cumulative Preferred Shares with respect to dividends, the holders
of Junior Participating Cumulative Preferred Shares, in preference to the
holders of common shares and of any other junior shares which may be
outstanding, shall be entitled to receive, if declared by the Board of Directors
out of funds legally available for that purpose, quarterly dividends payable in
cash, in an amount per share equal to the greater of (1) $2.50 per share ($10.00
per annum) and (2) subject to adjustment upon certain dilutive events, 100
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times the aggregate per share amount of, with certain exceptions, all cash and
non-cash dividends or other distributions, declared on the common shares, since
the immediately preceding quarterly dividend payment date, or, with respect to
the first quarterly dividend payment date, since the first issuance of any
Junior Participating Cumulative Preferred Share.
If no dividend or distribution is declared on the common shares during the
period between any quarterly dividend payment date and the next subsequent
quarterly dividend payment date, a dividend of $2.50 per share ($10.00 per
annum) on the Junior Participating Cumulative Preferred Shares will nevertheless
be payable on such subsequent quarterly dividend payment date.
VOTING RIGHTS
The holders of Junior Participating Cumulative Preferred Shares will have
the following voting rights:
- subject to adjustment upon certain dilutive events, each Junior
Participating Cumulative Preferred Share shall entitle the holder to
100 votes (and each one two-hundredth of a Junior Participating
Cumulative Preferred Share shall entitle the holder thereof to
one-half of one vote) on all matters submitted to a vote of the
shareholders of Phelps Dodge; and
- except as otherwise provided by law, the holders of Junior
Participating Cumulative Preferred Shares and the holders of common
shares shall vote together as one class.
LIQUIDATION, DISSOLUTION OR WINDING UP
Upon any liquidation, dissolution or winding up of Phelps Dodge, after
distribution of the liquidation price to the holders of shares ranking senior as
to distribution of assets to the Junior Participating Cumulative Preferred
Shares, the holders of Junior Participating Cumulative Preferred Shares will be
entitled to receive the greater of (1) $100 per share and (2) an aggregate
amount per share, subject to adjustment upon certain dilutive events, equal to
100 times the aggregate amount to be distributed per share to holders of common
shares; or a pro-rata portion of such amount if the assets are not sufficient to
pay the full amount.
CONSOLIDATION, MERGER, ETC.
In case Phelps Dodge shall enter into any consolidation, merger,
combination or other transaction in which the common shares are exchanged for or
changed into other stock or securities, cash and/or any other property, each
Junior Participating Cumulative Preferred Share shall at the same time be
similarly exchanged or changed into an amount per share (subject to adjustment
upon certain dilutive events) equal to 100 times the aggregate amount of the
instrument into which or for which each common share is changed or exchanged.
CERTAIN RESTRICTIONS
Whenever quarterly dividends or other dividends or distributions payable on
the Junior Participating Cumulative Preferred Shares are in arrears, Phelps
Dodge shall not:
- declare or pay dividends, or make any other distributions, other than
in common shares, on the common shares;
- purchase any Junior Participating Cumulative Preferred Shares, unless
paid for with common shares; or
- permit any entity controlled by Phelps Dodge to purchase any common
shares or Junior Participating Cumulative Preferred Shares;
until such accrued dividends and distributions are paid in full or an amount
sufficient for such payment as been set aside.
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REDEMPTION
The shares of Junior Participating Cumulative Preferred Shares are not
redeemable.
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DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS
This section describes the general terms and provisions of our share
purchase contracts and share purchase units that may be offered by this
prospectus. When we offer to sell a particular series of the share purchase
contracts or share purchase units, we will describe the specific terms of the
series in a supplement to this prospectus. The description in the applicable
supplement to this prospectus will be a summary of all the material features of
the share purchase contracts or share purchase units. Reference will be made to
the share purchase contracts, and, if applicable, collateral arrangements and
depositary arrangements, relating to the share purchase contracts or share
purchase units, which will be filed or incorporated by reference as exhibits to
the registration statement that includes this prospectus, and we encourage you
to read them.
GENERAL
We may issue and sell, from time to time, share purchase contracts,
representing contracts obligating holders to purchase from us, and for us to
sell to the holders, a specified number of our common shares at a future date or
dates. The price per share of our common stock may be fixed at the time the
share purchase contracts are issued or may be determined by reference to a
specified formula set forth in the share purchase contracts. The share purchase
contracts may be issued separately or as parts of units. The share purchase
units will consist of the following:
- a share purchase contract; and
- one or more of the following, each of which secures the holders'
obligations to purchase the common shares under the share purchase
contracts:
- senior notes;
- junior subordinated notes;
- trust preferred securities; or
- debt obligations of third parties, including U.S. treasury
securities.
The share purchase contracts may require (1) us to make periodic payments
to holders of the share purchase units or (2) the holders of the share purchase
units to make periodic payments to us. The share purchase contracts may require
holders to secure their obligations under the stock purchase contracts in a
specified manner.
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DESCRIPTION OF WARRANTS
We summarize below all of the material features of the warrants. The
summary is not complete and is qualified in its entirety by all of the
provisions of the applicable warrant certificate and warrant agreement. Those
documents are or will be filed or incorporated by reference as exhibits to the
registration statement that includes this prospectus, and we encourage you to
read them. You should also read the applicable prospectus supplement, which will
contain additional information and may update or change some of the information
below.
GENERAL
We may issue warrants to purchase common shares, and warrants to purchase
debt securities, as well as other types of warrants. We may issue the warrants
independently or together with other securities. The warrants may be attached to
or separate from the other securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us and a warrant
agent. The warrant agent will be our agent and will not assume any obligations
to any owner of the warrants.
COMMON SHARE WARRANTS
GENERAL
The prospectus supplement and the common share warrant agreement relating
to any series of warrants will include specific terms of the warrants. These
terms include the following:
- the title and aggregate number of warrants;
- the price or prices at which the common share warrants will be issued;
- the currency or currencies or currency units or composite currencies
in which the price of the warrants may be payable;
- the number of common shares for which the warrant can be exercised and
the price or the manner of determining the price and currency or other
consideration to purchase the common shares;
- the date on which the right to exercise the warrant begins and the
date on which the right expires;
- if applicable, the maximum or maximum amount of warrants that may be
exercised at any one time;
- any provision dealing with the date on which the warrants and related
securities will be separately transferable;
- any mandatory or optional redemption provision;
- the identity of the common share warrant agent;
- information with respect to book-entry procedures, if any; and
- any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants.
The warrants will be represented by certificates. The warrants may be
exchanged under the terms outlined in the common share warrant agreement. We
will not charge any service charges for any transfer or exchange of warrant
certificates, but we may require payment for tax or other governmental charges
in connection with the exchange or transfer. Unless the prospectus supplement
states otherwise, until a common share warrant is exercised,
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a holder will not be entitled to any payments on or have any rights with respect
to the common shares issuable upon exercise of the common share warrant. The
applicable prospectus supplement will describe all of the material United States
federal income tax considerations applicable to the particular series of
warrants being offered.
EXERCISE OF COMMON SHARE WARRANTS
To exercise the warrants, the holder must provide the common share warrant
agent with the following:
- payment of the exercise tax;
- any required information described on the warrant certificates;
- the number of warrants to be exercised;
- an executed and completed warrant certificate; and
- any other items required by the common share warrant agreement
The common share warrant agent will issue a new warrant certificate for any
warrants not exercised. Unless the prospectus supplement states otherwise, no
fractional shares will be issued upon exercise of warrants, but we will pay the
cash value of any fractional shares otherwise issuable.
The exercise price and the number of common shares that each warrant can
purchase will be adjusted upon the occurrence of events described in the common
share warrant agreement, including the issuance of a stock dividend or a
combination, subdivision or reclassification of common shares. Unless the
prospectus supplement states otherwise, no adjustment will be required until
cumulative adjustments require an adjustment of at least 1%. From time to time,
we may reduce the exercise price as may be provided in the common share warrant
agreement.
Unless the prospectus supplement states otherwise, if we enter into any
consolidation, merger, or sale or conveyance of our property as an entirety, the
holder of each outstanding warrant will have the right to the kind and amount of
shares, other securities, property or cash receivable by a holder of the number
of common shares into which the warrants were exercisable immediately prior to
the occurrence of the event.
MODIFICATION OF THE COMMON SHARE WARRANT AGREEMENT
The common share warrant agreement will permit us and the common share
warrant agent, without the consent of the common share warrant holders, to
supplement or amend the agreement in the following circumstances:
- to cure any ambiguity;
- to correct or supplement any provision which may be defective or
inconsistent with any other provisions; or
- to add new provisions regarding matters or questions that we and the
common share warrant agent may deem necessary or desirable and which
do not adversely affect the interests of the common share warrant
holders.
DEBT WARRANTS
The applicable prospectus supplement will describe the terms of warrants to
purchase debt securities, including the following:
- the title and aggregate number of the debt warrants;
- the price or prices at which the debt warrants will be issued;
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- the currency or currencies or currency units or composite currencies
in which the price of the debt warrants may be payable;
- the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants;
- the price at which, and currency or currencies or currency units or
composite currencies in which, the debt securities purchasable upon
exercise of the debt warrants may be purchased;
- the date on which the right to exercise the debt warrants begins and
the date on which the right expires;
- if applicable, the minimum or maximum amount of the debt warrants that
may be exercised at any one time;
- if applicable, the designation and terms of the securities with which
the debt warrants are issued and the number of the debt warrants
issued with each other security;
- if applicable, the date on and after which the debt warrants and the
related other securities will be separately transferable;
- any mandatory or optional redemption provision;
- the identity of the debt securities warrant agent;
- information with respect to book-entry procedures, if any; and
- any other terms of the debt warrants, including terms, procedures and
limitations relating to the exchange and exercise of the debt
warrants.
The applicable prospectus supplement will describe all of the material
United States federal income tax considerations applicable to the particular
series of warrants being offered.
OTHER WARRANTS
We may issue warrants to purchase other securities, including preferred
shares. The applicable prospectus supplement will describe the terms of any
other warrants, including the following:
- the title and aggregate number of the warrants;
- the price or prices at which the warrants will be issued;
- the currency or currencies or currency units or composite currencies
in which the price of the warrants may be payable;
- the designations and terms of the preferred shares or other securities
purchasable upon exercise of the warrants;
- the price at which, and the currency or currencies or currency units
or composite currencies in which the securities purchasable upon
exercise of such warrants may be purchased;
- the date on which the right to exercise the warrants begins and the
date on which the right expires;
- if applicable, the minimum or maximum amount of warrants that may be
exercised at any one time;
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- if applicable, the date on and after which the warrants and the
related other securities will be separately transferable;
- any mandatory or optional redemption provision;
- the identity of the warrant agent;
- information with respect to book-entry procedures, if any; and
- any other terms of the warrants including terms, procedures and
limitations relating to the exchange and exercise of the warrants.
The applicable prospectus supplement will describe all of the material
United States federal income tax considerations applicable to the particular
series of warrants being offered.
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DESCRIPTION OF THE DEBT SECURITIES
We may offer unsecured general obligations, which may be senior debt
securities or junior subordinated debt securities. The senior debt securities
and the junior subordinated debt securities are together referred to in this
prospectus as the "debt securities." The senior debt securities will have the
same rank as all of our other unsecured, unsubordinated obligations. The junior
subordinated debt securities will be subordinate and junior in right of payment
to the extent and in the manner set forth in the subordinated indenture to all
of our senior debt as defined below under "Description of the Debt Securities -
Provisions Applicable Only to Junior Subordinated Debt Securities -
Subordination."
The senior debt securities will be issued in one or more series under an
indenture (sometimes referred to as the senior indenture) dated as of September
22, 1997 between us and The Chase Manhattan Bank, as the trustee. Pursuant to
the Tripartite/Conversion Agreement, dated as of August 8, 2000, First Union
National Bank succeeded The Chase Manhattan Bank as trustee under the Indenture.
The junior subordinated debt securities will be issued under an indenture
(sometimes referred to as the subordinated indenture) dated as of August 11,
2000 between us and First Union National Bank, as trustee.
We summarize below all of the material features of the debt securities. The
summary is not complete and is qualified in its entirety by all of the
provisions of the indentures and the provisions of the Trust Indenture Act of
1939. The indentures are filed or incorporated by reference as exhibits to the
registration statement that includes this prospectus, and we encourage you to
read them. You should also read the applicable prospectus supplement, which will
contain additional information and may update or change some of the information
below. References in parentheses below to sections or articles are to sections
or articles of the indentures.
The debt securities will be issuable in one or more series pursuant to one
or more indentures supplemental to the original indentures, or a resolution of
our board of directors or a duly authorized committee of our board of directors.
(Section 3.1 of each indenture.)
The indentures do not contain any covenants or provisions which may afford
holders of debt securities protection in the event that we engage in a highly
leveraged transaction or other transaction that may adversely affect the holders
of the debt securities, including the incurrence or issuance of other secured or
unsecured debt.
Most of our assets are owned by our subsidiaries and, accordingly, the debt
securities are effectively subordinated to all existing and future liabilities
of our subsidiaries. Our rights and the rights of our creditors, including
holders of debt securities, to participate in any distribution of the assets of
any subsidiary upon its liquidation, recapitalization or insolvency would be
subject to the prior claims of the subsidiary's creditors, except to the extent
that we might ourselves be a creditor with recognized claims against the
subsidiary.
GENERAL TERMS OF THE DEBT SECURITIES
The aggregate principal amount of debt securities that may be issued under
the indentures is unlimited. The debt securities may be issued in one or more
series. You should refer to the applicable prospectus supplement for the
specific terms of the debt securities, including the following:
- title and aggregate principal amount;
- indenture under which the debt securities are issued;
- any applicable subordination provisions;
- percentage or percentages of principal amount at which the debt
securities will be issued and percentage or percentages of principal
amount payable upon declaration of acceleration of the maturity of the
debt securities;
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- maturity date(s);
- interest rate(s) or the method for determining the interest rate(s);
- dates on which interest will accrue or the method for determining
dates on which interest will accrue and dates on which interest will
be payable;
- interest deferral provisions, if any;
- conversion or exchange provisions, if any;
- place or places where principal, premium and interest will be payable;
- redemption or early repayment provisions;
- authorized denominations;
- amount of discount with which such debt securities will be issued;
- whether the debt securities will be issued in whole or in part in the
form of one or more global securities;
- identity of the depositary for global securities;
- whether a temporary security is to be issued with respect to such
series and whether any interest payable prior to the issuance of
definitive debt securities of the series will be credited to the
account of the persons entitled thereto;
- the terms upon which beneficial interests in a temporary global debt
security may be exchanged in whole or in part for beneficial interests
in a definitive global debt security or for individual definitive debt
securities and the terms upon which such exchanges may be made;
- currency, currencies or currency units in which the purchase price
for, the principal of and any premium and any interest on, such debt
securities will be payable;
- time period within which, the manner in which and the terms and
conditions upon which the purchaser of the debt securities can select
the payment currency;
- securities exchange(s) on which the debt securities will be listed, if
any;
- additions to or changes in the events of default with respect to the
debt securities and any change in the right of the trustee or the
holders to declare the principal, premium and interest with respect to
such debt securities to be due and payable; and
- additional terms not inconsistent with the provisions of the
indentures.
One or more series of debt securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates. One or more series of debt
securities may be variable rate debt securities that may be exchanged for fixed
rate debt securities. The applicable prospectus supplement will describe all of
the material United States federal income tax considerations applicable to the
particular series of debt securities being offered.
Debt securities may be issued where the amount of principal and/or interest
payable is determined by reference to:
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- the price of one or more commodities, derivatives or securities;
- one or more securities, derivatives or commodities exchange indices or
other indices;
- a currency or currencies (including any currency unit or units) other
than the currency in which such debt securities are issued or other
factors; or
- any other variable or the relationship between any variables or
combination of variables.
Holders of such debt securities may receive a principal amount or a payment
of interest that is greater than or less than the amount of principal or
interest otherwise payable on such dates, depending upon the value of the
applicable currencies, commodities, securities, derivatives, indices or other
factors. Information as to the methods for determining the amount of principal
or interest, if any, payable on any date, and the currencies, commodities,
securities, derivatives, indices or other factors to which the amount payable on
such date is linked will be described in the applicable prospectus supplement.
The term "debt securities" includes debt securities denominated in U.S.
dollars or, if specified in the applicable prospectus supplement, in any other
freely transferable currency or units based on or relating to foreign
currencies.
We expect most debt securities to be issued in fully registered form
without coupons and in denominations of $1,000 and any integral multiple of
$1,000. (Section 3.2 of each indenture.) Subject to the limitations provided in
the indentures and in the prospectus supplement, debt securities which are
issued in registered form may be registered, transferred or exchanged at the
principal corporate trust office of the trustee or at the office or agency that
we will maintain for such purpose in the Borough of Manhattan, The City of New
York, without the payment of any service charge, other than any tax or other
governmental charge payable in connection with the registration or transfer or
exchange. (Sections 3.5 and 9.2 of each indenture.)
We may issue debt securities of any series in whole or in part in
definitive form or in the form of one or more global debt securities as
described below under "Global Securities." We may issue debt securities of a
series at different times. In addition, we may issue debt securities within a
series with terms different from the terms of other debt securities of that
series. (Section 3.1(c) of each indenture.)
Subject to applicable law, we or any of our affiliates may at any time
purchase or repurchase debt securities of any series in any manner and at any
price. Debt securities of any series purchased by us or any of our affiliates
may be held or surrendered by the purchaser of the debt securities for
cancellation.
GLOBAL SECURITIES
We expect the following provisions to apply to all debt securities.
We may issue the debt securities of a series in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, a depositary identified in the prospectus supplement. We will issue global
securities in registered form and in either temporary or definitive form. Unless
and until it is exchanged in whole or in part for the individual debt
securities, a global security may not be transferred except as a whole by the
depositary for such global security to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor of such
depositary or a nominee of such successor. (Section 2.4 of each indenture.)
The specific terms of the depositary arrangement with respect to any debt
securities of a series and the rights of and limitations upon owners of
beneficial interests in a global security will be described in the prospectus
supplement. We expect that the following provisions will generally apply to
depositary arrangements.
Upon the issuance of a global security, the depositary for such global
security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual debt securities
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represented by such global security to the accounts of persons that have
accounts with such depositary or its nominee. Such accounts shall be designated
by the dealers, underwriters or agents with respect to the debt securities or by
us if such debt securities are offered and sold directly by us. Ownership of
beneficial interests in a global security will be limited to persons that have
accounts with the applicable depositary, who are referred to in this prospectus
as participants, or persons that may hold interests through participants.
Ownership of beneficial interests in such global security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the applicable depositary or its nominee with respect to interests of
participants and the records of participants with respect to interests of
persons other than participants. The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such limits and such laws may impair the ability to transfer beneficial
interests in a global security.
So long as the depositary for a global security, or its nominee, is the
registered owner of a global security, such depositary or such nominee, as the
case may be, will be considered the sole owner or holder of the debt securities
represented by that global security for all purposes under the indenture
governing those debt securities. Except as provided below, owners of beneficial
interests in a global security will not be entitled to have any of the
individual debt securities of the series represented by that global security
registered in their names, will not receive or be entitled to receive physical
delivery of any debt securities of such series in definitive form and will not
be considered the owners or holders thereof under the indenture governing such
debt securities.
Payments of principal, premium, if any, and interest, if any, on individual
debt securities represented by a global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as the
case may be, as the registered owner of the global security representing the
debt securities. Neither we, the trustee for the debt securities, any paying
agent, nor the registrar for the debt securities will have any responsibility or
liability for any aspect of the records relating to or payments made by the
depositary or any participants on account of beneficial ownership interests in
the global security for the debt securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
We expect that the depositary for a series of debt securities or its
nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent global security representing the debt securities, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such global
security for the debt securities as shown on the records of the depositary or
its nominee. We also expect that payments by participants to owners of
beneficial interests in a global security held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name." Such payments will be the responsibility of such participants.
If the depositary for a series of debt securities notifies us at any time
that it is unwilling, unable or ineligible to continue as depositary and a
successor depositary is not appointed by us within 90 days, we will issue
definitive debt securities of that series in exchange for the global security or
securities representing that series of debt securities. In addition, we may at
any time and in our sole discretion, subject to any limitations described in the
prospectus supplement relating to the debt securities, determine not to have any
debt securities of a series represented by one or more global securities, and,
in such event, will issue definitive debt securities of that series in exchange
for the global security or securities representing that series of debt
securities. If definitive debt securities are issued, an owner of a beneficial
interest in a global security will be entitled to physical delivery of
definitive debt securities of the series represented by that global security
equal in principal amount to that beneficial interest and to have the debt
securities registered in its name. Definitive debt securities of any series so
issued will be issued in denominations, unless otherwise specified by us, of
$1,000 and integral multiples of $1,000.
REDEMPTION OF DEBT SECURITIES
If the debt securities of a series provide for redemption at our election,
unless otherwise provided in the applicable prospectus supplement, such
redemption shall be on not less than 30 nor more than 60 days' notice and, in
the event of redemption in part, the debt securities to be redeemed will be
selected by the trustee by such method as it shall deem fair and appropriate.
Notice of such redemption will be mailed to holders of debt securities of such
series to their last addresses as they appear on the register of the debt
securities of such series. (Sections 1.6, 10.3 and 10.4 of each indenture.)
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EVENTS OF DEFAULT, NOTICE AND WAIVER
Each indenture provides that, if an event of default in respect of any
series of debt securities shall have occurred and be continuing, either the
trustee or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series may declare the principal (or a
portion thereof in the case of certain debt securities issued with original
issue discount or indexed debt securities) and accrued interest of all the debt
securities of that series to be due and payable, by written notice to us (and by
written notice to the trustee if given by the holders). The consequence of this
action is that the principal and accrued interest of the debt securities shall
be immediately due and payable by us. (Section 5.2 of each indenture.)
Each indenture defines events of default in respect of any series of debt
securities as:
- default for 30 days in payment of any interest installment or
additional amount when due;
- default in payment of the principal of or any premium on or any
mandatory sinking fund payment with respect to debt securities of such
series when due;
- failure to comply with certain obligations for 60 days after written
notice of non-compliance to us by the trustee or the holders of at
least 25% in principal amount of the outstanding debt securities of
such series;
- our commencement of a voluntary case under Title 11 of the U.S. Code
or any similar federal or state bankruptcy law;
- our consent to the entry of an order for relief against us in an
involuntary case under any such law or to the appointment of a
receiver, trustee, assignee, liquidator or similar official under any
such law;
- a general assignment by us for the benefit of our creditors under any
such law;
- the entry by a court of competent jurisdiction of an order or decree
granting relief against us in an involuntary case under any such law
where such order or decree remains unstayed and in effect for 60 days;
- the entry by a court of competent jurisdiction of an order or decree
appointing a receiver, trustee, assignee, liquidator or similar
official for Phelps Dodge or for substantially all of our property
where such order or decree remains unstayed and in effect for 60 days;
and
- any other event of default provided for in the indenture with respect
to the debt securities of such series.
(Section 5.1 of each indenture.)
The Trust Indenture Act of 1939 and Section 6.6 of each indenture provide
that the trustee will, within 90 days after the occurrence of a default in
respect of any series of debt securities, give to the holders of that series
written notice of all uncured and unwaived defaults known to it; provided that,
except in the case of default in the payment of the principal of, premium on, if
any, or interest on, if any, or any sinking fund installment or analogous
obligation with respect to, any of the debt securities of that series, the
trustee will be protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest of the holders
of that series. "Default" means any event which is, or after notice or passage
of time or both would be, an event of default with respect to debt securities of
such series.
Each indenture provides that the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series may, subject
to limitations, direct the time, method and place of conducting proceedings for
any remedy available to the trustee, or exercising any trust or power conferred
on the trustee, in respect of the debt securities of that series. (Section 5.8
of each indenture.)
Each indenture includes a covenant that we will file annually with the
trustee a certificate of compliance with all conditions and covenants under each
indenture. (Section 9.7 of each indenture.)
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In certain cases, the holders of a majority in aggregate principal amount
of the outstanding debt securities of a series may, by providing written notice
to the trustee on behalf of the holders of all debt securities of that series,
waive any past default or event of default, except for defaults or events of
default not already cured in the payment of the principal of, or premium, if
any, or interest on any of the debt securities of that series or any coupon
related to such debt securities or compliance with certain covenants or
provisions. (Section 5.7 of each indenture.)
CERTAIN COVENANTS OF PHELPS DODGE
LIMITATION ON LIENS
Each indenture provides that we will not, and will not permit certain of
our subsidiaries to, (a) issue, assume or guarantee any debt for money borrowed
if such debt is secured by a mortgage upon, or (b) secure any outstanding debt
by a mortgage upon, certain of the principal properties that we now or may own
without providing that the debt securities offered under this prospectus are
secured equally with such debt, except that these restrictions shall not apply
to:
- mortgages on any principal property acquired, constructed or improved
after the date of the indenture to secure or provide for the payment
of the related purchase price or cost;
- mortgages on any principal property acquired in connection with a
merger;
- mortgages to secure debt of a restricted subsidiary owed to us or
another restricted subsidiary;
- any extension, renewal or replacement of any mortgage referred to
above;
- the sale or other transfer of any interest in property commonly
referred to as a "production payment"; and
- mortgages in favor of governmental bodies to secure advance or
progress payments under any contract or statute or debt incurred for
the purpose of financing the purchase price or cost of constructing or
improving the related property subject.
(Section 9.9 of each indenture.)
Notwithstanding the foregoing, we and our subsidiaries may, without
securing the debt securities, issue, assume or guarantee secured debt which
would otherwise be subject to the foregoing restrictions in an aggregate amount
which, together with all other such debt of ours and our subsidiaries and the
rental payments related to sale and lease-back transactions (other than sale and
lease-back transactions in which the property involved would have been permitted
to be mortgaged under the preceding paragraph or the proceeds of which have been
applied to the retirement of long-term debt), does not at the time exceed 15% of
our consolidated shareholders' equity. (Section 9.9 of each indenture.)
SALE AND LEASE-BACK TRANSACTIONS
Sale and lease-back transactions by us or certain of our subsidiaries are
prohibited unless the proceeds of such transaction are at least equal to the
fair value of the property leased and either (i) we or the restricted subsidiary
would be entitled to incur debt secured by a mortgage on the property to be
leased without equally securing the debt securities or (ii) we apply an amount
equal to the fair value of the property leased to the retirement of our
long-term debt. Sale and lease-back transactions do not include arrangements
with governmental bodies entered into for the purpose of financing the purchase
price or the cost of constructing or improving the property subject to such
arrangements. (Section 9.10 of each indenture.)
Notwithstanding the preceding paragraph, we and our subsidiaries may enter
into any sale and lease-back transaction which would otherwise be subject to the
foregoing restrictions if the amount of the rental payments related to such
transaction, together with all secured debt of ours and our restricted
subsidiaries and all other rental payments related to sale and lease-back
transactions (other than sale and lease-back transactions permitted because we
would be entitled to incur debt secured by a mortgage on the property to be
leased without equally securing the
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debt securities, and other than sale and lease-back transactions the proceeds of
which have been applied in accordance with clause (ii) of the preceding
paragraph), does not at the time exceed 15% of our consolidated shareholders'
equity. (Section 9.10 of each indenture.)
MODIFICATION OF THE INDENTURES
Each indenture contains provisions permitting us and the trustee to enter
into one or more supplemental indentures without the consent of the holders of
any of the debt securities in order to:
- evidence the succession of another corporation to us and the
assumption of our covenants and obligations by our successor;
- add to our covenants for the benefit of the holders of debt securities
or surrender any of our rights or powers;
- add additional events of default with respect to any series of debt
securities;
- add to or change any provisions of the indenture to such extent as
necessary to facilitate the issuance of debt securities in bearer form
or to facilitate the issuance of debt securities in global form;
- change or eliminate any provision of the indenture if such change or
elimination does not affect any series of debt securities created
prior to the execution of any such supplemental indenture that is
entitled to the benefit of such provision;
- secure the debt securities;
- establish the form or terms of debt securities;
- evidence and provide for successor trustees and/or to add to or change
any provisions of the indenture to such extent as necessary to provide
for or facilitate the appointment of a separate trustee or trustees
for specific series of debt securities;
- permit payment of principal, premium or interest in respect of debt
securities in bearer form or coupons, if any, in the United States and
other areas subject to its jurisdiction; or
- correct or supplement any inconsistent provisions or make any other
provisions with respect to matters or questions arising under the
indenture, provided that any such action does not adversely affect the
interests of any holder of debt securities of any series. (Section 8.1
of each indenture.)
Each indenture also contains provisions permitting us and the trustee, with
the consent of the holders of not less than a majority of the aggregate
principal amount of the outstanding debt securities of the affected series, to
execute supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of the indenture or modifying the rights of
the holders of debt securities of that series. No supplemental indenture may,
without the consent of the holders of all of the affected debt securities, among
other things:
- change the maturity of any debt securities;
- change the currency in which such debt securities are payable;
- reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof;
- change the manner in which the amount of any principal thereof or
premium, if any, or interest thereon is determined;
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- impair the right to institute suit for the enforcement of any payment
on such debt securities at maturity or upon redemption;
- reduce the percentage of the outstanding principal amount of debt
securities the holders of which must consent to any such supplemental
indenture;
- modify the indenture provisions concerning modification of the
indenture or the waiver of past defaults or specified covenants other
than to increase the required percentage to effect a modification or
provide that additional provisions may not be waived without the
consent of each holder of that series of debt securities; or
- in the case of the subordinated indenture, modify the subordination
provisions thereof in a manner adverse to the holders of junior
subordinated debt securities then outstanding. (Section 8.2 of each
indenture.)
SATISFACTION AND DISCHARGE OF THE INDENTURES; DEFEASANCE
Each indenture shall generally cease to be of any further effect with
respect to a series of debt securities when:
- we have delivered to the trustee for cancellation all debt securities
of that series or
- all debt securities of that series not theretofore delivered to the
trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be
called for redemption within one year, and we shall have deposited
with the trustee as trust funds the entire amount sufficient to pay at
maturity or upon redemption all debt securities of that series (and
if, in either case, we shall also pay or cause to be paid all other
sums payable under the indenture by us in respect of all debt
securities of that series and deliver to the trustee an officers'
certificate and an opinion of counsel, each stating that all
conditions precedent in the indenture have been complied with) and we
shall have made any other payments due under the indenture and
delivered to the trustee an officer's certificate and opinion of
counsel saying that we have fulfilled each of the conditions mentioned
above. (Section 4.1 of each indenture.)
The trustee shall hold in trust all money deposited with it as described
above and shall apply the deposited money, in accordance with the provisions of
the debt securities of the defeased series and the indenture, to the payment,
either directly or through any paying agent, as the trustee may determine, to
the persons entitled thereto, of principal, premium, if any and any interest for
whose payment such money has been deposited with or received by the trustee.
(Section 4.2 of each indenture.)
RECORD DATES
We will generally be entitled to set any date as the record date for the
purpose of determining the holders of debt securities entitled to give or take
any action under either indenture in the manner specified in such indenture. If
a record date is set, action may only be taken by persons who are holders of
debt securities on the record date. Also, unless otherwise specified in the
prospectus supplement applicable to a series of debt securities, to be
effective, any action must become effective under the applicable indenture
within six months of the record date. (Section 1.4(f) of each indenture.)
NOTICE
Notices to holders of debt securities will be given by mail to the
addresses of holders appearing in the applicable securities register. We and the
trustee may treat the person in whose name a debt security is registered as the
owner thereof for all purposes. (Sections 1.6 and 3.8 of each indenture.)
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GOVERNING LAW
Each indenture and the debt securities will be governed by, and construed
in accordance with, the laws of the State of New York. (Section 1.11 of each
indenture.)
CONSOLIDATION, MERGER OR TRANSFER OF ASSETS
Each indenture provides that we may not merge or consolidate with or into
any other corporation or other entity or lease or transfer all or substantially
all of our assets, unless:
- the entity formed by or surviving such consolidation or merger or to
which the lease or transfer is made is a corporation organized under
the laws of the United States, any state thereof or the District of
Columbia; and
- immediately after giving effect to such transaction, no default or
event of default exists.
We must deliver to the trustee prior to such transaction an officer's
certificate to the foregoing effect and an opinion of counsel stating that such
transaction and supplemental indenture complies with the indenture and that all
conditions precedent under the indenture to the consummation of such transaction
have been met.
Upon any such consolidation, merger or transfer, the successor corporation
formed by such consolidation or into which we are merged or to which such
transfer is made shall succeed to and be substituted for us under the indenture.
(Section 7.1 of each indenture.)
CONCERNING THE TRUSTEES
First Union National Bank, which is the senior indenture trustee under the
senior indenture and the subordinated indenture trustee under the subordinated
indenture, also serves as the property trustee for each trust and the guarantee
trustee under each preferred securities guarantee described below. It is an
affiliate of First Union Trust Company, N.A., which serves as the Delaware
trustee for each trust.
We may from time to time maintain credit facilities and have other
customary banking relationships with First Union National Bank.
PROVISIONS APPLICABLE ONLY TO SENIOR DEBT SECURITIES
RANKING
Senior debt securities will be direct, unconditional and unsecured
obligations of Phelps Dodge and, except for certain debts required to be
preferred by law will rank equal among themselves and equally with all other
unsecured and unsubordinated obligations of Phelps Dodge. The senior debt
securities will rank senior to subordinated obligations of Phelps Dodge,
including any subordinated debt securities.
PROVISIONS APPLICABLE ONLY TO JUNIOR SUBORDINATED DEBT SECURITIES
SUBORDINATION
In the subordinated indenture, Phelps Dodge has agreed that any junior
subordinated debt securities issued thereunder are subordinated in right of
payment to all senior indebtedness, as defined below, to the extent provided in
the subordinated indenture.
In the event of any:
- insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to
Phelps Dodge, its creditors or its property,
- any proceeding for the liquidation, dissolution or other winding up of
Phelps Dodge, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
- any assignment by Phelps Dodge for the benefit of creditors, or
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- any other marshalling of the assets of Phelps Dodge,
the holders of senior indebtedness will be entitled to receive payment in full
on such senior indebtedness before the holders of junior subordinated debt
securities will be entitled to receive or retain any payment on the junior
subordinated debt securities. (Section 12.3 and 12.5 of the subordinated
indenture.)
No payments on account of the junior subordinated debt securities or
interest thereon may be made if:
- Phelps Dodge defaults in any payment with respect to senior
indebtedness; or
- an event of default occurs with respect to any senior indebtedness
resulting in the acceleration of the maturity of the senior
indebtedness.
For purposes of the subordination provisions, the payment, issuance and
delivery of cash, property or securities, other than shares and certain
subordinated securities of Phelps Dodge, upon conversion of any junior
subordinated debt security will be deemed to constitute payment on account of
the principal of such junior subordinated debt security. (Section 12.13 of the
subordinated indenture.)
When we use the term "senior indebtedness" we mean the principal, premium,
if any, and interest on:
- all indebtedness of Phelps Dodge, whether outstanding on the date of
the subordinated indenture or thereafter created, incurred or assumed,
that is for borrowed money, or evidenced by a note or similar
instrument given in connection with the acquisition of any business,
properties or assets, including securities;
- any indebtedness of any other person of the kind described in the
preceding bullet for the payment of which Phelps Dodge is responsible
or liable as guarantor or otherwise; and
- amendments, renewals, extensions and refundings of any such
indebtedness;
provided, however, that senior indebtedness does not include indebtedness
incurred for the purchase of goods or materials or for services obtained in the
ordinary course of business or any indebtedness which by its express terms is
equal with or subordinated to the junior subordinated debt securities. (Section
12.2 of the subordinated indenture.)
The subordinated indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of junior
subordinated debt securities, may be changed prior to such issuance. Any such
change would be described in the prospectus supplement relating to such junior
subordinated debt securities. (Section 3.1 of the subordinated indenture.)
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DESCRIPTION OF THE PREFERRED SECURITIES
The preferred securities of each trust will be issued pursuant to a trust
agreement for that trust, as subsequently amended and restated, among Phelps
Dodge, the issuer of the related junior subordinated debt securities, First
Union National Bank, as the property trustee, and First Union Trust Company,
N.A., as the Delaware trustee, the three administrative trustees and the holders
from time to time of the applicable trust's preferred and common securities. We
summarize below all of the material features of the preferred securities. The
summary is not complete and is qualified in its entirety by all of the
provisions of the applicable trust agreements and forms of each amended and
restated trust agreement. Those documents are filed as exhibits to the
registration statement that includes this prospectus, and we encourage you to
read them. You also may request a copy of the trust agreements from the property
trustee at its corporate trust office in New York, New York. Each trust
agreement will be qualified under the Trust Indenture Act of 1939. The terms of
the preferred securities of each trust will include those stated in the
applicable trust agreement and those made part of the trust agreement by
reference to the Trust Indenture Act. The amended and restated trust agreement
for each trust will be executed at the time the trust issues any preferred
securities and will be filed with the SEC on Form 8-K or by a post-effective
amendment to the registration statement that includes this prospectus. You
should also read the applicable prospectus supplement, which will contain
additional information and may update or change some of the information below.
GENERAL
The trust agreement for each trust authorizes the administrative trustees
to issue on behalf of the trust preferred securities that have the terms
described in this prospectus and in the applicable prospectus supplement. The
preferred securities will represent undivided beneficial interests in the assets
of the applicable trust. The proceeds from the sale of each trust's preferred
and common securities will be used by the trust to purchase a series of junior
subordinated debt securities issued by Phelps Dodge. The junior subordinated
debt securities will be held in trust by the property trustee for the benefit of
the holders of the preferred and common securities of the applicable trust.
The terms of the preferred securities of each trust will mirror the terms
of the junior subordinated debt securities held by the applicable trust. If
interest payments on the junior subordinated debt securities held by the
applicable trust are deferred as described below, distributions on the preferred
securities will also be deferred. The assets of the trust available for
distribution to the holders of its preferred securities generally will be
limited to payments under the series of junior subordinated debt securities held
by the trust.
Under the preferred securities guarantee for each trust, Phelps Dodge will
agree to make payments of distributions and payments on redemption or
liquidation with respect to the trust's preferred securities, but only to the
extent the trust has funds available to make those payments and has not made the
payments. Phelps Dodge's obligations under the applicable preferred securities
guarantee, trust agreement, subordinated indenture and related junior
subordinated debt securities will provide a full, irrevocable and unconditional
commitment by Phelps Dodge regarding amounts due on the preferred securities
issued by each trust.
The prospectus supplement relating to the preferred securities of each
trust will describe the specific terms of the preferred securities, including:
- the name of the preferred securities;
- the dollar amount and number of preferred securities issued;
- the annual distribution rate, or method of determining the rate, of
distributions on the preferred securities, and date or dates from
which any distributions will accrue;
- the payment date and the record date used to determine the holders who
are to receive distributions on the preferred securities;
- the right, if any, to defer distributions on the preferred securities
upon extension of the interest payment periods of the related junior
subordinated debt securities;
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- the applicable trust's obligation, if any, to redeem or purchase the
preferred securities and the terms and conditions on which the
preferred securities may be redeemed or purchased pursuant to any
obligation;
- the terms and conditions, if any, on which the preferred securities
may be redeemed at the applicable trust's option or at the option of
the holders;
- the terms and conditions, if any, on which preferred securities may be
converted or exchanged;
- the terms and conditions, if any, upon which the related junior
subordinated debt securities may be distributed to holders of the
preferred securities;
- the voting rights, if any, of the holders of the preferred securities;
- whether the preferred securities are to be issued in book-entry form
and represented by one or more global securities and, if so, the
depository and any provisions for the transfer or exchange of the
global securities, if different from those described below under " --
Global Securities"; and
- any other relevant rights, preferences, privileges, limitations or
restrictions of the preferred securities.
The applicable prospectus supplement will describe all of the material
United States federal income tax considerations applicable to the particular
series of preferred securities being offered.
GLOBAL SECURITIES
Some or all of the preferred securities of a series may be represented in
whole or in part by one or more global securities deposited with or on behalf of
one or more depositaries. The applicable prospectus supplement will describe the
terms of any depositary arrangement. Unless the applicable prospectus supplement
states otherwise, the following provisions will apply to all depositary
arrangements for any preferred securities represented by global securities.
Preferred securities represented by a global security deposited with or on
behalf of a depositary will be registered in the name of that depositary or its
nominee. Upon the issuance of a global security in registered form, the
depositary for the global security will credit, on its book-entry registration
and transfer system, the respective principal amounts of the preferred
securities represented by the global security to the accounts of institutions
that have accounts with the depositary or its nominee. These institutions are
generally brokers, dealers, banks and other financial institutions and are often
referred to as participants. The accounts to be credited will be designated by
the underwriters or agents of the preferred securities or by the applicable
trust, if the preferred securities are offered and sold directly by the trust.
Ownership of beneficial interests in the global securities will be limited to
participants or persons that may hold interests through participants. Any person
who holds a brokerage account with a participant may purchase the preferred
securities through the participant.
Ownership of beneficial interests by participants in the global securities
will be shown on, and the transfer of any ownership interest will be effected
only through, records maintained by the depositary or its nominee for the global
security. Ownership of beneficial interests in global securities by persons that
hold through participants will be effected only through records maintained by
the applicable participant. Some insurance companies and other institutions are
required by law to hold their investment securities in definitive form, so an
investor may not be able to sell its preferred securities to those entities.
So long as the depositary for a global security or its nominee is the
registered owner of the global security, the depositary or the nominee, as the
case may be, will be considered the sole owner or holder of the preferred
securities represented by the global security for all purposes under the
applicable trust agreement. Except as set forth below, owners of beneficial
interests in the global security will not be entitled to have the preferred
securities represented by the global security registered in their names, will
not receive or be entitled to receive physical delivery of the preferred
securities in definitive form and will not be considered the owners or holders
of the preferred securities under the applicable trust agreement.
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Payments on preferred securities registered in the name of or held by a
depositary or its nominee will be made in immediately available funds to the
depositary or its nominee, as the case may be, as the registered owner or the
holder of the global security representing the preferred securities. None of
Phelps Dodge, the trusts, the property trustee, the Delaware trustee, any paying
agent or the registrar and transfer agent for the preferred securities will have
any responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests in a global security
for the preferred securities or for maintaining, supervising or reviewing any
records relating to the beneficial ownership interests.
We expect that a depositary for the preferred securities of a series, upon
receipt of any payments in respect of a global security, will immediately credit
participants' accounts with payment in amounts proportionate to their respective
beneficial interests in the principal amount of the global security as shown on
the records of the depositary. We also expect that payments by participants to
owners of beneficial interests in the global security held through the
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers registered
in "street name," and will be the responsibility of each participant.
So long as the depositary for a global security or its nominee is the
registered owner of the global security, the depositary or its nominee, as the
case may be, will be entitled to direct the actions of the property trustee upon
an event of default. However, we expect that a depositary for the preferred
securities of a series, upon receiving notice of an event of default, will
immediately solicit the participants regarding any action to be taken. We also
expect that the participants will act in accordance with standing instructions
and customary practices, as is now the case with securities held for the
accounts of customers registered in "street name," and will, in turn, solicit
the owners of the beneficial interests regarding any action to be taken upon any
event of default.
A global security may not be transferred, in whole or in part, except by
the depositary for the global security, to a nominee of the depositary or by a
nominee of the depositary to the depositary or another nominee of the depositary
or by the depositary or any nominee to a successor depositary or a nominee of
the successor depositary. If a depositary for the preferred securities of a
series is at any time unwilling or unable to continue as depositary and a
qualified successor depositary is not appointed by the administrative trustees
within 90 days or if at any time the depositary ceases to be a clearing agency
registered under the Exchange Act when the depositary is required to be
registered to act as the depositary and no qualified successor is appointed by
the administrative trustees within 90 days or if an event of default has
occurred and is continuing, then the applicable trust will issue the preferred
securities in definitive registered form in exchange for the global security or
global securities representing the preferred securities. In addition, the
administrative trustees may, at any time, determine not to have any preferred
securities represented by one or more global securities and, in that event, the
applicable trust will issue the preferred securities in definitive registered
form in exchange for the global securities representing the preferred
securities. In any of these instances, an owner of a beneficial interest in a
global security will be entitled to physical delivery in definitive form of the
preferred securities represented by the global security equal in principal
amount to its beneficial interest and to have the preferred securities
registered in its name.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Unless otherwise specified in an applicable prospectus supplement, each
trust agreement will provide that the trust will be dissolved:
- upon the expiration of the term of the trust;
- upon the bankruptcy, dissolution or liquidation of Phelps Dodge;
- upon the direction of Phelps Dodge to the property trustee to dissolve
the trust and distribute the related junior subordinated debt
securities directly to the holders of the preferred and common
securities of the trust;
- upon the redemption of all of the common and preferred securities of
the trust in connection with the redemption of all of the related
junior subordinated debt securities; or
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- upon entry of a court order for the dissolution of the trust.
Unless otherwise specified in an applicable prospectus supplement, in the
event of a dissolution as described above other than in connection with
redemption, after the trust satisfies all liabilities to its creditors as
provided by applicable law, each holder of the preferred or common securities of
a trust will be entitled to receive:
- the related junior subordinated debt securities in an aggregate
principal amount equal to the aggregate liquidation amount of the
preferred or common securities held by the holder; or
- if any distribution of the related junior subordinated debt securities
is determined by the property trustee not to be practical, cash equal
to the aggregate liquidation amount of the preferred or common
securities held by the holder, plus accumulated and unpaid
distributions to the date of payment.
If a trust cannot pay the full amount due on its preferred and common
securities because insufficient assets are available for payment, then the
amounts payable by the trust on its preferred and common securities will be paid
on a pro rata basis. However, if an event of default under the subordinated
indenture has occurred and is continuing with respect to any related junior
subordinated debt securities, the total amounts due on the preferred securities
of the trust will be paid before any distribution on the common securities of
the trust is made.
EVENTS OF DEFAULT
The following will be events of default under each trust agreement:
- an event of default under the subordinated indenture occurs with
respect to any related junior subordinated debt securities;
- the trust fails to pay any redemption price on any preferred
securities on its due date;
- the trust fails to pay any distribution on the preferred securities
within 30 days from its due date;
- the trustees fail to perform any of the covenants in the trust
agreement, other than the covenants in the two prior bullet points,
for 30 days after the holders of at least 25% of the aggregate
liquidation amount of the outstanding preferred securities give Phelps
Dodge and the trustees written notice of the default and require that
they remedy the breach (however, the 30-day period may be extended by
the holders of at least the same aggregate liquidation amount of the
outstanding preferred securities that had initially given notice of
the default); or
- the property trustee files for bankruptcy or other events of
bankruptcy, insolvency or reorganization occur with respect to the
property trustee and a successor property trustee is not appointed
within 90 days.
If an event of default with respect to related junior subordinated debt
securities occurs and is continuing under the subordinated indenture, and the
subordinated indenture trustee or the holders of not less than 25% in principal
amount of the related junior subordinated debt securities outstanding fail to
declare the unpaid principal of and all other amounts with respect to all of the
related junior subordinated debt securities to be immediately due and payable,
the holders of at least 25% in aggregate liquidation amount of the outstanding
preferred securities will have the right to declare the unpaid principal of and
all other amounts with respect to the related junior subordinated debt
securities immediately due and payable by providing notice to Phelps Dodge, the
property trustee and the subordinated indenture trustee.
At any time after a declaration of acceleration has been made with respect
to a series of related junior subordinated debt securities and before a judgment
or decree for payment of the money due has been obtained, the holders of a
majority in aggregate liquidation amount of the preferred securities may rescind
any declaration of acceleration with respect to the related junior subordinated
debt securities and its consequences:
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- if Phelps Dodge deposits with the subordinated indenture trustee funds
sufficient to pay all overdue principal of and premium, interest and
additional amounts on the related junior subordinated debt securities
and any other amounts due to the subordinated indenture trustee and
the property trustee; and
- if all existing events of default with respect to the related junior
subordinated debt securities have been cured or waived except
non-payment of principal on the related junior subordinated debt
securities that has become due solely because of the acceleration.
The holders of a majority in liquidation amount of the preferred securities
of a trust may waive any past default under the subordinated indenture with
respect to the related junior subordinated debt securities, other than a default
in any payment on any related junior subordinated debt securities or a default
with respect to a covenant or provision that cannot be amended or modified
without the consent of the holder of each outstanding related junior
subordinated debt security affected. In addition, the holders of at least a
majority in liquidation amount of the preferred securities of a trust may waive
any past default under the trust agreement.
The holders of a majority in liquidation amount of the preferred securities
of a trust shall have the right to direct the time, method and place of
conducting any proceedings for any remedy available to the property trustee or
to direct the exercise of any trust or power conferred on the property trustee
under the applicable trust agreement.
A holder of preferred securities of a trust may institute a legal
proceeding directly against Phelps Dodge without first instituting a legal
proceeding against the property trustee or any other person or entity, for
enforcement of payment to the holder of the principal of and any premium,
interest or additional amounts on related junior subordinated debt securities
having a principal amount equal to the aggregate liquidation amount of the
preferred securities of the holder if Phelps Dodge fails to pay any amounts on
the related junior subordinated debt securities when payable. Phelps Dodge and
the subordinated indenture trustee may not amend or modify the subordinated
indenture to eliminate the preferred securities holders' right to institute a
direct legal action without the consent of the holders of each outstanding
preferred security.
NOTICE OF DEFAULT
If an event occurs which is or would become an event of default with
respect to any preferred securities, and the property trustee knows of the
event, the property trustee shall mail to the holders of the affected preferred
securities a notice of the default within 90 days, unless the default has been
cured or waived by the holders of the affected preferred securities. However,
except in the case of a default in the payment of any amounts due on preferred
securities, the property trustee may withhold the notice if and so long as the
directors and/or responsible officers of the property trustee determine in good
faith that withholding the notice is in the interest of the holders of the
affected preferred securities.
Phelps Dodge and the administrative trustees of each trust are required to
furnish annually to the property trustee an officers' certificate to the effect
that, to the best knowledge of the officers providing the certificate, it is not
in default under the applicable trust agreement or, if there has been a default,
specifying the default and its status.
CONSOLIDATION, MERGER OR AMALGAMATION OF THE TRUST
None of the trusts may consolidate or merge with or into, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to any entity, except as described below. A trust may, without the
consent of the holders of the outstanding preferred securities, consolidate or
merge with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized under
the laws of any state if:
- the successor entity either:
- expressly assumes all of the obligations of the trust relating to
its preferred securities; or
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- substitutes for the trust's preferred securities other securities
having substantially the same terms as the preferred securities,
so long as the substituted successor securities rank the same as
the preferred securities for distributions and payments upon
liquidation, redemption and otherwise;
- a trustee of the successor entity who has substantially the same
powers and duties as the property trustee of the trust is appointed;
- the preferred securities are listed or traded, or any substituted
successor securities will be listed upon notice of issuance, on the
same national securities exchange or other organization on which the
preferred securities are then listed or traded;
- the event does not cause the preferred securities or any substituted
successor securities to be downgraded by any national rating agency;
- the event does not adversely affect the rights, preferences and
privileges of the holders of the preferred securities or any
substituted successor securities in any material respect;
- the successor entity has a purpose substantially identical to that of
the trust;
- prior to the merger event, Phelps Dodge has received an opinion of
counsel from a nationally recognized law firm stating that:
- the event does not adversely affect the rights, preferences and
privileges of the holders of the trust's preferred securities or
any successor securities in any material respect;
- following the event, neither the trust nor the successor entity
will be required to register as an investment company under the
Investment Company Act of 1940; and
- neither the trust nor the successor entity will be taxable as a
corporation or classified other than as a grantor trust for
United States federal income tax purposes; and
- Phelps Dodge or its permitted transferee owns all of the common
securities of the successor entity and the substituted successor
securities are guaranteed at least to the extent provided under the
preferred securities guarantee.
In addition, unless all of the holders of the preferred securities of a
trust approve otherwise, the trust may not consolidate, amalgamate, merge with
or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other entity or permit any other
entity to consolidate, amalgamate, merge with or into or replace it if the
transaction would cause the trust or the successor entity to be taxable as a
corporation or classified other than as a grantor trust for United States
federal income tax purposes.
VOTING RIGHTS
Unless otherwise specified in the prospectus supplement, the holders of the
preferred securities of a trust will have no voting rights except as discussed
below and under " -- Events of Default," " -- Amendment of the Trust Agreement,"
" -- Removal and Replacement of Trustees" and "Description of the Preferred
Securities Guarantees -- Amendments and Assignment," and as otherwise required
by law.
If any proposed amendment to a trust agreement provides for, or the
administrative trustees of a trust otherwise propose to effect:
- any action that would adversely affect the powers, preferences or
special rights of the preferred securities of the trust in any
material respect, whether by way of amendment to the applicable trust
agreement or otherwise; or
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- the dissolution, winding-up or termination of the trust other than
pursuant to the terms of the applicable trust agreement,
then the holders of the preferred securities of the trust as a class will be
entitled to vote on the amendment or proposal. In that case, the amendment or
proposal will be effective only if approved by the holders of at least a
majority in aggregate liquidation amount of the preferred securities of the
trust.
Without obtaining the prior approval of the holders of at least a majority
in aggregate liquidation amount of the preferred securities of a trust, the
trustees of a trust may not:
- direct the time, method and place of conducting any proceeding for any
remedy available to the subordinated indenture trustee for any related
junior subordinated debt securities or direct the exercise of any
trust or power conferred on the property trustee with respect to the
preferred securities of the trust;
- waive any default that is waivable under the subordinated indenture
with respect to any related junior subordinated debt securities;
- cancel an acceleration of the principal of any related junior
subordinated debt securities; or
- consent to any amendment, modification or termination of the
subordinated indenture or any related junior subordinated debt
securities where consent is required.
However, if a consent under the subordinated indenture requires the consent of
each affected holder of the related junior subordinated debt securities, then
the property trustee must obtain the prior consent of each holder of the
preferred securities of the trust. In addition, before taking any of the
foregoing actions, the property trustee shall obtain an opinion of counsel
experienced in such matters to the effect that, as a result of such actions, the
trust will not be taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes. The property trustee will
notify all preferred securities holders of the trust of any notice of default
received from the subordinated indenture trustee with respect to the junior
subordinated debt securities held by the trust. Any required approval of the
holders of the preferred securities of a trust may be given at a meeting of the
holders of the preferred securities convened for the purpose or pursuant to
written consent.
The property trustee will cause a notice of any meeting at which holders of
securities are entitled to vote to be given to each holder of record of the
preferred securities at the holder's registered address, or to any other address
which has been specified in writing, at least 15 days and not more than 90 days
before the meeting.
Notwithstanding that the holders of the preferred securities of a trust are
entitled to vote or consent under any of the circumstances described above, any
of the preferred securities that are owned by Phelps Dodge, the trustees of the
trust or any affiliate of Phelps Dodge or any trustees of the trust, shall, for
purposes of any vote or consent, be treated as if they were not outstanding.
AMENDMENT OF THE TRUST AGREEMENT
Each trust agreement may be amended from time to time by Phelps Dodge, the
property trustee and the administrative trustees of the trust without the
consent of the holders of the preferred securities of the trust to:
- cure any ambiguity, correct or supplement any provision which may be
inconsistent with any other provision or make provisions not
inconsistent with any other provisions with respect to matters or
questions arising under the applicable trust agreement;
- modify, eliminate or add to any provisions to the extent necessary to
ensure that the trust will not be taxable as a corporation or
classified as other than a grantor trust for United States federal
income tax purposes, to ensure that the junior subordinated debt
securities held by the trust are treated as indebtedness for United
States federal income tax purposes or to ensure that the trust will
not be required to register as an investment company under the
Investment Company Act; or
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- add to the covenants, restrictions or obligations of Phelps Dodge, in
each case to the extent that the amendment does not adversely affect
the interests of any holder of the preferred securities of the trust
in any material respect.
Other amendments to a trust agreement may be made by Phelps Dodge, the
property trustee and the administrative trustees of a trust upon approval of the
holders of at least a majority in aggregate liquidation amount of the
outstanding preferred securities of the trust and receipt by the trustees of an
opinion of counsel to the effect that the amendment will not cause the trust to
be taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes, affect the treatment of the junior
subordinated debt securities held by the trust as indebtedness for United States
federal income tax purposes or affect the trust's exemption from the Investment
Company Act.
Notwithstanding the foregoing, without the consent of each affected holder
of common or preferred securities of a trust, the applicable trust agreement may
not be amended to:
- change the amount or timing of any distribution on the common or
preferred securities of the trust or otherwise adversely affect the
amount of any distribution required to be made in respect of the
securities as of a specified date;
- restrict the right of a holder of any securities to institute suit for
the enforcement of any payment on or after the distribution date; or
- reduce the percentage of preferred securities required to waive
compliance with provisions of or defaults under the trust agreement.
In addition, no amendment may be made to a trust agreement if the amendment
would:
- cause the applicable trust to be taxable as a corporation or
characterized as other than a grantor trust for United States federal
income tax purposes;
- cause the junior subordinated debt securities held by the applicable
trust to not be treated as indebtedness for United States federal
income tax purposes;
- cause the applicable trust to be deemed to be an investment company
required to be registered under the Investment Company Act; or
- impose any additional obligation on any trustee of the applicable
trust without its consent.
REGISTRATION AND TRANSFER
If the preferred securities of a series are to be redeemed, the applicable
trust will not be required to
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register the transfer of or exchange any preferred security selected for
redemption, in whole or in part, except for the unredeemed portion of a
preferred security being redeemed in part.
PAYMENT AND PAYING AGENT
Unless the applicable prospectus supplement states otherwise, distributions
on the preferred securities will be payable, at the applicable trust's option,
(1) by check mailed to the address of the person entitled to the distribution as
the address appears in the security register for the preferred securities or (2)
by wire transfer to an account specified by the holder in accordance with
procedures established by the administrative trustees and acceptable to the
paying agent. Payments upon the redemption of the preferred securities will be
paid only against surrender of the preferred securities.
Unless the applicable prospectus supplement states otherwise, the property
trustee will act as paying agent for the preferred securities, and the principal
corporate trust office of the property trustee will serve as the office through
which the paying agent acts. The applicable trust may designate additional
paying agents, rescind the designation of any paying agents and/or approve a
change in the office through which any paying agent acts.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
For matters relating to compliance with the Trust Indenture Act, the
property trustee will have all of the duties and responsibilities of an
indenture trustee under the Trust Indenture Act.
First Union National Bank, which is the property trustee for each trust,
also serves as the guarantee trustee under each preferred securities guarantee
described below, the senior indenture trustee under the senior indenture and the
subordinated indenture trustee under the subordinated indenture. It is an
affiliate of First Union Trust Company, N.A., which serves as the Delaware
trustee for each trust.
Phelps Dodge may from time to time maintain credit facilities and have
other customary banking relationships with First Union National Bank.
MISCELLANEOUS
The administrative trustees of each trust are authorized and directed to
conduct the affairs of and to operate the trust in such a way that:
- it will not be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes;
- the junior subordinated debt securities held by it will be treated as
indebtedness of Phelps Dodge for United States federal income tax
purposes; and
- it will not be deemed to be an investment company required to be
registered under the Investment Company Act.
Phelps Dodge and the trustees of each trust are authorized to take any
action, so long as it is consistent with applicable law, the applicable
certificate of trust or trust agreement, that Phelps Dodge and the trustees of
the trust determine to be necessary or desirable for the above purposes.
Holders of the preferred securities of the trusts have no preemptive or
similar rights.
None of the trusts may incur indebtedness or place a lien on any of its
assets.
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GOVERNING LAW
Each trust agreement and the preferred securities of each trust will be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to the conflict of laws provisions thereof.
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DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Phelps Dodge's preferred securities guarantee for each trust will be issued
pursuant to a guarantee between Phelps Dodge and First Union National Bank, as
the guarantee trustee. We summarize below all of the material features of the
preferred securities guarantees. The summary is not complete and is qualified in
its entirety by all of the provisions of the form of the applicable guarantees.
That document is filed as an exhibit to the registration statement that includes
this prospectus, and we encourage you to read it. Each guarantee will be
qualified under the Trust Indenture Act of 1939. The terms of each preferred
securities guarantee will include those stated in the applicable guarantee and
those made part of the guarantee by reference to the Trust Indenture Act. Each
guarantee will be executed at the time any trust issues any preferred securities
and will be filed with the SEC on a Form 8-K or by a post-effective amendment to
the registration statement that includes this prospectus.
Each guarantee will be held by the guarantee trustee for the benefit of the
holders of the preferred securities of the applicable trust.
GENERAL
Phelps Dodge will irrevocably and unconditionally agree to pay in full to
the holders of the preferred securities of each trust the guarantee payments
described below, except to the extent previously paid. Phelps Dodge will pay the
guarantee payments when and as due, regardless of any defense, right of set-off
or counterclaim that the applicable trust may have or assert. The following
payments, to the extent not paid by a trust, will be covered by the applicable
preferred securities guarantee:
- any accumulated and unpaid distributions required to be paid on the
preferred securities of the trust, to the extent that the trust has
funds available to make the payment;
- the redemption price, including all accumulated and unpaid
distributions, to the extent that the trust has funds available to
make the payment; and
- upon a voluntary or involuntary dissolution, termination, winding-up
or liquidation of the trust, other than in connection with a
distribution of related junior subordinated debt securities to holders
of the preferred securities, the lesser of:
- the aggregate of the liquidation amounts specified in the
prospectus supplement for each preferred security of the trust
plus all accumulated and unpaid distributions on the preferred
security of the trust to the date of payment, to the extent the
trust has funds available to make the payment; and
- the amount of assets of the trust remaining available for
distribution to holders of its preferred securities upon
liquidation of the trust.
Phelps Dodge's obligation to make a guarantee payment with respect to the
preferred securities of a trust may be satisfied by directly paying the required
amounts to the holders of the preferred securities of the trust or by causing
the trust to pay the amounts to the holders.
Each preferred securities guarantee will be subject to the subordination
provisions described below and will not apply to the payment of distributions
and other payments on the preferred securities of a trust when the trust does
not have sufficient funds legally and immediately available to make the
distributions or other payments.
ADDITIONAL AMOUNTS
Phelps Dodge will make all payments under each of its preferred securities
guarantees without withholding or deduction for any taxes, fees, duties,
assessments or governmental charges imposed or levied by New York or any other
jurisdiction in which Phelps Dodge or any successor is organized or resident for
tax purposes or any political subdivision or taxing authority of New York or any
of those other jurisdictions. If any withholding or deduction is required by
law, Phelps Dodge will pay to the holder of the preferred securities additional
amounts as may be
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necessary so that every net payment made to the holder after the withholding or
deduction will not be less than the amount provided for in the applicable
preferred securities guarantee. Phelps Dodge will not be required to pay any
additional amounts as a result of:
- the imposition of any tax, fee, duty, assessment or governmental
charge that would not have been imposed but for the fact that the
holder or beneficial owner of the preferred securities was a resident
or national of or had other specified connections with the relevant
taxing authority or presented the preferred securities for payment in
the relevant taxing jurisdiction unless it could not have been
presented elsewhere;
- the imposition of any tax, fee, duty, assessment or governmental
charge that would not have been imposed but for the fact that the
holder or beneficial owner of the preferred securities presented the
preferred security for payment more than 30 days after it was due and
payable;
- any estate, inheritance, gift, sale or other similar tax, assessment
or governmental charge; or
- the imposition of any tax, fee, duty, assessment or governmental
charge that would not have been imposed but for the fact that the
holder or beneficial owner of the preferred securities failed to
comply, within 90 days, with any reasonable request by Phelps Dodge
addressed to the holder or beneficial owner relating to the provision
of information or the making of a declaration required by the taxing
jurisdiction as a precondition to exemption from all or part of the
tax, fee, duty, assessment or governmental charge.
SUBORDINATION
Each preferred securities guarantee will be unsecured indebtedness of
Phelps Dodge and will be subordinated in right of payment to all of Phelps
Dodge's existing and future senior indebtedness. Each preferred securities
guarantee will be effectively subordinated to any secured indebtedness of Phelps
Dodge to the extent of the value of the assets securing the secured
indebtedness. Each preferred securities guarantee will also rank equally with
any other preferred securities guarantee issued by Phelps Dodge. As a result, in
the event of Phelps Dodge's bankruptcy, liquidation or reorganization or upon an
event of default under any of its preferred securities guarantees, Phelps
Dodge's assets will be available to pay its obligations on the preferred
securities guarantee only after all secured and senior indebtedness of Phelps
Dodge has been paid in full in cash or other payment satisfactory to the holders
of the secured and senior indebtedness has been made. There may not be
sufficient assets remaining to pay amounts due on any or all of its the
preferred securities guarantees. Each preferred securities guarantee will also
be effectively subordinated to the indebtedness and other liabilities of Phelps
Dodge's subsidiaries. The incurrence of additional secured and senior
indebtedness and other liabilities by Phelps Dodge or its subsidiaries could
adversely affect Phelps Dodge's ability to pay its obligations on the preferred
securities guarantees.
Each preferred securities guarantee will constitute a guarantee of payment
and not of collection. This means that the holder of the guaranteed security may
sue Phelps Dodge to enforce its rights under the preferred securities guarantee
without first suing any other person or entity.
AMENDMENTS AND ASSIGNMENT
No consent of the holders of the preferred securities of a trust will be
required with respect to any changes to the preferred securities guarantee that
do not adversely affect the rights of the holders of the preferred securities of
the applicable trust in any material respect. Other amendments to the preferred
securities guarantee may be made only with the prior approval of the holders of
at least a majority in aggregate liquidation amount of the preferred securities
of the applicable trust. All guarantees and agreements contained in the
preferred securities guarantee will be binding on Phelps Dodge's successors,
assigns, receivers, trustees and representatives and are for the benefit of the
holders of the preferred securities of the applicable trust.
EVENTS OF DEFAULT
An event of default under a preferred securities guarantee occurs if Phelps
Dodge:
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- fails to make any required payments; or
- fails to perform any of its other obligations under the preferred
securities guarantee and such failure continues for 30 days.
The holders of at least a majority in aggregate liquidation amount of the
preferred securities of a trust will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the guarantee
trustee relating to the preferred securities guarantee of the trust or to direct
the exercise of any trust or power given to the guarantee trustee under the
preferred securities guarantee of the trust.
If and to the extent that Phelps Dodge does not make payments on the
related junior subordinated debt securities the trust will not have funds
available to make payments of distributions or other amounts due on its
preferred securities. In those circumstances, a holder of the preferred
securities of the trust will not be able to rely upon the applicable preferred
securities guarantee for payment of these amounts. Instead, the holder may
directly sue Phelps Dodge under the junior subordinated debt securities to
collect its pro rata share of payments owed. If a holder so sues Phelps Dodge to
collect payment, then Phelps Dodge will assume the holder's rights as a holder
of preferred securities under the applicable trust agreement to the extent
Phelps Dodge makes a payment to the holder in any legal action.
The holders of at least a majority in liquidation amount of preferred
securities of a trust may waive any past event of default and its consequences.
INFORMATION CONCERNING GUARANTEE TRUSTEE
For matters relating to compliance with the Trust Indenture Act, the
guarantee trustee will have all of the duties and responsibilities of an
indenture trustee under the Trust Indenture Act. In case an event of default
shall occur and be continuing, the guarantee trustee must exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Before proceeding to exercise any right or
power under any guarantee agreement at the direction of the holders of preferred
securities, the guarantee trustee will be entitled to receive from the holders
reasonable security or indemnity against the costs, expenses and liabilities
that it might incur.
First Union National Bank, which is the guarantee trustee, also serves as
the property trustee for each trust, the senior indenture trustee under the
senior indenture and the subordinated indenture trustee under the subordinated
indenture. It is an affiliate of First Union Trust Company, N.A., which serves
as the Delaware trustee for each trust.
TERMINATION OF THE PREFERRED SECURITIES GUARANTEES
Each preferred securities guarantee will terminate once the preferred
securities of the applicable trust are paid in full or redeemed in full or upon
distribution of the related junior subordinated debt securities to the holders
of the preferred securities of the trust in accordance with the applicable trust
agreement. Each preferred securities guarantee will continue to be effective or
will be reinstated if at any time any holder of preferred securities of the
applicable trust must restore payment of any sums paid under the preferred
securities or the preferred securities guarantee for the applicable trust.
GOVERNING LAW
Each preferred securities guarantee will be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
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PLAN OF DISTRIBUTION
Phelps Dodge may sell its common or preferred shares, its senior or junior
subordinated debt securities or its warrants, stock purchase contracts or stock
purchase units and each trust may sell its preferred securities in one or more
of the following ways from time to time:
- through agents;
- to or through underwriters;
- through dealers; and
- directly to purchasers.
The prospectus supplement for each series of securities will set forth the
terms of the offering of those securities, including the name or names of any
underwriters or agents. The prospectus supplement for each series of securities
will also set forth the purchase price of the securities, the proceeds to Phelps
Dodge or the applicable trust from the sale, any underwriting discounts or
agency fees and other items constituting underwriters' or agents' compensation,
the initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers and the securities exchange, if any, on which the
securities may be listed.
If underwriters participate in selling the securities, the securities will
be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at the time of
sale.
Unless the applicable prospectus supplement states otherwise, the
obligations of the underwriters to purchase any series of securities will be
subject to conditions precedent, and the underwriters will be obligated to
purchase all of the series of securities if any are purchased.
Underwriters and agents may be entitled to indemnification against specific
civil liabilities under agreements entered into with Phelps Dodge and/or a
trust, including liabilities under the Securities Act. Underwriters and agents
may engage in transactions with, or perform services for, Phelps Dodge in the
ordinary course of business.
Each series of securities other than common stock will be a new issue of
securities and will have no established trading market. Any underwriters to whom
the securities are sold for public offering and sale may make a market in those
securities. However, those underwriters will not be obligated to do so and may
discontinue any market making at any time without notice.
EXPERTS
PricewaterhouseCoopers LLP, independent auditors, have audited Phelps
Dodge's consolidated financial statements and schedules included in its Annual
Report on Form 10-K for the year ended December 31, 1999, as set forth in their
report, which is incorporated by reference in this prospectus and the
registration statement that includes this prospectus. Phelps Dodge's financial
statements and schedules are incorporated by reference in reliance on
PricewaterhouseCoopers LLP's report, given on their authority as experts in
accounting and auditing.
VALIDITY OF THE SECURITIES
Richards, Layton & Finger, P.A., Wilmington, Delaware, will pass upon the
validity of the preferred securities for Phelps Dodge and each trust. Debevoise
& Plimpton, New York, New York, will pass upon the validity of the common
shares, preferred shares, warrants, share purchase contracts or share purchase
units, senior debt securities, the junior subordinated debt securities and the
preferred securities guarantees for Phelps Dodge.
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WHERE YOU CAN FIND MORE INFORMATION
AVAILABLE INFORMATION
This prospectus is part of a registration statement that we filed with the
SEC. The registration statement, including the attached exhibits, contains
additional relevant information about Phelps Dodge and the trusts. The rules and
regulations of the SEC allow us to omit some of the information included in the
registration statement from this prospectus. In addition, Phelps Dodge files
reports, proxy statements and other information with the SEC under the Exchange
Act. You can read and copy any of this information at the following locations of
the SEC:
<TABLE>
<S> <C> <C>
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2551
</TABLE>
You may also obtain copies of this information by mail from the Public Reference
Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549,
at prescribed rates. You may obtain information on the operation of the SEC's
Public Reference Room in Washington, D.C. by calling the SEC at 1-800-SEC-0330.
The SEC also maintains an Internet web site that contains reports, proxy
statements and other information about issuers, like Phelps Dodge, that file
electronically with the SEC. The address of that site is http://www.sec.gov. The
SEC file number for documents filed by Phelps Dodge under the Exchange Act is
1-82.
Phelps Dodge common stock is listed on the New York Stock Exchange, and its
stock symbol is "PD." You can inspect reports, proxy statements and other
information concerning Phelps Dodge at the offices of the New York Stock
Exchange at 20 Broad Street, New York, New York 10005.
INCORPORATION BY REFERENCE
The rules of the SEC allow us to incorporate by reference information into
this prospectus. The information incorporated by reference is considered to be a
part of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. This prospectus
incorporates by reference the documents listed below:
(a) Phelps Dodge's Annual Report on Form 10-K for the year ended December
31, 1999;
(b) Phelps Dodge's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2000 and June 30, 2000; and
(c) all documents filed by Phelps Dodge pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this prospectus.
You may request a copy of any filings referred to above (excluding
exhibits), at no cost, by contacting us at the following address: 2600 North
Central Avenue, Phoenix, Arizona 85004-3089, Attention: Vice President and
Corporate Secretary. Telephone requests may be directed to such person at (602)
234-8100.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of issuance and distribution, other than
underwriting discounts and commissions, to be borne by us are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................... $198,000
Rating agency fees.................................................... 185,000
Trustee fees and expenses............................................. 20,000
Printing expenses..................................................... 20,000
Legal fees and expenses............................................... 200,000
Accounting fees and expenses.......................................... 50,000
Blue Sky fees and expenses............................................ 10,000
Miscellaneous......................................................... 17,000
--------
Total........................................................... $700,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
With certain limitations, Sections 721 through 726 of the Business
Corporation Law of the State of New York permit a corporation to indemnify any
of its directors or officers made, or threatened to be made, a party to an
action or proceeding by reason of the fact that such person was a director or
officer of such corporation unless a judgment or other final adjudication
adverse to the director or officer establishes that his or her acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that he or she
personally gained in fact financial profit or other advantage to which he or she
was not legally entitled.
Our By-Laws provide that we shall indemnify any person made, or threatened
to be made, a party to an action or proceeding other than one by or in our right
to procure a judgment in our favor, whether civil or criminal, including an
action by or in the right of any other corporation, or any partnership, joint
venture, trust, employee benefit plan or other enterprise, which any of our
directors or officers served in any capacity at our request, by reason of the
fact that he, his testator or intestate, is or was one of our directors or
officers, or is or was serving such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, amounts paid in settlement and expenses (including
attorneys' fees) incurred in connection with such action or proceeding, or any
appeal therein, provided that no indemnification may be made to or on behalf of
such person if (i) his acts were committed in bad faith or were the result of
his active and deliberate dishonesty and were material to such action or
proceeding or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
Our By-Laws also provide that we shall indemnify any person made, or
threatened to be made, a party to an action by or in our right to procure a
judgment in our favor by reason of the fact that he, his testator or intestate,
is or was one of our directors or officers, or is or was serving at our request
as a director or officer of any other corporation, or of any partnership, joint
venture, trust, employee benefit plan or other enterprise, against judgments,
amounts paid in settlement and expenses (including attorneys' fees) incurred in
connection with such action, or any appeal therein, provided that no
indemnification may be made to or on behalf of such person if (i) his acts were
committed in bad faith or were the result of his active and deliberate
dishonesty and were material to such action or (ii) he personally gained in fact
a financial profit or other advantage to which he was not legally entitled.
We maintain, at our expense, insurance policies insuring our directors and
officers against certain liabilities which might be incurred by them in their
capacities as directors and officers including liabilities arising under the
Securities Act of 1933.
Article SEVENTH of our Restated Certificate of Incorporation eliminates and
limits the personal liability of our directors for any breach of duty in their
capacity as directors to the fullest extent permitted by Section 402(b) of the
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<PAGE> 45
New York Business Corporation Law. Section 402(b) of the Business Corporation
Law referred to in Article SEVENTH permits New York corporations to eliminate or
limit the personal liability of directors to the corporation or its shareholders
for damages for any breach of duty in their capacity as such except liability
(i) of a director (a) whose acts or omissions were in bad faith, involved
intentional misconduct or a knowing violation of law, (b) who personally gained
a financial profit or other advantage to which he or she was not legally
entitled or (c) whose acts violated certain other provisions of New York law or
(ii) for acts or omissions prior to July 23, 1987.
The underwriters or agents on whose behalf the agreements listed as
Exhibits 1.1-1.6 to this Registration Statement will be executed will agree in
those agreements to indemnify our directors, officers and controlling persons
against certain liabilities which might arise under the Securities Act of 1933
from information furnished to us by or on behalf of the underwriters or agents
for use in this Registration Statement.
ITEM 16. EXHIBITS.
*1.1 Form of Underwriting Agreement (Common Shares and Preferred Shares
of Phelps Dodge).
*1.2 Form of Underwriting Agreement (Senior Debt Securities and Junior
Subordinated Debt Securities of Phelps Dodge).
*1.3 Form of Underwriting Agreement (Preferred Securities).
*1.4 Form of Underwriting Agreement (Share Purchase Contracts of Phelps
Dodge).
*1.5 Form of Underwriting Agreement (Share Purchase Units of Phelps
Dodge).
*1.6 Form of Underwriting Agreement (Warrants of Phelps Dodge).
3.1 Restated Certificate of Incorporation of Phelps Dodge
(incorporated by reference to Exhibit 3.1 to Phelps Dodge's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1999,
filed with the SEC on August 13, 1999).
3.2 By-Laws of Phelps Dodge, as amended effective July 1, 2000
(incorporated by reference to Exhibit 3.2 to Phelps Dodge's
Quarterly Report on Form 10-Q for the quarter ended June 30, 2000,
filed with the SEC on August 14, 2000).
3.3 Certificate of Trust of PD Capital Trust I.
3.4 Certificate of Trust of PD Capital Trust II.
4.1 Indenture for Senior Debt Securities issued by Phelps Dodge
(incorporated by reference to Exhibit 4.1 to Phelps Dodge's
Registration Statement and Post-Effective Amendment No. 1 on Form
S-3, Registration Nos. 33-44380 and 333-36415, filed with the SEC
on September 25, 1997).
4.2 Subordinated Indenture for Junior Subordinated Debt Securities
issued by Phelps Dodge.
4.3 Forms of Senior Debt Security issued by Phelps Dodge (incorporated
by reference to Exhibit 2 to Phelps Dodge's Current Report on Form
8-K filed with the SEC on January 10, 1992 and Exhibit 2 to Phelps
Dodge's Current Report on Form 8-K filed with the SEC on March 26,
1992).
4.4 Form of Junior Subordinated Debt Security issued by Phelps Dodge
(included in Exhibit 4.2).
4.5 Rights Agreement between Phelps Dodge and The Chase Manhattan Bank
(incorporated by reference to Exhibit 1 to Phelps Dodge's Current
Report on Form 8-K, filed with the SEC on February 6, 1998).
4.6 Trust Agreement of PD Capital Trust I.
II-2
<PAGE> 46
4.7 Trust Agreement of PD Capital Trust II.
4.8 Tripartite/Conversion Agreement (resignation and appointment of
Indenture Trustee of Indenture for Senior Debt Securities).
4.9 Form of Amended and Restated Trust Agreement of PD Capital Trust I
and PD Capital Trust II.
4.10 Form of Preferred Security (included in Exhibit 4.9).
4.11 Form of Preferred Securities Guarantee of Phelps Dodge with
respect to the preferred securities issued by PD Capital Trust I
and PD Capital Trust II.
*4.12 Form of Share Purchase Contract issued by Phelps Dodge.
*4.13 Form of Warrant issued by Phelps Dodge.
*4.14 Form of Warrant Agreement.
5.1 Opinion of Debevoise & Plimpton.
5.2 Opinion of Richards, Layton & Finger, P.A. relating to PD Capital
Trust I.
5.3 Opinion of Richards, Layton & Finger, P.A. relating to PD Capital
Trust II.
12.1 Statement of Ratios of Earnings to Fixed Charges.
15.1 Letter from PricewaterhouseCoopers LLP with respect to unaudited
interim financial information.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Debevoise & Plimpton (included in Exhibit 5.1).
23.3 Consents of Richards, Layton & Finger, P.A. (included in Exhibits
5.2 and 5.3).
24.1 Powers of Attorney.
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Trustee under the
Indenture (Senior Debt Securities issued by Phelps Dodge).
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Trustee under the
Subordinated Indenture (Junior Subordinated Debt Securities issued
by Phelps Dodge).
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Property Trustee for the
Amended and Restated Trust Agreement of PD Capital Trust I.
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Property Trustee for the
Amended and Restated Trust Agreement of PD Capital Trust II.
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Guarantee Trustee under
the Guarantee of Phelps Dodge for the benefit of the holders of
Preferred Securities of PD Capital Trust I.
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<PAGE> 47
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Guarantee Trustee under
the Guarantee of Phelps Dodge for the benefit of the holders of
Preferred Securities of PD Capital Trust II.
----------
* To be filed as an exhibit to a report on Form 8-K pursuant to Item 601 of
Regulation S-K.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(c) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that (a) and (b) do not apply if the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the SEC by the
registrants pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering;
(4) that, for purposes of determining any liability under the
Securities Act, each filing of Phelps Dodge's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(5) to file an application for the purpose of determining the
eligibility of the trustees to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act;
and
II-4
<PAGE> 48
(6) to provide to the underwriter at the closing specified in the
underwriting agreements certificates in such denominations and registered
in such names as required by the underwriter to permit prompt delivery to
each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the foregoing provisions, or otherwise, the registrants
have been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by a registrant of expenses incurred or paid
by a director, officer or controlling person of the registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 49
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, PHELPS DODGE
CORPORATION CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED IN PHOENIX, ARIZONA ON THE 16TH DAY OF AUGUST, 2000.
PHELPS DODGE CORPORATION
By: /s/ J. Steven Whisler
_________________________________
J. Steven Whisler
Chairman, President and Chief
Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON BEHALF
OF THE REGISTRANT IN THE CAPACITIES INDICATED AND ON THE 16TH DAY OF AUGUST,
2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ J. Steven Whisler
____________________________ Chairman, President and Chief Executive
J. Steven Whisler Officer (Principal Executive Officer)
/s/ Ramiro G. Peru
____________________________ Senior Vice President and Chief Financial
Ramiro G. Peru Officer (Principal Financial Officer)
/s/ Stanton K. Rideout
____________________________ Vice President and Controller
Stanton K. Rideout (Principal Accounting Officer)
</TABLE>
Robert N. Burt, Archie W. Dunham, William A. Franke, Paul Hazen, Manuel J.
Iraola, Marie L. Knowles, Robert D. Krebs, Southwood J. Morcott, Gordon R.
Parker, Directors
By: /s/ Ramiro G. Peru
________________________________
Ramiro G. Peru, Attorney-in-Fact
II-6
<PAGE> 50
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, EACH OF PD
CAPITAL TRUST I AND PD CAPITAL TRUST II CERTIFIES THAT IT HAS REASONABLE GROUNDS
TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS
DULY CAUSED THIS AMENDMENT TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN PHOENIX, ARIZONA, ON THE
16TH DAY OF AUGUST, 2000.
PD CAPITAL TRUST I
By: Phelps Dodge Corporation as Depositor
By: /s/ Gregory W. Stevens
____________________________
Gregory W. Stevens
Vice President and Treasurer
PD CAPITAL TRUST II
By: Phelps Dodge Corporation as Depositor
By: /s/ Gregory W. Stevens
____________________________
Gregory W. Stevens
Vice President and Treasurer
II-7
<PAGE> 51
EXHIBIT INDEX
*1.1 Form of Underwriting Agreement (Common Shares and Preferred Shares
of Phelps Dodge).
*1.2 Form of Underwriting Agreement (Senior Debt Securities and Junior
Subordinated Debt Securities of Phelps Dodge).
*1.3 Form of Underwriting Agreement (Preferred Securities).
*1.4 Form of Underwriting Agreement (Share Purchase Contracts of Phelps
Dodge).
*1.5 Form of Underwriting Agreement (Share Purchase Units of Phelps
Dodge).
*1.6 Form of Underwriting Agreement (Warrants of Phelps Dodge).
3.1 Restated Certificate of Incorporation of Phelps Dodge
(incorporated by reference to Exhibit 3.1 to Phelps Dodge's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1999,
filed with the SEC on August 13, 1999).
3.2 By-Laws of Phelps Dodge, as amended effective July 1, 2000
(incorporated by reference to Exhibit 3.2 to Phelps Dodge's
Quarterly Report on Form 10-Q for the quarter ended June 30, 2000,
filed with the SEC on August 14, 2000).
3.3 Certificate of Trust of PD Capital Trust I.
3.4 Certificate of Trust of PD Capital Trust II.
4.1 Indenture for Senior Debt Securities issued by Phelps Dodge
(incorporated by reference to Exhibit 4.1 to Phelps Dodge's
Registration Statement and Post-Effective Amendment No. 1 on Form
S-3, Registration Nos. 33-44380 and 333-36415, filed with the SEC
on September 25, 1997).
4.2 Subordinated Indenture for Junior Subordinated Debt Securities
issued by Phelps Dodge.
4.3 Forms of Senior Debt Security issued by Phelps Dodge (incorporated
by reference to Exhibit 2 to Phelps Dodge's Current Report on Form
8-K filed with the SEC on January 10, 1992 and Exhibit 2 to Phelps
Dodge's Current Report on Form 8-K filed with the SEC on March 26,
1992).
4.4 Form of Junior Subordinated Debt Security issued by Phelps Dodge
(included in Exhibit 4.2).
4.5 Rights Agreement between Phelps Dodge and The Chase Manhattan Bank
(incorporated by reference to Exhibit 1 to Phelps Dodge's Current
Report on Form 8-K, filed with the SEC on February 6, 1998).
4.6 Trust Agreement of PD Capital Trust I.
4.7 Trust Agreement of PD Capital Trust II.
4.8 Tripartite/Conversion Agreement (resignation and appointment of
Indenture Trustee of Indenture for Senior Debt Securities).
4.9 Form of Amended and Restated Trust Agreement of PD Capital Trust I
and PD Capital Trust II.
4.10 Form of Preferred Security (included in Exhibit 4.9).
4.11 Form of Preferred Securities Guarantee of Phelps Dodge with
respect to the preferred securities issued by PD Capital Trust I
and PD Capital Trust II.
II-8
<PAGE> 52
*4.12 Form of Share Purchase Contract issued by Phelps Dodge.
*4.13 Form of Warrant issued by Phelps Dodge.
*4.14 Form of Warrant Agreement.
5.1 Opinion of Debevoise & Plimpton.
5.2 Opinion of Richards, Layton & Finger, P.A. relating to PD Capital
Trust I.
5.3 Opinion of Richards, Layton & Finger, P.A. relating to PD Capital
Trust II.
12.1 Statement of Ratios of Earnings to Fixed Charges.
15.1 Letter from PricewaterhouseCoopers LLP with respect to unaudited
interim financial information.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Debevoise & Plimpton (included in Exhibit 5.1).
23.3 Consents of Richards, Layton & Finger, P.A. (included in Exhibits
5.2 and 5.3).
24.1 Powers of Attorney.
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Trustee under the
Indenture (Senior Debt Securities issued by Phelps Dodge).
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Trustee under the
Subordinated Indenture (Junior Subordinated Debt Securities issued
by Phelps Dodge).
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Property Trustee for the
Amended and Restated Trust Agreement of PD Capital Trust I.
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Property Trustee for the
Amended and Restated Trust Agreement of PD Capital Trust II.
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Guarantee Trustee under
the Guarantee of Phelps Dodge for the benefit of the holders of
Preferred Securities of PD Capital Trust I.
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939 of First Union National Bank, as Guarantee Trustee under
the Guarantee of Phelps Dodge for the benefit of the holders of
Preferred Securities of PD Capital Trust II.
----------
* To be filed as an exhibit to a report on Form 8-K pursuant to Item 601
of Regulation S-K.
II-9
