As filed with the Securities and Exchange Commission on March 5, 1994
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Freeport-McMoRan Copper & Gold Inc.
(Exact name of registrant as specified in its charter)
Delaware 74-2480931
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
First Interstate Bank Building
One East First Street, Suite 1600
Reno, Nevada 85901
(702) 688-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
John G. Amato, Esq.
Freeport-McMoRan Copper & Gold Inc.
1615 Poydras Street
New Orleans, Louisiana 70112
(504) 582-4000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
E. Deane Leonard, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
Approximate date of commencement of proposed sale of the securities to
the public: As soon as practicable after the effective date of this
Registration Statement.
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 check the following box. [X]
CALCULATION OF REGISTRATION FEE
==============================================================================
<TABLE>
<CAPTION>
Title of each class Amount Proposed maximum Proposed maximum Amount of
of securities to to be offering price aggregate registration
to be registered registered per security(1) offering price(1) fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities; Preferred Stock;
and Warrants(2)(3). . . . . . . . . . $350,000,000 100% $350,000,000 $120,691
- -------------------------------------------------------------------------------------------------------------
Debt Securities; Preferred Stock; and
Special Stock (including Class A
Common Stock)(4). . . . . . . . . . . -- -- (6) --
- -------------------------------------------------------------------------------------------------------------
Depositary Shares(5). . . . . . . . . . -- -- (6) --
==============================================================================
- -------------
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Such amount in U.S. dollars or the equivalent thereof in foreign
currencies as shall result in an aggregate initial offering of all
Securities equal to $350,000,000.
(3) The Warrants being registered hereby may be exercised to purchase Debt
Securities, Preferred Stock or Special Stock (including Class A Common
Stock). In no event will the aggregate initial price of such Warrants
issued under this Registration Statement, as may be offered from time to
time, exceed $350,000,000.
(4) Such indeterminable principal amount of Debt Securities and number of
shares of Preferred Stock or Special Stock (including Class A Common
Stock) as may be issuable from time to time upon conversion or exchange of
Debt Securities, Preferred Stock or exercise of Warrants being registered
hereunder.
(5) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the event
the Registrant elects to offer to the public fractional interests in
shares of the Preferred Stock or Special Stock registered hereunder,
Depositary Receipts will be distributed to those persons acquiring such
fractional interests and the shares of Preferred Stock or Special Stock
will be issued to the Depositary under the Deposit Agreement.
(6) No separate consideration will be received for (a) the Debt Securities,
Preferred Stock or Special Stock which may be issuable upon conversion of
or in exchange for other Debt Securities, Preferred Stock or Special Stock
or upon the exercise of Warrants or (b) the Depositary Shares.
</TABLE>
The Registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this registration
statement will thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, the Prospectus which is a part of this registration
statement is a combined Prospectus relating also to registration statements
no. 33-63376 and, to the extent applicable, no. 33-45787.
PROSPECTUS
$400,000,000
Freeport-McMoRan Copper & Gold Inc.
Debt Securities
Preferred Stock
and Warrants
Freeport-McMoRan Copper & Gold Inc. (the "Company" or "FCX") may offer
and issue from time to time in one or more series (i) debt securities ("Debt
Securities"), (ii) shares of the Company's Preferred Stock, par value $0.10
("Preferred Stock") or (iii) Warrants ("Warrants") to purchase Debt
Securities, Preferred Stock or the Company's Special Stock, which includes
Class A Common Stock ("Special Stock"). The Debt Securities, Preferred Stock
and Warrants are herein collectively referred to as the "Securities". The
Company will offer Securities to the public on terms determined by market
conditions. Securities may be issuable in registered form (in the case of
Debt Securities, without coupons) or in bearer form (in the case of Debt
Securities, with or without coupons). Any Securities may be offered with
other Securities or separately. Securities may be sold for U.S. dollars,
foreign currency or currency units; amounts payable with respect to any
Securities may likewise be payable in U.S. dollars, foreign currency or
currency units--in each case, as the Company specifically designates. The
amounts payable by the Company in respect of Securities may be calculated by
reference to the value, rate or price of one or more specified commodities,
currencies or indices as set forth in an accompanying Prospectus Supplement.
Any accompanying Prospectus Supplement relating to Debt Securities will
set forth the ranking as senior or subordinated Debt Securities, the specific
designation, aggregate principal amount, purchase price, maturity, interest
rate (or manner of calculation thereof) and time of payment of interest (if
any), and the terms (if any) for the redemption, conversion or exchange
thereof, listing (if any) on a securities exchange and any other specific
terms of the Debt Securities. Any accompanying Prospectus Supplement relating
to Preferred Stock will set forth the specific designation, number of shares,
purchase price and the rights, preferences and privileges thereof and any
qualifications or restrictions thereon (including dividends, liquidation
value, voting rights, terms of conversion or exchange (if any), terms for
mandatory or optional redemption (if any) and any other specific terms of the
Preferred Stock) and listing (if any) on a securities exchange and whether the
Company has elected to offer the Preferred Stock in the form of depositary
shares. Any accompanying Prospectus Supplement relating to Warrants will set
forth the specific designation, the number, purchase price and terms thereof,
any listing of the Warrants or the underlying securities on a securities
exchange and any other terms in connection with the offering, sale and
exercise of the Warrants, as well as the terms of the securities that can be
purchased with such Warrants.
Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the accompanying Prospectus
Supplement. Net proceeds to the Company will be the purchase price in the case
of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an agent --
in each case, less other expenses attributable to issuance and distribution.
The Company may also sell Securities directly to investors on its own behalf.
In the case of sales made directly by the Company, no commission will be
payable. See "Plan of Distribution" for possible indemnification arrangements
for dealers, underwriters and agents.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
, 1994
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been
authorized by the Company or any underwriter, dealer or agent. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstances create an implication that there has been no change in the
affairs of the Company since the date hereof. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy Securities by
anyone in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make such offer
or solicitation.
AVAILABLE INFORMATION
----------------
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and
other information filed by the Company with the Commission can be inspected
and copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or at its Regional
Offices located at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511 and 13th Floor, 7 World Trade Center, New
York, New York 10048, and copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Certain of the Company's
securities are listed on the New York Stock Exchange (the "NYSE") and on The
Australian Stock Exchange. Reports, proxy statements and other information
concerning the Company can be inspected at the offices of the NYSE, 20 Broad
Street, New York, New York 10005.
The Prospectus constitutes a part of a Registration Statement on Form S-3
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This
Prospectus omits certain of the information contained in the Registration
Statement in accordance with the rules and regulations of the Commission.
Reference is hereby made to the Registration Statement and related exhibits
for further information with respect to the Company and the Securities.
Statements contained herein concerning the provisions of any document are not
necessarily complete and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety
by such reference.
----------------
IN CONNECTION WITH THE OFFERING OF CERTAIN SECURITIES, THE UNDERWRITERS
MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICES OF SUCH OFFERED SECURITIES OR OTHER SECURITIES OF THE COMPANY AT LEVELS
ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1992 (as amended June 25, 1993), Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1993, June 30, 1993 and September 30, 1993 and
Current Reports on Form 8-K dated April 13, 1993 (as amended May 14, 1993 and
August 5, 1993), June 15, 1993, June 30, 1993, August 5, 1993, January 7,
1994, January 12, 1994 and March 2, 1994 have been filed with the Commission
and are incorporated herein by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from
the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits unless specifically
incorporated by reference into the documents that this Prospectus
incorporates) may be obtained upon request without charge from the Company,
1615 Poydras Street, New Orleans, Louisiana 70112 (telephone (504) 582-4000),
attention: Michael C. Kilanowski, Jr., Secretary.
THE COMPANY
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation formed in
1987 (the "Company" or "FCX"), is an approximately 70% owned subsidiary of
Freeport-McMoRan Inc. ("FTX"). FCX owns approximately 81.28% of the
outstanding common stock of its operating subsidiary, P.T. Freeport Indonesia
Company ("PT-FI"), a limited liability company organized under the laws of the
Republic of Indonesia and domesticated in Delaware. Of the remaining 18.72%,
approximately 9.36% is owned by the government of the Republic of Indonesia
(the "Government"), and approximately 9.36% is owned by an Indonesian
corporation in which FCX owns a 49% interest. PT-FI engages in the
exploration for and development, mining, and processing of copper, gold and
silver in Indonesia and in the marketing of concentrates containing such
metals worldwide. FCX also has a subsidiary, Eastern Mining Company, Inc.
("Eastern Mining"), which on April 29, 1993 was granted an exploration permit,
giving exclusive rights for a limited period to explore for minerals on 2.5
million acres adjacent to the 6.5 million acre exploration area covered by
PT-FI's Contract of Work. On March 30, 1993, FCX acquired a 65% interest in
the capital stock of Rio Tinto Minera, S.A., a company primarily engaged in
the smelting of copper concentrates in Spain. In December 1993, RTM redeemed
the remaining 35% interest. In January 1994, FCX redeemed its Zero Coupon
Exchangeable Notes due 2011 (the "Notes"). Of the $118.6 million Notes
outstanding at the initiation of the call, $118.3 million were exchanged into
6.7 million shares of FCX Class A Common Stock prior to the redemption of the
Notes. The balance was redeemed for cash. Also in January 1994, FCX sold 4.3
million depositary shares, each representing 0.05 shares of its
Gold-Denominated Preferred Stock, Series II to the public for net proceeds of
$158.5 million. In August 1993, FCX sold 6.0 million depositary shares, each
representing 0.05 shares of its Gold-Denominated Preferred Stock, to the
public for net proceeds of $220.4 million. See "Description of Preferred
Stock--Gold-Denominated Preferred Stock." In July 1993, the Company issued
14.0 million Depositary Shares, each representing 0.05 shares of the Company's
Step-Up Convertible Preferred Stock (the "Step-Up Convertible Preferred
Stock") for net proceeds totalling $341.3 million. See "Description of
Preferred Stock--Step-Up Convertible Preferred Stock." The Company's principal
executive office is located at First Interstate Bank Building, One East First
Street, Suite 1600, Reno, Nevada 89501 and its telephone number is (702)
688-3000.
Contract of Work
From 1967 until the end of 1991, PT-FI's predecessor, Freeport Indonesia
Incorporated, a Delaware corporation ("FII"), operated as the sole contractor
for the production and marketing of certain minerals from a 24,700 acre area
(the "1967 Mining Area") under a contract of work with the Government (the
"1967 COW").
On December 30, 1991, FII was merged into PT-FI and PT-FI and the
Government signed a new contract of work (the "New COW"), which superseded the
1967 COW. The New COW covers both the 1967 Mining Area and an additional 6.5
million adjacent acre exploration area (the "New COW Area"). The New COW has a
30-year term, with provisions for two 10-year extensions under certain
conditions.
The New COW contains a provision under which PT-FI must progressively
relinquish its rights to the nonprospective parts of the New COW Area in
amounts equal to 25% of the 6.5 million acres at the end of each of three
specified periods, the first of which is set to expire December 30, 1994, and
the last of which is set to expire five to seven years after the signing of
the New COW, in each case unless further extended by the Ministry of Mines.
The New COW also contains provisions for PT-FI to conduct or cause to be
conducted a feasibility study relating to the construction of a copper
smelting facility in Indonesia and for the eventual construction of such a
facility by PT-FI, if such facility is deemed to be economically viable by
PT-FI and the Government and if such facility is not constructed by others
prior to construction by PT-FI. PT-FI is pursuing with another company the
feasibility of constructing such a copper smelting facility, in which PT-FI
would hold a minority interest and supply approximately one-half of the
smelter's currently anticipated copper concentrate requirements at market
prices.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Securities will be used for general
corporate purposes, including the repayment of existing indebtedness, capital
expenditures and additions to working capital of the Company or its
subsidiaries. The Company anticipates that it and its subsidiaries will raise
additional funds from time to time through equity or debt financings,
including borrowings under its revolving credit agreements, to finance their
businesses.
SPECIAL CONSIDERATIONS
An investment in any of the Securities involves certain risks.
Accordingly, prospective investors should consider carefully the following
special considerations, in addition to the other information concerning the
Company and its business contained in this Prospectus and any accompanying
Prospectus Supplement, before purchasing any of the Securities registered
hereby.
Prices of Minerals
Because PT-FI's revenues are derived almost entirely from the sale of
concentrates containing copper, gold and silver, the Company's earnings are
directly related to market prices for copper, gold and, to a lesser extent,
silver. Prices for such minerals have historically fluctuated widely and are
affected by numerous factors beyond the Company's control. A price protection
program has been implemented for substantially all of PT-FI's estimated copper
sales to be priced in 1994.
Location and Industry Risks
The current mining area and most of the new 6.5 million acre exploration
area are located in steeply mountainous country, which makes access to certain
parts of these areas difficult. These areas are subject to considerable
rainfall, which has in the past led to periodic floods and mud slides. The
mining area is located in an area of known seismic activity, and some earth
tremors have been experienced from time to time. None of these factors has
caused personal injury to Company employees or significant property damage not
covered by insurance or any significant interruptions to production, although
no assurance can be given that delays, injury or damage will not occur in the
future. The climate and remoteness of the area have required PT-FI to overcome
special engineering difficulties. PT-FI is also subject to the usual risks
encountered in the mining industry, including unexpected geological conditions
resulting in cave-ins, flooding and rock-bursts and unexpected changes in rock
stability conditions. FTX purchases, for the benefit of PT-FI, insurance
involving such amounts and types of coverage as it believes are appropriate
for PT-FI's exploration, development, mining and processing activities in
Indonesia.
Political Factors
Maintaining a good relationship with the Government is of particular
importance to PT-FI because its operations are located solely in Indonesia.
PT-FI operates in Indonesia by virtue of the New COW, which has a 30-year term
and provides for two 10-year extensions under certain conditions. The 1967
Foreign Capital Investment Law, which expresses Indonesia's foreign investment
policy, provides basic guarantees of remittance rights and protection against
nationalization, a framework for incentives and some basic rules as to the
other rights and obligations of foreign investors. PT-FI's rights and
obligations relating to taxes, royalties, exchange controls, repatriation and
other matters are governed by the New COW, which was concluded pursuant to the
1967 Foreign Capital Investment Law.
Indonesia has a presidential republic system of government. Elections for
the Indonesian Parliament and the office of President are held every five
years. President Suharto, who assumed power following an attempted communist
coup, was reelected in March 1993 to serve a sixth consecutive five-year term.
Reserves
With respect to PT-FI's reserves, it should be noted that such quantities
are estimates only. The mines from which PT-FI's reserves are presently being
or are expected to be produced may not conform to geological or other
expectations, with the result that the volume and grade of reserves recovered
and the rates of production may be more or less than anticipated. Further,
market price fluctuations in copper, gold and, to a lesser extent, silver, and
changes in operating and capital costs may render certain ore reserves
uneconomic to develop. No assurance can be given that PT-FI's exploration
programs will result in the replacement of current reserves with new reserves.
Relationship of the Company and Freeport-McMoRan Inc.
FTX currently owns approximately 70% of the combined total outstanding
shares of FCX's Class A Common Stock and Class B Common Stock, par value $0.10
per share (the "Class B Common Stock"). Through this ownership, FTX has
control over FCX, and through FCX, over PT-FI. FTX thus controls the
composition of the Board of Directors of FCX and the Board of Commissioners of
PT-FI, the dividend policies of both and also has sufficient voting control
under Delaware law to effect major corporate actions at FCX such as "going
private" transactions and mergers without the concurrence of other
stockholders, subject to certain limitations. Among the various companies
owned or controlled by FTX, it is intended that FCX and its subsidiaries will
have priority with respect to the exploration, development and mining of
copper and associated minerals in Indonesia. However, if any conflict of
interest arises between FCX or one of its subsidiaries and FTX or another
company owned or controlled by FTX relating to business opportunities in
Indonesia FTX will resolve such dispute. In addition, FCX and PT-FI are
parties, with FTX, to a Management Services Agreement, pursuant to which FTX
provides a variety of services to FCX and PT-FI. Under the terms of this
Agreement, FCX and PT-FI reimburse FTX on a monthly basis at FTX's cost for
such services, including allocated overhead. In addition, FTX is a party to a
credit agreement, pursuant to which, under certain circumstances, FTX might be
required to pledge the stock of FCX owned by FTX and its affiliates to secure
its outstanding borrowings under such credit agreement.
Environmental Matters
Although the management of FCX believes that it and its subsidiaries are
in compliance with all relevant environmental laws, rules and regulations, and
that there will be no significant adverse impact on the environment as a
result of the planned expansion of its operations, environmental laws and
regulations may be revised periodically. The impact, if any, of such possible
revisions on FCX's current or future operations cannot be accurately
predicted. In February 1994, the Government approved an environmental impact
study submitted by PT-FI with respect to the proposed expansion of copper
production to 115,000 metric tons of ore per day ("MTPD").
Holding Company Structure
The Company is a holding company which conducts its business through
subsidiaries. As a result, the Company's cash flow and consequent ability to
make dividend payments and meet its debt obligations are primarily dependent
upon the earnings of its subsidiaries and on dividends and other payments
therefrom. Because the Company is a holding company, the Securities would be
effectively subordinated to all existing and future liabilities and Preferred
Stock, if any, of its subsidiaries. Any right of the Company to participate
in any distribution of the assets of its subsidiaries upon the liquidation,
reorganization or insolvency of such subsidiaries (and the consequent right of
the holders of the Securities to participate in the distribution of those
assets) would, with certain exceptions, be subject to the claims of the
creditors (including trade creditors) and preferred stockholders, if any, of
such subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges,
preferred stock dividends and minimum required distributions on stock of the
Company's Class A Common Stock for the periods indicated.
Years Ended December 31,
------------------------------------
1989 1990 1991 1992 1993
---- ---- ---- ---- ----
Ratio of earnings to fixed
charges and minimum
distributions(1)
(unaudited).................... 9.5x 5.6x 3.3x 3.8x 1.2x
- ----------
(1)For purposes of calculating the ratio of earnings to fixed charges,
preferred stock dividends and minimum required distributions on stock of
the Company's Class A Common Stock, earnings consist of income from
continuing operations before income taxes, minority interest and fixed
charges. Fixed charges consist of interest and that portion of rent which
is deemed representative of interest. Minimum distributions on the
Company's Class A Common Stock consist of the minimum required
distributions on the Company's Class A Common Stock (minimum distribution
requirements in respect of Class A Common Stock ended May 1, 1993).
RELATIONSHIP OF THE COMPANY GROUP WITH THE FTX GROUP
Ownership of Stock
As of December 31, 1993, FTX, through its ownership of all of the
Company's Class B Common Stock and 1,547,700 shares of Class A Common Stock,
owned approximately 70% of the total outstanding shares of the Company's Class
A Common Stock and Class B Common Stock. Through this direct ownership, FTX
has the ultimate ability to control the Company and its subsidiaries. In
addition to such other obligations as it may assume, FTX, as a controlling
stockholder of the Company, has a fiduciary obligation under Delaware law to
act in good faith and to exercise its rights of control in a manner that is
fair and reasonable to the other stockholders. As used in this Prospectus,
the "Company Group" means the Company and its subsidiaries and the "FTX Group"
means FTX and its subsidiaries other than those within the Company Group.
Although PT-FI has in the past relied on FTX to provide many management,
administrative and technical services and will continue, under the Management
Services Agreement discussed below, to make use of these services, it has
always functioned as a separate operating unit of the FTX Group and will
continue to do so.
Under the terms of a credit agreement, dated as of June 1, 1993, as
amended (the "PT-FI Credit Agreement"), between PT-FI and a syndicate of
banks, FTX must own directly or indirectly 50.1% of the Company's common stock
and the Company must own directly or indirectly 50.1% of the PT-FI common
stock. FTX also must maintain directly or indirectly at least 40% ownership
interest in PT-FI and such voting power as provides effective control of the
policy and direction of PT-FI and the Company. Similarly, for the Company to
retain the benefits of insurance provided by the Overseas Private Investment
Corporation, it is necessary for at least a majority of the Company's capital
stock and of each class thereof to be held beneficially by U.S. persons.
Conflicts of Interests
FTX is involved in the exploration for and extraction of natural
resources. To avoid conflicts between the interests of the various FTX
entities with respect to any future opportunities which may arise, it is
anticipated that the Company Group will have a priority with respect to the
exploration, development and mining of copper and associated minerals in
Indonesia. It is further anticipated that the Company will determine which
entity within the Company Group will exercise any such priority. If the
Company Group determines for any reason not to pursue any opportunity within
its area of priority, then FTX will be free to offer it to another FTX entity
as it sees fit. It may be determined that it would be impractical for the
Company Group to act with respect to a particular exploration or development
opportunity outside the 1967 Mining Area. For example, due to the size of the
New COW Area, development of certain mineral prospects may be beyond the
financial or other resources of the Company and might be undertaken with a
member of the FTX Group alone or in conjunction with one or more third
parties. In addition, acquisition of certain mineral prospects or mining
companies may be beyond the financial or other resources of Company and might
be undertaken by a member of the FTX Group. Such development or acquisitions
could lead to competition between the Company Group and members of the FTX
Group.
Management Services Agreement
Pursuant to the terms of a Management Services Agreement (the "Management
Agreement") among the Company, PT-FI (as successor to Freeport Indonesia,
Incorporated) and FTX, dated as of May 1, 1988, FTX furnishes general
executive, administrative, financial, accounting, legal, environmental, tax,
research and development, marketing and certain other services to the Company
and PT-FI. The nature and extent of the services provided under the
Management Agreement are similar to those historically provided by FTX. The
services of each of the executive officers of the Company and certain officers
and employees of PT-FI are provided to the Company and PT-FI under the
Management Agreement.
The Management Agreement is subject to termination by any party on any
December 31 provided that not less than six months' written notice is given.
The Company and PT-FI have agreed to reimburse FTX at FTX's cost, including
allocated overhead, for such services. The Management Agreement also provides
for the use of the services of certain of the Company's and PT-FI's employees
by FTX and its subsidiaries on a similar cost reimbursement basis. The cost
of such services is reimbursed monthly. The total amount charged by FTX to
the Company and PT-FI, excluding any amounts paid with respect to employees
seconded to PT-FI from FTX, was $33.4 million, $44.9 million and $57.9 million
for the years ended December 31, 1991, 1992 and 1993, respectively.
In February 1993, FTX outsourced its corporate engineering, research and
development, environmental and safety functions and, to that end, contracted
with a new company initially owned and staffed by former employees of FTX.
The new company will furnish services similar to services provided by FTX in
the past, and is anticipated to save FTX significant costs.
Debt Instruments
The FTX Group maintains a revolving credit agreement with a syndicate of
banks, dated as of June 1, 1993, as amended and restated (the "FTX Credit
Agreement"), to provide funds for FTX's general corporate purposes. The FTX
Credit Agreement provides that, under certain circumstances relating to excess
borrowings thereunder or events of default thereunder, FTX and such affiliates
must pledge stock owned by them, including the Class B and any Class A Common
Stock of FCX owned directly by FTX, to secure outstanding borrowings under
such Agreement. As of the date of this Prospectus, no FCX stock was pledged
under the FTX Credit Agreement. To the extent FTX and its other subsidiaries
incur additional debt, the amount available to PT-FI under the PT-FI Credit
Agreement may be reduced.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or subordinated debt
of the Company and will be issued, in the case of senior debt, under a Senior
Indenture (the "Senior Debt Indenture"), as it may be amended or supplemented
from time to time, between the Company and The Chase Manhattan Bank, N.A., as
Trustee, and, in the case of subordinated debt, under a Subordinated Indenture
(the "Subordinated Debt Indenture"), as it may be amended or supplemented from
time to time, between the Company and Chemical Bank, as Trustee. The Senior
Debt Indenture and the Subordinated Debt Indenture are sometimes hereinafter
referred to individually as an "Indenture" and collectively as the
"Indentures." The Chase Manhattan Bank, N.A. and Chemical Bank are
hereinafter referred to individually as a "Trustee" and collectively as the
"Trustees." The Indentures are filed as exhibits to the Registration
Statement of which this Prospectus is a part. The following summaries of
certain provisions of the Indentures and the Debt Securities do not purport to
be complete and such summaries are subject to the detailed provisions of the
applicable Indenture to which reference is hereby made for a full description
of such provisions, including the definition of certain terms used herein, and
for other information regarding the Debt Securities. Numerical references in
parentheses below are to sections in the applicable Indenture. Wherever
particular sections or defined terms of the applicable Indenture are referred
to, such sections or defined terms are incorporated herein by reference as
part of the statement made, and the statement is qualified in its entirety by
such reference. The Indentures are substantially identical, except for
provisions relating to subordination. See "Subordinated Debt."
General
Except as provided in the Prospectus Supplement, neither of the
Indentures limits the amount of Debt Securities or other indebtedness that the
Company or any of its subsidiaries may incur. The Debt Securities will be
unsecured senior or subordinated obligations of the Company.
Most of the assets of the Company are owned by its subsidiaries.
Therefore, the Company's rights and the rights of its creditors, including
holders of Debt Securities, to participate in the assets of any subsidiary
upon the liquidation or recapitalization of such subsidiary will be subject to
the prior claims of the subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the
subsidiary.
The Indentures provide that Debt Securities may be issued from time to
time in one or more series.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Debt Securities of any series (to the extent
such terms are applicable to such Debt Securities): (i) classification as
senior or subordinated Debt Securities, the specific designation, aggregate
principal amount and purchase price; (ii) whether such Debt Securities are
convertible or exchangeable and, if so, the securities or rights into which
such Debt Securities are convertible or exchangeable, the terms and conditions
upon which such conversion or exchange will be effected including the initial
conversion or exchange price or rate, the conversion or exchange period and
any other related provisions; (iii) the currency or units based on or relating
to currencies in which such Debt Securities are denominated and/or in which
principal (and premium, if any) and/or interest, if any, will or may be
payable; (iv) the date or dates of maturity; (v) any redemption, repayment or
sinking fund provisions; (vi) any interest rate or rates and the dates on
which any such interest will be payable (or the method by which such rates or
dates will be determined); (vii) the method by which amounts payable in
respect of principal, premium, if any, or interest, if any, on such Debt
Securities may be calculated, and any commodities, currencies or indices, or
value, rate or price, relevant to such calculation; (viii) the place or places
where the principal of and premium, if any, and interest, if any, on such Debt
Securities will be payable; (ix) whether such Debt Securities will be issuable
in registered form, without coupons, or bearer form, with or without coupons
("Bearer Debt Securities"), or both and, if Bearer Debt Securities are
issuable, any restrictions applicable to the exchange of one form for another
and to the offer, sale and delivery of Bearer Debt Securities; (x) whether
such Debt Securities are to be issued in whole or in part in the form of one
or more temporary or permanent global Debt Securities and if so, the identity
of the depositary, if any, for such global Debt Securities; (xi) any
applicable United States federal income tax consequences, including whether
and under what circumstances the Company will pay additional amounts on any
such Debt Securities held by a person who is not a U.S. person (as defined in
the Prospectus Supplement) in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Company will have the
option to redeem such Debt Securities rather than pay such additional amounts;
(xii) the terms and conditions upon which and the manner in which such Debt
Securities may be defeased or discharged if different from the defeasance
provisions described below; and (xiii) any other specific terms of such Debt
Securities, including any additional events of default, remedies or covenants
provided for with respect to such Debt Securities, and any terms which may be
required by or advisable under applicable laws or regulations. (Senior and
Subordinated Debt Indentures, Section 2.3).
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the
applicable Indenture. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the applicable Indenture. Bearer Debt
Securities and the coupons, if any, appertaining thereto will be transferable
by delivery. (Senior and Subordinated Debt Indentures, Section 2.8).
Debt Securities may bear interest at a fixed rate or a floating rate.
Debt Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in
the relevant Prospectus Supplement.
Debt Securities may be issued from time to time with payment terms which
are calculated by reference to the value, rate or price of one or more
commodities, currencies or indices. Holders of such Debt Securities may
receive a principal amount (including premium, if any) on any principal
payment date, or a payment of interest on any interest payment date, that is
greater than or less than the amount of principal (including premium, if any)
or interest otherwise payable on such dates, depending upon the value, rate or
price on the applicable dates of the applicable currency, commodity or index.
Information as to the methods for determining the amount of principal, premium
(if any) or interest payable on any date, the currencies, commodities or
indices to which the amount payable on such date is linked and certain
additional tax considerations will be set forth in the applicable Prospectus
Supplement.
Unless otherwise set forth in the Prospectus Supplement, the Debt
Securities do not contain any provisions which may afford holders of the Debt
Securities protection in the event of a change in control of the Company or in
the event of a highly leveraged transaction (whether or not such transaction
results in a change in control of the Company).
Global Securities
Registered Global Securities. The registered Debt Securities of a series
may be issued in the form of one or more fully registered global Securities (a
"Registered Global Security") that will be deposited with (and registered in
the name of) a depositary (a "Depositary") identified in the Prospectus
Supplement relating to such series or with a nominee of a Depositary. In such
case, one or more Registered Global Securities will be issued in an aggregate
principal amount equal to the portion of the aggregate principal amount of
outstanding registered Debt Securities of the series to be represented by such
Registered Global Security or Securities. Unless and until it is exchanged in
whole for Debt Securities in definitive registered form, a Registered Global
Security may not be transferred except as a whole by the Depositary for such
Registered 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.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered
Global Security will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on its book-entry
registration and transfer system, the participant's accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by or through such participant.
The accounts to be credited initially shall be designated by any dealers,
underwriters or agents participating in the distribution of such Debt
Securities or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in such Registered
Global Security will be shown on, and the transfer of such ownership interest
will be effected only through, records maintained by the Depositary for such
Registered Global Security (with respect to interests of participants) or on
the records of participants (with respect to interests of persons holding
through participants). The laws of some states and countries other than
the United States may 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 own, transfer or pledge beneficial interests in
Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its
nominee, is the registered owner of such Registered 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 such Registered Global
Security for all purposes under the applicable Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global Security will not
be entitled to have the Debt Securities represented by such Registered Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the applicable Indenture.
Accordingly, each person owning a beneficial interest in a Registered Global
Security must rely on the procedures of the Depositary for such Registered
Global Security and, if such person is not a participant, on the procedures of
the participant through which such person owns its interest, to exercise any
rights of a holder under the applicable Indenture. The Company understands
that under existing industry practices, if the Company requests any action of
holders or if an owner of a beneficial interest in a Registered Global
Security desires to give or take any action which a holder is entitled to give
or take under the Indenture, the Depositary for such Registered Global
Security generally either (i) authorizes the participants holding the relevant
beneficial interests to give or take such action, and such participants would
authorize beneficial owners owning through such participants to give or take
such action or (ii) otherwise acts upon the instructions of beneficial owners
holding through them.
Payments of principal, premium, if any, and interest, if any, on Debt
Securities represented by a Registered Global Security registered in the name
of a Depositary or its nominee will be made to such Depositary or its nominee,
as the case may be, as the registered owner of such Registered Global
Security. None of the Company, the applicable Trustee or any paying agent for
such Debt Securities will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interest in such Registered Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial
interests in such Registered Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants to owners
of beneficial interest in such Registered Global Security held through such
participants will be the responsibility of such participant and will be
governed by standing customer instructions and customary practices, as is now
the case with the securities held for the accounts of customers registered in
"street name".
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary
and a successor Depositary is not appointed by the Company within 90 days, the
Company will issue such Debt Securities in definitive form in exchange for
such Registered Global Security. In addition, the Company may at any time and
in its sole discretion determine not to have any of the Debt Securities of a
series represented by one or more Registered Global Securities and, in such
event, will issue Debt Securities of such series in definitive form in
exchange for all of the Registered Global Security or Securities representing
such Debt Securities. Any Debt Securities issued in definitive form in
exchange for a Registered Global Security will be registered in such name or
names as the Depositary shall instruct the applicable Trustee. It is expected
that such instructions will be based upon directions received by the
Depositary from participants with respect to ownership of beneficial interests
in such Registered Global Security.
Bearer Global Securities. The Debt Securities of a series may also be
issued in the form of one or more bearer global Debt Securities (a "Bearer
Global Security") that will be deposited with a common depositary for Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euro-clear System and Centrale de Livraison de Valeurs Mobilieres S.A., or
with a nominee for such depositary identified in the Prospectus Supplement
relating to such series. The specific terms and procedures, including the
specific terms of the depositary arrangement, with respect to any portion of a
series of Debt Securities to be represented by a Bearer Global Security will
be described in the relevant Prospectus Supplement.
Senior Debt
The Debt Securities (and in the case of Bearer Debt Securities, any
coupons appertaining thereto) issued under the Senior Debt Indenture will rank
pari passu with all other unsecured and unsubordinated debt of the Company and
senior to the Subordinated Debt Securities (as hereinafter defined).
Subordinated Debt
The Debt Securities (and in the case of Bearer Debt Securities, any
coupons appertaining thereto) (the "Subordinated Debt Securities") issued
under the Subordinated Debt Indenture will be subordinate and junior in right
of payment, to the extent and in the manner set forth in the Subordinated Debt
Indenture, to all "Senior Indebtedness" (as such terms are defined in the
Subordinated Debt Indenture). The Subordinated Debt Indenture defines "Senior
Indebtedness" as all Debt of the Company (other than the Subordinated Debt
Securities, the Company's Zero Coupon Notes due 2011 and the Company's 7%
Convertible Subordinated Debentures due 2007 issuable upon exchange of Special
Preference Stock), including principal and interest (including, without
limitation, any interest that would accrue but for the filing of a petition
initiating any bankruptcy, insolvency, reorganization or similar proceeding)
on such Debt, created, incurred or assumed on or after the date of the first
issuance of any Subordinated Debt Securities, unless such Debt, by its terms
or the terms of the instrument creating or evidencing it, is subordinate in
right of payment to, or pari passu with, the Subordinated Debt Securities;
provided that the term Senior Indebtedness shall not include (a) any Debt of
the Company which, when incurred and without respect to any election under
Section 1111(b) of Title 11, United States Code, was without recourse to the
Company, (b) any Debt of the Company to an affiliate of the Issuer and any
refinancing thereof, (c) Debt to any employee of the Company and (d) Trade
Payables. The Subordinated Debt Indenture defines "Debt" as without
duplication (i) all obligations of any person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such person in respect of
letters of credit or other similar instruments (or reimbursement obligations
with respect thereto), (iv) all obligations of such person to pay the deferred
purchase price of property or services, except Trade Payables, (v) all
obligations of such person as lessee under capital leases, (vi) all Debt of
others secured by a lien on any asset of such person, whether or not such Debt
is assumed by such person, (vii) all Debt of others guaranteed by such person
and (viii) to the extent not otherwise included, obligations under currency
agreements and interest rate agreements and defines "Trade Payables" as
accounts payable or any other indebtedness or monetary obligations to trade
creditors created or assumed by the Company or any subsidiary of the company
in the ordinary course of business in connection with the obtaining of
materials or services. (Subordinated Debt Indenture, Section 1.1).
In the event (a) of any insolvency or bankruptcy proceedings, or any
receivership, dissolution, winding-up, total or partial liquidation,
reorganization or other similar proceedings in respect of the Company or a
substantial part of its property, whether voluntary or involuntary, or (b)
that (i) a default shall have occurred with respect to the payment of
principal of (and premium, if any) or any interest on or other monetary
amounts due and payable on any Senior Indebtedness or (ii) there shall have
occurred an event of default (other than a default in the payment of
principal, premium, if any, or interest or other monetary amounts due and
payable) in respect of any Senior Indebtedness, as defined therein or in the
instrument under which the same is outstanding, permitting the holder or
holders thereof to accelerate the maturity thereof and in the case of (i) and
(ii) above, such default or event of default shall not have been cured or
waived or shall not have ceased to exist, or (c) that the principal of and
accrued interest on any Subordinated Debt Securities shall have been declared
due and payable upon an Event of Default pursuant to the Subordinated Debt
Indenture and such declaration shall not have been rescinded and annulled as
provided therein, then the holders of all Senior Indebtedness shall first be
entitled to receive payment of all amounts due or to become due thereon, or
provision shall be made, in accordance with the relevant Senior Indebtedness,
for such payment in money or money's worth, before the holders of any of the
Subordinated Debt Securities or any coupons appertaining thereto are entitled
to receive any payment on account of the principal of (and premium, if any) or
any interest on the indebtedness evidenced by such Subordinated Debt
Securities or any coupons appertaining thereto or any cash payments to
repurchase such Subordinated Debt Securities or any coupons appertaining
thereto at the option of the holders thereof or otherwise. (Subordinated Debt
Indenture, Section 14.2). By reason of such subordination, in the event of
insolvency, creditors of the Company (including holders of Subordinated Debt
Securities) who are not holders of Senior Indebtedness may recover less,
ratably, than holders of Senior Indebtedness.
If this Prospectus is being delivered in connection with a series of
Subordinated Debt Securities, the accompanying Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of the end of the most recent
fiscal quarter.
Convertibility and Exchangeability
The terms, if any, on which Debt Securities of any series may be
exchanged for or converted (mandatorily or otherwise) into other Debt
Securities or shares of Preferred Stock or Special Stock (including Class A
Common Stock) or other securities or rights of the Company (including rights
to receive payments in cash or securities based on the value, rate or price of
one or more specified commodities, currencies or indices) will be set forth in
the Prospectus Supplement relating thereto.
Certain Covenants of the Company
Each Indenture provides that the Company will not merge or consolidate
with, or sell, lease or convey all or substantially all its assets to, any
entity, unless the Company shall be the surviving entity, or the surviving or
successor entity shall be a corporation or partnership organized under the
laws of the United States or a State thereof or the District of Columbia and
shall expressly assume all obligations of the Company under such Indenture and
the Debt Securities issued thereunder, and immediately after such merger,
consolidation, sale, lease or conveyance, the Company or such other entity
shall not be in default in the performance of the covenants and conditions of
such Indenture to be performed or observed by the Company. (Senior and
Subordinated Debt Indentures, Section 9.1). Thereafter, except in the case of
a lease, all such obligations of the Company with respect to the Debt
Securities shall terminate. (Senior and Subordinated Debt Indentures, Section
9.3)
Events of Default
An Event of Default is defined under each Indenture with respect to Debt
Securities of any series issued under such Indenture as being: (a) default for
30 days in payment of any interest on the Debt Securities of such series; (b)
default in payment of any principal of or premium, if any, on the Debt
Securities of such series, either at maturity, upon any redemption, by
declaration or otherwise; provided that, if such default is a result of the
voluntary redemption by the holders of such Debt Securities, the amount
thereof shall be in excess of $10,000,000 or the equivalent thereof in any
other currency or composite currency; (c) default for 60 days after written
notice in the observance or performance of any other covenant or agreement in
the Debt Securities of such series or the Indenture other than a covenant or
agreement included in the Indenture which is not applicable to the Debt
Securities of such series; (d) certain events of bankruptcy, insolvency or
reorganization; (e) failure to pay at maturity, or other default which results
in the acceleration of any Debt in an amount in excess of $50,000,000 or the
equivalent thereof in any other currency or composite currency without such
Debt having been discharged or such acceleration having been cured, waived,
rescinded or annulled for a period of 30 days after written notice thereof
("Debt" being defined to mean obligations (other than non-recourse obligations
or the Debt Securities of such series) of, or guaranteed or assumed by, the
Company for borrowed money or evidenced by bonds, debentures, notes or other
similar instruments); or (f) default for 45 days in the conversion of any Debt
Securities of such series; provided, however, that, if any such failure or
acceleration referred to in clause (e) or default referred to in the proviso
to clause (b) above shall cease to exist or be cured, waived, rescinded or
annulled, then the Event of Default by reason thereof shall be deemed likewise
to have been thereupon cured. (Senior and Subordinated Debt Indentures,
Section 5.1).
Each Indenture provides that (a) if an Event of Default due to the
default in payment of principal of, premium, if any, or interest on, any
series of Debt Securities issued under such Indenture or due to the default in
the performance of any other covenant or agreement applicable to the Debt
Securities of such series but not applicable to Debt Securities of any other
series issued under such Indenture shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
the outstanding Debt Securities of such series may declare the principal (or
such portion thereof as may be specified in the terms thereof) of all Debt
Securities of such series and interest accrued thereof to be due and payable
immediately; and (b) if an Event of Default due to a default in the
performance of any covenants or agreements applicable to outstanding Debt
Securities of more than one series issued under such Indenture or an Event of
Default described in clause (e) above shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
the outstanding Debt Securities of all such affected series (treated as one
class) may declare the principal (or such portion thereof as may be specified
in the terms thereof) of all such Debt Securities and interest accrued thereon
to be due and payable immediately. If an Event of Default due to certain
events of bankruptcy, insolvency or reorganization shall occur, the principal
(or such portion thereof as may be specified in the terms thereof) of and
interest accrued on all Debt Securities then outstanding shall become due and
payable immediately, without action by the Trustees or the holders of any such
Debt Securities. (Senior and Subordinated Debt Indentures, Section 5.1). Upon
certain conditions such declarations may be annulled and past defaults may be
waived (except a continuing default in payment of principal of (or premium, if
any) or interest on, or in respect of the conversion of, such Debt Securities)
by the holders of a majority in principal amount of the outstanding Debt
Securities of all such affected series (treated as one class) (Senior and
Subordinated Debt Indentures, Sections 5.1 and 5.10).
Each Indenture provides that the Trustee, subject to the duty of the
Trustee during a default to act with the required standard of care, has no
obligation to exercise any right or power granted it under such Indenture at
the request of holders of Debt Securities unless the Trustee is indemnified by
such holders. (Senior and Subordinated Debt Indentures, Section 6.2).
Subject to such provisions in each Indenture for the indemnification of the
Trustee and certain other limitations, the holders of a majority in principal
amount of the outstanding Debt Securities of all affected series issued under
such Indenture (treated as one class) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series. (Senior and Subordinated Debt Indentures, Section 5.9).
Each Indenture provides that no holder of Debt Securities of any series
issued under such Indenture may institute any action against the Company under
such Indenture (except actions for payment of overdue principal, premium (if
any) or interest or to enforce conversion rights (if any)) unless (1) such
holder previously shall have given to the Trustee written notice of default
and continuance thereof, (2) the holders of not less than 25% in principal
amount of the Debt Securities of all affected series issued under such
Indenture (treated as one class) shall have made a written request upon the
Trustee to institute such action and shall have offered the Trustee reasonable
indemnity, (3) the Trustee shall not have instituted such action within 60
days of such request and (4) the Trustee shall not have received directions
inconsistent with such written request by the holders of a majority in
principal amount of the outstanding Debt Securities of all affected series
issued under such Indenture (treated as one class). (Senior and Subordinated
Debt Indentures, Sections 5.6 and 5.9).
Each Indenture contains a covenant that the Company will file annually
with the Trustee a certificate of no default or a certificate specifying any
default that exists. (Senior and Subordinated Debt Indentures, Section 3.5).
Defeasance
Each Indenture provides that the Company may defease and be discharged
from any and all obligations (except as otherwise described in (a) below) with
respect to the Debt Securities of any series which have not already been
delivered to the Trustee for cancellation and which have either become due and
payable or are by their terms due and payable within one year (or scheduled
for redemption within one year) by irrevocably depositing with the Trustee, as
trust funds, money or, in the case of Debt Securities payable only in U.S.
dollars, U.S. Government Obligations (as defined) which through the payment of
principal and interest in accordance with their terms will provide money, in
an amount certified to be sufficient to pay at maturity (or upon redemption)
the principal of (and premium, if any) and interest on such Debt Securities.
(Senior and Subordinated Debt Indentures, Section 10.1)
In addition, each Indenture provides that with respect to each series of
Debt Securities issued under such Indenture, the Company may elect either (a)
to defease and be discharged from any and all obligations with respect to the
Debt Securities of such series (except for the obligations to register the
transfer of or exchange or convert the Debt Securities of such series, to
replace temporary or mutilated, destroyed, lost or stolen Debt Securities of
such series, to maintain an office or agency in respect of the Debt Securities
of such series and to hold moneys for payment in trust) or (b) to be released
from the restrictions described under "Merger or Consolidation" and, to the
extent specified in connection with the issuance of such series of Debt
Securities, other covenants applicable to such series of Debt Securities, upon
the deposit with the Trustee (or other qualifying trustee), as trust funds, of
money or, in the case of Debt Securities payable only in U.S. dollars, U.S.
Government Obligations which through the payment of principal and interest in
accordance with their terms will provide money, in an amount certified to be
sufficient to pay at maturity (or upon redemption) the principal of (and
premium, if any) and interest on the Debt Securities of such series. Such a
trust may only be established if, among other things, the Company has
delivered to the Trustee an opinion of counsel (as specified in the Indenture)
to the effect that the holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred. Such opinion, in the case of a defeasance under
clause (a) above, must refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable Federal income tax law occurring
after the date of such Indenture. (Senior and Subordinated Debt Indentures,
Section 10.1)
In the event of any "legal" defeasance of any series of Subordinated Debt
Securities issued thereunder, the Subordinated Debt Indenture provides that
holders of all outstanding Senior Indebtedness will receive written notice of
such defeasance.
The foregoing provisions relating to defeasance may be modified in
connection with the issuance of any series of Debt Securities, and any such
modification will be described in the accompanying Prospectus Supplement.
Modification of the Indenture
Each Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure such Debt Securities, (b) evidence the assumption by a
successor entity of the obligations of the Company, (c) add covenants or
Events of Default for the protection of the holders of any Debt Securities,
(d) establish the form or terms of such Debt Securities of any series, (e)
evidence the acceptance of appointment by a successor trustee or (f) cure any
ambiguity or correct any inconsistency in the Indenture, amend the Indenture
in any other manner which the Company may deem necessary or desirable, if such
action will not adversely affect the interests of the holders of Debt
Securities issued thereunder. (Senior and Subordinated Debt Indentures,
Section 8.1).
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of Debt Securities of all series issued under such Indenture
then outstanding and affected (voting as a single class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the holders of the Debt
Securities of each such series; provided that the Company and the Trustee may
not, without the consent of the holder of each outstanding Debt Security
affected thereby, (a) extend the final maturity of any Debt Security, or
reduce the principal amount thereof, or reduce or alter the method of
computation of any amount payable in respect of interest thereon or extend the
time for payment thereof, or reduce or alter the method of computation of any
amount payable on redemption thereof or extend the time for payment thereof,
or change the currency in which the principal thereof, premium, if any, or
interest thereon is payable, or reduce the amount payable upon acceleration or
alter certain provisions of the Indenture relating to the Debt Securities
issued thereunder not denominated in U.S. dollars, or impair the right to
institute suit for the enforcement of any conversion or any payment on any
Debt Security when due or materially and adversely affect any conversion
rights, (b) reduce the aforesaid percentage in principal amount of Debt
Securities of any series issued under such Indenture, the consent of the
holders of which is required for any such modification. (Senior and
Subordinated Debt Indentures, Section 8.2).
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without the
consent of each holder of Senior Indebtedness then outstanding that would be
adversely affected thereby.
Concerning the Trustees
The Chase Manhattan Bank, N.A. and Chemical Bank are two of a number of
banks with which the Company maintains ordinary banking relationships and with
which the Company maintains credit facilities.
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions
of the Preferred Stock. The particular terms of any series of Preferred Stock
will be described in the applicable Prospectus Supplement. If so indicated in
a Prospectus Supplement, the terms of any such series may differ from the
terms set forth below. The summary of terms of the Company's Preferred Stock
contained in this Prospectus and the applicable Prospectus Supplement does not
purport to be complete and is subject to, and qualified in its entirety by,
the provisions of the Company's Certificate of Incorporation and the
certificate of designations relating to the applicable series of the Preferred
Stock (the "Certificate of Designations"), which will be filed as an exhibit
to or incorporated by reference in the Registration Statement of which this
Prospectus is a part at the time of issuance of such series of the Preferred
Stock.
The Company's Certificate of Incorporation authorizes the issuance of
2,000,000 shares of Preferred Stock, par value of $0.10 per share. The
Company's Preferred Stock may be issued from time to time by the Board of
Directors in one or more series, without stockholder approval. The Board of
Directors is authorized to determine the voting powers (if any), designation,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, for each series of
Preferred Stock that may be issued, and to fix the number of shares of each
such series. Thus, the Board of Directors, without stockholder approval, could
authorize the issuance of Preferred Stock with voting, conversion and other
rights that could adversely affect the voting power and other rights of
holders of Special Stock (including Class A Common Stock) and Class B Common
Stock or other series of Preferred Stock or that could have the effect of
delaying, deferring or preventing a change in control of the Company. The
series of Preferred Stock that have been issued to date are the Step-Up
Convertible Preferred Stock, of which 700,000 shares are currently outstanding
and the Gold-Denominated Preferred Stock (as defined below) of which 515,279
shares are currently outstanding. See "--Step-Up Convertible Preferred Stock
and--Gold-Denominated Preferred Stock."
General
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Preferred Stock of any series (to the extent
such terms are applicable to such Preferred Stock): (i) the specific
designation, number of shares, seniority and purchase price; (ii) any
liquidation preference per share; (iii) any date of maturity; (iv) any
redemption, payment or sinking fund provisions; (v) any dividend rate or rates
and the dates on which any such dividends will be payable (or the method by
which such rates or dates will be determined); (vi) any voting rights; (vii)
the currency or units based on or relating to currencies in which such
Preferred Stock are denominated and/or in which payments will or may be
payable; (viii) the methods by which amounts payable in respect of such
Preferred Stock may be calculated and any commodities, currencies or indices,
or value, rate or price, relevant to such calculation; (ix) whether the
Preferred Stock is convertible or exchangeable and, if so, the securities or
rights into which such Preferred Stock is convertible or exchangeable, the
terms and conditions upon which such conversions or exchanges will be effected
including the initial conversion or exchange prices or rates, the conversion
or exchange period and any other related provisions; (x) the place or places
where dividends and other payments on the Preferred Stock will be payable;
(xi) and any additional voting, dividend, liquidation, redemption, sinking
fund and other rights, preferences, privileges, limitations and restrictions.
The Preferred Stock offered hereby will be issued in one or more series.
The holders of Preferred Stock will have no preemptive rights. Preferred
Stock, upon issuance against full payment of the purchase price therefor, will
be fully paid and nonassessable. Neither the par value nor the liquidation
preference is indicative of the price at which the Preferred Stock will
actually trade on or after the date of issuance. All shares of Preferred Stock
shall be of equal rank with each other, regardless of series.
As described under "Description of Depositary Shares," the Company may,
at its option, elect to offer depositary shares ("Depositary Shares")
evidenced by depositary receipts ("Depositary Receipts"), each representing an
interest (to be specified in the Prospectus Supplement relating to the
particular series of the Preferred Stock) in a share of the particular series
of the Preferred Stock issued and deposited with a Depositary (as defined
below).
Dividends
Holders of shares of Preferred Stock of each series shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds of
the Company legally available for payment, cash dividends, payable at such
dates and at such rates per share per annum as set forth in the applicable
Prospectus Supplement. Such rate may be fixed or variable or both. Each
declared dividend shall be payable to holders of record as they appear on the
stock books of the Company on such record dates determined by the Board of
Directors or a duly authorized committee thereof.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If
dividends on a series of Preferred Stock are noncumulative and if the Board of
Directors fails to declare a dividend in respect of a dividend period with
respect to such series, then holders of such Preferred Stock will have no
right to receive a dividend in respect of such dividend period, and the
Company will have no obligation to pay the dividend for such period, whether
or not dividends are declared payable on any future dividend payment dates.
Unless full cumulative dividends for all past dividend periods on all
outstanding shares of cumulative Preferred Stock and any other series of
capital stock of the Company ranking on a parity with the Preferred Stock have
been paid, or declared and set apart for payment, the Company may not (i)
declare, pay or set apart any amounts for dividends on, or make any other
distribution in cash or other property in respect of, the Class A or Class B
Common Stock or any other stock of the Company ranking junior to the Preferred
Stock as to dividends or distribution of assets upon liquidation, dissolution
or winding up of the affairs of the Company (the Class A or Class B Common
Stock and such other stock being referred to herein as "Junior Stock") other
than a dividend payable solely in Junior Stock, (ii) purchase, redeem or
otherwise acquire for value any shares of Junior Stock, directly or
indirectly, other than as a result of a reclassification of Junior Stock, or
the exchange or conversion of one Junior Stock for or into another Junior
Stock, or other than through the use of proceeds of a substantially
contemporaneous sale of other Junior Stock, or (iii) make any payment on
account of, or set aside money for, a sinking or other like fund for the
purchase, redemption or other acquisition for value of any shares of Junior
Stock. If the funds available for the payment of dividends are insufficient
to pay in full the dividends payable on all outstanding shares of cumulative
Preferred Stock and any other series of capital stock of the Company ranking
on a parity with the Preferred Stock, the total available funds to be paid in
partial dividends on such Preferred Stock and such other series shall be
divided among the Preferred Stock and such other series in proportion to the
aggregate amount of dividends accrued and unpaid with respect to such
Preferred Stock and such other series. Accruals of dividends will not bear
interest.
Convertibility and Exchangeability
The terms, if any, on which shares of Preferred Stock of any series may
be exchanged for or converted (mandatorily or otherwise) into shares of
Preferred Stock or Special Stock (including Class A Common Stock) or other
securities or rights of the Company (including rights to receive payments in
cash or securities based on the value, rate or price of one or more specified
commodities, currencies or indices) will be set forth in the Prospectus
Supplement relating thereto.
Redemption
The terms, if any, on which shares of Preferred Stock of any series may
be redeemed will be set forth in the related Prospectus Supplement.
If fewer than all of the outstanding shares of any series of Preferred
Stock are to be redeemed, the number of shares of such series and the method
of effecting such redemption, whether by lot or pro rata, will be as
determined by the Company (with adjustment to avoid redemption of fractional
shares).
Liquidation
Unless otherwise specified in the applicable Prospectus Supplement, in
the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Company, after payment or provision for payment of the debts and
other liabilities of the Company, the holders of shares of any series of the
Preferred Stock, together with any other Preferred Stock and any other series
of capital stock of the Company ranking on a parity with such series of the
Preferred Stock, will be entitled to receive out of the remaining net assets
of the Company an amount per share as set forth in the related Prospectus
Supplement plus accrued and unpaid dividends before any distribution is made
or set apart for the holders of Junior Stock. If the amounts payable with
respect to such Preferred Stock are not paid in full, the holders of such
Preferred Stock and any stock of the Company on a parity with such Preferred
Stock as to distribution of assets upon the liquidation, dissolution or
winding up of the Company will have the right to share ratably in any
distribution of the remaining assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After payment of
the full amount of the liquidating distribution to which they are entitled,
the holders of such series of Preferred Stock will not be entitled to any
further participation in any distribution of the remaining assets by the
Company. A consolidation or merger of the Company with one or more
corporations or the sale of all or substantially all of the assets of the
Company will not be deemed to be a liquidation, dissolution or winding up of
the Company.
Voting
The Preferred Stock of a series will not be entitled to vote, except as
provided below or in the applicable Prospectus Supplement and as required by
applicable law. Unless otherwise indicated in the Prospectus Supplement
relating to a series of Preferred Stock, each share of such series will be
entitled to one vote on matters which holders of such series are entitled to
vote. Unless otherwise specified in the related Prospectus Supplement, at any
time dividends in an amount equal to six quarterly dividend payments on the
Preferred Stock of such series shall have accrued and be unpaid, holders of
such Preferred Stock shall have the right to a separate class vote together
with the holders of shares of other series of stock of the Company ranking on
a parity with such series of Preferred Stock either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up and upon
which like voting rights have been conferred and are exercisable (such other
series of stock being herein referred to as "Other Voting Stock") to elect two
members to the Board of Directors until dividends on such Preferred Stock have
been paid in full or declared and set apart in trust for payment. In such
case, the Board of Directors will be increased by two directors, and the
holders of Preferred Stock of such series (either alone or with the holders of
Other Voting Stock) will have the exclusive right as members of such class, as
outlined above, to elect two directors at the next annual meeting of
stockholders. Additionally, without the affirmative vote of the holders of a
majority of the shares of Preferred Stock of such series then outstanding,
voting as a separate class, the Company may not (i) create, authorize or issue
any series or class of stock ranking prior to the shares of Preferred Stock of
such series with respect to dividends or distributions of assets upon
liquidation, dissolution or winding up or (ii) change the rights, powers or
preferences or qualifications, limitations or restrictions thereof with
respect to the Preferred Stock of such series if such action would materially
adversely affect such holders.
As more fully described under "Description of Depositary Shares" below,
if the Company elects to issue Depositary Shares, each representing a fraction
of a share of a series of the Preferred Stock, each such Depositary Share
will, in effect, be entitled to such fraction of a vote per Depositary Share.
No Other Rights
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the related Prospectus Supplement, the
Certificate of Incorporation or the applicable certificate of designations or
as otherwise required by law.
Transfer Agent and Registrar
The transfer agent for each series of Preferred Stock will be described
in the related Prospectus Supplement.
Step-Up Convertible Preferred Stock
As of December 31, 1993, the Company had outstanding 700,000 shares of
Step-Up Convertible Preferred Stock, par value $0.10 per share. The Step-Up
Convertible Preferred Stock is represented by Depositary Shares, each of which
represents 0.05 shares of such stock. The Step-Up Convertible Preferred Stock
ranks, as to payment of dividends and distribution upon liquidation, pari
passu with the Company's Special Preference Stock (as defined below) and
Gold-Denominated Preferred Stock (as defined below) and senior to the
Company's Class A Common Stock and Class B Common Stock.
The Depositary Shares have a liquidation preference of $25.00 per share
(equivalent to $500.00 per share of Step-Up Convertible Preferred Stock) and
are convertible at the option of the holder at any time, unless previously
redeemed, into approximately 0.826 shares of Class A Common Stock (equivalent
to a conversion price of $30.28 per share of Class A Common Stock), subject to
adjustment in certain circumstances. Dividends on the Step-Up Convertible
Preferred Stock are cumulative and are payable quarterly commencing November
1, 1993 in an amount equivalent to $1.25 per annum per Depositary Share
through August 1, 1996 and thereafter in an amount equivalent to $1.75 per
annum per Depositary Share until redemption or conversion.
The Depositary Shares are not redeemable prior to August 1, 1996.
Thereafter and prior to August 1, 1999, the Depositary Shares are redeemable
at the option of the Company, in whole or in part, for such number of shares
of Class A Common Stock as are issuable at a conversion rate of approximately
0.826 shares of Class A Common Stock for each Depositary Share, subject to
adjustment in certain circumstances. The Company may exercise this option
only if the trading prices of the Class A Common Stock as measured for a
specified number of trading days prior to public notice of the redemption have
exceeded $38.44 per share, subject to adjustment in certain circumstances. On
and after August 1, 1999, the Depositary Shares are redeemable, in whole or in
part, at the option of the Company, at a redemption price of $25.00 per
Depositary Share plus accrued and unpaid dividends. The Company may, at its
option, subject to certain exceptions, pay the redemption price in cash, Class
A Common Stock or any combination thereof.
The Step-Up Convertible Preferred Stock has limited voting rights
triggered by the failure of the Company to pay dividends in an amount equal to
six full quarterly dividends or by the Company's proposed amendment to its
Certificate of Incorporation so as to adversely affect the rights of holders
of Step-Up Convertible Preferred Stock. Voting rights are not triggered upon
amendment to the Certificate of Incorporation to authorize other series of
stock of the Company ranking on a parity with or junior to the Step-Up
Convertible Preferred Stock as to dividends or rights upon liquidation.
Gold-Denominated Preferred Stock
As of December 31, 1993, FCX had outstanding 300,000 shares of
Gold-Denominated Preferred Stock (referred to herein as "Series I") and on
January 21, 1994 FCX issued 215,279 shares of Gold-Denominated Preferred
Stock, Series II (collectively, "Gold-Denominated Preferred Stock"). The
Gold-Denominated Preferred Stock is represented by Depositary Shares, each of
which represents 0.05 shares of such stock. The Gold-Denominated Preferred
Stock ranks, as to the payment of dividends and distribution upon liquidation
pari passu with the Special Preference Stock and the Step-Up Convertible
Preferred Stock and senior to FCX's Class A and Class B Common Stock.
The Depositary Shares have a liquidation preference equal to the dollar
equivalent value of 0.10 ounces of gold per Depositary Share plus accrued and
unpaid dividends. Dividends on the Gold-Denominated Preferred Stock are
cumulative and are payable quarterly, in the case of Gold-Denominated
Preferred Stock, Series I, commencing November 1, 1993 in an amount equal to
the dollar equivalent value of 0.000875 ounces of gold per Depositary Share
per quarter, and, in the case of Gold-Denominated Preferred Stock, Series II,
commencing May 1, 1994 in an amount equal to the dollar equivalent value of
0.0008125 ounces of gold per Depositary Share per quarter.
The Depositary Shares are subject to mandatory redemption, out of funds
legally available therefor, on August 1, 2003 and on February 1, 2006,
respectively, at an amount equal to the dollar equivalent value of 0.10 ounces
of gold per Depositary Share plus accrued and unpaid dividends. The Depositary
Shares are not subject to redemption at the option of FCX, except in limited
circumstances. FCX does not have the right to make any mandatory or optional
redemption of any Depositary Shares unless full cumulative dividends for all
past dividend periods shall have been paid or declared and set aside for
payment upon all Depositary Shares and all other outstanding shares of stock
of FCX ranking, as to dividends, on a parity with the Depositary Shares. For
purposes of this discussion, the "dollar equivalent value" of a specified
number of ounces of gold means that number of ounces multiplied by a reference
price determined by taking the average of the London P.M. gold fixing price
for an ounce of gold on a specified number of days prior to the date of
determination.
The Gold-Denominated Preferred Stock has limited voting rights triggered
by the failure of FCX to pay dividends in an amount equal to six full
quarterly dividends or by any amendment to FCX's Certificate of Incorporation
that would adversely affect the rights of holders of Gold-Denominated
Preferred Stock or create, authorize or issue any series or class of stock
ranking senior to the shares of Gold-Denominated Preferred Stock with respect
to dividends or distribution of assets upon liquidation, dissolution or
winding up of FCX. Voting rights are not triggered upon amendment to the
Certificate of Incorporation to authorize other series of stock of FCX ranking
on a parity with or junior to the Gold-Denominated Preferred Stock as to
dividends or rights upon liquidation, dissolution or winding up.
DESCRIPTION OF SPECIAL STOCK AND CLASS B COMMON STOCK
Special Stock (including Class A Common Stock) of the Company is offered
hereby only in connection with the conversion or exchange of Debt Securities
or Preferred Stock or upon the exercise of Warrants offered hereby. The Board
of Directors has the power to fix various terms with respect to each series of
Special Stock, including voting powers, designations, preferences and other
rights, qualifications, limitations, restrictions and redemption, conversion
or exchangeability provisions.
Class A Common Stock and Class B Common Stock
All authorized shares of Class B Common Stock are held by FTX. All
outstanding shares of Class A Common Stock are publicly held (except for
1,547,700 such shares which are held by FTX as of December 31, 1993). The
Class A Common Stock is listed on the New York Stock Exchange; the Class B
Common Stock is not listed on any securities exchange. On May 1, 1993, all
provisions of Class A Common Stock that varied from those of Class B Common
Stock ceased to have effect.
Each outstanding share of Class A Common Stock and Class B Common Stock
is entitled to one vote on all matters submitted to a vote of stockholders.
There is no cumulative voting. The Class A Common Stock and the Class B
Common Stock vote as a single class.
The holders of outstanding shares of Class A Common Stock and Class B
Common Stock are entitled to receive dividends out of assets legally available
therefor at such times and in such equal per share amounts as the Board of
Directors may from time to time determine, and upon liquidation, dissolution
or winding up of the Company, the holders of Class A Common Stock and Class B
Common Stock are entitled to receive on an equal per share basis the assets of
the Company which are legally available for distribution, after payment of all
debts and other liabilities and payment of dividends and liquidation
preferences in respect of any other stock of the Company ranking senior to
Class A Common Stock and Class B Common Stock as to such payments. The shares
of Class A Common Stock and Class B Common Stock are neither redeemable nor
convertible, and the holders thereof have no preemptive or subscription rights
to purchase any securities of the Company. The outstanding shares of Class A
Common Stock and Class B Common Stock are, and the shares of Class A Common
Stock to be offered pursuant to any Prospectus Supplement hereto will be,
validly issued, fully paid and nonassessable.
The transfer agent and registrar for the Class A Common Stock is Mellon
Securities Trust Company.
Special Preference Stock
As of December 31, 1993, the Company had outstanding 26,400,000 shares of
7% Convertible Exchangeable Special Preference Stock, par value $0.10 per
share (the "Special Preference Stock"), a series of Special Stock. The Special
Preference Stock is represented by depositary shares, each of which represents
2 16/17 shares of Special Preference Stock. The Special Preference Stock is
redeemable at the option of the Company, in whole or in part, at prices
declining to $25 per depositary share, commencing on August 1, 1995. The
Special Preference Stock ranks, as to payments of dividends and distributions
upon liquidation, pari passu with the Step-Up Convertible Preferred Stock and
the Gold-Denominated Preferred Stock and prior to Class A and Class B Common
Stock. Holders of shares of Special Preference Stock will be entitled to
receive cumulative cash dividends at an annual rate equivalent to $0.595 per
share ($1.75 per Depositary Share) when and as and if declared by the Board of
Directors of the Company, which dividends are payable quarterly. After full
cumulative dividends on Special Preference Stock for all past and current
quarterly dividend periods have been paid in full, the Special Preference
Stock will not be entitled to participate with the Class A and Class B Common
Stock in any further distributions by the Company (except upon liquidation,
dissolution or winding up of the Company). In the event of any such
liquidation, dissolution or winding up, after payment or provision for payment
of the debts and other liabilities of the Company, the holders of Special
Preference Stock will be entitled to receive out of the remaining net assets
of the Company $8.50 per share ($25 per Depositary Share) in cash plus accrued
and unpaid dividends before any distribution is made or set apart for the
holders of the Class A and Class B Common Stock or any other stock of the
Company ranking junior to the Special Preference Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding up of the
affairs of the Company.
Each depositary share representing Special Preference Stock is
convertible at the option of the holder at any time, unless previously
redeemed, into approximately 1.009 shares of Class A Common Stock (equivalent
to a conversion price of $24.77 per share of Class A Common Stock), subject to
adjustment in certain circumstances. The depositary shares are exchangeable in
whole at the option of the Company on any quarterly dividend payment date,
commencing August 1, 1994, for the Company's 7% Convertible Subordinated
Debentures due 2007 (the "Debentures") at a rate of $25.00 principal amount of
Debentures for each depositary share. The Debentures, if issued, will be
convertible at the option of the holder at any time, unless previously
redeemed, into Class A Common Stock at the conversion price for depositary
shares for which the Debentures have previously been exchanged, subject to
adjustments in certain circumstances.
The Special Preference Stock has limited voting rights triggered by the
failure of the Company to pay dividends in an amount equal to six full
quarterly dividends or by the Company's proposed amendment to its Certificate
of Incorporation so as to adversely affect the rights of holders of Special
Preference Stock. Voting rights are not triggered upon amendment to the
Certificate of Incorporation to authorize other series of stock of the
Company, whether ranking senior to, on a parity with or junior to the Special
Preference Stock as to dividends or rights upon liquidation.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below) and of the
Depositary Shares and Depositary Receipts does not purport to be complete and
is subject to, and qualified in its entirety by reference to, the form of
Deposit Agreement and form of Depositary Receipts relating to each series of
the Preferred Stock or Special Stock which will be filed with the Commission
as an exhibit to the Registration Statement of which this Prospectus is a
part.
General
The Company may, at its option, elect to have shares of Preferred Stock
or Special Stock be represented by Depositary Shares. The shares of any
series of the Preferred Stock or Special Stock underlying the Depositary
Shares will be deposited under a separate deposit agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company (the "Depositary"). The Prospectus Supplement relating to a series of
Depositary Shares will set forth the name and address of the Depositary.
Subject to the terms of the Deposit Agreement, each owner of a Depositary
Share will be entitled, in proportion to the applicable interest in the number
of shares of Preferred Stock or Special Stock underlying such Depositary
Share, to all the rights and preferences of the Preferred Stock or Special
Stock underlying such Depositary Share (including dividend, voting,
redemption, conversion, exchange and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement, each of which will represent the applicable
interest in a number of shares of a particular series of the Preferred Stock
or Special Stock described in the applicable Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, a holder of
Depositary Shares is not entitled to receive the shares of Preferred Stock or
Special Stock underlying the Depositary Shares.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock or Special Stock to
the record holders of Depositary Shares representing such Preferred Stock or
Special Stock in proportion to the numbers of such Depositary Shares owned by
such holders on the relevant record date.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto or the Depositary may, with the approval of the Company, sell
such property and distribute the net proceeds from such sale to such holders.
The Deposit Agreement also contains provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
Preferred Stock or Special Stock shall be made available to holders of
Depositary Shares.
Conversion and Exchange
If any Preferred Stock or Special Stock underlying the Depositary Shares
is subject to provisions relating to its conversion or exchange as set forth
in the Prospectus Supplement relating thereto, each record holder of
Depositary Shares will have the right or obligation to convert or exchange
such Depositary Shares into other securities of the Company or rights or
payments (including rights to receive payments in cash or securities based on
the value, rate or price of one or more specified commodities, currencies or
indices) pursuant to the terms thereof.
Redemption of Depositary Shares
If Preferred Stock or Special Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole or
in part, of the Preferred Stock or Special Stock held by the Depositary. The
redemption price per Depositary Share will be equal to the aggregate
redemption price payable with respect to the number of shares of Preferred
Stock or Special Stock underlying the Depositary Shares. Whenever the Company
redeems Preferred Stock or Special Stock from the Depositary, the Depositary
will redeem as of the same redemption date a proportionate number of
Depositary Shares representing the shares of Preferred Stock or Special Stock
that were redeemed. If less than all the Depositary Shares are to be redeemed,
the Depositary Shares to be redeemed will be selected by lot or pro rata as
may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
redemption price payable upon such redemption. Any funds deposited by the
Company with the Depositary for any Depositary Shares which the holders
thereof fail to redeem shall be returned to the Company after a period of two
years from the date such funds are so deposited.
Voting
Upon receipt of notice of any meeting or action in lieu of any meeting at
which the holders of any shares of Preferred Stock or Special Stock underlying
the Depositary Shares are entitled to vote, the Depositary will mail the
information contained in such notice to the record holders of the Depositary
Shares relating to such Preferred Stock or Special Stock. Each record holder
of such Depositary Shares on the record date (which will be the same date as
the record date for the Preferred Stock or Special Stock) will be entitled to
instruct the Depositary as to the exercise of the voting rights pertaining to
the number of shares of Preferred Stock or Special Stock underlying such
holder's Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the number of shares of Preferred Stock or Special Stock
underlying such Depositary Shares in accordance with such instructions, and
the Company will agree to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so.
Amendment of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary, provided, however, that any amendment
which materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the Depositary Shares
then outstanding.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental
charges that arise solely from the existence of the depositary arrangements.
The Company will pay charges of the Depositary in connection with the initial
deposit of the Preferred Stock or Special Stock and any exchange or redemption
of the Preferred Stock or Special Stock. Holders of Depositary Shares will
pay all other transfer and other taxes and governmental charges, and, in
addition, such other charges as are expressly provided in the Deposit
Agreement to be for their accounts.
Miscellaneous
The Company, or at the option of the Company, the Depositary, will
forward to the holders of Depositary Shares all reports and communications
from the Company which the Company is required to furnish to the holders of
Preferred Stock or Special Stock.
Neither the Depositary nor the Company will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and
the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Share or
Preferred Stock or Special Stock unless satisfactory indemnity has been
furnished. The Company and the Depositary may rely upon written advice of
counsel or accountants, or information provided by persons presenting
Preferred Stock or Special Stock for deposit, holders of Depositary Shares or
other persons believed to be competent and on documents believed to be
genuine.
Resignation and Removal of Depositary; Termination of the Deposit Agreement
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the
Depositary, any such resignation or removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary will be appointed by the Company within 60 days
after delivery of the notice of resignation or removal. The Deposit Agreement
may be terminated at the direction of the Company or by the Depositary if a
period of 90 days shall have expired after the Depositary has delivered to the
Company written notice of its election to resign and a successor depositary
shall not have been appointed. Upon termination of the Deposit Agreement, the
Depositary will discontinue the transfer of Depositary Receipts, will suspend
the distribution of dividends to the holders thereof, and will not give any
further notices (other than notice of such termination) or perform any further
acts under the Deposit Agreement except that the Depositary will continue to
deliver Preferred Stock or Special Stock certificates, together with such
dividends and distributions and the net proceeds of any sales of rights,
preferences, privileges or other property in exchange for Depositary Receipts
surrendered. Upon request of the Company, the Depositary shall deliver all
books, records, certificates evidencing Preferred Stock or Special Stock,
Depositary Receipts and other documents relating to the subject matter of the
Deposit Agreement to the Company.
DESCRIPTION OF WARRANTS
General
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), as well as other types of Warrants. Warrants may
be issued independently or together with any Debt Securities or Preferred
Stock and may be attached to or separate from such Debt Securities or
Preferred Stock. Each series of Warrants will be issued under a separate
warrant agreement (each a "Warrant Agreement") to be entered into between the
Company and a warrant agent ("Warrant Agent"). The following sets forth
certain general terms and provisions of the Warrants offered hereby. Further
terms of the Warrants and the applicable Warrant Agreement are set forth in
the applicable Prospectus Supplement.
Debt Warrants
The applicable Prospectus Supplement will describe the following terms of
the Debt Warrants in respect of which this Prospectus is being delivered: (1)
the title of such Debt Warrants; (2) the aggregate number of such Debt
Warrants; (3) the price or prices at which such Debt Warrants will be issued;
(4) the currency or currencies, including composite currencies, in which the
price of such Debt Warrants may be payable; (5) the designation, aggregate
principal amount and terms of the Debt Securities purchasable upon exercise of
such Debt Warrants; (6) the price at which and currency or currencies,
including composite currencies, in which the Debt Securities purchasable upon
exercise of such Debt Warrants may be purchased; (7) the date on which the
right to exercise such Debt Warrants shall commence and the date on which such
right shall expire; (8) if applicable, the minimum or maximum amount of such
Debt Warrants which may be exercised at any one time; (9) if applicable, the
designation and terms of the Debt Securities or Preferred Stock with which
such Debt Warrants are issued and the number of such Debt Warrants issued with
each such Debt Security or Preferred Stock; (10) if applicable, the date on
and after which such Debt Warrants and the related Debt Securities or
Preferred Stock will be separately transferable; (11) information with respect
to book-entry procedures, if any; (12) if applicable, a discussion of certain
United States Federal income tax considerations; and (13) any other terms of
such Debt Warrants, including terms, procedures and limitations relating to
the exchange and exercise of such Debt Warrants.
Other Warrants
The Company may issue other Warrants. The applicable Prospectus
Supplement will describe the following terms of any such other Warrants in
respect of which this Prospectus is being delivered: (1) the title of such
Warrants; (2) the aggregate number of such Warrants; (3) the price or prices
at which such Warrants will be issued; (4) the currency or currencies,
including composite currencies, in which the price of such Warrants may be
payable; (5) the securities, which may include Preferred Stock or Special
Stock (including Class A Common Stock) or other rights (including rights to
receive payments in cash or securities based on the value, rate or price of
one or more specified commodities, currencies or indices), purchasable upon
exercise of such Warrants; (6) the price at which and the currency or
currencies, including composite currencies, in which the securities
purchasable upon exercise of such Warrants may be purchased; (7) the date on
which the right to exercise such Warrants shall commence and the date on which
such right shall expire; (8) if applicable, the minimum or maximum amount of
such Warrants which may be exercised at any one time; (9) if applicable, the
designation and terms of the Debt Securities or Preferred Stock with which
such Warrants are issued and the number of such Warrants issued with each such
Debt Security or share of Preferred Stock; (10) if applicable, the date on and
after which such Warrants and the related Debt Securities or Preferred Stock
will be separately transferable; (11) information with respect to book-entry
procedures, if any; (12) if applicable, a discussion of certain United
States Federal income tax considerations; and (13) any other terms of such
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Warrants.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES AND
BEARER DEBT WARRANTS
Except as may otherwise be provided in the Prospectus Supplement
applicable thereto, in compliance with United States federal income tax laws
and regulations, Debt Securities that are Bearer Securities (including Bearer
Securities in global form) and Debt Warrants that are Bearer Warrants will not
be offered, sold, resold or delivered, directly or indirectly, in the United
States or its possessions or to United States persons (as defined below),
except as otherwise permitted by United States Treasury Regulations Section
1.163-5(c)(2)(i)(D). Any underwriters, agents and dealers participating in
the offerings of such Bearer Securities or such Bearer Warrants, directly or
indirectly, must agree that (i) they will not, in connection with the
original issuance of any such Bearer Securities or during the period set forth
in the Prospectus Supplement following the original issuance of such Bearer
Securities, offer, sell, resell or deliver, directly or indirectly, any such
Bearer Securities in the United States or its possessions or to United States
persons (other than as permitted by the applicable Treasury Regulations
described above) and (ii) they will not, at any time, offer, sell, resell or
deliver, directly or indirectly, any such Bearer Warrants in the United States
or its possessions or to United States persons (other than as permitted by the
applicable Treasury Regulations described above). In addition, any such
underwriters, agents and dealers must have procedures reasonably designed to
ensure that its employees or agents who are directly engaged in selling such
Bearer Securities or such Bearer Warrants are aware of the above restrictions
on the offering, sale, resale or delivery of such Bearer Securities or such
Bearer Warrants. Moreover, such Bearer Securities (other than temporary
global Debt Securities) and any coupons appertaining thereto will not be
delivered in definitive form unless the Company has received a signed
certificate in writing (or an electronic certificate described in United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(ii)) stating that
on such date (i) such Bearer Security is owned by a person that is not a
United States person or, if such person is a United States person, that it is
a financial institution (as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v)) purchasing for its own account or the account of a
customer, or (ii) such Bearer Security is owned by a financial institution
(described above) for purposes of resale during the period set forth in the
Prospectus Supplement following the original issuance of such Bearer Security
and has not been acquired for the purposes of resale directly or indirectly
within the United States or to United States persons (other than as permitted
by the applicable Treasury Regulations described above). Such Bearer Warrants
will not be issued in definitive form.
Such Bearer Securities (other than temporary global Debt Securities) and
any coupons appertaining thereto will bear a legend substantially to the
following effect: "Any United States person who holds this obligation will be
subject to limitations under the United States federal income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
United States Internal Revenue Code." The sections referred to in such legend
provide that a United States person (other than a United States financial
institution described above or a United States person holding through such a
financial institution) who holds such Bearer Security or coupon will not be
allowed to deduct any loss realized on the sale, exchange or redemption of
such Bearer Security and any gain (which might otherwise be characterized as
capital gain) recognized on such sale, exchange or redemption will be treated
as ordinary income.
As used herein, "United States person" means a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby in four ways:
(i) through agents, (ii) through underwriters, (iii) through dealers and (iv)
directly to other purchasers, or any combination of the foregoing.
Offers to purchase Securities may be solicited by agents designated by
the Company from time to time. Any such agent, who may be deemed to be an
underwriter as the term is defined in the Securities Act, involved in the
offer or sale of any Securities will be named, and any commissions payable by
the Company to such agent set forth, in the Prospectus Supplement relating to
such Securities. Unless otherwise indicated in the Prospectus Supplement, any
such agent will be acting on a best efforts basis for the period of its
appointment. Agents may be entitled under agreements which may be entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If any underwriters are utilized in the sale of any Securities, the
Company will enter into an underwriting agreement with such underwriters at
the time of such sale to them and the names of the underwriters and the terms
of the transaction will be set forth in the Prospectus Supplement relating to
such Securities, which will be used by the underwriters to make resales of
such Securities. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If a dealer is utilized in the sale of any Securities, the Company will
sell such Securities to the dealer, as principal. The dealer may then resell
such Securities to the public at varying prices to be determined by such
dealer at the time of resale. Dealers may be entitled under agreements which
may be entered into with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may
be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain purchasers to
purchase any Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject to only those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission
payable for solicitation of such offers.
LEGAL MATTERS
The validity of the Securities will be passed upon for the Company by
Davis Polk & Wardwell.
EXPERTS
The audited financial statements and schedules of the Company for
December 31, 1992 and 1991 and for each of the three years in the three year
period ended December 31, 1992 incorporated in this Prospectus by reference to
the Company's Annual Report on Form 10-K for the year ended December 31, 1992
(as amended June 25, 1993) and the audited financial statements of the Company
for December 31, 1993 and 1992 and for each of the three years in the three
year period ended December 31, 1993 incorporated by reference in this
Prospectus by reference to the Company's Current Report on Form 8-K dated
March 2, 1994 have been audited by Arthur Andersen & Co., independent public
accountants as indicated in their reports with respect thereto and are
incorporated herein by reference in reliance upon the authority of said firm
as experts in accounting and auditing in giving said reports. Future
audited financial statements and schedules of the Company and the reports
thereon of the Company's independent public accountants also will be
incorporated by reference in this Prospectus in reliance upon the authority of
those accountants as experts in giving those reports to the extent said firm
has audited those financial statements and consented to the use of their
reports thereon.
The audited financial statements of Rio Tinto Minera, S.A. as of and for
the year ended December 31, 1992 incorporated in this Prospectus by reference
to the Company's Current Report on Form 8-K dated April 13, 1993, as amended
on August 5, 1993, have been audited by Coopers & Lybrand, S.A. as indicated
in their Report of the Auditors with respect thereto and are incorporated
herein in reliance upon the authority of said firm as experts in accounting
and auditing in giving said report.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution*
The following are the estimated expenses of the issuance and
distribution of the securities being registered, all of which will be paid by
the Registrant.
Registration fee....................... $120,691
Blue Sky fees and expenses.............
Rating agency fees.....................
Printing expenses......................
Legal fees and expenses................
Accounting fees and expenses...........
Trustees' fees and expenses............
Listing................................
Miscellaneous.......................... --------
Total.................................. $
========
- ----------
* All amounts are estimated except for the Commission registration fee.
Item 15. Indemnification of Officers and Directors
Section 145 of the General Corporation Law of Delaware empowers the
Company to indemnify, subject to the standards therein prescribed, any person
in connection with any action, suit or proceeding brought or threatened by
reason of the fact that such person is or was a director, officer, employee or
agent of the Company or is or was serving as such with respect to another
corporation or other entity at the request of the Company. Article XXV of the
Company's By-Laws and Article NINTH of the Company's Certificate of
Incorporation provide that each person who was or is made a party to (or is
threatened to be made a party to) or is otherwise involved in any action, suit
or proceeding by reason of the fact that such person is or was a director,
officer, employee or agent of the Company shall be indemnified and held
harmless by the Company to the fullest extent authorized by the General
Corporation Law of Delaware against all expenses, liability and loss
(including without limitation attorney's fees, judgments, fines and amounts
paid in settlement) reasonably incurred by such person in connection
therewith. The rights conferred by Article XXV and Article NINTH, as the case
may be, are contractual rights and include the right to be paid by the Company
the expenses incurred in defending such action, suit or proceeding in advance
of the final disposition thereof.
Article NINTH of the Company's Certificate of Incorporation provides that
the Company's directors will not be personally liable to the Company or its
stockholders for monetary damages resulting from breaches of their fiduciary
duty as directors except (a) for any breach of the duty of loyalty to the
Company or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the General Corporation Law of Delaware, which makes directors
liable for unlawful dividends or unlawful stock repurchases or redemptions or
(d) for transactions from which directors derive improper personal benefit.
The Company has an insurance policy insuring the Company and its
directors and officers against certain liabilities, including liabilities
under the Securities Act of 1933.
Item 16. Exhibits
1 --Form of Underwriting Agreement.*
4.a --Form of Senior Indenture dated as of ________ __, 1994 between the
Company and The Chase Manhattan Bank, N.A., Trustee. Incorporated
by reference to Exhibit 4-a of FCX's Registration Statement on
Form S-3, as amended, as filed with the Commission on July 21st,
1993 (Registration No. 33-63376).
4.b --Form of Subordinated Indenture dated as of ________ __, 1994
between the Company and Chemical Bank, Trustee. Incorporated by
reference to Exhibit 4-b of FCX's Registration Statement on Form
S-3, as amended, as filed with the Commission on July 21st, 1993
(Registration No. 33-63376).
4.c --Form of Senior Note. Incorporated by reference to Exhibit 4-c of
FCX's Registration Statement on Form S-3, as amended, as filed
with the Commission on July 21st, 1993 (Registration No.
33-63376).
4.d --Form of Senior Debenture. Incorporated by reference to Exhibit 4-d
of FCX's Registration Statement on Form S-3, as amended, as filed
with the Commission on July 21st, 1993 (Registration No.
33-63376).
4.e --Form of Subordinated Note. Incorporated by reference to Exhibit
4-e of FCX's Registration Statement on Form S-3, as amended, as
filed with the Commission on July 21st, 1993 (Registration No.
33-63376).
4.f --Form of Subordinated Debenture. Incorporated by reference to
Exhibit 4-f of FCX's Registration Statement on Form S-3, as
amended, as filed with the Commission on July 21st, 1993
(Registration No. 33-63376).
4.g --Form of Debt Warrant Agreement. Incorporated by reference to
Exhibit 4-g of FCX's Registration Statement on Form S-3, as
amended, as filed with the Commission on July 21st, 1993
(Registration No. 33-63376).
4.h --Composite Copy of the Certificate of Incorporation of the Company,
as amended.
4.i --Form of Certificate of Designations relating to the Preferred
Stock. Incorporated by reference to Exhibit 4-i of FCX's
Registration Statement on Form S-3, as amended, as filed with the
Commission on July 21st, 1993 (Registration No. 33-63376).
4.j --Form of Stock Certificate for the Class A Common Stock.
Incorporated by reference to Exhibit 7 to the Registration
Statement on Form 8-A of Freeport-McMoRan Copper Company, Inc.
dated April 28, 1988 (SEC File No. 1-9916).
4.k --Form of Deposit Agreement. Incorporated by reference to Exhibit
4-k of FCX's Registration Statement on Form S-3, as amended, as
filed with the Commission on July 21st, 1993 (Registration No.
33-63376).
4.l --Form of Depositary Receipt. Incorporated by reference to Exhibit
4-l of FCX's Registration Statement on Form S-3, as amended, as
filed with the Commission on July 21st, 1993 (Registration No.
33-63376).
4.m --By-Laws of the Company, as amended. Incorporated by reference to
Exhibit 10.3 of the Annual Report on Form 10-K of FCX for the
fiscal year ended December 31, 1992.
5 --Opinion of Davis Polk & Wardwell, as to the legality of the
Securities to be issued.*
12 --Computation of Ratio of Earnings to Fixed Charges.
24.a --Consent of Arthur Andersen & Co.
24.b --Consent of Davis Polk & Wardwell included as part of Exhibit 5.*
24.c --Consent of Coopers & Lybrand, S.A.
25 --Powers of Attorney.
26.a --Statement of Eligibility of The Chase Manhattan Bank, N.A.,
Trustee.*
26.b --Statement of Eligibility of Chemical Bank, Trustee.*
- ---------------
* To be filed by Amendment.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) 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; and
(iii) 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 paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (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 the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the 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) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 15 (other than
the provisions relating to insurance), or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission 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 the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant 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.
(6) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(7) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for the filing of Form S-3 and has duly caused this
Registration Statement or Amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New Orleans and the
State of Louisiana, on the 5th day of March, 1994.
FREEPORT-McMoRan COPPER & GOLD INC.
By: /s/ JAMES R. MOFFETT
-------------------------------
James R. Moffett
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendment thereto has been signed below by the
following persons in the capacities indicated on the 5th day of March, 1994:
Signature Title
--------- -----
/s/ JAMES R. MOFFETT Chairman of the Board
---------------------- and Director
James R. Moffett
* President, Chief Executive
---------------------- Officer and Director
George A. Mealey (Principal Executive Officer)
* Vice President
---------------------- (Principal Financial Officer)
Stephen M. Jones
* Controller
---------------------- (Principal Accounting Officer)
C. Donald Whitmire
* Director
----------------------
Leland O. Erdahl
* Director
----------------------
Ronald Grossman
* Director
----------------------
Rene L. Latiolais
* Director
----------------------
Wolfgang F. Siegel
* Director
----------------------
Elwin E. Smith
* Director
----------------------
Eiji Umene
*By: /s/ JAMES R. MOFFETT
----------------------
James R. Moffett
(Attorney-in-fact pursuant to powers
of attorney which are filed as Exhibits
to this Registration Statement)
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
- ------- ----------- ----------
1 Form of Underwriting Agreement.*
4.a --Form of Senior Indenture dated as of ________ __, 1994
between the Company and The Chase Manhattan Bank, N.A., Trustee.
Incorporated by reference to Exhibit 4-a of FCX's Registration
Statement on Form S-3, as amended, as filed with the Commission
on July 21st, 1993 (Registration No. 33-63376).
4.b --Form of Subordinated Indenture dated as of ________ __,
1994 between the Company and Chemical Bank, Trustee. Incorporated
by reference to Exhibit 4-b of FCX's Registration Statement on
Form S-3, as amended, as filed with the Commission on July 21st,
1993 (Registration No. 33-63376).
4.c --Form of Senior Note. Incorporated by reference to Exhibit
4-c of FCX's Registration Statement on Form S-3, as amended, as
filed with the Commission on July 21st, 1993 (Registration No.
33-63376).
4.d --Form of Senior Debenture. Incorporated by reference to
Exhibit 4-d of FCX's Registration Statement on Form S-3, as
amended, as filed with the Commission on July 21st, 1993
(Registration No. 33-63376).
4.e --Form of Subordinated Note. Incorporated by reference to
Exhibit 4-e of FCX's Registration Statement on Form S-3, as
amended, as filed with the Commission on July 21st, 1993
(Registration No. 33-63376).
4.f --Form of Subordinated Debenture. Incorporated by reference
to Exhibit 4-f of FCX's Registration Statement on Form S-3, as
amended, as filed with the Commission on July 21st, 1993
(Registration No. 33-63376).
4.g --Form of Debt Warrant Agreement. Incorporated by reference
to Exhibit 4-g of FCX's Registration Statement on Form S-3, as
amended, as filed with the Commission on July 21st, 1993
(Registration No. 33-63376).
4.h --Composite Copy of the Certificate of Incorporation of the
Company, as amended.
4.i --Form of Certificate of Designations relating to the
Preferred Stock. Incorporated by reference to Exhibit 4-i of
FCX's Registration Statement on Form S-3, as amended, as filed
with the Commission on July 21st, 1993 (Registration No.
33-63376).
4.j --Form of Stock Certificate for the Class A Common Stock.
Incorporated by reference to Exhibit 7 to the Registration
Statement on Form 8-A of Freeport-McMoRan Copper Company, Inc.
dated April 28, 1988 (SEC File No. 1-9916).
4.k --Form of Deposit Agreement. Incorporated by reference to
Exhibit 4-k of FCX's Registration Statement on Form S-3, as
amended, as filed with the Commission on July 21st, 1993
(Registration No. 33-63376).
4.l --Form of Depositary Receipt. Incorporated by reference to
Exhibit 4-k of FCX's Registration Statement on Form S-3, as
amended, as filed with the Commission on July 21st, 1993
(Registration No. 33-63376).
4.m --By-Laws of the Company, as amended. Incorporated by
reference to Exhibit 10.3 of the Annual Report on Form 10-K
of FCX for the fiscal year ended December 31, 1992.
5 --Opinion of Davis Polk & Wardwell, as to the legality of
the Securities to be issued.*
12 --Computation of Ratio of Earnings to Fixed Charges.
24.a --Consent of Arthur Andersen & Co.
24.b --Consent of Davis Polk & Wardwell included as part of
Exhibit 5.*
24.c --Consent of Coopers & Lybrand, S.A.
25 --Powers of Attorney.
26.a --Statement of Eligibility of The Chase Manhattan Bank,
N.A., Trustee.*
26.b --Statement of Eligibility of Chemical Bank, Trustee.*
- ----------------
* To be filed by amendment
Exhibit 4.h
COMPOSITE COPY
OF THE
CERTIFICATE OF INCORPORATION
OF
FREEPORT-McMoRan COPPER & GOLD INC.
FIRST: The name of the corporation is FREEPORT-
McMoRan COPPER & GOLD INC.
SECOND: The address of the registered office of
the corporation in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of
New Castle, and the name of its registered agent at
such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes
to be conducted or promoted are:
1. To enter into, maintain, operate and carry on
the business of mining in all its branches in the
United States of America and in any other part of the
world, and to quarry, mine, pump, extract, remove and
otherwise produce, and to grind, treat, concentrate,
smelt, refine, dress and otherwise prepare, produce,
buy, sell and in every way deal in and with minerals,
ores, concentrates and other mineral and chemical
substances of all kinds, metallic and nonmetallic,
including, but without in any way limiting the
generality of the foregoing, antimony, barite,
chromium, coal, cobalt, copper, gas, gold, iron, lead,
molybdenum, nickel, oil, potash, salt, silica, sand,
silver, sulphur, tantalum, tin, titanium, tungsten,
uranium, zinc and ores and concentrates thereof.
2. To purchase, locate, denounce, lease or
otherwise acquire, take, hold and own, and to assign,
transfer, lease, exchange, mortgage, pledge, sell or
otherwise dispose of and in any manner deal with and
contract with reference to, mines, wells, mining
claims, mining rights, mineral lands, mineral leases,
mineral rights, royalty rights, water rights, timber
lands, timber and timber rights, and real and personal
property of every kind, and any interest therein, in
the United States of America or in any other country,
to prospect, explore, work, exercise, develop, manage,
operate and turn the same to account, and to engage in
mining, geological, economic, feasibility,
development, and other studies in the United States of
America or in any other country.
3. To make, manufacture, treat, process,
produce, buy, sell and in every way deal in and with
minerals, ores, concentrates and chemicals of every
description, organic or inorganic, natural or
synthetic, in the form of raw materials, intermediate
or finished products and any other related products
and substances whatsoever related thereto or of a like
or similar nature or which may enter into the
manufacture of any of the foregoing or be used in
connection therewith, and derivatives and by-products
derived from the manufacture thereof and products to
be made therefrom and generally without limitation by
reference of the foregoing, all other products and
substances of every kind, character and description.
4. To engage in any lawful act or activity,
whether or not related to the foregoing, for which
corporations may be organized under the General
Corporation Law of Delaware.
FOURTH:
I. The total number of shares of all classes of
capital stock that the corporation shall have
authority to issue is 312,000,000 shares, with a par
value of $0.10 per share. Of such shares, 110,000,000
shares shall consist of Special Stock, 200,000,000
shares shall consist of Class B Common Stock and
2,000,000 shares shall consist of Preferred Stock.
II. Special Stock.
-------------
A. Class A Common Stock
--------------------
Within the limits of the authorized
Special Stock, the Corporation shall
have authority to designate shares of
Special Stock as shares of Class A
Common Stock, the terms of which are as
follows:
(1) Dividends. (a) Until and
including May 1, 1993 (the "Preferential
Period"), the holders of shares of Class
A Common Stock will be entitled to
receive cumulative cash dividends (the
"Cumulative Dividend") when, as and if
declared by the Board of Directors of
the corporation, payable quarterly on
the first day of each February, May,
August and November, at an annual rate
equal to $0.205 per share for periods
commencing August 1, 1992; provided, if
the corporation shall subdivide or split
by dividend or otherwise the issued
shares of Class A Common Stock into a
larger number of shares or combine the
issued shares of Class A Common Stock
into a smaller number of shares, such
annual rate shall be adjusted by
multiplying such annual rate by a
fraction, the numerator of which shall
be the number of shares of Class A
Common Stock that are issued and
outstanding prior to such subdivision,
split or combination and the denominator
of which shall be the total number of
shares of Class A Common Stock that are
issued and outstanding following such
subdivision, split or combination;
provided further, that the Board of
Directors may, at any time during the
Preferential Period, at its sole
discretion, increase the amount of the
Cumulative Dividend to which holders of
Class A Common Stock will be entitled.
During the Preferential Period,
Cumulative Dividends on the Class A
Common Stock will accrue and be
cumulative from the date of its original
issue and will be payable to the holder
of record on such respective record
dates as may be fixed by the Board of
Directors in advance of the payment of
each Cumulative Dividend.
(b) Unless full Cumulative Dividends on
all outstanding shares of Class A Common
Stock for all past quarterly dividend
periods in the Preferential Period and
for the current quarterly dividend
period (if during the Preferential
Period) have been paid, or declared and
set apart for payment, (i) the
corporation may not declare, pay or set
apart any amounts for dividends on, or
make any other distribution in cash or
other property in respect of, the Class
B Common Stock or any other stock of the
corporation ranking junior to the Class
A Common Stock as to dividends or
distribution of assets upon liquidation,
dissolution or winding up of the affairs
of the corporation (the Class B Common
Stock and such other stock being
referred to hereinafter as "Junior
Stock") other than a dividend payable
solely in Junior Stock, (ii) neither the
corporation, or any subsidiary of the
corporation may purchase, redeem or
otherwise acquire for value any shares
of Junior Stock, directly or indirectly,
other than as a result of a
reclassification of Junior Stock, or the
exchange or conversion of one Junior
Stock for or into another Junior Stock,
or other than through the use of
proceeds of a substantially
contemporaneous sale of other Junior
Stock, and (iii) neither the corporation
nor any subsidiary of the corporation may
make any payment on account of, or set
aside money for, a sinking or other like
fund for the purchase, redemption or
other acquisition for value of any
shares of Junior Stock. If the funds
available for the payment of dividends
are insufficient to pay in full the
Cumulative Dividends payable on all
outstanding shares of Class A Common
Stock and any other series or class of
capital stock ranking on a parity as to
dividends with the Class A Common
Stock, the total available funds to be
paid in partial dividends on the Class A
Common Stock and such other series or
class shall be divided among the Class A
Common Stock and such other series or
class in proportion to the aggregate
amount of dividends accrued and unpaid
with respect to the Class A Common Stock
and such other series or class.
Accruals of Cumulative Dividends will
not bear interest.
(c) After full Cumulative Dividends on
all outstanding shares of Class A Common
Stock for all past quarterly dividend
periods in the Preferential Period and
the current quarterly dividend period
(if during the Preferential Period) and
full preferential dividends on all
outstanding shares of any other series
of Special Stock ranking senior in
priority as to payment of such
preferential dividends to the Class B
Common Stock have been paid, or declared
and set apart for payment, the
corporation may declare dividends on the
Class B Common Stock for such quarter in
an amount per share up to the per share
Cumulative Dividend for such current
quarter on the Class A Common Stock.
No additional dividends may be
declared or paid in such quarter on the
Class B Common Stock unless an equal
additional amount per share shall be
declared or paid on the Class A Common
Stock and any other series or Special
Stock entitled to participate therein.
(d) After May 1, 1993, and after full
Cumulative Dividends on all outstanding
shares of Class A Common Stock for all
past quarterly dividend periods in the
Preferential Period have been paid, or
declared and set apart for payment, the
Class A Common Stock and the Class B Common
Stock shall be treated for all purposes
as though they were of the same class.
Prior to such time, the corporation may
not split or reclassify the Class B
Common Stock or pay a dividend in Class
B Common Stock on the Class B Common
Stock, unless it similarly splits or
reclassifies the Class A Common Stock or
pays a similar dividend in Class A
Common Stock on the Class A Common
Stock.
(2) Liquidation Rights. Until May 1,
1993, in the event of any voluntary or
involuntary liquidation, dissolution or
winding up of the corporation or P.T.
Freeport Indonesia Company ("PT-FI"),
after payment or provision for payment
of the debts and other liabilities of
the Corporation or PT-FI, the holders of
Class A Common Stock will be entitled to
receive in cash out of the remaining net
assets of the corporation an amount per
share initially equal to $2.1875 reduced
by 1.25 per cent on each quarterly
dividend payment date commencing August
1, 1988, plus accrued and unpaid
dividends, before any distribution is
made or set apart for the holders of
Junior Stock; provided, if the
corporation shall subdivide or split by
dividend or otherwise the issued shares
of Class A Common Stock into a larger
number of shares or combine the issued
shares of Class A Common Stock into a
smaller number of shares, such amount
per share as in effect at the time of
such subdivision, split or combination
shall be adjusted by multiplying such
amount per share by a fraction, the
numerator of which shall be the number
of shares of Class A Common Stock that
are issued and outstanding prior to such
subdivision, split or combination and
the denominator of which shall be the
total number of shares of Class A Common
Stock that are issued and outstanding
following such subdivision, split or
combination. If the amounts payable
with respect to the Class A Common Stock
are not paid in full, the holders of the
Class A Common Stock and any stock of
the corporation on a parity with Class A
Common Stock as to distribution of
assets in the event of any voluntary or
involuntary liquidation, dissolution or
winding up of the corporation will have
the right to share ratably in any
distribution of the remaining assets of
the corporation in proportion to the
full respective preferential amounts to
which they are entitled. After payment
of the full amount of the liquidating
distribution to which the holders of the
Class A Common Stock are entitled, the
holders of shares of Class B Common
Stock will be entitled to participate in
any distribution of the remaining assets
by the corporation up to an amount per
share equal to the per share liquidating
distribution (excluding any amounts
received with respect to accrued and
unpaid preferential dividends) received
by the holders of the Class A Common
Stock, subject to the rights of the
holders of any other class or series of
the corporation's capital stock.
Thereafter, the holders of the Class A
Common Stock and the holders of the
Class B Common Stock shall be entitled
to participate in any distribution of
the remaining assets on an equal per
share basis, subject to the rights of
the holders of any other class or series
of the corporation's capital stock. A
consolidation or merger of the
corporation or PT-FI with one or more
corporations other than Freeport-McMoRan
Inc. or any of its subsidiaries of
affiliates (the "FTX Group") or the sale
of all or substantially all of the
assets of the corporation or PT-FI
outside the FTX Group will be deemed to
be a liquidation, dissolution or winding
up of the corporation or PT-FI. In the
event of any nationalization or
expropriation of PT-FI's rights under
its current Contract of Work with the
Government of Indonesia or all or
substantially all of the operating
assets of PT-FI prior to May 1, 1993,
the corporation will effect a
liquidation or dissolution in a manner
designed to maximize the remaining
assets of the corporation available for
distribution. The Class A Common Stock
will have a similar preferential right
in the event of any such voluntary or
involuntary liquidation, dissolution or
winding up of the corporation or PT-FI
after May 1, 1993 to the extent, but
only to the extent, of any accrued and
unpaid cumulative dividends applicable
to the Preferential Period.
(3) At all times during the Preferential
Period, there shall remain outstanding
shares of Class B Common Stock in an
amount equal to not less than sixty
percent of the total of all shares of
Class A Common Stock, other Special
Stock and Class B Common Stock then
issued and outstanding.
(4) No Preferred Stock may be issued
during the Preferential Period.
B. Additional Shares of Special Stock
----------------------------------
The Board of Directors is expressly
authorized to adopt, from time to time,
a resolution or resolutions providing
for the issuance of the remaining
70,000,000 shares of Special Stock in
one or more series, to fix the number of
shares in each such series (subject to
the aggregate limitations thereon in
this Article), and to fix the
designations, powers, preferences and
rights and the qualifications,
limitations and restrictions of each
such series. Within the limits of the
authorized Special Stock, the
corporation will be authorized to issue
additional shares of Class A Common
Stock and shares of additional Special
Stock (including stock having
preferential rights which are similar to
those of Class A Common Stock but which
extend beyond the Preferential Period,
providing that during the Preferential
Period such rights do not permit the
payment of preferential dividends per
share in excess of the preferential
rights of the Class A Common Stock),
including the issuance in exchange for
shares of Class B Common Stock of such
shares for sale to the public. The
authority of the Board of Directors with
respect to each series shall include,
but not be limited to, determination of
the following (which may vary as between
the different series of Special Stock):
(a) The number of shares constituting
the shares of the series and the
distinctive designation of the series;
(b) The dividend rate of the shares of
the series and the extent, if any, to
which dividends thereon shall be
cumulative;
(c) Whether shares of the series shall
be redeemable and, if redeemable, the
redemption price payable on redemption
thereof, which price may, but need not,
vary according to the time or
circumstances of such redemption;
(d) The amount or amounts payable upon
the shares of the series in the event of
voluntary or involuntary liquidation,
dissolution or winding up of the
corporation prior to any payment or
distribution of the assets of the
corporation to any class or classes of
stock of the corporation ranking junior
to the Special Stock;
(e) Whether the shares of the series
shall be entitled to the benefit of a
sinking or retirement fund to be applied
to the purchase or redemption of shares
of the series and, if so entitled, the
amount of such fund and the manner of
its application, including the price or
prices at which the shares may be
redeemed or purchased through the
application of such fund;
(f) Whether the shares of the series
shall be convertible into, or
exchangeable for, shares of any other
class or classes or of any other series
of the same or any other class or
classes of stock of the corporation,
and, if so convertible or exchangeable,
the conversion price or prices, or the
rates of exchange, and the adjustment
thereof, if any, at which such
conversion or exchange may be made, and
any other terms and conditions of such
conversion or exchange;
(g) The extent, if any, to which the
holders of shares of the series shall be
entitled to vote on any questions or in
any proceedings or to be represented at
and to receive notice of any meeting of
stockholders of the corporation;
(h) Whether, and the extent to which,
any of the voting powers, designations,
preferences, rights, qualifications,
limitations or restrictions of any such
series may be made dependent upon facts
ascertainable outside of this
Certificate of Incorporation or of any
amendment hereto or outside the
resolution or resolutions providing for
the issuance of such series adopted by
the Board of Directors, provided that
the manner in which such facts shall
operate upon the voting powers,
designations, preferences, rights,
qualifications, limitations or
restrictions of such series is clearly
and expressly set forth in the
resolution or resolutions providing for
the issuance of such series adopted by
the Board of Directors; and
(i) Any other preferences,privileges or
powers and any relative, participating,
optional or other special rights and
qualifications, limitations or
restrictions of such series, as the
Board of Directors may deem advisable,
which shall not affect adversely any
other class or series of Special Stock
at the time outstanding and which shall
not be inconsistent with the provisions
of this Certificate of Incorporation.
III. (a) Except as described in
Paragraph II above, the holders of
outstanding shares of Special Stock,
including Class A Common Stock, and
Class B Common Stock are entitled to
receive dividends out of assets
legally available therefor at such
times and such equal per share
amounts as the Board of Directors
may from time to time determine and
upon liquidations, dissolution or
winding up of the corporation, the
holders of Special Stock, including
Class A Common Stock, and Class B
Common Stock are entitled to receive
on an equal per share basis the
assets of the corporation which are
legally available for distribution,
after payment of all debts and other
liabilities of the corporation,
except as otherwise provided by the
Board of Directors, pursuant to
clause (B)(d) of Paragraph II above,
with respect to any series of
Special Stock other than the Class A
Common Stock. The shares of Special
Stock, including Class A Common
Stock, and Class B common Stock are
neither redeemable nor convertible,
and the holders thereof have no
preemptive or subscription rights to
purchase any securities of the
corporation, except as otherwise
provided by the Board of Directors,
pursuant to clauses (B)(c) and
(B)(f) of Paragraph II above, with
respect to any series of Special
Stock other than the Class A Common
Stock.
(b) Each outstanding share of Special
Stock, including Class A Common Stock,
and Class B Common Stock is entitled to
one vote on all matters submitted to a
vote of stockholders, except as
otherwise provided by the Board of
Directors, pursuant to clause (B)(g) of
Paragraph II above, with respect to any
series of Special Stock other than the
Class A Common Stock. There is no
cumulative voting. The Special Stock
entitled to vote, including Class A
Common Stock, and the Class B Common
Stock shall vote as a single class,
except that, during the Preferential
Period, the holders of the Class A
Common Stock shall be entitled to vote
as a separate class upon any proposed
amendment to this Certificate of
Incorporation or any merger transaction
or recapitalization if as a result the
aggregate number of authorized shares of
Special Stock, including Class A Common
Stock, would increase beyond
110,000,000 shares or the par value of
the Class A Common Stock would increase
or decrease or the powers, preferences
or special rights of the Class A Common
Stock would be altered or changed so as
to affect the holders thereof adversely.
IV. Preferred Stock.
----------------
The Preferred Stock may be divided into and
issued in series. The Board of Directors is
hereby expressly authorized, at any time or
from time to time, to divide any or all of
the shares of the Preferred Stock into
series, before issuance of any of the shares
thereof, to fix and determine the powers,
designations, preferences and relative,
participating, optional or other rights, and
any qualifications, limitations or
restrictions, of the series so established,
to the fullest extent now or hereafter
permitted by the laws of the State of
Delaware, including, but not limited to, the
variations between different series in the
following respects:
(a) The distinctive serial designation
of such series;
(b) The annual dividend rate for such
series; and the date or dates from
which dividends shall commence to
accrue;
(c) The redemption price or prices, if
any, for shares of such series and
the terms and conditions on which
such shares may be redeemed;
(d) The sinking fund provisions, if any,
for the redemption or purchase of
shares of such series;
(e) The preferential amount or amounts
payable upon shares or such series
in the event of the voluntary or
involuntary liquidation of the
corporation;
(f) The voting rights of shares of such
series;
(g) The terms and conditions, if any,
upon which shares of such series may
be converted and the class or
classes or series of shares of the
corporation into which such shares
may be converted; and
(h) Such other terms, limitations and
relative rights and preferences, if
any, of shares of such series as the
Board of Directors may, at the time
of such resolutions, lawfully fix
and determine under the laws of the
State of Delaware.
All shares of the Preferred Stock shall be of
equal rank with each other, regardless of
series.
FIFTH: The name and mailing address of the
incorporator is:
NAME MAILING ADDRESS
---- ---------------
R. Blain Andrus 6110 Plumas Street
Reno, Nevada 89509
SIXTH: The names and mailing addresses of the
persons who are to serve as directors until the first
annual meeting of stockholders or until their
successors are elected and qualify are as follows:
NAME MAILING ADDRESS
---- ---------------
Milton H. Ward 1615 Poydras Street
New Orleans, LA 70112
Joseph W. Murray Mountain City Star Route
Elko, NV 89801
Richard Block Mountain City Star Route
Elko, NV 89801
SEVENTH: In furtherance, and not in limitation,
of the powers conferred by statute, (a) the Board of
Directors is expressly authorized to adopt, amend or
repeal the by-laws of the corporation in any manner
not inconsistent with the laws of the State of
Delaware or the certificate of incorporation of the
corporation, subject to the power of the stockholders
to adopt, amend or repeal the by-laws or to limit or
restrict the power of the Board of Directors to adopt,
amend or repeal the by-laws, and (b) the corporation
may in its by-laws confer powers and authorities upon
its Board of Directors in addition to those conferred
upon it by statute.
EIGHTH: Election of directors need not be by
ballot unless the by-laws of the corporation shall so
provide.
NINTH: (a) A director of this Corporation
shall not be liable to the Corporation or its
stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve
intentional misconduct or a knowing violation of the
law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from
which the director derived an improper personal
benefit.
(b) The Corporation shall indemnify any person
who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the
request of the Corporation as a director, officer,
employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, to the
fullest extent permitted by applicable law. The
determination as to whether such person has met the
standard required for indemnification shall be made in
accordance with applicable law.
Expenses incurred by such a director, officer,
employee or agent in defending a civil or criminal
action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay
such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the
Corporation as authorized in this Article NINTH.
(c) The provisions of this Article NINTH shall be
deemed to be a contract between the corporation and
each person who serves as such director, officer,
employee or agent of the corporation in any capacity
at any time which this Article NINTH is in effect. No
repeal or modification of the foregoing provisions of
this Article NINTH nor, to the fullest extent
permitted by law, any modification of law shall
adversely affect any right or protection of a
director, officer, employee or agent of the
corporation existing at the time of such repeal or
modification.
The foregoing indemnification shall not be deemed
exclusive of any other rights to which those seeking
indemnification may be entitled under any applicable
law, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
TENTH: The corporation reserves the right to
amend, alter, change or repeal any provision contained
in this certificate of incorporation, in the manner
now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject
to this reservation.
Exhibit 12
FREEPORT-MCMORAN COPPER & GOLD INC.
Computation of the Ratio of Earnings to Fixed Charges,
Preferred Stock Dividends and Minimum Distributions
Years Ended December 31,
------------------------------------------------
1989 1990 1991 1992 1993
-------- -------- -------- -------- --------
(amounts in thousands, except ratios)
Income from continuing
operations $ 98,927 $ 90,179 $101,962 $129,893 $ 50,816
Add:
Provision for income
taxes 89,624 88,330 45,585 103,726 63,677
Minority interest share
of net income 17,415 13,726 12,199 31,075 7,382
Interest expense 187 13,517 21,451 18,897 15,327
Rental expense factor(a) 223 693 841 876 3,190
-------- -------- -------- -------- --------
Earnings available for
fixed charges $206,376 $206,445 $182,038 $284,467 $140,392
======== ======== ======== ======== ========
Interest expense $ 187 $ 13,517 $ 21,451 $ 18,897 $ 15,327
Capitalized interest 7,074 8,244 18,276 23,974 24,519
Rental expense factor (a) 223 693 841 876 3,190
Preferred dividends 0 0 0 10,808 44,545
Minimum required Class A
distributions (b) 14,138 14,138 14,138 21,129 25,579
-------- -------- -------- -------- --------
Fixed charges $ 21,622 $ 36,592 $ 54,706 $ 75,684 $113,160
======== ======== ======== ======== ========
Ratio of earnings to
fixed charges (c) 9.5x 5.6x 3.3x 3.8x 1.2x
=== === === === ===
- ------------
(a) Portion of rent which is deemed representative of interest.
(b) Minimum required distributions on the Class A Common Stock which ended on
May 1, 1993.
(c) For purposes of calculating the ratio of earnings to fixed charges,
preferred stock dividends and minimum distributions, earnings consist of
income from continuing operations before income taxes, minority interest
and fixed charges. Fixed charges include interest and that portion of
rent deemed representative of interest.
Exhibit 24.a
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated January 25,
1994 included in Freeport-McMoRan Copper & Gold Inc's (the Company's) Form
8-K dated March 2, 1994 and our reports dated January 26, 1993 incorporated
by reference in the Company's Form 10-K for the year ended December 31,
1992, and to all references to our firm included in this registration
statement.
/s/ Arthur Anderson & Co.
Arthur Anderson & Co.
New Orleans, Louisiana
March 4, 1994
Exhibit 24.c
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the
registration statement of Freeport-McMoRan Copper &
Gold Inc. (FCX) as Registrant on From S-3 of our
report dated March 31, 1993, except for Note 11 as to
which the date is July 30, 1993, on our audit of the
consolidated financial statements of Rio Tinto Minera,
S.A. as of December 31, 1992 and for the year then
ended included in FCX's Report on Form 8-K dated April
13, 1993 as amended on August 5, 1993. We also
consent to the reference to our firm under the caption
"Experts".
/s/ Coopers & Lybrand, S.A.
Coopers & Lybrand, S.A.
Madrid, Spain
March 4, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint GEORGE
A. MEALEY, JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ James R. Moffett
_______________________
Name: James R. Moffett
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint JAMES R. MOFFETT,
JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ George A. Mealey
________________________
Name: George A. Mealey
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint JAMES R. MOFFETT, GEORGE
A. MEALEY, JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ Stephen M. Jones
________________________
Name: Stephen M. Jones
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint JAMES R. MOFFETT, GEORGE
A. MEALEY, JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ C. Donald Whitmire
________________________
Name: C. Donald Whitmire
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint JAMES R. MOFFETT, GEORGE
A. MEALEY, JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ Leland O. Erdahl
________________________
Name: Leland O. Erdahl
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint JAMES R. MOFFETT, GEORGE
A. MEALEY, JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ Ronald Grossman
________________________
Name: Ronald Grossman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint JAMES R. MOFFETT, GEORGE
A. MEALEY, JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ Rene L. Latiolais
________________________
Name: Rene L. Latiolais
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint JAMES R. MOFFETT, GEORGE
A. MEALEY, JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ Wolfgang F. Siegel
_________________________
Name: Wolfgang F. Siegel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint JAMES R. MOFFETT, GEORGE
A. MEALEY, JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ Elwin E. Smith
_________________________
Name: Elwin E. Smith
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, as a director or officer or both director and
officer of Freeport-McMoRan Copper & Gold Inc. ("FCX"), does
hereby make, constitute and appoint JAMES R. MOFFETT, GEORGE
A. MEALEY, JOHN G. AMATO, MICHAEL C. KILANOWSKI, JR., and
each of them acting individually, my true and lawful
attorney with power to act without the others and with full
power of substitution, to execute, deliver and file, for and
on my behalf and in my name and in my capacity or capacities
as aforesaid, a Registration Statement of FCX, a Delaware
corporation, on Form S-3 (or on such other Form as may be
determined to be applicable) providing for the registration
under the Securities Act of 1933, as amended, of special
stock (including Class A Common Stock), debt warrants,
equity warrants, preferred stock, debt securities and of
other securities, if any, into which such special stock,
preferred stock or debt securities may be converted or
exchanged, and any amendment or amendments to such
Registration Statement and any exhibit thereto or other
document in support thereof or supplemental thereto, and the
undersigned hereby grants to said attorneys and each of them
full power and authority to do and perform each and every
act and thing whatsoever that said attorney or attorneys may
deem necessary or advisable to carry out fully the intent of
the foregoing as the acts and things that said attorney or
attorneys may do or cause to be done by virtue of these
presents.
IN WITNESS WHEREOF, the undersigned has executed
this power of attorney this 22nd day of February, 1994.
/s/ Eiji Umene
_________________________
Name: Eiji Umene
