==============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FREEPORT-McMoRan COPPER & GOLD INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2480931
(State of incorporation (I.R.S. employer
or organization) identification number)
First Interstate Bank Building
One East First Street, Suite 1600 89501
Reno, Nevada (Zip code)
(Address of Principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each Class Name of each Exchange on which
to be so registered each Class is to be registered
------------------- --------------------------------
Depositary Shares New York Stock Exchange, Inc.
Securities to be registered pursuant to Section 12(g) of the Act:
None
==============================================================================
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
-------------------------------------------------------
The general terms and provisions of the Depositary Shares (the
"Depositary Shares"), representing shares of Silver-Denominated Preferred
Stock (the "Silver-Denominated Preferred Stock") are described in the
Prospectus of the Company dated May 2, 1994 (the "Prospectus") filed with the
Securities and Exchange Commission (the "Commission") as part of Amendment No.
1 to the Registration Statement (Registration No. 33-52503) on Form S-3 (the
"Registration Statement"), which Prospectus is incorporated herein by
reference and made a part hereof and attached as an exhibit hereto. The terms
of the offering of the Depositary Shares and the specific terms and provisions
of the Silver-Denominated Preferred Stock are described in a preliminary
Prospectus Supplement dated July 12, 1994 relating to the Silver-Denominated
Preferred Stock (the "Prospectus Supplement") which was filed with the
Commission and is incorporated herein by reference and made a part hereof and
attached as an exhibit hereto.
The name of the Depositary for the Depositary Shares herein
registered is Mellon Securities Trust Company.
Item 2. Exhibits
--------
4.1 Form of Depositary Receipt.
4.2 Form of Deposit Agreement between the registrant, Mellon
Securities Trust Company, as Depositary and the holders
from time to time of Depositary Receipts.
4.3 Form of Stock Certificate for Registrant's
Silver-Denominated Preferred Stock.
4.4 Form of Certificate of Designations relating to the
Silver-Denominated Preferred Stock.
4.5 Preliminary Prospectus Supplements for domestic
and international offerings dated July 12, 1994
(subject to completion, filed July 13, 1994 pursuant
to Rule 424(b)(2) under the Securities Act of 1933
and hereby incorporated by reference herein along with
subsequent final Prospectus).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
and Exchange Act of 1934, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
July 15, 1994
FREEPORT-McMoRan COPPER & GOLD INC.
/s/ MICHAEL C. KILANOWSKI, JR.
By: ______________________________
Michael C. Kilanowski, Jr.
Secretary
INDEX TO EXHIBITS
Exhibit No. Page No.
- ----------- --------
4.1 Form of Depositary Receipt.
4.2 Form of Deposit Agreement between the
registrant, Mellon Securities
Trust Company, as Depositary and the holders
from time to time of Depositary Receipts.
4.3 Form of Stock Certificate for Registrant's
Silver-Denominated Preferred Stock.
4.4 Form of Certificate of Designations relating
to the Silver-Denominated Preferred Stock.
4.5 Preliminary Prospectus Supplements for domestic
and international offerings dated July 12, 1994
(subject to completion, filed July 12, 1994 pursuant
to Rule 424(b)(2) under the Securities Act of 1933
and hereby incorporated by reference herein along
with subsequent final Prospectus).
EXHIBIT 4.1
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH INITIALLY REPRESENTING 0.025 SHARES OF
SILVER-DENOMINATED PREFERRED STOCK
OF
FREEPORT-McMoRan COPPER & GOLD INC.
(Incorporated under the Laws of the State of Delaware)
No.
Mellon Securities Trust Company (the "Depositary")
hereby certifies that ______________ is the registered owner
of _______________ Depositary Shares (the "Depositary
Shares"), each Depositary Share representing at any time a
proportionate interest in the shares of Silver-Denominated
Preferred Stock, $0.10 par value (the "Stock"), of Freeport-
McMoRan Copper & Gold Inc., a corporation duly organized and
existing under the laws of the State of Delaware (the
"Company"), then deposited with the Depositary and the same
proportionate interest in any and all other property
received by the Depositary in respect of such shares of
Stock and held by the Depositary under the Deposit Agreement
(as defined below). Each Depositary Share will initially
represent 0.025 shares of the Stock. Subject to the terms
of the Deposit Agreement, each owner of a Depositary Share
is entitled, proportionately, to all the rights, preferences
and privileges of the Stock represented thereby, including
the dividend, conversion, exchange, voting, liquidation and
other rights contained in the Certificate of Designations
establishing the rights, preferences, privileges and
limitations of the Stock (the "Certificate of
Designations"), copies of which are on file at the office of
the Depositary at which at any particular time its business
in respect of matters governed by the Deposit Agreement
shall be administered, which at the time of the execution of
the Deposit Agreement is located at the Depositary's
corporate trust office in the Borough of Manhattan in the
City of New York (the "New York City Office").
This Depositary Receipt ("Receipt") shall not be
entitled to any benefits under the Deposit Agreement or be
valid or obligatory for any purpose unless this Receipt
shall have been executed manually or, if a Registrar for the
Receipts (other than the Depositary) shall have been
appointed, by facsimile by the Depositary by the signature
of a duly authorized officer and, if executed by facsimile
signature of the Depositary, shall have been countersigned
manually by such Registrar by the signature of a duly
authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY
OF ANY DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO
RESPONSIBILITY FOR THE CORRECTNESS OF THE DESCRIPTION SET
FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF
THE COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT
AGREEMENT. UNLESS EXPRESSLY SET FORTH IN THE DEPOSIT
AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR
SUFFICIENCY OF ANY STOCK AT ANY TIME DEPOSITED WITH THE
DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE DEPOSITARY
SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT
AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO
ANY RIGHT, TITLE OR INTEREST OF THE RECORD HOLDERS OF THE
DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY SHARES.
The Company will furnish to any holder of this
Receipt without charge, upon request addressed to its
executive office, a full statement of the designation,
relative rights, preferences and limitations of the shares
of each authorized class, and of each class of preferred
stock authorized to be issued, so far as the same may have
been fixed, and a statement of the authority of the Board of
Directors of the Company to designate and fix the relative
rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof
and the additional provisions therein set forth for all
purposes have the same effect as if set forth at this place.
Dated:
MELLON SECURITIES TRUST COMPANY,
as Depositary and Registrar
By:____________________________
Authorized Officer
Further Conditions and Agreements Forming Part of this
Receipt Appear on the Reverse Side.
1. The Deposit Agreement. Depositary Receipts
(the "Receipts"), of which this Receipt is one, are made
available upon the terms and conditions set forth in the
Deposit Agreement, dated as of July __, 1994 (the "Deposit
Agreement"), among the Company, the Depositary and all
holders from time to time of Receipts. The Deposit
Agreement (copies of which are on file at the office of the
Depositary in Ridgefield Park, New Jersey, located at 85
Challenger Road (the "Corporate Office"), in the New York
City Office and at the office of any agent of the
Depositary) sets forth the rights of holders of Receipts and
the rights and duties of the Depositary. The statements
made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and
are subject to the detailed provisions thereof, to which
reference is hereby made. In the event of any conflict
between the provisions of this Receipt and the provisions of
the Deposit Agreement, the provisions of the Deposit
Agreement will govern.
2. Definitions. Unless otherwise expressly
herein provided, all defined terms used herein shall have
the meanings ascribed thereto in the Deposit Agreement.
3. Redemption by the Company; Repurchase by the
Company. (a) Except as provided in subsection (b) below,
whenever the Company shall redeem shares of Stock in
accordance with the Certificate of Designations, it shall
(unless otherwise agreed in writing with the Depositary)
give the Depositary in its capacity as Depositary not less
than 5 business days' prior notice of the proposed date of
the mailing of a notice or redemption and the simultaneous
redemption of the Depositary shares representing the Stock
to be redeemed and of the number of such shares of Stock
held by the Depositary to be redeemed. The Depositary
shall, as directed by the Company in writing, mail, first
class postage prepaid, notice of the redemption, and the
proposed simultaneous, redemption of Depositary Shares
representing the Stock to be redeemed, not less than 30 and
not more than 60 days prior to the date fixed for redemption
of such Stock and Depositary Shares, to the record holders
of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as the same
appear on the records of such holders as the same appear on
the records of the Depositary. On the date of any such
redemption the Depositary shall surrender the certificate or
certificates held by the Depositary evidencing the number of
shares of Stock to be redeemed in the manner specified in
the notice of redemption. The Depositary shall, thereafter,
redeem the number of Depositary shares representing such
redeemed Stock upon the surrender of Receipts evidencing
such Depositary Shares in the manner provided in the notice
sent to record holders of Receipts. Notice having been
mailed and published as aforesaid, from and after the
redemption date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it upon the
surrender of the certificate or certificates therefor by the
Depositary as described above), the Depositary Shares called
for redemption shall be deemed no longer to be outstanding
and all rights of the holders of Receipts evidencing such
Depositary Shares shall, to the extent of such Depositary
Shares, cease and terminate.
Whenever the Company shall be required to make a
repurchase of Depositary Shares in accordance with the
Certificate of Designations, it shall give the Depositary in
its capacity as Depositary not less than 5 business days'
prior notice of the required date of the mailing of a notice
of the repurchase offer. The Depositary shall, as directed
by the Company in writing, mail, first class postage
prepaid, notice of the relevant terms and conditions of the
repurchase offer, as provided by the Company, to the record
holders of the Receipts evidencing the Depositary Shares to
be repurchased by the Company, at the addresses of such
holders as the same appear on the records of the Depositary.
The Depositary shall, thereafter, collect any notices,
guarantees and Receipts evidencing the Depositary Shares
from the holders in the manner provided for in the notice
sent to the holders from the Company. In case the aggregate
number of Depositary Shares exceeds the amount the Company
is required to repurchase, the Depositary Shares to be
repurchased shall be selected by the Depositary on a pro
rata basis at the direction of the Company. The foregoing
is subject further to the terms and conditions of the
Certificate of Designations.
(b) Whenever the Company shall make an annual
redemption of shares of stock in accordance with the
Certificate of Designations, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary
in its capacity as Depositary not less than 5 business days'
prior notice of the proposed date of the mailing of a notice
of redemption of Stock of the number of such shares of Stock
held by the Depositary to be redeemed. The Depositary
shall, as directed by the Company in writing, mail, first
class postage prepaid, notice of the redemption of Stock
less than 30 and not more than 60 days prior to the date
fixed for the record holders of the Receipts evidencing the
Depositary Shares at the addresses of such holders as the
same appear on the records of the Depositary. The Company
shall provide the Depositary with such notice, and each such
notice shall state: the method for determining the amount
payable per Depositary Share; the number of shares of Stock
to be redeemed; the aggregate number of shares of Stock
outstanding after such redemption; and the number of shares
of Stock represented by each Depositary Share after such
redemption. The Depositary Shares shall not be redeemed as
a result of the annual redemption of shares of Stock as
provided for in the Certificate of Designations and referred
to in this subsection (b).
4. Withdrawal of Stock Not Permitted. Except as
provided in Section 2.06(b) of the Deposit Agreement or upon
termination of the Deposit Agreement as provided therein,
holders of Receipts are not entitled to receive any of the
shares of Stock represented by such Receipts.
5. Transfers, Split-ups, Combinations. Subject
to Paragraphs 6, 7 and 8 below, this Receipt is transferable
on the books of the Depositary upon surrender of this
Receipt to the Depositary at the Corporate Office or the New
York Office, or at such other offices as the Depositary may
designate, properly endorsed or accompanied by a properly
executed instrument of transfer, and upon such transfer the
Depositary shall sign and deliver a Receipt or Receipts to
or upon the order of the person entitled thereto, all as
provided in and subject to the Deposit Agreement. This
Receipt may be split into other Receipts or combined with
other Receipts into one Receipt evidencing the same
aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a
fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer,
etc., of Receipts. Prior to the execution and delivery,
registration of transfer, split-up, combination, surrender
or exchange of this Receipt, the delivery of any
distribution hereon, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the
following: (i) payment to it of a sum sufficient for the
payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of
any tax or other governmental charge with respect thereto
(including any such tax or charge with respect to Stock
being deposited or withdrawn or with respect to other
securities or property of the Company being issued upon
redemption); (ii) production of proof satisfactory to it as
to the identity and genuineness of any signature; and (iii)
compliance with such reasonable regulations, if any, as the
Depositary or the Company may establish not inconsistent
with the Deposit Agreement. Any person presenting Stock for
deposit, or any holder of this Receipt, may be required to
file such proof of information, to execute such certificates
and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay
the delivery of this Receipt, the registration of transfer,
redemption, or exchange of this Receipt, the withdrawal of
the Stock represented by the Depositary Shares evidenced by
this Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed,
such certificates are executed or such representations and
warranties are made.
7. Suspension of Delivery, Transfer, etc. The
registration of transfer, split-up, combination, surrender
or exchange of this Receipt may be suspended (i) during any
period when the register of stockholders of the Company is
closed, (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents
or the Company at any time or from time to time because of
any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit
Agreement, or (iii) with the approval of the Company, for
any other reason. The Depositary shall not be required to
issue, transfer or exchange any Receipts for a period
beginning at the opening of business 15 days next preceding
any selection of Depositary Shares and Stock to be redeemed
and ending at the close of business on the day of the
mailing of notice of redemption of Depositary Shares.
8. Payment of Taxes or Other Governmental
Charges. If any tax or other governmental charge shall
become payable by or on behalf of the Depositary with
respect to (i) this Receipt, (ii) the Depositary Shares
evidenced by this Receipt, (iii) the Stock (or fractional
interest therein) or other property represented by such
Depositary Shares, or (iv) any transaction referred to in
Section 4.06, of the Deposit Agreement, such tax (including
transfer, issuance or acquisition taxes, if any) or
governmental charge shall be payable by the holder of this
Receipt, who shall pay the amount thereof to the Depositary.
Until such payment is made, registration of transfer of this
Receipt or any split-up or combination hereof or any
withdrawal of the Stock or money or other property, if any,
represented by the Depositary Shares evidenced by this
Receipt may be refused, any dividend or other distribution
may be withheld and any part or all of the Stock or other
property represented by the Depositary Shares evidenced by
this Receipt may be sold for the account of the holder
hereof (after attempting by reasonable means to notify such
holder prior to such sale). Any dividend or other
distribution so withheld and the proceeds of any such sale
may be applied to any payment of such tax or other
governmental charge, the holder of this Receipt remaining
liable for any deficiency.
9. Amendment. The form of the Receipts and any
provision of the Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and
the Depositary in any respect that they may deem necessary
or desirable; provided, however, that no such amendment that
shall materially and adversely alter the rights of the
holders of Receipt shall be effective as to outstanding
Receipts until the expiration of 90 days after notice of
such amendment shall have been given to the record holders
of outstanding Receipts and unless such amendment shall have
been approved by the holders of at least a majority of the
Depositary Shares outstanding. Every holder of an
outstanding Receipt at the time 90 days after such notice of
amendment shall have been given shall be deemed, by
continuing to hold such Receipt, to consent and agree to
such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the
right, subject to the provisions of Paragraphs 3, 4, 6, 7,
and 8 hereof and of Sections 2.03, 2.06 and 2.07 and Article
III of the Deposit Agreement, of the owner of the Depositary
Shares evidenced by this Receipt to surrender this Receipt
upon termination of the Deposit Agreement with instructions to the
Depositary to deliver to the holder the Stock and all money and other
property, if any, represented thereby, except in order to comply with
mandatory provisions of applicable law.
10. Fees, Charges and Expenses. The Company will
pay all fees, charges and expenses of the Depositary, except
for taxes (including transfer taxes, if any) and other
governmental charges and such charges as are expressly
provided in the Deposit Agreement to be at the expense of
persons depositing Stock, holders of Receipts or other
persons.
11. Title to Receipts. It is a condition of this
Receipt, and every successive holder hereof by accepting or
holding the same consents and agrees, that title to this
Receipt (and to the Depositary Shares evidenced hereby),
when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the
same effect as in the case of investment securities in
general; provided, however, that the Depositary may,
notwithstanding any notice to the contrary, treat the record
holder hereof at such time as the absolute owner hereof for
the purpose of determining the person entitled to
distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all
other purposes.
12. Dividends and Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to
the provisions of the Deposit Agreement, distribute to
record holders of Receipts such amounts of such sums as are,
as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held
by such holders; provided, however, that in case the Company
or the Depositary shall be required by law to withhold and
does withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of
taxes, the amount made available for distribution or
distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing
to any owner of Depositary Shares a fraction of one cent and
any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum
received by the Depositary for distribution to record
holders of Receipts then outstanding.
13. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause
to be offered to the persons in whose name Stock is
registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of
any other nature, such rights, preferences or privileges
shall in each such instance, subject to the provisions of
the Deposit Agreement, be made available by the Depositary
to the record holders of Receipts in such manner as the
Company shall instruct.
14. Notice of Dividends, Fixing of Record Date.
Whenever (i) any cash dividend or other cash distribution
shall become payable, or any distribution other than cash
shall be made, or any rights, preferences or privileges
shall at any time be offered, with respect to the Stock, or
(ii) the Depositary shall receive notice of any meeting at
which holders of Stock are entitled to vote or of which
holders of Stock are entitled to notice, or of the mandatory
conversion of, or any election on the part of the Company to
call for redemption or exchange of, any shares of Stock, the
Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by
the Company with respect to the Stock) for the determination
of the holders of Receipts (x) who shall be entitled to
receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y)
who shall be entitled to give instructions for the exercise
of voting rights at any such meeting or of such meeting or
to receive notice of such conversion, exchange or
redemption.
15. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote,
the Depositary shall, as soon as practicable thereafter,
mail to the record holders of Receipts a notice, which shall
contain (i) such information as is contained in such notice
of meeting, (ii) a statement that the holders of Receipts at
the close of business on a specified record date determined
as provided in Paragraph 14 will be entitled, subject to any
applicable provision of law, the Certificate of
Incorporation or the Certificate of Designations, to
instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their
respective Depositary Shares, and (iii) a brief statement as
to the manner in which such instructions may be given. Upon
the written request of a holder of this Receipt on such
record date the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by this
Receipt in accordance with the instructions set forth in
such request. The Company hereby agrees to take all
reasonable action that may be deemed necessary by the
Depositary in order to enable the Depositary to vote such
Stock or cause such Stock to be voted. In the absence of
specific instructions from the holder of this Receipt, the
Depositary will abstain from voting to the extent of the
Stock represented by the Depositary Shares evidenced by this
Receipt.
16. Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of
Receipts at the Corporate Office, the New York Office and at
such other places as it may from time to time deem advisable
during normal business hours any reports and communications
received from the Company that are received by the
Depositary as the holder of Stock. The Depositary, acting
as transfer agent and Registrar, shall keep books at the
Corporate Office for the registration and transfer of
Receipts, which books at all reasonable times will be open
for inspection by the record holders of Receipts; provided
that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for
a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares.
17. Liability of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the
Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall incur any liability to any holder of this
Receipt, if by reason of any provision of any present or
future law or regulation thereunder of any governmental
authority or, in the case of the Depositary, the Registrar
or any Depositary's Agent, by reason of any provision
present or future, of the Certificate of Incorporation or
the Certificate of Designations or, in the case of the
Company, the Depositary, the Registrar or any Depositary's
Agent, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the
Depositary, any Depositary's Agent, the Registrar or the
Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the
Company incur any liability to any holder of this Receipt
(i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the
terms of the Deposit Agreement provide shall or may be done
or performed or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in the
Deposit Agreement except, in the case of the Depositary, any
Depositary's Agent or the Registrar, if such exercise or
failure to exercise discretion is caused by its negligence
or bad faith.
18. Obligations of the Depositary, the
Depositary's Agent, the Registrar and the Company. The
Company assumes no obligation and shall be subject to no
liability under the Deposit Agreement or this Receipt to the
holder hereof or other persons, except to perform in good
faith such obligations as are specifically set forth and
undertaken by it to perform in the Deposit Agreement. Each
of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability
under the Deposit Agreement or this Receipt to the holder
hereof or other persons, except to perform such obligations
as are specifically set forth and undertaken by it to
perform in the Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor any Depositary's Agent
nor the Registrar nor the Company shall be under any
obligation to appear in, prosecute or defend any action,
suit or other proceeding with respect to Stock, Depositary
Shares or Receipts or Common Stock that in its opinion may
involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent
nor the Registrar nor the Company will be liable for any
action or failure to act by it in reliance upon the advice
of or information from legal counsel, accountants, any
person presenting Stock for deposit, any holder of this
Receipt or any other person believed by it in good faith to
be competent to give such advice or information.
19. Termination of Deposit Agreement. Whenever so
directed by the Company, the Depositary will terminate the
Deposit Agreement by mailing notice of such termination to
the record holders of all Receipts then outstanding at least
30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate the
Deposit Agreement if at any time 45 days shall have expired
after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04 of the Deposit
Agreement. Upon the termination of the Deposit Agreement,
the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and
5.08 of the Deposit Agreement.
If any Receipts remain outstanding after the date
of termination of the Deposit Agreement, the Depositary
thereafter shall discontinue all functions and be discharged
from all obligations as provided in the Deposit Agreement,
except as specifically provided therein.
20. Governing Law. The Deposit Agreement and
this Receipt and all rights thereunder and hereunder and
provisions thereof and hereof shall be governed by, and
construed in accordance with, the law of the State of New
York without giving effect to principles of conflict of
laws.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto the within Receipt
and all rights and interests represented by the Depositary
Shares evidenced thereby, and hereby irrevocably constitutes
and appoints his attorney, to transfer the
same on the books of the within-named Depositary, with full
power of substitution in the premises.
Dated: Signature:____________________________
NOTE: The signature to this
assignment must correspond
with the name as written
upon the face of the Receipt
in every particular, without
alteration or enlargement, or
any change whatever.
EXHIBIT 4.2
__________________________________________________
FREEPORT-McMoRan COPPER & GOLD INC.
and
MELLON SECURITIES TRUST COMPANY,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
____________
DEPOSIT AGREEMENT
____________
Dated as of July __, 1994
__________________________________________________
TABLE OF CONTENTS
Page
Parties.............................................................. 1
Recitals ............................................................ 1
ARTICLE I
DEFINITIONS
"Certificate of Designations"........................................ 1
"Certificate of Incorporation"....................................... 2
"Company"............................................................ 2
"Corporate Office" .................................................. 2
"Deposit Agreement".................................................. 2
"Depositary" ........................................................ 2
"Depositary Share" .................................................. 2
"Depositary's Agent" ................................................ 2
"New York Office".................................................... 2
"Receipt"............................................................ 3
"record holder"...................................................... 3
"Registrar".......................................................... 3
"Securities Act" .................................................... 3
"Stock".............................................................. 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION AND REPURCHASE OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts .................. 3
SECTION 2.02 Deposit of Stock; Execution and
Delivery of Receipts in
Respect Thereof .............................. 4
SECTION 2.03 Redemption and Repurchase of Stock.............. 5
SECTION 2.04 Register of Transfer of Receipts................ 8
SECTION 2.05 Combination and Split-ups
of Receipts .................................. 8
SECTION 2.06 Surrender of Receipts and Withdrawal
of Stock ..................................... 8
SECTION 2.07 Limitations on Execution and Delivery,
Transfer, Split-up, Combination and
Surrender of Receipts and Withdrawal
or Deposit of Stock........................... 9
SECTION 2.08 Lost Receipts, etc.............................. 10
SECTION 2.09 Cancellation and Destruction of
Surrendered Receipts.......................... 10
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and
Other Information ............................ 11
SECTION 3.02 Payment of Taxes or Other
Governmental Charges.......................... 11
SECTION 3.03 Withholding .................................... 11
SECTION 3.04 Representations and Warranties
as to Stock .................................. 12
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions.............................. 12
SECTION 4.02 Distributions Other Than Cash .................. 12
SECTION 4.03 Subscription Rights, Preferences
or Privileges ................................ 13
SECTION 4.04 Notice of Dividends, Fixing of Record
Date for Holders of Receipts.................. 14
SECTION 4.05 Voting Rights .................................. 14
SECTION 4.06 Changes Affecting Stock and
Reclassifications,
Recapitalizations, etc. ...................... 15
SECTION 4.07 Reports ........................................ 15
SECTION 4.08 Lists of Receipt Holders........................ 16
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies,
Transfer Books by the Depositary;
the Registrar ................................ 16
SECTION 5.02 Prevention or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the
Company ...................................... 17
SECTION 5.03 Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company .............................. 17
SECTION 5.04 Resignation and Removal of the
Depositary, Appointment of
Successor Depositary.......................... 19
SECTION 5.05 Corporate Notices and Reports .................. 20
SECTION 5.06 Deposit of Stock by the Company ................ 21
SECTION 5.07 Indemnification by the Company.................. 21
SECTION 5.08 Fees, Charges and Expenses...................... 21
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment ...................................... 22
SECTION 6.02 Termination .................................... 22
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts.................................... 23
SECTION 7.02 Exclusive Benefits of Parties .................. 23
SECTION 7.03 Invalidity of Provisions........................ 23
SECTION 7.04 Notices ........................................ 24
SECTION 7.05 Depositary's Agents ............................ 24
SECTION 7.06 Holders of Receipts Are Parties ................ 25
SECTION 7.07 Governing Law .................................. 25
SECTION 7.08 Headings........................................ 25
TESTIMONIUM.......................................................... 26
SIGNATURES........................................................... 26
EXHIBIT A............................................................ A-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of July __, 1994 among
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation, Mellon Securities
Trust Company, a New York Trust Company, as Depositary, and all holders from
time to time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter set
forth in this Deposit Agreement, for the deposit of shares of the Stock with
the Depositary, as agent for the beneficial owners of the Stock, for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
the Receipts evidencing Depositary Shares representing an interest in the
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form
annexed as Exhibit A to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises contained
herein, it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit
Agreement and the Receipts:
"Certificate of Designations" shall mean the Certificate of
Designations establishing and setting forth the rights, preferences,
privileges and limitations of the Stock.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation, as amended and restated from time to time, of the Company.
"Company" shall mean Freeport McMoRan Copper & Gold Inc., a
Delaware corporation, and its successors.
"Corporate Office" shall mean the office of the Depositary in
Ridgefield Park, New Jersey at which at any particular time its business in
respect of matters governed by this Deposit Agreement shall be administered,
which at the date of this Deposit Agreement is located at 85 Challenger Road.
"Deposit Agreement" shall mean this agreement, as the same may
be amended, modified or supplemented from time to time.
"Depositary" shall mean Mellon Securities Trust Company, as
Depositary hereunder, and any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the
Receipts executed and delivered hereunder, including the interests in Stock
granted to holders of Receipts pursuant to the terms and conditions of the
Deposit Agreement. The Depositary Shares, at any time, shall represent in the
aggregate an interest in the number of shares of Stock then deposited with the
Depositary hereunder. Each Depositary Share, at any time, shall represent a
number of shares of Stock equal to the quotient obtained by dividing the
number of shares of Stock then deposited with the Depositary hereunder by the
number of Depositary Shares then issued and outstanding, initially an interest
in 0.025 shares of Stock represented by each Depositary Share. Each
Depositary Share shall represent the same proportionate interest in any and
all other property received by the Depositary in respect of such share of
Stock and held under this Deposit Agreement. Subject to the terms of this
Deposit Agreement, each record holder of a Receipt evidencing a Depositary
Share or Shares is entitled, proportionately, to all the rights,
preferences and privileges of the Stock represented by such Depositary
Share or Shares, including the dividend, redemption, voting and liquidation
rights contained in the Certificate of Designations, and to the benefits of
all obligations and duties of the Company in respect of the Stock under the
Certificate of Designations and the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.05.
"New York Office" shall mean the office maintained by the
Depositary in the Borough of Manhattan, The City of New York, which at the
date of this Deposit Agreement is located at 120 Broadway.
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A hereto, evidencing
Depositary Share or Shares, as the same may be amended from time to time in
accordance with the provisions hereof.
"record holder" or "holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books maintained by or
on behalf of the Depositary for such purpose.
"Registrar" shall mean any bank or trust company appointed to
register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's Silver-Denominated
Preferred Stock, par value $0.10 per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND REDEMPTION AND REPURCHASE OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts shall
be engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed by the Depositary by the
manual signature of a duly authorized officer of the Depositary; provided,
however, that such signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any
purpose unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided. Receipts bearing the
facsimile signature of anyone who was at any time a duly authorized officer of
the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulation or with the rules and
regulations of any securities exchange upon which the Stock or the Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the Stock or
otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer shall be transferable by delivery with the same effect
as in the case of investment securities in general; provided, however, that
the Depositary may, notwithstanding any notice to the contrary, treat the
record holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit Agreement
and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Stock may deposit such Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a properly executed instrument of transfer in
form satisfactory to the Depositary, together with (i) all such certifications
as may be required by the Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written order of the Company or such holder, as
the case may be, directing the Depositary to execute and deliver to or upon
the written order of the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited Stock.
Upon receipt by the Depositary of a certificate or certificates
for Stock to be deposited hereunder, together with the other documents
specified above, the Depositary shall, as soon as transfer and registration
can be accomplished, present such certificate or certificates to the registrar
and transfer agent of the Stock for transfer and registration in the name of
the Depositary or its nominee of the Stock being deposited. Deposited Stock
shall be held by the Depositary in an account to be established by the
Depositary at the Corporate Office.
Upon receipt by the Depositary of a certificate or certificates
for Stock to be deposited hereunder, together with the other documents
specified above, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver, to or upon the order of the
person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section 2.02, a Receipt or Receipts
for the number of whole Depositary Shares representing the Stock so deposited
and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the New York Office, except that, at the request, risk and expense of any
person requesting such delivery and for the account of such person, such
delivery may be made at such other place as may be designated by such person.
In each case, delivery will be made only upon payment by such person to the
Depositary of all taxes and other governmental charges and any fees payable in
connection with such deposit and the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.03. Redemption and Repurchase of Stock. (a)
Except as provided in subsection (b) below in connection with the annual
redemption of shares of Stock, whenever the Company shall redeem shares of
Stock in accordance with the Certificate of Designations, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption of Stock and the
simultaneous redemption of the Depositary Shares representing the Stock to
be redeemed and of the number of such shares of Stock held by the
Depositary to be redeemed. The Depositary shall, as directed by the
Company in writing, mail, first class postage prepaid, notice of the
redemption of Stock and the proposed simultaneous redemption of the
Depositary Shares representing the Stock to be redeemed not less than 30
and not more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares, to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed at the addresses of such
holders as the same appear on the records of the Depositary.
Notwithstanding the foregoing, neither failure to mail or publish any such
notice to one or more such holders nor any defect in any notice shall
affect the sufficiency of the proceedings for redemption. The Company
shall provide the Depositary with such notice, and each such notice shall
state: the method for determining the amount payable per Depositary Share;
the redemption date; the number of Depositary Shares to be redeemed; and
shall call upon each holder of Depositary Shares to surrender, on the
redemption date and at the place or places designated by the Company, the
Receipts evidencing Depositary Shares to be redeemed. On the date of any
such redemption the Depositary shall surrender the certificate or
certificates held by the Depositary evidencing the number of shares of
Stock to be redeemed in the manner specified in the notice of redemption of
Stock provided by the Company pursuant to the Certificate of Designations.
The Depositary shall, thereafter, redeem the number of Depositary Shares
representing such redeemed Stock upon the surrender of Receipts evidencing
such Depositary Shares in the manner provided in the notice sent to record
holders of Receipts.
Notice having been mailed by the Depositary as aforesaid, from
and after the redemption date (unless the Company shall have failed to redeem
the shares of Stock to be redeemed by it upon the surrender of the certificate
or certificates therefor by the Depositary as described in the preceding
paragraph), the Depositary Shares called for redemption shall be deemed no
longer to be outstanding and all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive the cash payable upon
redemption upon surrender of such Receipts) shall, to the extent of such
Depositary Shares, cease and terminate. The foregoing shall be subject
further to the terms and conditions of the Certificate of Designations.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the holder
of such Receipt upon its surrender to the Depositary, together with the
redemption price (to be paid in the form of cash) and all accrued and unpaid
dividends to and including the date fixed for redemption payable in respect of
the Depositary Shares called for redemption, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for
redemption.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of business 15
days next preceding any selection of Depositary Shares and Stock to be
redeemed and ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or exchange for
another Receipt any Receipt evidencing Depositary Shares called or being
called for redemption, in whole or in part except as provided in the
immediately preceding paragraph of this Section 2.03.
Whenever the Company shall be required to make an offer to
repurchase Depositary Shares representing Stock in accordance with the
Certificate of Designations, it shall give the Depositary in its capacity as
Depositary not less than 5 business days' prior notice of the required date of
the mailing of a notice of the repurchase offer. The Depositary shall, as
directed by the Company in writing, mail, first class postage prepaid, notice
of the relevant terms of the repurchase offer, as provided by the Company,
including: (i) that such notice is being given pursuant to a repurchase offer,
(ii) the number of Depositary Shares and Stock for which the offer is being
made, (iii) the method for determining the amount payable per Depositary Share,
(iv) the last date, which shall not be less than 30 nor more than 60 days
after the date of such notice, by which a holder must elect to accept the
repurchase offer, (v) the procedures that such holder must follow to exercise
its rights and (vi) the procedures for withdrawing an election.
The Depositary shall, thereafter, receive from each holder
electing to have Depositary Shares repurchased pursuant to the repurchase
offer in accordance with the instructions in the notice, the holder's
Depositary Share certificates, with an appropriate form duly completed prior
to the repurchase date. Holders will be entitled to withdraw an election by a
written notice of withdrawal delivered to the Depositary prior to the close of
business on the repurchase date. The notice of withdrawal shall state the
number of Depositary Shares and the certificate numbers to which the notice of
withdrawal relates and the number of Depositary Shares and certificate
numbers, if any, which remain subject to election. In case the aggregate
number of Depositary Shares offered for repurchase by the holders exceeds the
amount of Depositary Shares which the Company has offered to repurchase
pursuant to the repurchase offer, the Depositary Shares to be repurchased
shall be selected by the Depositary on a pro rata basis at the direction of
the Company. The Depositary shall, at the direction of the Company, cause
payment to be mailed or delivered to each tendering holder as promptly as
reasonably practicable after the repurchase date, in the amount of the
repurchase price, and any unpurchased Depositary Shares to be returned to the
holder thereof. The foregoing is subject further to the terms and conditions
of the Certificate of Designations.
(b) Whenever the Company shall make an annual redemption of
shares of stock in accordance with the Certificate of Designations, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary
in its capacity as Depositary not less than 5 business days' prior notice of
the proposed date of the mailing of a notice of redemption of Stock of the
number of such shares of Stock held by the Depositary to be redeemed. The
Depositary shall, as directed by the Company in writing, mail, first class
postage prepaid, notice of the redemption of Stock less than 30 and not more
than 60 days prior to the date fixed for the record holders of the Receipts
evidencing the Depositary Shares at the addresses of such holders as the same
appear on the records of the Depositary. The Company shall provide the
Depositary with such notice, and each such notice shall state: the method for
determining the amount payable per Depositary Share; the number of shares of
Stock to be redeemed; the aggregate number of shares of Stock outstanding
after such redemption; and the number of shares of Stock represented by each
Depositary Share after such redemption. The Depositary Shares shall not be
redeemed as a result of the annual redemption of shares of Stock as provided
for in the Certificate of Designations and referred to in this subsection (b).
SECTION 2.04. Register of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof at the Corporate Office, the New York Office or such other
office as the Depositary may designate for such purpose, by the record holder
in person or by a duly authorized attorney, properly endorsed or accompanied
by a properly executed instrument of transfer, together with evidence of the
payment of any transfer taxes as may be required by law. Upon such surrender,
the Depositary shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto evidencing the same aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. Combination and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office, the New York
Office or such other office as the Depositary may designate for the purpose of
effecting a split-up or combination of Receipts, subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute and deliver
a new Receipt or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall not issue
any Receipt evidencing a fractional Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of Stock.
(a) Except as provided in Section 2.06(b) or upon termination of this Deposit
Agreement as provided in Section 6.02, no holder of a Receipt or Receipts
shall have the right to withdraw any of the shares of Stock represented by
such Receipts.
(b) Notwithstanding Section 2.06(a), the Company shall have
the right to withdraw any or all of the Stock (but only in whole shares of
Stock) represented by the Depositary Shares and all money and other property,
if any, represented by such Depositary Shares by surrendering the Receipt or
Receipts evidencing such Depositary Shares at the Corporate Office, the New
York Office or at such other office as the Depositary may designate for such
withdrawals (and cancellation of the surrendered Receipts as provided in
Section 2.09). After such surrender, without unreasonable delay, the
Depositary shall deliver to the Company the whole number of shares of Stock
and all such money and other property, if any, represented by the Depositary
Shares evidenced by the Receipt or Receipts so surrendered for withdrawal. If
the Receipt or Receipts delivered by the Company to the Depositary in
connection with such withdrawal shall evidence a number of Depositary Shares
in excess of the number of whole Depositary Shares representing the whole
number of shares of Stock to be withdrawn, the Depositary shall at the same
time, in addition to such whole number of shares of Stock and such money and
other property, if any, to be withdrawn, deliver to the Company, or (subject to
Section 2.04) upon its order, a new Receipt or Receipts evidencing such excess
number of whole Depositary Shares.
Delivery of the Stock and such money and other property being
withdrawn may be made by the delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate, which, if
required by the Depositary, shall be properly endorsed or accompanied by
proper instruments of transfer.
The Depositary shall deliver the Stock and the money and other
property, if any, represented by the Depositary Shares evidenced by Receipts
surrendered for withdrawal, without unreasonable delay, at the office at which
such Receipts were surrendered, except that, at the request, risk and expense
of the Company such delivery may be made, without unreasonable delay, at such
other place as may be designated by the Company.
For purposes of determining the number of Depositary Shares
outstanding on any dividend payment date for purposes of Section 4(b) of the
Certificate of Designations, the Receipts representing Depositary Shares
acquired by the Company on or prior to such dividend payment date and not
theretofore delivered to the Depositary for withdrawal and cancellation shall
be deemed to be outstanding.
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
Split-up, Combination and Surrender of Receipts and Withdrawal or Deposit of
Stock. As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, or surrender of any Receipt, the delivery of
any distribution thereon or deposit of Stock, the Depositary, any of the
Depositary's Agents or the Company may require any or all of the following:
(i) payment to it of a sum sufficient for the payment (or, in the event that
the Depositary or the Company shall have made such payment, the reimbursement
to it) of any tax or other governmental charge with respect thereto (including
any such tax or charge with respect to the Stock being deposited or withdrawn
or with respect to property of the Company being issued upon redemption); (ii)
production of proof satisfactory to it as to the identity and genuineness of
any signature; and (iii) compliance with such reasonable regulations, if any,
as the Depositary or the Company may establish not inconsistent with the
provisions of this Deposit Agreement.
The deposit of Stock may be refused, or the registration of
transfer, split-up, combination or surrender of outstanding Receipts and the
withdrawal of deposited Stock may be suspended (i) during any period when the
register of stockholders of the Company is closed, (ii) if any such action is
deemed necessary or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission,
or under any provision of this Deposit Agreement, or (iii) with the approval
of the Company, for any other reason. Without limitation of the foregoing,
the Depositary shall not knowingly accept for deposit under this Deposit
Agreement any shares of Stock that are required to be registered under the
Securities Act unless a registration statement under the Securities Act is in
effect as to such shares of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt shall
be mutilated or destroyed or lost or stolen, the Depositary shall execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost
or stolen Receipt unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the holder thereof
provides the Depositary with (i) evidence satisfactory to the Depositary of
such destruction, loss or theft of such Receipt, of the authenticity thereof
and of his ownership thereof, (ii) reasonable indemnification satisfactory to
the Depositary or the payment of any charges incurred by the Depositary in
obtaining insurance in lieu of such indemnification and (iii) payment of any
expense (including fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.09. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy such
Receipts so cancelled. If at any time all of the shares of Stock have been
redeemed as a result of the annual redemption of Stock provided for in the
Certificate of Designations, all Receipts outstanding shall be cancelled by
the Depositary.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any holder of a
Receipt may be required from time to time to file such proof of residence or
other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold or delay
the delivery of any Receipt, the registration of transfer or redemption of any
Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
If any tax or other governmental charge shall become payable by or on behalf
of the Depositary with respect to (i) any Receipt, (ii) the Depositary Shares
evidenced by such Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the
holder of such Receipt, who shall pay the amount thereof to the Depositary.
Until such payment is made, registration or transfer of any Receipt or any
split-up or combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused, any dividend or other distribution may be withheld and
any part or all of the Stock or other property represented by the Depositary
Shares evidenced by such Receipt may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale). Any dividend or other distribution so withheld and the proceeds
of any such sale may be applied to any payment of such tax or other
governmental charge, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Withholding. The Depositary shall act as the
tax withholding agent for any payments, distributions made with respect to the
Depositary Shares and Receipts, and the Stock. The Depositary shall be
responsible with respect to the Securities for the timely (i) collection and
deposit of any required withholding or backup withholding tax, and (ii) filing
of any information returns or other documents with federal (and other
applicable) taxing authorities.
SECTION 3.04. Representations and Warranties as to Stock. In
the case of the initial deposit of the Stock, the Company and, in the case of
subsequent deposits thereof, each person so depositing Stock under this
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock and each certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and warranties
shall survive the deposit of the Stock and the issuance of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of
such sum as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be
required by law to withhold and does withhold from any cash dividend or other
cash distribution in respect of the Stock an amount on account of taxes, the
amount made available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any owner of Depositary Shares a
fraction of one cent and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash, rights, preferences
or privileges upon the Stock, the Depositary shall, subject to Section 3.02,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary and the Company may deem equitable and practicable
for accomplishing such distribution. If, in the opinion of the Company after
consultation with the Depositary, such distribution cannot be made
proportionately among such record holders, or if for any other reason
(including any tax withholding or securities law requirement), the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company which approval
shall not be unreasonably withheld, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received,
or any part thereof, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to Section
3.02, be distributed or made available for distribution, as the case may be,
by the Depositary to record holders of Receipts as provided by Section 4.01 in
the case of a distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons
in whose names Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or
any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts in such manner as the Company
shall instruct (including by the issue to such record holders of warrants
representing such rights, preferences or privileges); provided, however, that
(a) if at the time of issue or offer of any such rights, preferences or
privileges the Company determines and instructs the Depositary that it is not
lawful or feasible to make such rights, preferences or privileges available to
some or all holders of Receipts (by the issue of warrants or otherwise) or (b)
if and to the extent instructed by holders of Receipts who do not desire to
exercise such rights, preferences or privileges, the Depositary shall then, in
each case, and if applicable laws or the terms of such rights, preferences or
privileges so permit, sell such rights, preferences or privileges of such
holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall be
distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.01 in the case of a distribution received in
cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold such securities, the Company shall
promptly file a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such registration
statement shall have become effective or unless the offering and sale of such
securities to such holders are exempt from registration under the provisions of
the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record Date for
Holders of Receipts. Whenever (i) any cash dividend or other cash
distribution shall become payable, or any distribution other than cash shall
be made, or any rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or (ii) the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice or any election on the part of
the Company to call for the redemption of, any shares of Stock, the Depositary
shall in each such instance fix a record date (which shall be the same date as
the record date fixed by the Company with respect to the Stock) for the
determination of the holders of Receipts (x) who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or (y) who shall be entitled to give
instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting or of such redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.04 will be entitled, subject to any
applicable provision of law, the Certificate of Incorporation or the
Certificate of Designations, to instruct the Depositary as to the exercise of
the voting rights pertaining to the Stock represented by their respective
Depositary Shares and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Receipt
on such record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted the Stock represented by the Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in
such request. The Company hereby agrees to take all reasonable action that
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it is
a party or sale of all or substantially all of the Company's assets, the
Depositary shall treat any shares of stock or other securities or property
(including cash) that shall be received by the Depositary in exchange for or
in respect of the Stock as new deposited property under this Deposit
Agreement, and Receipts then outstanding shall thenceforth represent the
proportionate interests of holders thereof in the new deposited property so
received in exchange for or in respect of such Stock. In any such case the
Depositary may, in its discretion, with the approval of the Company, execute
and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited property.
SECTION 4.07. Reports. The Company or, at the option of the
Company, the Depositary shall forward to the holders of Receipts any reports
and communications received from the Company that are received by the
Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list,
as of a recent date, of the names, addresses and holdings of Depositary Shares
of all persons in whose names Receipts are registered on the books of the
Depositary. At the expense of the Company, the Company shall have the right
to inspect transfer and registration records of the Depositary, any
Depositary's Agent or the Registrar, take copies thereof and require the
Depositary, any Depositary's Agent or the Registrar to supply copies of such
portions of such records as the Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, Transfer Books
by the Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain (i) at the New York
Office facilities for the execution and delivery, registration, registration
of transfer, surrender, split-up, combination and redemption of Receipts and
deposit and withdrawal of Stock and (ii) at the Corporate Office and at the
offices of the Depositary's Agents, if any, facilities for the delivery,
registration, registration of transfer, surrender, split-up, combination, and
redemption of Receipts and deposit and withdrawal of Stock, all in accordance
with the provisions of this Deposit Agreement.
The Depositary, acting as transfer agent and Registrar, shall
keep books at the Corporate Office for the registration and transfer of
Receipts, which books at all reasonable times shall be open for inspection by
the record holders of Receipts; provided that any such holder requesting to
exercise such right shall certify to the Depositary that such inspection shall
be for a proper purpose reasonably related to such person's interest as an
owner of Depositary Shares. The Depositary shall consult with the Company
upon receipt of any request for inspection. The Depositary may close such
books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock represented by such Depositary Shares shall be listed on one or more
stock exchanges, the Depositary shall, with the approval of the Company,
appoint a Registrar for registry of such Receipts or Depositary Shares in
accordance with the requirements of such exchange or exchanges. Such
Registrar (which may be the Depositary if so permitted by the requirements of
such exchange or exchanges) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. In addition, if the Receipts, such Depositary Shares or such Stock
are listed on one or more stock exchanges, the Depositary will, at the request
of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender, split-up, combination or redemption of
such Receipts, such Depositary Shares or such Stock as may be required by law
or applicable stock exchange regulations.
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither
the Depositary nor any Depositary's Agent nor the Registrar nor the Company
shall incur any liability to any holder of any Receipt, if by reason of any
provision of any present or future law or regulation thereunder of the United
States of America or of any other governmental authority or, in the case of
the Depositary, the Registrar or any Depositary's Agent, by reason of any
provision, present or future, of the Certificate of Incorporation or the
Certificate of Designations or, in the case of the Company, the Depositary,
the Registrar or any Depositary's Agent, by reason of any act of God or war or
other circumstances beyond the control of the relevant party, the Depositary,
any Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of this
Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the Company incur any
liability to any holder of a Receipt (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of this Deposit Agreement provide shall or may be done or performed, or
(ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in the case of the Depositary,
any Depositary's Agent or the Registrar, if any such exercise or failure to
exercise discretion is caused by its negligence or bad faith.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. The Company assumes no obligation and
shall be subject to no liability under this Deposit Agreement or the Receipts
to holders or other persons, except to perform in good faith such obligations
as are specifically set forth and undertaken by it to perform in this Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in
this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Receipts that in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Stock for deposit, any holder of a Receipt
or any other person believed by it in good faith to be competent to give such
advice or information. The Depositary, any Depositary's Agent, the Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary, the Registrar and any Depositary's Agent may
own and deal in any class of securities of the Company and its affiliates and
in Receipts or Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's
Agent nor the Registrar shall be deemed to be an "issuer" of the Stock, the
Depositary Shares, or the Receipts or other securities issued upon exchange or
redemption of the Stock under the federal securities laws or applicable state
securities laws, it being expressly understood and agreed that the Depositary
and any Depositary's Agent and the Registrar are acting only in a ministerial
capacity; provided, however, that the Depositary agrees to comply with all
information reporting and withholding requirements applicable to it under law
or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent nor the Registrar makes any
representation or has any responsibility as to the validity of the Registration
Statement pursuant to which the Depositary Shares are registered under the
Securities Act, the Stock, the Depositary Shares or any instruments referred
to therein or herein, or as to the correctness of any statement made therein
or herein; provided, however, that the Depositary is responsible for its
representations in this Deposit Agreement.
The Depositary assumes no responsibility for the correctness of
the description that appears in the Receipts, which can be taken as a
statement of the Company summarizing certain provisions of this Deposit
Agreement. Notwithstanding any other provision herein or in the Receipts, the
Depositary makes no warranties or representations as to the validity,
genuineness or sufficiency of any Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the Depositary
Shares or as to any right, title or interest of the record holders of
Receipts in and to the Depositary Shares except that the Depositary hereby
represents and warrants as follows: (i) the Depositary has been duly
organized and is validly existing and in good standing under the laws of
the jurisdiction of its incorporation, with full power, authority and legal
right under such law to execute, deliver and carry out the terms of this
Deposit Agreement; (ii) this Deposit Agreement has been duly authorized,
executed and delivered by the Depositary; and (iii) this Deposit Agreement
constitutes a valid and binding obligation of the Depositary, enforceable
against the Depositary in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law). The Depositary shall not be accountable for the use or
application by the Company of the Depositary Shares or the Receipts or the
proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary,
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice via registered mail of its election to
do so delivered to the Company, such resignation to take effect upon the
appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor depositary and its acceptance
of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company, or an affiliate of a bank
or trust company, having its principal office in the United States of America
and having a combined capital and surplus of at least $50,000,000. If a
successor depositary shall not have been appointed in 60 days, the resigning
or removed Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall
be the Depositary under this Deposit Agreement, and such predecessor, upon
payment of all sums due it and on the written request of the Company, shall
promptly execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all rights, title and interest in the Stock and any moneys or
property held hereunder to such successor and shall deliver to such successor
a list of the record holders of all outstanding Receipts. Any successor
depositary shall promptly mail notice of its appointment to the record holders
of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act. Such
successor depositary may execute the Receipts either in the name of the
predecessor depositary or in the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the record holders of Receipts, in
each case at the address recorded in the Depositary's books, copies of all
notices and reports (including financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Certificate of Incorporation and
the Certificate of Designations to be furnished by the Company to holders of
Stock. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as
the Depositary may reasonably request. In addition, the Depositary will
transmit to the record holders of Receipts at the Company's expense such other
documents as may be requested by the Company.
SECTION 5.06. Deposit of Stock by the Company. The Company
agrees with the Depositary that neither the Company nor any company controlled
by the Company will at any time deposit any Stock if such Stock is required to
be registered under the provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The Company
agrees to indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any liability, costs and expenses
(including reasonable fees and expenses of counsel) that may arise out of or
in connection with its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except for any
liability arising out of negligence, bad faith or willful misconduct on the
part of any such person or persons.
SECTION 5.08. Fees, Charges and Expenses. No fees, charges
and expenses of the Depositary or any Depositary's Agent hereunder or of
any Registrar shall be payable by any person other than the Company, except
for any taxes and other governmental charges and except as provided in this
Deposit Agreement. If, at the request of a holder of a Receipt, the
Depositary incurs fees, charges or expenses for which it is not otherwise
liable hereunder, such holder or other person will be liable for such fees,
charges and expenses. All other fees, charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar
(including, in each case, reasonable fees and expenses of counsel) incident
to the performance of their respective obligations hereunder will be paid
from time to time upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such fees, charges and
expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time
be amended by agreement between the Company and the Depositary in any
respect that they may deem necessary or desirable; provided, however, that
no such amendment that shall materially and adversely alter the rights of
the holders of Receipts shall be effective as to outstanding Receipts until
the expiration of 90 days after notice of such amendment shall have been
given to the record holders of outstanding Receipts and unless such
amendment shall have been approved by the holders of at least a majority of
the Depositary Shares outstanding. In no event shall any amendment impair
the right, subject to the provisions of Sections 2.03, 2.06 and 2.07 and
Article III, of any owner of any Depositary Shares upon termination of this
Deposit Agreement to surrender the Receipt evidencing such Depositary
Shares with instructions to the Depositary to deliver to the holder the
Stock and all money and other property, if any, represented thereby, except
in order to comply with mandatory provisions of applicable law.
SECTION 6.02. Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by mailing
notice of such termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate this Deposit Agreement if
at any time 45 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04.
If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer of Receipts, shall suspend the distribution of
dividends to the holders thereof and shall not give any further notices (other
than notice of such termination) or perform any further acts under this
Deposit Agreement, except as provided below and that the Depositary shall
continue to collect dividends and other distributions pertaining to Stock,
shall sell rights, preferences or privileges as provided in this Deposit
Agreement and shall deliver the Stock and any money and other property
represented by Receipts, without liability for interest thereon, upon
surrender thereof by the holders thereof. At any time after the expiration of
two years from the date of termination, the Depositary may sell Stock then
held hereunder at public or private sale, at such places and upon such terms
as it deems proper and may thereafter hold in a segregated account the net
proceeds of any such sale, together with any money and other property held by
it hereunder, without liability for interest, for the benefit, pro rata in
accordance with their holdings, of the holders of Receipts that have not
heretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement except to account
for such net proceeds and money and other property. Upon the termination of
this Deposit Agreement, the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and 5.08. In the
event this Deposit Agreement is terminated, the Company hereby agrees to use
its best efforts to list the underlying Stock on the New York Stock Exchange,
Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed by the Company and the Depositary in separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall constitute one and
the same instrument. Delivery of an executed counterpart of a signature page
to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the Corporate
Office and the New York Office and the respective offices of the Depositary's
Agents, if any, by any holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by telegram or
telex or telecopier confirmed by letter, addressed to the Company at 1615
Poydras St., New Orleans, Louisiana 70112, Attention: Secretary, or at any
other place to which the Company may have transferred its principal executive
office.
Any notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given
if personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Except as provided in the next paragraph, any notices given to
any record holder of a Receipt hereunder or under the Receipts shall be in
writing and shall be deemed to have been duly given if personally delivered or
sent by mail, or by telegram or telex or telecopier confirmed by letter,
addressed to such record holder at the address of such record holder as it
appears on the books of the Depositary or, if such holder shall have filed
with the Depositary a written request that notices intended for such holder be
mailed to some other address, at the address designated in such request.
In addition, whenever the Certificate of Designations requires
any notice to be published, the Depositary will, if requested by the Company,
cause such notice to be published in the manner directed by the Company.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a duly addressed letter confirming an earlier
notice in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex or telecopier message received by
it from the other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may, with
the approval of the Company which approval shall not be unreasonably withheld,
from time to time appoint one or more Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
vary or terminate the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties.
Notwithstanding that holders of Receipts have not executed and delivered this
Deposit Agreement or any counterpart thereof, the holders of Receipts from
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions, and be entitled to all of the
benefits, hereof and of the Receipts by acceptance of delivery of Receipts.
SECTION 7.07. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of New York without giving effect to principles of conflict of laws.
SECTION 7.08. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit
A hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, Freeport-McMoRan Copper & Gold Inc. and
Mellon Securities Trust Company have duly executed this Deposit Agreement as
of the day and year first above set forth and all holders of Receipts shall
become parties hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
FREEPORT-McMoRan COPPER & GOLD INC.
Attest:
By:_______________________ By:______________________________
Authorized Officer
MELLON SECURITIES TRUST COMPANY
Attest:
By:_______________________ By:_____________________________
Authorized Officer
EXHIBIT 4.3
NUMBER SHARES
SPS
Freeport-McMoRan
Copper & Gold Inc.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
Silver-Denominated
Preferred Stock
Number Shares
SPS
SEE REVERSE FOR
CUSIP 35671D 87 3 CERTAIN DEFINITIONS
This is to certify that_______________________________________________________
is the owner of__________________________________fully paid and non-assessable
shares, of the par value of ten cents ($0.10) per share, of the
Silver-Denominated Preferred Stock of Freeport-McMoRan Copper & Gold Inc.,
transferable on the books of the Corporation by the holder hereof in person
or by duly authorized attorney, upon surrender of this certificate properly
endorsed. This certificate and the shares represented hereby are issued
and shall be held subject to all the provisions of the Certificate of
Incorporation, as amended, copies of which are on file with the
Corporation, to all of which the holder by acceptance hereof assents.
Witness the seal of the Corporation and the signatures of its duly
authorized officers.
Dated
___________________________ ___________________________
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
Freeport-McMoRan Copper & Gold Inc.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS A STATEMENT OF THE DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OF THE
CORPORATION, OR SERIES THEREOF, AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. SUCH REQUEST MUST BE MADE TO
THE OFFICE OF THE SECRETARY OF THE CORPORATION.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants
in common UNIF GIFT MIN ACT--. . . . . Custodian . . . . .
TEN EN --as tenants by (Cust). . . . . . . . . . . . . .(Minor)
the entireties under Uniform Gifts to Minors
JT TEN --as joint tenants Act . . . . . . . . . . . . .
with right of (State)
survivorship and
not as tenants
in common
Additional abbreviations may also be used though not in the above list.
For value received, __________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
______________________________________________________________________________
______________________________________________________________________________
_______________________________________________________________________ shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
______________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated_________________________
THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE
NOTICE: WHATEVER.
EXHIBIT 4.4
CERTIFICATE OF DESIGNATIONS
OF
SILVER-DENOMINATED PREFERRED STOCK
(Par Value $0.10 Per Share)
OF
FREEPORT-McMoRan COPPER & GOLD INC.
Pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware
We, the undersigned, being a Vice President and the Secretary,
respectively, of Freeport-McMoRan Copper & Gold Inc. (hereinafter called the
"Corporation"), a corporation organized and existing under and by virtue of
the provisions of the General Corporation Law of the State of Delaware,
DO HEREBY CERTIFY:
FIRST. The Certificate of Incorporation of the Corporation, as
amended (hereinafter called the "Certificate of Incorporation"), authorizes
the issuance of 50,000,000 shares of Preferred Stock, par value $0.10 per
share, of which 1,215,279 shares have been issued. The Board of Directors of
the Corporation is authorized by the Certificate of Incorporation to provide,
without further stockholder action, for the issuance of any or all of the
shares of the Preferred Stock in one or more series, with such designation,
powers, preferences and relative, participating, optional or other rights, and
any qualifications, limitations or restrictions thereof, as may be determined
by the Board of Directors of the Corporation with respect to each particular
series prior to the issue thereof.
SECOND. The Board of Directors of the Corporation, acting by
Unanimous Written Consents dated February 22, 1994 and July 8, 1994, and a
Special Committee thereof, pursuant to authority specifically granted to it by
such Board of Directors, acting by Unanimous Written Consent dated July __,
1994, duly adopted the following resolutions authorizing the creation and
issuance of a series of Preferred Stock to be known as "Silver-Denominated
Preferred Stock."
RESOLVED, that the Board of Directors, pursuant to authority
vested in it by the provisions of the Certificate of Incorporation of the
Corporation, hereby authorizes the issuance of a series of Preferred Stock of
the Corporation and hereby fixes the number, designation, preferences, rights
and any qualifications, limitations or restrictions thereof as follows:
1. Designation. (a) [136,560] shares of Preferred Stock of
the Corporation are hereby constituted as a series of Preferred Stock
designated as "Silver-Denominated Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in all respects with
the other shares of this Series. The Board of Directors is authorized to
increase or decrease (but not below the number of shares of this Series then
outstanding) the number of shares of this Series.
(b) Shares of this Series which have been redeemed for cash as
hereinafter provided or purchased by the Corporation shall be canceled, and
shall revert to authorized but unissued shares of Preferred Stock undesignated
as to series, and may be reissued as a part of this Series or may be
reclassified and reissued as part of a new or existing series of Preferred
Stock to be created by resolution or resolutions of the Board of Directors, all
subject to the conditions or restrictions on issuance set forth in any
resolution or resolutions adopted by the Board of Directors providing for the
issue of such series of Preferred Stock.
2. Dividends. (a) The holders of shares of this Series shall
be entitled to receive, but only out of funds legally available therefor, cash
dividends as hereinafter provided. Such dividends shall be paid when, as and
if declared by the Board of Directors on the first day of February, May,
August and November in each year commencing November 1, 1994 and ending August
1, 2006 (each such date being referred to herein as a "Dividend Payment Date")
to holders of record on the record date determined by the Board of Directors
in advance of the payment of each particular dividend. Such dividends shall
be cumulative from the date of original issuance of the shares of this Series.
(b) So long as any shares of this Series shall be outstanding,
the Corporation shall not, unless full cumulative dividends for all past
dividend periods shall have been paid or declared and set apart for payment
upon all outstanding shares of this Series and the shares of any other class
or series of Preferred Stock (including the Gold-Denominated Preferred Stock
and the Gold-Denominated Preferred Stock, Series II), the 7% Convertible
Exchangeable Special Preference Stock (hereinafter called the "Special
Preference Stock"), the Step-Up Convertible Preferred Stock and any other
class or series of stock of the Corporation ranking, as to dividends, on a
parity with shares of this Series (the shares of any other class or series
of Preferred Stock (including the Gold-Denominated Preferred Stock and the
Gold-Denominated Preferred Stock, Series II), the Special Preference Stock,
the Step-Up Convertible Preferred Stock and any other class or series of
stock of the Corporation ranking, as to dividends, on a parity with shares
of this Series being herein referred to as "Parity Dividend Stock"), (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 Common
Stock of the Corporation (the "Class A Common Stock"), the Class B Common
Stock of the Corporation ("Class B Common Stock") or any other stock of the
Corporation ranking junior to this Series as to dividends or distribution
of assets upon liquidation, dissolution or winding up of the affairs of the
Corporation (the Class A Common Stock, the Class B Common Stock and any
such other stock being herein referred to 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, 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. For purposes of this
Section 2 and of Section 4(f), if any depositary shares have been issued
with respect to any series of stock, actions with respect to such
depositary shares, including acquisition of and payments on or with respect
to such depositary shares, shall be regarded as actions with respect to
such series of stock.
(c) If the funds available for the payment of dividends are
insufficient to pay in full the dividends payable on all outstanding shares of
this Series and shares of Parity Dividend Stock, the total available funds to
be paid in partial dividends on the shares of this Series and shares of Parity
Dividend Stock shall be divided among this Series and the Parity Dividend
Stock in proportion to the aggregate amounts of dividends accrued and unpaid
with respect to this Series and the Parity Dividend Stock. Accruals of
dividends shall not bear interest.
3. Dividend Rate. (a) The Dividend Rate per quarter on each
share of this Series shall be an amount equal to the Dollar Equivalent Value
(as defined below) of _____ ounces of silver. "Dollar Equivalent Value" means
the applicable Reference Silver Price multiplied by the applicable number of
ounces of silver. "Reference Silver Price" means, when used to calculate the
amount of any dividend payable on any Dividend Payment Date, the arithmetic
average of the London silver fixing price for an ounce of silver in the London
bullion market on each of the twenty trading days ending on the second trading
day prior to the last day of the calendar quarter immediately preceding such
Dividend Payment Date, as published in The Wall Street Journal (Eastern
Edition) (or, if such prices are not published in The Wall Street Journal, as
published in the Financial Times). If for any reason silver is not traded
during any relevant period in the London bullion market or is not quoted in
U.S. dollars in such market, silver will be valued during such period or
portion thereof, as the case may be, on the basis of trading prices, quoted
in U.S. dollars, in the then principal international trading market for silver
as determined by the Corporation's Board of Directors. On or before the fifth
business day preceding each record date for the payment of a dividend in
respect of the shares of this Series, the Corporation will cause to be
published in The Wall Street Journal (Eastern Edition) or, if such newspaper
is not then published, in a newspaper or other publication of national
circulation, the amount of the dividend payable in respect of each share of
this Series on the next succeeding Dividend Payment Date.
(b) Dividends in respect of the first Dividend Period shall
accrue from the date of original issuance of the shares of this Series and
shall be calculated on the basis of a year of 360 days consisting of 12 30-day
months. The term "Dividend Period", as used herein, means (i), with respect
to the November 1, 1994 Dividend Payment Date, the period from the date of
original issuance of the shares of this Series to and including such Dividend
Payment Date, and (ii), with respect to any other Dividend Payment Date, the
period commencing on the day following the immediately preceding Dividend
Payment Date to and including such Dividend Payment Date.
4. Redemption. (a) The Company will redeem annually on
August 1 beginning in 1999, out of funds legally available therefor, a number
of shares of this Series equal to one eighth of the Original Shares (as
defined below) at the Dollar Equivalent Value per share of 160 ounces of
silver.
(b) The shares of this Series shall not be subject to
redemption at the option of the Corporation except as described in this
Section 4(b). If at any time the total number of shares of this Series
outstanding shall be less than 15% of the total number of shares of this
Series outstanding immediately after the date of original issuance of the
shares of this Series (the "Original Shares"), the Corporation shall have the
option to redeem the outstanding shares of this Series, in whole but not in
part, on any subsequent Dividend Payment Date out of funds legally available
therefor, at an amount equal to the Dollar Equivalent Value of 160 ounces of
silver per share plus accrued and unpaid dividends (as hereinafter defined) to
the date fixed for redemption. For purposes of determining the number of
shares of this Series outstanding on any Dividend Payment Date, the shares of
this Series acquired by the Corporation on or prior to such Dividend Payment
Date and not theretofore canceled (or in the case of any shares of this Series
represented by depositary shares, the depositary shares representing shares of
this Series acquired by the Corporation on or prior to such Dividend Payment
Date and not theretofore delivered to the depositary for the depositary shares
for cancellation) shall be deemed to be outstanding. Notice of any such
redemption as described in this Section 4(b) shall be mailed to holders of the
shares of this Series within 30 days after such Dividend Payment Date in
accordance with the provisions of Section 4(c).
(c) At least 30 days but no more than 60 days prior to the
date fixed for redemption of the shares of this Series in accordance with
Section 4(a) or (b) hereof (the "Call Date"), a written notice will be mailed
to each holder of record (and each beneficial owner to the extent required by
law) of shares of this Series to be redeemed, notifying each holder of the
Corporation's election to redeem such shares if such redemption is pursuant to
Section 4(b), setting forth the method for determining the amount payable per
share of this Series on the Call Date, stating the Call Date and calling upon
such holder to surrender to the Corporation on the Call Date at the place
designated in such notice the certificate or certificates representing the
shares called for redemption.
(d) At any time after a notice of redemption has been given in
the manner prescribed in Section 4(a) or (b) and the amount payable on the
date fixed for redemption can be determined by the Corporation, and prior to
the date fixed for redemption, the Corporation may deposit in trust, with a
bank or trust company identified in the notice of redemption having capital,
surplus and undistributed profits aggregating at least $50,000,000, an
aggregate amount of funds sufficient for such redemption (including dividends
accrued on the shares of this Series called for redemption to the date fixed
for redemption) for immediate payment in the appropriate amounts upon
surrender of certificates for such shares. Any interest accrued on such funds
shall be paid to the Corporation from time to time. Such deposit in trust
shall be irrevocable, except that any funds deposited by the Corporation which
are unclaimed at the end of two years from the date fixed for such redemption
shall be paid over to the Corporation upon its request, and upon such
repayment the holders of the shares so called for redemption shall look only
to the Corporation for payment of the appropriate amount.
(e) From and after the date of the deposit of trust funds for
the redemption of shares of this Series in accordance with the provisions of
Section 4(d) hereof or, if no such deposit is made, from and after the date
fixed for redemption (unless the Corporation shall default in making payment
of the amount payable upon such redemption), whether or not certificates for
shares so called for redemption have been surrendered by the holders thereof
as described below, dividends on the shares of this Series so called for
redemption shall cease to accrue, and such shares shall be deemed to be no
longer outstanding, and all rights of the holders thereof as stockholders of
the Corporation (except the right to receive from the Corporation the amount
payable upon such redemption) shall cease and terminate. Upon surrender in
accordance with the notice of redemption of the certificates for any shares of
this Series so redeemed (properly endorsed or assigned for transfer if the
Corporation shall so require and the notice shall so state), the holder
thereof shall be entitled to receive payment of the redemption price plus an
amount equal to all accrued and unpaid dividends as aforesaid.
(f) If the Corporation shall have failed to make any required
annual redemption then, until it shall have redeemed all outstanding shares of
this Series then required to be redeemed, the Corporation 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, any 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, 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, (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 or (iv) purchase, redeem or otherwise acquire for value
any shares of stock of the Corporation ranking on a parity with the shares of
this Series as to dividends or distribution of assets upon liquidation,
dissolution or winding up ("Parity Stock").
(g) (i) Within 90 days following each Calculation Date (as
defined below), the Corporation shall be required to prepare a certificate (a
"Corporation Certificate") setting forth its determination of the Reserve
Amount (as defined below) as of such Calculation Date. If the Reserve Amount,
as shown on the Corporation Certificate prepared with respect to any
Calculation Date is less than the Aggregate Reserve Requirement (as defined
below) as of such Calculation Date, the Corporation will be required to make
an offer (a "Reserve Coverage Offer") to purchase, out of funds legally
available therefor, at a price equal to the liquidation preference thereof as
of the Purchase Date (as hereinafter defined), plus accrued and unpaid
dividends thereon, a sufficient number of shares of this Series and of other
Silver Parity Stock (as defined below) (or the depositary shares, if any,
issued with respect thereto)
such that, if all such shares had been repurchased on the relevant Calculation
Date, the Reserve Amount on that date would have been greater than or equal to
the Aggregate Reserve Requirement on such date. If the Corporation
Certificate prepared with respect to any Calculation Date shows that the
Reserve Amount is less than the Aggregate Reserve Requirement on such date,
the Corporation shall include in such Certificate its calculation of the
number of shares of this Series (or related depositary shares) and the number
of shares of other Parity Stock (or related depositary shares) it intends to
offer to purchase to satisfy the foregoing requirements (such number with
respect to any series being referred to as the "Offer Amount" with respect to
such series). The Corporation, in its sole discretion, may determine the
number of shares, if any, of this Series (or related depositary shares) and
the number of shares, if any, of each other series of Silver Parity Stock (or
related depositary shares) to which a Reserve Coverage Offer will be made so
long as such requirements are satisfied.
(ii) If required to make a Reserve Coverage Offer, the
Corporation will commence such offer not more than 60 days after the date of
the Corporation Certificate prepared with respect to the applicable
Calculation Date, by mailing a notice to all holders of record of the shares
of each series included in such Reserve Coverage Offer setting forth (A) that
such notice is being given pursuant to a Reserve Coverage Offer, (B) the Offer
Amount with respect to such series, (C) the method for determining the amount
payable per share of such series on the Purchase Date, (D) the last date (the
"Purchase Date"), which shall not be less than 30 nor more 60 days after the
date of such notice, by which a holder must elect whether to accept the
Reserve Coverage Offer, (E) the procedures that such holder must follow to
exercise its rights and (F) the procedures for withdrawing an election. The
Corporation shall also cause a copy of such notice to be published in The Wall
Street Journal (Eastern Edition) or another daily newspaper of national
circulation.
(iii) Holders of shares of any series electing to have shares
of such series purchased by the Corporation pursuant to a Reserve Coverage
Offer will be required to surrender the certificates representing such shares,
with an appropriate form duly completed, to the Corporation prior to the
Purchase Date. Holders will be entitled to withdraw an election by a written
notice of withdrawal delivered to the Corporation prior to the close of
business on the Purchase Date. The notice of withdrawal shall state the
number of shares and certificate numbers to which the notice of withdrawal
relates and the number of shares and certificate numbers, if any, which remain
subject to the election. If the aggregate number of shares of any series
tendered exceeds the Offer Amount with respect to such series, the Corporation
will select the shares of such series to be purchased on a pro rata basis as
nearly as practicable. The Corporation shall, as promptly as reasonably
practicable after the Purchase Date, cause payment to be mailed or delivered
to each tendering holder in the amount of the purchase price, and any
unpurchased shares to be returned to the holder thereof.
(h) If, at the time of any annual redemption or of a Reserve
Coverage Offer, the funds of the Corporation legally available for redemption
or repurchase of the shares of this Series are insufficient to redeem or
repurchase all of such shares and all of the shares of any other series of
Parity Stock which the Corporation is then obligated to redeem or repurchase,
(i) the total legally available funds shall be allocated among the shares of
this Series and of such other series in proportion to the aggregate dollar
amount of redemption or other repurchase obligations with respect to this
Series and such other series and (ii) the portion of such funds allocated to
this Series will be used to redeem or repurchase the maximum possible number of
shares of this Series, pro rata based upon the number of shares to be redeemed
or delivered for repurchase, as the case may be. At any time thereafter when
additional funds of the Corporation become legally available for such purpose,
after giving effect to the foregoing allocation provisions, such funds shall
immediately be used to redeem or repurchase, as the case may be, any
additional shares of this Series which the Corporation is obligated to redeem
or repurchase, as the case may be, but which it has not so redeemed or
repurchased.
(i) The Corporation shall not have the right to redeem shares
of this Series pursuant to Section 4(a) or (b) unless full cumulative
dividends for all past dividend periods shall have been paid or declared and
set aside for payment upon all outstanding shares of this Series and all
outstanding shares of other series of stock of the Corporation ranking, as to
dividends, on a parity with the shares of this Series.
(j) The Corporation will not consummate or permit any
subsidiary to consummate any transaction involving the Corporation which would
cause the Reserve Amount to fall below the Aggregate Reserve Requirement
immediately after consummation of such transaction unless the Corporation will
have sufficient legally available funds immediately following consummation of
such transaction to complete any Reserve Coverage Offer required as a result
thereof.
(k) Definitions. For purposes of this Section 4, the
following terms shall have the meanings indicated:
(i) "accrued and unpaid dividends" per share of this Series
(A) in the case of any Reserve Coverage Offer, (B) in the case of any optional
redemption and (C) in the case of a liquidation event, shall be equal to the
sum of (x) the aggregate amount of any accrued and unpaid dividends on such
share through the next preceding Dividend Payment Date (calculated as provided
in Section 3) plus (y) a proportionate amount of the regular quarterly
dividend at the Dividend Rate for the period from the day following the
immediately preceding Dividend Payment Date through the redemption date,
Purchase Date or date of liquidating distribution (calculated on the basis of
a year of 360 days consisting of twelve 30-day months) multiplied by the
Reference Silver Price used to calculate the other amounts payable to holders
of the shares of this Series in connection with such redemption, purchase or
liquidation event. If a quarterly dividend is not declared and paid as
provided in Section 3, the unpaid dividend that shall cumulate for such
Dividend Period will be the amount of the dividend that would have been
payable on the Dividend Payment Date if such dividend had been timely paid.
(ii) "Aggregate Reserve Requirement" as of any Calculation Date
means the sum of the individual Reserve Coverage Requirements with respect to
each series of Silver Parity Stock, including this Series.
(iii) "Calculation Date" means (i) December 31 of each year and
(ii) the date of the consummation of each transaction undertaken by the
Corporation or any subsidiary of the Corporation which would either (a) cause
the Reserve Amount, as estimated by the Corporation, to decrease by 50% or
more from the preceding Calculation Date or (b) cause the Reserve Amount, as
estimated by the Corporation, to fall below the Aggregate Reserve Requirement
on such date.
(iv) "Silver Parity Stock" means this Series and any other
series of Parity Stock the liquidation preference of which is based on
specified amounts of silver or the Dollar Equivalent Value thereof.
(v) "Reference Silver Price", when used to calculate the
amount of any dividend payable on any Dividend Payment Date or of any annual
or optional redemption payment with respect to the shares of this Series or to
purchase any shares of this Series on any date means the arithmetic average of
the London silver fixing price for an ounce of silver in the London bullion
market, as published in The Wall Street Journal (Eastern Edition) (or, if such
prices are not published in The Wall Street Journal (Eastern Edition), as
published in the Financial Times) on each of the twenty trading days ending on
the second trading day prior to (i) in the case of any Reserve Coverage Offer,
the date of commencement thereof and (ii) in the case of a liquidation event,
the date 30 days prior to the date fixed for the liquidating distribution. If
for any reason silver is not traded during any relevant period in the London
bullion market or is not quoted in U.S. dollars in such market, silver will be
valued during such period or portion thereof, as the case may be, on the basis
of trading prices, quoted in U.S. dollars, in the then principal international
trading market for silver as determined by the Corporation's Board of
Directors.
(vi) "Required Coverage Multiplier" means (x) 2.0 with respect
to this Series, (y) with respect to any other series of Silver Parity Stock
having the benefit of a provision requiring an offer similar to the Reserve
Coverage Offer, the multiplier applicable thereto by the terms of such other
series, and (z) 1.0 with respect to any other series of Silver Parity Stock.
(vii) "Reserve Amount" as of any Calculation Date means the
Corporation's Proportionate Interest in the estimated proved and probable
silver reserves of the Corporation and of any entity in which the Corporation
has a direct or indirect beneficial ownership interest. The estimated proved
and probable silver reserves shall be determined based upon evaluation methods
generally applied by the mining industry. The Corporation's "Proportionate
Interest" in any estimated proved and probable silver reserves shall be the
Corporation's direct or indirect beneficial ownership interest in such
reserves, giving effect to reductions required to reflect any beneficial
ownership interest of any person other than the Corporation in such reserves.
(viii) "Reserve Coverage Requirement" with respect to any series
of Silver Parity Stock shall mean the product of (x) the aggregate liquidation
preference of all outstanding shares of such series (expressed in ounces of
silver) times (y) the Required Coverage Multiplier applicable to such series.
With respect to any series with respect to which depositary shares have been
issued, the aggregate liquidation preference of such series shall be
determined on the basis of the number of such depositary shares as are issued
and outstanding as of the applicable Calculation Date (excluding any
depositary shares which have been acquired by the Corporation on or prior to
the date of the preparation of the Corporation Certificate with respect to
such Calculation Date).
5. Voting Rights. (a) Except for the voting rights described
below and except as otherwise required by law, the holders of shares of this
Series shall not be entitled to vote on any matter or to receive notice of, or
to participate in, any meeting of the stockholders of the Corporation. Each
share of Preferred Stock of this Series will be entitled to one vote on
matters which holders of such Series are entitled to vote.
(b) Whenever dividends payable on shares of this Series shall
be in default in an aggregate amount equal to or exceeding six full quarterly
dividends on all shares of this Series at the time outstanding, the number of
directors then constituting the Board of Directors of the Corporation shall be
increased by two, and holders of shares of this Series shall, in addition to
any other voting rights, have the right, voting separately as a class together
with holders of all other series of stock of the Company ranking on a parity
with shares of this Series 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 such two
additional directors. In such case, the Board of Directors will be increased
by two directors, and the holders of shares of this Series (either alone or
with the holders of Other Voting Stock) will have the exclusive right as
members of such class, as described above, to elect two directors at the next
annual meeting of stockholders. Whenever such right of the holders of shares
of this Series shall have vested, such right may be exercised initially either
at a special meeting of such holders as provided in Section 5(c) hereof or at
any annual meeting of stockholders held for the purpose of electing directors,
and thereafter at such annual meetings. The right of the holders of shares
of this Series to vote together as a class with the holders of shares of any
Other Voting Stock shall continue until such time as all dividends accrued on
outstanding shares of this Series to the Dividend Payment Date next preceding
the date of any such determination shall have been paid in full, or declared
and set apart in trust for payment, at which time the right of the holders of
shares of this Series so to vote shall terminate, except as herein or by law
expressly provided, subject to revesting upon the occurrence of a subsequent
default of the character mentioned above.
(c) At any time when the right of the holders of shares of
this Series to elect directors as provided in Section 5(b) hereof shall have
vested, and if such right shall not already have been initially exercised, a
proper officer of the Corporation, upon the written request of the holders of
record of at least 10% of the aggregate number of shares of this Series and
shares of any Other Voting Stock at the time outstanding, addressed to the
Secretary of the Corporation, shall call a special meeting of the holders of
shares of this Series and of such Other Voting Stock for the purpose of
electing directors. Such meeting shall be held at the earliest practicable
date upon the same form of notice as is required for annual meetings of
stockholders at the place for the holding of annual meetings of stockholders
of the Corporation (or such other suitable place as is designated by such
officer). If such meeting shall not be called by a proper officer of the
Corporation within 20 days after personal service of such written request upon
the Secretary of the Corporation, or within 20 days after mailing the same
within the United States of America, addressed to the Secretary of the
Corporation at its principal office (such mailing to be evidenced by the
registry receipt issued by the postal authorities), then the holders of record
of at least 10% of the aggregate number of shares of this Series and shares of
any Other Voting Stock at the time outstanding may designate in writing one of
their number to call such a meeting at the expense of the Corporation, and
such meeting may be called by such person so designated upon the same form of
notice as is required for annual meetings of stockholders and shall be held at
the place for the holding of annual meetings of stockholders of the
Corporation (or such other suitable place as is designated by such person).
Any holder of shares of this Series so designated shall have access to the
registry books of the Corporation for the purpose of causing a meeting of
stockholders to be called pursuant to this subsection (c). Notwithstanding
anything to the contrary contained in this subsection (c), no such special
meeting shall be called during the period within 90 days immediately preceding
the date fixed for the next annual meeting of stockholders of the Corporation.
(d) At any meeting held for the purpose of electing directors at
which holders of shares of this Series shall have the right, voting together
as a class with holders of shares of any Other Voting Stock to elect directors
as provided in Section 5(b) hereof, the presence, in person or by proxy, of
the holders of 33 1/3% of the aggregate number of shares of this Series and
shares of such Other Voting Stock at the time outstanding shall be required
and be sufficient to constitute a quorum of such class for the election of
directors pursuant to such Section 5(b). At any such meeting or adjournment
thereof, (i) the absence of a quorum of the shares of this Series and shares
of such Other Voting Stock shall not prevent the election of the directors to
be elected otherwise than pursuant to Section 5(b) hereof and (ii) in the
absence of a quorum, either of the shares of this Series and shares of such
Other Voting Stock or of any other shares of stock of the Corporation, or
both, a majority of the holders, present in person or by proxy, of the class
or classes of stock which lack a quorum shall have the power to adjourn the
meeting for the election of directors whom they are entitled to elect, from
time to time without notice other than announcement at the meeting, until a
quorum shall be present.
(e) During any period when the holders of shares of this Series
shall have the right to vote together as a class with the holders of shares of
any Other Voting Stock for directors as provided in Section 5(b) hereof, (i)
the directors so elected by such holders shall continue in office until their
successors shall have been elected by such holders or until termination of the
rights of such holders to vote as a class for directors and (ii) any vacancies
in the Board of Directors shall be filled only by a majority (even if that be
only a single director) of the remaining directors theretofore elected by the
holders of the class or classes of stock which elected the director whose
office shall have become vacant. Immediately upon termination of the right of
holders of this Series and any Other Voting Stock to vote as a class for
directors, (i) the term of office of the directors so elected shall terminate
and (ii) the number of directors shall be such number as may be provided for
in the by-laws of the Corporation irrespective of any increase pursuant to the
provisions of Section 5(b) hereof.
(f) In addition to any other vote required by law, the
Corporation shall not (i) amend, alter or repeal, whether by merger,
consolidation or otherwise, the provisions of the Certificate of Incorporation
(including this Certificate of Designations) so as to materially and adversely
affect any right, preference, privilege or voting power of this Series or (ii)
create, authorize or issue any series or class of stock ranking prior, either
as to payment of dividends or distributions of assets upon liquidation,
dissolution or winding up, to this Series, without the affirmative vote or
consent of the holders of at least twothirds of the aggregate number of shares
of this Series at the time outstanding, voting as a separate class; provided,
that any increase in the total number of authorized shares of Class A Common
Stock, Special Stock or Preferred Stock, or the creation, authorization or
issuance of any series of stock ranking, as to dividends or distribution of
assets upon liquidation, dissolution or winding up of the affairs of the
Corporation, on a parity with the shares of this Series will not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers; provided, further, that no class vote of the holders of shares of this
Series shall be required if, at or prior to the time when the actions
described in clause (i) or (ii) of this Section 5(f) shall become effective,
provision is made in accordance with Section 4 hereof for the redemption of
all shares of this Series at the time outstanding.
6. Preference upon Liquidation. (a) In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, after payment or provision for payment of the debts and
other liabilities of the Corporation and of dividends and liquidation
preferences in respect of any other stock of the Corporation ranking senior to
the shares of this Series as to such payments, the holders of shares of this
Series shall be entitled to receive, out of the remaining net assets of the
Corporation, the Dollar Equivalent Value of 160 ounces of silver in cash for
each share of this Series, plus an amount equal to all dividends (whether or
not earned or declared) accrued and unpaid on each such share up to the date
fixed for distribution, before any distribution shall be made to or set apart
for the holders of any Junior Stock. If, after payment or provision for
payment of the debts and other liabilities of the Corporation and of dividends
and liquidation preferences in respect of any other stock of the Corporation
ranking senior to the shares of this Series as to such payments, the remaining
net assets of the Corporation are not sufficient to pay to the holders of
shares of this Series the full amount of their preference set forth above,
then the remaining net assets of the Corporation shall be divided among and
paid to the holders of shares of this Series, holders of shares of any other
class or series of Preferred Stock, holders of shares of Special Preference
Stock and holders of shares of any other stock of the Corporation on a parity
with this Series as to dividends and distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Corporation ratably per share
in proportion to the full per share amounts to which they respectively are
entitled. For purposes of this Section 6(a) and Section 6(b), a consolidation
or merger of the Corporation with one or more other Corporations or the sale
of all or substantially all of the assets of the Corporation shall not be
deemed to be a voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation.
(b) Subject to the rights of the holders of shares of any
series or class of stock ranking on a parity as to dividends and distribution
of assets upon liquidation, dissolution or winding up of the affairs of the
Corporation, after payment shall have been made in full to the holders of this
Series as provided in Section 6(a) and this Section 6(b), the holders of any
Junior Stock shall, subject to the respective terms and provisions (if any)
applying thereto, be entitled to receive any and all assets remaining to be
paid or distributed, and shares of this Series shall not be entitled to share
therein.
7. Taxes. The Corporation will pay any and all documentary,
stamp or similar taxes payable to the United States of America or any
political subdivision or taxing authority thereof or therein in respect of the
issue or delivery of certificates for shares of this Series on redemption of
less than all of the shares represented by any certificate for such shares
surrendered for redemption or pursuant to a Reserve Coverage Offer; provided,
that the Corporation shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issue or delivery of certificates
for shares of this Series in a name other than that of the holder of shares of
this Series to be redeemed or repurchased and no such issue or delivery shall
be made unless and until the person requesting such issue or delivery has paid
to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid. The Corporation
extends no protection with respect to any other taxes imposed in connection
with such redemption or repurchase of shares of this Series.
8. No Other Rights. The shares of this Series shall not have
any relative, participating, optional or other special rights and powers other
than as set forth herein and other than any which may be provided by law.
IN WITNESS WHEREOF, Freeport-McMoRan Copper & Gold Inc. has
caused its corporate seal to be hereunto affixed and this Certificate of
Designations to be signed by its Vice President as of this ____ day of
July, 1994.
FREEPORT-McMoRan COPPER & GOLD INC.
By:________________________________
Name: Stephen M. Jones
Title: Vice President
[CORPORATE SEAL]
Attest:
By:
_____________________________
Name: Michael C. Kilanowski
Title: Secretary
EXHIBIT 4.5
(previously filed)
