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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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FREEPORT-MCMORAN COPPER & GOLD INC.
(Exact name of registrant as specified in its charter)
Delaware 74-2480931
(State of incorporation (IRS Employer
or organization) Identification No.)
First Interstate Bank Building
One East First Street, Suite 1600 89501
Reno, Nevada (Zip Code)
(Address of Principal Executive Offices)
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Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class
to be so registered is to be registered
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Depositary Shares, Series II New York Stock Exchange, Inc.
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Securities to be registered pursuant to Section 12(g) of the Act:
None
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be
Registered.
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The general terms and provisions of the Depositary Shares, Series
II (the "Depositary Shares"), representing shares of Gold-Denominated
Preferred Stock, Series II (the "Gold-Denominated Preferred Stock") are
described in the Prospectus of the Company dated July 21, 1993 (the
"Prospectus") filed with the Securities and Exchange Commission (the
"Commission") as part of Amendment No. 1 to the Registration Statement
(Registration No. 33-66098) 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 Gold-
Denominated Preferred Stock are described in a preliminary Prospectus
Supplement dated January 7, 1994 relating to the Gold-Denominated Preferred
Stock, Series II (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
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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 Gold-Denominated
Preferred Stock, Series II.
4.4 Form of Certificate of Designations relating to the Gold-
Denominated Preferred Stock, Series II.
4.5 Preliminary Prospectus Supplements for domestic and
international offerings dated January 7, 1994 (subject to
completion, filed January 10, 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.
January 10, 1993
FREEPORT-McMoRan COPPER & GOLD INC.
By: /s/ Michael C. Kilanowski, Jr.
---------------------------------
Michael C. Kilanowski, Jr.
Secretary
(FACE OF CERTIFICATE)
DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES, SERIES II,
NUMBER EACH REPRESENTING DEPOSITARY SHARES
FCXGII 0.05 OF A SHARE OF SERIES II
GOLD-DENOMINATED
PREFERRED STOCK, SERIES II
OF
SEE REVERSE FOR CERTAIN
DEFINITIONS
CUSIP 35671D 881
Freeport-McMoRan Copper & Gold Inc.
(Incorporated under the Laws of the State of Delaware)
Mellon Securities Trust Company (the "Depositary") hereby certifies that
is the registered owner of
Depositary Shares, Series II
(the "Depositary Shares"), each Depositary Share representing 0.05 of a
share of Gold-Denominated Preferred Stock, Series II, $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"), 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). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled, proportionately,
to all 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, Transfer Agent and Registrar
By:
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt Appear on the
Reverse Side
(REVERSE OF CERTIFICATE)
FURTHER CONDITIONS AND AGREEMENTS
FORMING PART OF THIS RECEIPT
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 January 15, 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. 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 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 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. 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 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 (except the right to receive the
cash, if any, payable upon redemption upon surrender of such Receipts)
shall, to the extent of such Depositary Shares, cease and terminate. The
foregoing is subject further to the terms and conditions of the Certificate
of Designations.
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 that 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.
4. Withdrawal of Stock Not Permitted. 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 or 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 (incuding 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 conversion of 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 (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, subject to conversion
except as provided in the last sentence of Paragraph 3.
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 or
transfer of this Receipt or any split-up or combination hereof 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 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. 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.
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 entilted to
notice, or of the mandatory conversion of, or any election on the part of
the Company to call for 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 of
such meeting or to receive notice of such 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 City 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.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Receipt, 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--
TEN ENT--as tenants by the entireties . . . . . . . . Custodian . . . . .
JT TEN --as joint tenants with right (Cust). . . . . . . . . . .(Minor)
of survivorship and not as under Uniform Gifts to Minors
tenants in common Act. . . . . . . . . . . . . . . . .
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
:-------------------------------------:
: :
:_____________________________________:_______________________________________
______________________________________________________________________________
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.
__________________________________________________
FREEPORT-McMoRan COPPER & GOLD INC.
and
MELLON SECURITIES TRUST COMPANY,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
____________
DEPOSIT AGREEMENT
____________
Dated as of January 15, 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 January 15,
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. Each Depositary
Share shall represent an interest in 0.05 shares of
Stock deposited with the Depositary hereunder and 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
Gold-Denominated Preferred Stock, Series II, 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. 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.
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), 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 canceled.
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 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 continue
to 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
(FACE OF STOCK CERTIFICATE)
---------------- ----------------
: NUMBER : Freeport-McMoRan : SHARES :
: GPS : Copper & Gold Inc. : :
---------------- ----------------
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP 35671D 80 8 SEE REVERSE FOR
Gold-Denominated CERTAIN DEFINITIONS
Preferred Stock, Series II
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
Gold-Denominated Preferred Stock, Series II 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
(REVERSE OF STOCK CERTIFICATE)
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--
TEN EN --as tenants by the entireties . . . . . . . . Custodian . . . . .
JT TEN --as joint tenants with right (Cust). . . . . . . . . . .(Minor)
of survivorship and not as under Uniform Gifts to Minors
tenants in common Act. . . . . . . . . . . . . . . . .
(State)
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.
CERTIFICATE OF DESIGNATIONS
OF
GOLD-DENOMINATED PREFERRED STOCK, SERIES II
(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 2,000,000 shares of Preferred Stock, par
value $0.10 per share, of which 1,100,000 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 July 21, 1993 and January 6, 1994, and a Special
Committee thereof, pursuant to authority specifically
granted to it by such Board of Directors, acting by
Unanimous Written Consent dated January __, 1994, duly
adopted the following resolutions authorizing the
creation and issuance of a series of Preferred Stock
to be known as "Gold-Denominated Preferred Stock,
Series II."
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) 215,000 shares of
Preferred Stock of the Corporation are hereby
constituted as a series of Preferred Stock designated
as "Gold-Denominated Preferred Stock, Series II"
(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 May 1, 1994 and ending February
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;
provided that dividends payable on February 1, 2006
(the "Mandatory Redemption Date") shall be paid as
provided in Section 4. 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 existing series of
Gold-Denominated Preferred Stock), the 7% Convertible
Exchangeable Special Preference Stock (hereinafter
called the "Special Preference 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 existing series of
Gold-Denominated Preferred Stock), the Special
Preference 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 gold. "Dollar
Equivalent Value" means the applicable Reference Gold
Price multiplied by the applicable number of ounces of
gold. "Reference Gold Price" means, when used to
calculate the amount of any dividend payable on any
Dividend Payment Date (other than the Mandatory
Redemption Date, as to which the calculation shall be
made as provided in Section 4) the arithmetic average
of the London P.M. gold fixing price (or A.M. gold
fixing price if there is no P.M. gold fixing price on
the applicable trading date) for an ounce of gold in
the London bullion market on each of the five 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
gold is not traded during any relevant period in the
London bullion market or is not quoted in U.S. dollars
in such market, gold 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 gold 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 May 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 shares of this
Series shall be subject to mandatory redemption by the
Corporation, out of funds legally available therefor,
on the Mandatory Redemption Date at the Dollar
Equivalent Value of 2.0 ounces of gold per share plus
accrued and unpaid dividends (as hereinafter defined)
to the Mandatory Redemption Date.
(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 on any
Dividend Payment Date the total number of shares of
this Series outstanding shall be less than 15% of the
total number of shares of this Series outstanding on
the 40th day following the date of original issuance
of the shares of this Series, the Corporation shall
have the option to redeem the outstanding shares of
this Series, in whole but not in part, out of funds
legally available therefor, at an amount equal to the
Dollar Equivalent Value of 2.0 ounces of gold 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
redeem all outstanding shares of this Series on the
Mandatory Redemption Date then, until it shall have
redeemed all outstanding Shares of this Series, 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"). If the funds available for such mandatory
redemption are insufficient to redeem all outstanding
shares of this Series and any other series of Parity
Stock which the Corporation is then obligated to
redeem or purchase, the total available funds shall be
divided among the shares of this Series and such other
series in proportion to the aggregate amount of
redemption or other purchase obligations with respect
to this Series and such other series.
(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), a
sufficient number of shares of this Series and of
other Gold 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
Gold 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 the mandatory
redemption on the Mandatory Redemption Date or a
Reserve Coverage Offer, the funds of the Corporation
legally available for redemption or repurchase of the
shares of any series are insufficient to redeem or
repurchase such shares, those funds legally available
shall be used to redeem or repurchase the maximum
possible number of shares of such series, pro rata
based upon the number of shares to be redeemed or
delivered for purchase, as the case may be. At any
time thereafter when additional funds of the
Corporation become legally available for such purpose,
such funds shall immediately be used to redeem or
purchase, as the case may be, any additional shares of
such series which the Corporation is obligated to
redeem or purchase, as the case may be, but which it
has not so redeemed or purchased.
(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) upon redemption on the Mandatory
Redemption Date, (B) in the case of any Reserve
Coverage Offer, (C) in the case of any optional
redemption and (D) 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 Gold 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 Coverage Requirement" as of
any Calculation Date means the sum of the individual
Reserve Coverage Requirements with respect to each
series of Gold 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) "Gold Parity Stock" means any series of
Parity Stock the liquidation preference of which is
based on specified amounts of gold.
(v) "Reference Gold Price", when used to
calculate any amount payable with respect to the
shares of this Series (other than dividends payable on
any Dividend Payment Date other than the Mandatory
Redemption Date) or to purchase any shares of this
Series on any date means the arithmetic average of the
London P.M. gold fixing price (or A.M. gold fixing
price if there is no P.M. gold fixing price on the
applicable trading date) for an ounce of gold 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 the mandatory
redemption of shares of this Series, the Mandatory
Redemption Date, (ii) in the case of any Reserve
Coverage Offer, the date of commencement thereof,
(iii) in the case of any optional redemption of shares
of this Series, the date fixed for such redemption and
(iv) in the case of a liquidation event, the date 30
days prior to the date fixed for the liquidating
distribution. If for any reason gold is not traded
during any relevant period in the London bullion
market or is not quoted in U.S. dollars in such
market, gold 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 gold as
determined by the Corporation's Board of Directors.
(vi) "Required Coverage Multiplier" means
(x) 5.0 with respect to this Series, (y) with respect
to any other series of Gold 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 Gold Parity Stock.
(vii) "Reserve Amount" as of any Calculation
Date means the Corporation's Proportionate Interest in
the estimated proved and probable gold 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 gold
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 gold 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 Gold Parity Stock shall mean
the product of (x) the aggregate liquidation
preference of all outstanding shares of such series
(expressed in ounces of gold) 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 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
two-thirds 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 2.0 ounces
of gold 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 __th day of
January, 1994.
FREEPORT-McMoRan COPPER & GOLD INC.
By:____________________________
Name: Stephen M. Jones
Title: Vice President
[CORPORATE SEAL]
Attest:
By:____________________________
Name: Michael C. Kilanowski
Title: Secretary
