Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 Registration Statement for Securities Offered 54± 204K
Pursuant to a Transaction
2: EX-3 Exhibit 3.3 11± 35K
3: EX-4 Exhibit 4.1 83± 309K
8: EX-4 Exhibit 4.10 2± 11K
9: EX-4 Exhibit 4.11 2± 11K
10: EX-4 Exhibit 4.12 34± 122K
11: EX-4 Exhibit 4.13 10± 40K
4: EX-4 Exhibit 4.3 90± 336K
5: EX-4 Exhibit 4.5 98± 397K
6: EX-4 Exhibit 4.7 104± 388K
7: EX-4 Exhibit 4.9 12± 45K
12: EX-5 Opinion re: Legality 3± 16K
13: EX-12 Statement re: Computation of Ratios 2± 11K
14: EX-23 Exhibit 23.1 1 8K
15: EX-23 Exhibit 23.3 1 7K
16: EX-24 Power of Attorney 20 55K
S-3 — Registration Statement for Securities Offered Pursuant to a Transaction
Document Table of Contents
As filed with the Securities and Exchange Commission on April 19, 1996.
Registration No. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FREEPORT MCMORAN COPPER & GOLD INC.
FCX FINANCE COMPANY B.V.
(Exact name of each registrant as specified in its charter)
Delaware 1615 Poydras Street 74-2480931
The Netherlands New Orleans, Louisiana 70112 Not Applicable
(State or other (504) 582-4000 (I.R.S. Employer
jurisdiction of (Address, including zip code, Identification
incorporation or and telephone number, including Nos.)
organization) area code, of the Registrants'
principal executive offices)
Henry A. Miller, Esq.
Freeport-McMoRan Copper & Gold Inc.
Vice President and General Counsel
1615 Poydras Street
New Orleans, Louisiana 70112
(504) 582-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service of each Registrant)
Copies to:
William B. Masters, Esq.
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
201 St. Charles Avenue
New Orleans, Louisiana 70170
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being
registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, check the
following box. __
If any of the securities being
registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans,
check the following box. X
If this Form is filed to register
additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the
following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering. __
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the
Securities Act registration statement number of the
earlier effective registration statement for the same
offering. __
If delivery of the prospectus is
expected to be made pursuant to Rule 434, please check the
following box. X
______________________________________
CALCULATION OF REGISTRATION FEE
[Enlarge/Download Table]
_______________________________________________________________________________________________________
Proposed Proposed
maximum maximum Amount of
Title of each class of Amount to be offering aggregate registration
securities to be registered registered<F1> price offering fee
per price<F3>
unit<F2><F3>
=======================================================================================================
Debt Securities<F4> $750,000,000 100% $750,000,000 $258,621
Preferred Stock, par value $0.10 per
share<F5> -- -- -- --
Guarantees<F6> -- -- -- --
Warrants<F7> -- -- -- --
Depositary Shares<F8> -- -- -- --
========================================================================================================
(facing sheet continued on following page)
<FN>
<F1> In U.S. dollars or the equivalent thereof in one or
more foreign currencies or currency units or composite
currencies, including the European Currency Unit.
<F2> The proposed maximum initial offering price per unit
will be determined, from time to time, by the
Registrants.
<F3> Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457. No separate
consideration will be received for Preferred Stock or
Depositary Shares that are issued upon conversion of
Debt Securities or Preferred Stock or the exercise of
the Warrants registered hereby.
<F4> Subject to Footnote (3), there are being registered
hereunder an indeterminate principal amount of Debt
Securities as may be sold from time to time by each of
the Registrants. If any such Debt Securities are
issued at an original issue discount, then the
principal amount shall be in such greater amount as
shall result in an aggregate initial offering price of
up to $750,000,000.
<F5> Subject to Footnote (3), there are being registered
hereunder an indeterminate number of shares of
Preferred Stock as may be sold from time to time by
Freeport-McMoRan Copper & Gold Inc. There are also
being registered hereunder an indeterminate number of
shares of Preferred Stock as may be issuable upon the
conversion of the Debt Securities or Preferred Stock
or the exercise of the Warrants registered hereby.
<F6> Each of the Debt Securities issued by FCX Finance
Company B.V. will be accompanied by a Guarantee to be
issued by Freeport-McMoRan Copper & Gold Inc. None of
the proceeds from the sale of such Debt Securities
will be received by Freeport-McMoRan Copper & Gold
Inc. for the Guarantees. No separate registration fee
is required for the Guarantees in accordance with Rule
457(n).
<F7> Subject to Footnote (3), there are also being
registered hereunder an indeterminate number of
Warrants as may be sold from time to time by Freeport-
McMoRan Cooper & Gold Inc. There are also being
registered hereunder an indeterminate number of shares
of Preferred Stock and Debt Securities as may be
issuable upon the exercise of the Warrants registered
hereby.
<F8> Subject to Footnote (3), there are being registered
such indeterminate number of Depositary Shares to be
evidenced by Depositary Receipts issued pursuant to a
Deposit Agreement. In the event Freeport-McMoRan
Copper & Gold Inc. elects to offer fractional
interests in shares of Preferred Stock registered
hereunder, the Depositary Receipts will be distributed
to those persons acquiring such fractional interests
and the shares of Preferred Stock will be issued to
the Depositary under the Deposit Agreement.
</FN>
____________________
The Registrants hereby amend this registration
statement on such date or dates as may be necessary to
delay its effective date until the Registrants shall file
a further amendment which specifically states that this
Registration Statement will thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933
or until the registration statement shall become effective
on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The information contained herein is subject to completion or amendment.
A Registration Statement relating to the securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the Registration Statement
becomes effective. This Prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any sale of these
securities in any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such state.
SUBJECT TO COMPLETION, dated April 19, 1996
PROSPECTUS
$750,000,000
Freeport-McMoRan Copper & Gold Inc.
Debt Securities
Guarantees
Preferred Stock
Warrants
FCX Finance Company B.V.
Guaranteed Debt Securities
Freeport-McMoRan Copper & Gold Inc. (the "Company" or "FCX")
may offer and issue from time to time, together or separately, in one
or more series (i) Debt Securities, which may be either senior debt
securities ("Senior Securities"), senior subordinated debt securities
("Senior Subordinated Securities") or subordinated debt securities
("Subordinated Securities"), consisting of debentures, notes, bonds
and/or other unsecured evidences of indebtedness, (ii) unconditional
and irrevocable guarantees ("Guarantees") of Debt Securities issued
by FCX Finance Company B.V. ("FCX Finance"), a wholly-owned
subsidiary of FCX, (iii) shares of the Company's Preferred Stock, par
value $0.10 per share ("Preferred Stock"), and (iv) Warrants
("Warrants") to purchase Debt Securities or Preferred Stock. FCX
Finance may offer and issue from time to time Senior Securities,
Senior Subordinated Securities and Subordinated Securities
guaranteed, in each case, as to principal, interest, premium, if any,
and additional amounts, if any, by FCX, consisting of debentures,
notes, bonds and/or other unsecured evidences of indebtedness in one
or more series (the "Guaranteed Debt Securities" and together with
the Debt Securities that may be issued by FCX, the "Debt
Securities"). The foregoing securities are collectively referred to
as the "Securities." The Securities will be offered at an aggregate
initial offering price not to exceed U.S. $750,000,000 (or its
equivalent (based on the applicable exchange rate at the time of
sale) in one or more foreign currencies, currency units or composite
currencies as shall be designated by FCX or FCX Finance, as the case
may be) at prices and on terms to be determined at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to
the particular Securities in respect of which this Prospectus is
being delivered: (i) in the case of Debt Securities, the title,
aggregate principal amount, denominations (which may be in United
States dollars or in any other currency, currencies or currency unit,
including the European Currency Unit), maturity, interest rate, if
any (which may be fixed or variable), or method of calculation
thereof, and time of payment of any interest, premium and additional
amounts, if any, any terms for redemption at the option of the
Company (or, in the case of Guaranteed Debt Securities issued by FCX
Finance, at the option of FCX Finance) or the holder, any terms for
sinking fund payments, any conversion or exchange rights, any listing
on a securities exchange and the initial public offering price and
any other terms in connection with the offering and sale of such Debt
Securities; (ii) in the case of Preferred Stock, the designation,
aggregate principal amount, stated value and liquidation preference
per share, initial public offering price, dividend rate (or method of
calculation), dates on which dividends shall be payable and dates
from which dividends shall accrue, any redemption or sinking fund
provisions, conversion or exchange rights, whether the Company has
elected to offer the Preferred Stock in the form of depositary
shares, any listing of the Preferred Stock on a securities exchange
and any other terms in connection with the offering and sale of such
Preferred Stock; and (iii) in the case of Warrants, the number and
terms thereof, the designation and the number of Securities issuable
upon their exercise, the exercise price, any listing of the Warrants
or the underlying Securities on a securities exchange and any other
terms in connection with the offering, sale and exercise of the
Warrants. The Prospectus Supplement will also contain information,
as applicable, about certain United States federal income tax
considerations relating to the Securities in respect of which this
Prospectus is being delivered.
The Senior Securities of FCX and FCX Finance will rank equally
with all other unsubordinated and unsecured indebtedness of the
Company. The Senior Subordinated Securities of FCX and FCX Finance
will be subordinated to all existing and future Senior Indebtedness
(as defined) of the Company, and senior to all existing and future
Subordinated Indebtedness (as defined) of the Company. The
Subordinated Securities of FCX and FCX Finance will be subordinated
to all existing and future Senior Indebtedness and Senior
Subordinated Indebtedness of the Company. All or a portion of any
Debt Securities may be issued in permanent global form.
The Company and FCX Finance may sell Securities to or through one
or more underwriters, dealers or agents or to other purchasers. The
accompanying Prospectus Supplement sets forth the names of any
underwriters, dealers or agents involved in the sale of the
Securities in respect of which this Prospectus is being delivered,
the principal amounts, if any, to be purchased by any underwriters,
dealers or sold through any agents and the compensation, if any, of
such underwriters or agents. See "Plan of Distribution."
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
PROSPECTIVE PURCHASERS OF SECURITIES SHOULD CAREFULLY CONSIDER THE
MATTERS SET FORTH UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE
5.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
, 1996
No dealer, salesperson or other person has been authorized to
give any information or to make any representations not contained or
incorporated by reference in this Prospectus or in the Prospectus
Supplement, and, if given or made, such information or
representations must not be relied upon as having been authorized by
FCX, FCX Finance or any underwriter, agent or dealer. This
Prospectus and the accompanying Prospectus Supplement do not
constitute an offer to sell or a solicitation of an offer to buy any
Securities other than the Securities to which they relate or an offer
to sell, or a solicitation of an offer to buy, to any person in any
jurisdiction where such an offer to or solicitation would be
unlawful. Neither the delivery of this Prospectus nor the
accompanying Prospectus Supplement, nor any sale made thereunder
shall, under any circumstances, create the implication that the
information contained or incorporated by reference herein or therein
is correct as of any time subsequent to their respective dates.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information
filed with the Commission by the Company can be inspected and copied
at the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.,
20549, and at the regional offices of the Commission located at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois, 60661 and at Seven World Trade Center, 13th Floor, New
York, New York, 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C., 20549, at prescribed rates. Such reports,
proxy statements and other information concerning the Company can
also be inspected at the offices of the New York Stock Exchange
("NYSE") at 20 Broad Street, New York, New York, 10005.
FCX Finance is a wholly-owned subsidiary of the Company. It
currently is not independently subject to the information
requirements of the Exchange Act. FCX Finance has applied for a
conditional exemption pursuant to Section 12(h) of the Exchange Act
from the informational requirements of the Exchange Act and
anticipates that no independent reports concerning FCX Finance will
be sent to holders of Guaranteed Debt Securities issued by FCX
Finance.
The Company and FCX Finance have filed a joint registration
statement on Form S-3 (herein, together with all amendments and
exhibits referred to as the "Registration Statement") with the
Commission under the Securities Act of 1933, as amended (the
"Securities Act"), pertaining to the Securities covered by this
Prospectus. This Prospectus, filed as a part of the Registration
Statement, does not contain all the information set forth in the
Registration Statement or the exhibits and schedules thereto, certain
parts of which are omitted in accordance with the rules and
regulations of the Commission, and to which reference is hereby made.
Statements made in this Prospectus as to the contents of any
contract, agreement or other document filed as an exhibit to the
Registration Statement are summaries of the terms of such contracts,
agreements or documents. Reference is made to each such exhibit for
a more complete description of the matters involved, and such
statements shall be deemed qualified in their entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 (File No 1-9916), which has been filed by the
Company with the Commission pursuant to the Exchange Act, is by this
reference incorporated in and made a part of this Prospectus.
All reports and other documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Prospectus and prior to the termination of the
offering of the Securities shall be deemed to be incorporated by
reference herein and to be part of this Prospectus from their
respective dates of filing. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded to the extent that a statement
contained herein or in any other document subsequently filed which
also is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each
person to whom this Prospectus is delivered, upon a written or oral
request, a copy of any or all of the documents that are incorporated
herein by reference (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into such
documents). Requests should be directed to Freeport-McMoRan Copper &
Gold Inc., Attention: Secretary, 1615 Poydras Street, New Orleans,
Louisiana, 70112 (Telephone: (504) 582-4000).
ENFORCEMENT OF CIVIL LIABILITIES
FCX Finance is a private company with limited liability
incorporated in The Kingdom of the Netherlands. Substantially all of
its assets are located outside the United States. FCX Finance has
been advised by its legal counsel in the Netherlands, Wouters
Advocaten, that there is no treaty between the United States and the
Netherlands for the mutual recognition and enforcement of judgments
(other than arbitration awards) in civil and commercial matters.
Therefore, final judgments for the payment of money rendered by any
federal or state court in the United States based on civil liability,
whether or not predicated solely upon the federal securities laws,
would not be directly enforceable in the Netherlands. In order to
enforce in the Netherlands any United States judgment obtained
against FCX Finance, proceedings must be initiated before a court of
competent jurisdiction in the Netherlands. A Netherlands court will,
under current practice, normally issue a judgment based upon the
judgment rendered by the United States court if it finds that (i) the
United States court had jurisdiction over the original proceedings,
(ii) the judgment was obtained in compliance with principles of due
process, (iii) the judgment is final and conclusive such that all
appeals have been exhausted and (iv) the judgment does not contravene
the public policy or public order of the Netherlands. Based on the
foregoing, there can be no assurance that the United States investors
will be able to enforce against FCX Finance, certain members of the
Board of Directors of FCX Finance or certain experts named herein who
are residents of the Netherlands or countries other than the United
States any judgment in civil and commercial matters, including
judgments under the federal securities laws. FCX Finance has been
advised by such counsel that, under certain circumstances, a
Netherlands court might impose civil liability on FCX Finance or on
members of the Board of Directors of FCX Finance in an original
action predicated solely upon the federal securities laws of the
United States brought in a court of competent jurisdiction in the
Netherlands against the Issuer or such members.
FCX, the guarantor of any Guaranteed Debt Securities, is a
Delaware corporation with its principal executive offices in the
United States. Accordingly, process may be served and judgments
enforced against FCX in the United States, including judgments
predicated upon the civil liabilities provisions of the federal
securities laws of the United States.
THE COMPANY
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation ("FCX"
or the "Company"), is one of the world's largest copper and gold
companies in terms of reserves and production, and believes that it
has one of the lowest cost copper producing operations in the world,
taking into account customary credits for related gold and silver
production.
FCX's principal operating subsidiary is P.T. Freeport Indonesia
Company, a limited liability company organized under the laws of the
Republic of Indonesia and domesticated in Delaware ("PT-FI"). PT-FI
engages in the exploration for and development, mining and processing
of copper, gold and silver in Irian Jaya, Indonesia pursuant to an
agreement (a "COW" or "Contract of Work") with the Government of the
Republic of Indonesia (the "Indonesian Government") and in the
worldwide marketing of concentrates containing such metals. PT-FI's
largest mine, Grasberg, was discovered in 1988 and contains the
largest single gold reserve and one of the three largest open-pit
copper reserves in the world.
Through P.T. IRJA Eastern Minerals Corporation ("Eastern Mining"),
FCX holds an additional COW in Irian Jaya. Eastern Mining was formed
in 1994 for the purpose of acquiring, holding and developing the
Eastern Mining COW.
FCX is also engaged in the smelting and refining of copper
concentrates in Spain through its indirect, wholly-owned subsidiary,
Rio Tinto Minera, S.A.
The Company's principal executive offices are located at 1615
Poydras Street, New Orleans, Louisiana, 70112 and its telephone
number is (504) 582-4000.
FCX FINANCE
FCX Finance Company B.V. ("FCX Finance") is a wholly-owned
subsidiary of FCX organized as a private company with limited
liability under the laws of the Netherlands on March 4, 1996. FCX
Finance was established for the purpose of issuing the Guaranteed
Debt Securities and other debt securities guaranteed by FCX and
lending the net proceeds thereof to FCX and its other subsidiaries.
FCX Finance will be restricted from issuing any capital stock to any
person other than FCX and its wholly-owned subsidiaries. FCX Finance
will not lease or own any material facilities or other property or
engage in any other material operations. FCX Finance's principal
office is c/o ABN AMRO Trust Company (Nederland) B.V. Coolsingel
139,3000 DG, Rotterdam, The Netherlands, and its telephone number of
011-31-10-402-4323.
RISK FACTORS
An investment in any Securities involves certain risks.
Accordingly, prospective investors should consider carefully the
following factors, in addition to the other information concerning
the Company and its business contained in this Prospectus, and any
accompanying Prospectus Supplement, before purchasing any of the
Securities offered hereby.
Prices of Minerals
Because FCX's revenues are derived primarily from the sale of
concentrates containing copper and gold, FCX's earnings are directly
related to market prices for copper and gold. Prices for such
minerals historically have fluctuated widely and are affected by
numerous factors beyond FCX's control.
Location and Industry Risks
PT-FI's mining operations are located in steeply mountainous
terrain in a very remote area of Indonesia, which makes the conduct
of its operations difficult and has required PT-FI to overcome
special engineering difficulties and develop extensive infrastructure
facilities. The area is subject to considerable rainfall, which has
led to periodic floods and mud slides. The mine site is also in an
active seismic area, and earth tremors have been experienced from
time to time. None of these factors has caused personal injury to
PT-FI employees or significant property damage not covered by
insurance or any significant interruptions to production, although no
assurance can be given that delays, injury or damage will not occur
in the future. PT-FI also is subject to the usual risks encountered
in the mining industry, including unexpected geological conditions
resulting in cave-ins, floodings and rock-bursts and unexpected
changes in rock stability conditions. PT-FI has substantial
insurance involving such amounts and types of coverage as it believes
are appropriate for its exploration, development, mining and
processing activities in Indonesia.
Political Factors
Maintaining a good relationship with the Indonesian Government is
of particular importance to the Company because its principal
operations are located in Indonesia. PT-FI's mining complex was
Indonesia's first copper mining project and was the first major
foreign investment in Indonesia following the economic development
program instituted by the Suharto administration in 1967. PT-FI works
closely with the central, provincial and local governments in
development efforts in the vicinity of its operations. The Company
operates in Indonesia through PT-FI by virtue of the PT-FI COW and
through Eastern Mining by virtue of the Eastern Mining COW, both of
which have 30-year terms, provide for two 10-year extensions under
certain conditions, and govern PT-FI's and Eastern Mining's rights
and obligations relating to taxes, exchange controls, repatriation
and other matters. Both COWs were concluded pursuant to the 1967
Foreign Capital Investment Law, which expresses Indonesia's foreign
investment policy and provides basic guarantees of remittance rights
and protection against nationalization, a framework for economic
incentives and basic rules regarding other rights and obligations of
foreign investors.
PT-FI's mining operations are located in the Indonesian province
of Irian Jaya, which occupies the western half of the island of New
Guinea and became part of Indonesia during the early 1960s. The area
surrounding PT-FI's mining development is sparsely populated by
primitive indigenous tribes and former residents of more populous
areas of Indonesia, some of whom have resettled in Irian Jaya under
the Indonesian Government's transmigration program. Certain members
of the indigenous population oppose Indonesian rule over Irian Jaya,
and several small separatist groups seek political independence for
the province. Sporadic attacks on civilians by the separatists and
sporadic but highly publicized conflicts between separatists and the
Indonesian military have led to allegations of human rights
violations. PT-FI personnel have not been involved in those
conflicts. The Indonesian military occasionally has exercised its
right to appropriate transportation and other equipment of PT-FI.
PT-FI's policy has been to operate in Irian Jaya in compliance
with all Indonesian laws and in a manner that improves the lives of
the indigenous population. PT-FI incurs significant costs associated
with its social and cultural activities. Such activities include
comprehensive job training programs, basic education programs,
extensive malaria control and general public health programs,
agricultural assistance programs, a business incubator program to
encourage the local people to establish their own small scale
businesses, cultural preservation programs, and charitable donations.
Following civil disturbances in the mining town of Tembagapura and
the lowlands town of Timika in early 1996 and as a result of
subsequent meetings with tribal leaders, the Company, in cooperation
with the Indonesian Government, agreed to redistribute and refocus
its community development programs by dedicating 1% of PT-FI's
revenues over the next ten years to fund these efforts and, among
other things, to increase the number of local Irianese in its work
force. The Indonesian Government agreed as part of its development
efforts in Irian Jaya to create an integrated development plan
calling for the participation of the local indigenous tribes in
creating and developing the community development projects funded by
the Company. While management believes that its efforts to be
responsive to the issues relating to the impact of its operations on
the local indigenous tribes should ensure that mining operations will
not be disrupted, social and political instability in the area may,
in the future, have an adverse impact on PT-FI's mining operations.
Reserves
FCX reserve amounts, which are determined in accordance with
established mining industry practices and standards, are estimates
only. PT-FI's mines in production or development may not conform to
geological or other expectations, so that the volume and grade of
reserves recovered and the rates of production may be more or less
than anticipated. Because ore bodies do not contain uniform grades
of minerals, ore recovery rates will vary from time to time,
resulting in variations in volumes of minerals sold from period to
period. Further, market price fluctuations in copper, gold and, to a
lesser extent, silver, and changes in operating and capital costs may
render certain ore reserves uneconomic to develop. No assurance can
be given that FCX's exploration programs will result in the discovery
of commercially exploitable mineral deposits.
Environmental and Government Regulation
The Company's exploration and mining activities in Irian Jaya
involve significant engineering and environmental challenges that
relate primarily to the location of the mine in remote, rugged
highlands and the disposition of tailings through discharge into a
river that deposits them in a controlled deposition area near the
sea. The Company has sought to preserve and protect the environment
in its area of operations.
The Company has expended significant resources, both financial and
managerial, to comply with environmental regulations and permitting
and approval requirements and anticipates that it will continue to do
so in the future. There can be no assurance that additional
significant costs and liabilities will not be incurred to comply with
such current and future regulations.
Holding Company Structure
Because FCX is primarily a holding company, conducting business
through its subsidiaries, its ability to meet its obligations under
the Debt Securities, the Guarantees and its other indebtedness and to
pay dividends on its Preferred Stock and Common Stock will depend on
the earnings and cash flow of its subsidiaries and the ability of its
subsidiaries to pay dividends and to advance funds to the Company.
Under certain circumstances, contractual and legal restrictions, as
well as the financial condition and operating requirements of PT-FI
and the Company's other subsidiaries, could limit the Company's
ability to obtain cash from its subsidiaries for the purpose of
meeting its debt service obligations, including the payment of
principal and interest on any Debt Securities. Any right of the
Company to participate in any distribution of the assets of PT-FI and
its other subsidiaries upon the liquidation, reorganization or
insolvency thereof would, with certain exceptions, be subject to the
claims of creditors (including trade creditors) and preferred
stockholders (if any) of such subsidiaries.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, the net proceeds from the sale of the Securities will be
used for general corporate purposes, including the repayment of
existing indebtedness, capital expenditures and additions to working
capital. The Company anticipates that it and its subsidiaries will
raise additional funds from time to time through equity or debt
financings, including borrowings under its revolving credit
facilities, to finance their businesses.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges and the ratio of earnings to fixed charges, preferred stock
dividends and minimum distributions of the Company and its
consolidated subsidiaries for the periods indicated.
Years Ended December 31, 1991
______________________________
1991 1992 1993 1994 1995
_____ ____ _____ _____ _____
Ratio of earnings to fixed charges 4.5x 6.5x 3.6x 7.5x 6.0x
Ratio of earnings to fixed charges,
preferred stock dividends and minimum
distributions (unaudited) 3.3x 3.5x 1.2x 2.1x 3.0x
For purposes of calculating the ratios, "earnings" consist of
income from continuing operations before income taxes, minority
interest and fixed charges and "fixed charges" consist of interest
and that portion of rent which is deemed representative of interest.
For purposes of calculating the ratio of earnings to fixed charges,
preferred stock dividends and minimum distributions, the preferred
stock dividend requirements were assumed to be equal to the pretax
earnings which would be required to cover such dividend requirements.
The amount of such pretax earnings required to cover preferred stock
dividends was computed using tax rates for the applicable year.
"Minimum distributions" for purposes of calculating this ratio
consist of required minimum distributions for the Company's Class A
Common Stock that expired May 1, 1993.
-3-
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
Debt Securities may be issued from time to time in one or more
series by FCX or by FCX Finance. In the event that any series of
Guaranteed Debt Securities is issued by FCX Finance, such Guaranteed
Debt Securities will be offered together with unconditional and
irrevocable guarantees issued by FCX (the "Guarantees"). In the
following description, references to the Issuer refer to FCX, in the
case of a series of Debt Securities issued by FCX, and to FCX and FCX
Finance, in the case of a series of Debt Securities issued by FCX
Finance.
The Debt Securities will constitute either indebtedness designated
as Senior Indebtedness ("Senior Securities"), indebtedness designated
as Senior Subordinated Indebtedness ("Senior Subordinated
Securities") or indebtedness designated as Subordinated Indebtedness
("Subordinated Securities"). The particular terms of each series of
Securities offered by a particular Prospectus Supplement and, if such
Debt Securities are offered by FCX Finance, the particular terms of
the Guarantees offered in connection therewith, will be described in
such Prospectus Supplement or Prospectus Supplements relating to such
series. Senior Securities, Senior Subordinated Securities and
Subordinated Securities will each be issued under separate indentures
(individually an "Indenture" and collectively the "Indentures") to be
entered into prior to the issuance of such Debt Securities, forms of
which Indentures are filed as exhibits to this Registration
Statement. The Indentures will be substantially identical, except
for provisions relating to subordination and the Guarantees.
Information regarding the Trustee under an Indenture will be included
in any Prospectus Supplement relating to the Debt Securities issued
thereunder. The following discussion includes a summary description
of all material terms of the Indentures, other than terms which are
specific to a particular series of Debt Securities and which will be
described in the Prospectus Supplement relating to such series. The
following summaries do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all of the
provisions of the Indentures, including the definitions therein of
certain terms capitalized in this Prospectus. Wherever particular
Sections or Articles or defined terms of the Indentures are referred
to herein or in a Prospectus Supplement, such Sections or defined
terms are incorporated herein or therein by reference.
Other than to the extent applicable to the Debt Securities of a
particular series, as indicated in the applicable Prospectus
Supplement, there are no provisions of the Indentures that limit the
amount of indebtedness that may be issued or incurred by the Issuer
or any subsidiary, that restrict the Issuer's or any subsidiary's
ability to incur secured indebtedness, that restrict FCX's ability to
pay dividends or make other distributions, nor do the Indentures
contain provisions that would afford holders of the Debt Securities
protection in the event of a change in control, highly leveraged
transaction, recapitalization or similar transaction involving FCX,
any of which could adversely affect the holders of the Debt
Securities.
General
The Indentures do not limit the aggregate amount of Debt
Securities which may be issued thereunder, and Debt Securities may be
issued thereunder from time to time in separate series up to the
aggregate amount from time to time authorized by the Issuer for each
series. Debt Securities of a series may be issued in registered form
without coupons ("Registered Debt Securities"), in bearer form with
or without coupons attached ("Bearer Debt Securities") or in the form
of one or more Global Securities in registered or bearer form (each,
a "Global Security"). Bearer Debt Securities, if any, will be
offered only to non-United States persons and to offices located
outside the United States of certain United States financial
institutions. The Senior Securities will be unsecured and
unsubordinated obligations of the Issuer and will rank equally and
ratably with all other unsecured and unsubordinated indebtedness of
the Issuer. The Senior Subordinated Securities and the Subordinated
Securities will be subordinated in right of payment to the prior
payment in full of the Senior Indebtedness (as defined) of the
Issuer, as described below under "Subordination of Senior
Subordinated Securities, Subordinated Securities and Guarantees" and
in a Prospectus Supplement applicable to an offering of Senior
Subordinated Securities or Subordinated Securities.
Any Debt Security issued by FCX Finance will be unconditionally
and irrevocably guaranteed by FCX as to payment of principal, premium
and additional amounts, if any, and interest.
The applicable Prospectus Supplement or Prospectus Supplements
will describe the following terms of the series of Debt Securities in
respect of which this Prospectus is being delivered: (a) the Issuer
(which may be either the Company or FCX Finance) and title of such
Debt Securities; (b) any limit on the aggregate principal amount of
such Debt Securities; (c) whether such Debt Securities will be issued
as Registered Debt Securities, Bearer Debt Securities or any
combination thereof, and any limitation on issuance of such Bearer
Debt Securities and any provisions regarding the transfer or exchange
of such Bearer Debt Securities, including exchange for Registered
Debt Securities of the same series; (d) whether any of such Debt
Securities are to be issuable as a Global Security, whether such
Global Securities are to be issued in temporary global form or
permanent global form, and, if so, the terms and conditions, if any,
upon which interests in such Securities in global form may be
exchanged, in whole or in part, for the individual Debt Securities
represented thereby; (e) the person to whom any interest on any Debt
Security of the series shall be payable if other than the person in
whose name the Debt Security is registered on the record date; (f)
the date or dates on which such Debt Securities will mature; (g) the
rate or rates of interest, if any, or the method of calculation
thereof, which such Debt Securities will bear; (h) the date or dates
from which any such interest will accrue, the interest payment dates
on which any such interest on such Debt Securities will be payable
and the record date for any interest payable on any interest payment
date; (i) the place or places where the principal of, interest,
premium and additional amounts (if any) on such Debt Securities will
be payable; (j) the period or periods within which, the events upon
the occurrence of which, and the price or prices at which, such Debt
Securities may, pursuant to any optional or mandatory provisions, be
redeemed or purchased, in whole or in part, by the Issuer and any
terms and conditions relevant thereto; (k) the power or obligation of
the Issuer, if any, to redeem or repurchase such Debt Securities; (l)
the denominations in which any such Debt Securities will be issuable,
if other than denominations of $1,000 and any integral multiple
thereof; (m) the currency, currencies or currency unit or units of
payment of principal of and any premium, additional amounts (if any)
and interest on such Debt Securities if other than U.S. dollars; (n)
any index or formula used to determine the amount of payments of
principal of and any premium, additional amounts and interest on such
Debt Securities; (o) if the principal of or any premium or interest
on such Debt Securities is to be payable, at the election of the
Issuer or a Holder thereof, in one or more currencies or currency
units other than that or those in which such Debt Securities are
stated to be payable, the currency, currencies or currency units in
which payment of the principal of and any premium and interest on
Debt Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made; (p) if other than
the principal amount thereof, the portion of the principal amount of
such Debt Securities of the series which will be payable upon
declaration of the acceleration of the maturity thereof; (q) the
applicability of any provisions described under "Certain Covenants of
the Issuer" and any additional restrictive covenants (including any
defined terms relating thereto) included for the benefit of the
holders of such Debt Securities; (r) the applicability of, deletions
from, modifications of or additions to any provisions described under
"Events of Default" (including any defined terms relating thereto)
and any additional Events of Default with respect to the Debt
Securities; (s) the applicability of any provisions described under
"Defeasance"; and (t) any other terms of such Debt Securities not
inconsistent with the provisions of the respective Indentures.
Debt Securities may be issued at a discount from their principal
amount. Any United States federal income tax considerations and
other special considerations applicable to any such Original Issue
Discount Securities will be described in the applicable Prospectus
Supplement.
If the purchase price of any of the Debt Securities is denominated
in a foreign currency or currencies or a foreign currency unit or
units or if the principal of and any premium and interest on any
series of Debt Securities is payable in a foreign currency or
currencies or a foreign currency unit or units, the restrictions,
elections, general tax considerations, specific terms and other
information with respect to such issue of Debt Securities and such
foreign currency or currencies or foreign currency unit or units will
be set forth in the applicable Prospectus Supplement.
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for transfer in the manner, at the places
and subject to the restrictions set forth in the Debt Securities and
the applicable Indenture. Such services will be provided without
charge, other than any tax or other governmental charge payable in
connection therewith, but subject to the limitations provided in the
applicable Indenture. Bearer Debt Securities and the coupons, if
any, appertaining thereto will be transferable by delivery.
Unless otherwise set forth in the applicable Prospectus
Supplement, Debt Securities may bear interest at a fixed rate or a
floating rate. Debt Securities bearing no interest or interest at a
rate that at the time of issuance is below the prevailing market rate
may be sold at a discount below their stated principal amount.
Special United States federal income tax considerations applicable to
any such discounted Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at a discount
for United States federal income tax purposes will be described in
the relevant Prospectus Supplement.
Debt Securities may be issued from time to time with payment terms
which are calculated by reference to the value, rate or price of one
or more commodities, currencies or indices. Holders of such Debt
Securities may receive a principal amount (including premium, if any)
on any principal payment date,or a payment of interest on any
interest payment date, that is greater than or less than the amount
of principal (including premium, if any) or interest otherwise
payable on such dates, depending upon the value, rate or price on the
applicable dates of the applicable currency, commodity or index.
Information as to the methods for determining the amount of
principal, premium (if any) or interest payable on any date, the
currencies, commodities or indices to which the amount payable on
such date is linked and certain additional tax considerations will be
set forth in the applicable Prospectus Supplement.
Guarantees
The Company will unconditionally and irrevocably guarantee, on a
senior, senior subordinated or subordinated basis, the due and
punctual payment of principal of, premium and additional amounts, if
any, and interest on any Debt Securities that are issued by FCX
Finance, and the due and punctual payment of any sinking fund
payments thereon, when and as the same shall become due and payable,
whether at the maturity date, by declaration of acceleration, call
for redemption or otherwise. See "Subordination of Senior
Subordinated Securities, Subordinated Securities and Guarantees."
Senior Debt
The Senior Securities will rank pari passu with all other
unsecured and unsubordinated debt of the Issuer and senior to any
Subordinated Debt Securities and Subordinated Securities.
Subordination of Senior Subordinated Securities, Subordinated
Securities and Guarantees
The indebtedness evidenced by the Senior Subordinated Securities
and the Subordinated Securities will be subordinated and junior in
right of payment to the extent set forth in the respective Indenture
to the prior payment in full of amounts then due on all Senior
Indebtedness (as defined below). No payment shall be made by the
Issuer on account of principal of (or premium or additional amounts,
if any) or interest on the Senior Subordinated Securities or the
Subordinated Securities or on account of the purchase or other
acquisition of Senior Subordinated Securities or the Subordinated
Securities, if the maturity of any of the Senior Subordinated
Securities or the Subordinated Securities shall have been
accelerated, until all amounts due have been paid on all outstanding
Senior Indebtedness, or if there shall have occurred and be
continuing (a) a default in the payment of principal (or premium or
additional amounts, if any) or interest on any Senior Indebtedness
beyond any applicable grace period with respect thereto, or any event
of default with respect to any Senior Indebtedness resulting in the
acceleration of the maturity of such Senior Indebtedness, unless and
until such default or event of default shall have been cured or
waived or shall have ceased to exist and such acceleration shall have
been rescinded or annulled or (b) any such default in payment or
event of default shall be the subject of a judicial proceeding. By
reason of these provisions in the event of default of any Senior
Indebtedness, whether now outstanding or hereafter issued, payments
of principal of (and premium, if any) and interest on the Senior
Subordinated Securities or the Subordinated Securities may not be
permitted to be made until such default is cured or such Senior
Indebtedness is paid in full.
Upon any distribution of assets of the Issuer upon any
receivership, dissolution, winding-up, liquidation, reorganization or
similar proceedings of the Issuer, whether voluntary or involuntary,
or in bankruptcy or insolvency, all principal of (and premium and
additional amounts, if any) and interest due upon all Senior
Indebtedness must be paid in full before the Holders of the Senior
Subordinated Securities and the Subordinated Securities or the
Trustee is entitled to receive or retain any assets so distributed in
respect of the Senior Subordinated Securities or the Subordinated
Securities. By reason of this provision, in the event of insolvency,
Holders of the Senior Subordinated Securities and the Subordinated
Securities may recover less, ratably, than other creditors of the
Issuer, including holders of Senior Indebtedness.
"Senior Indebtedness" means, when used with respect to any series
of Senior Subordinated Securities or Subordinated Securities, the
principal of (and premium, if any) and interest on (a) all
indebtedness of the Issuer (including indebtedness of others
guaranteed by the Issuer) other than the Subordinated Securities
which is (i) for money borrowed or (ii) evidenced by a note or
similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind, (b) obligations of the
Issuer as lessee under leases required to be capitalized on the
balance sheet of the lessee under generally accepted accounting
principles, and (c) amendments, renewals, extensions, modifications
and refunding of any such indebtedness or obligation, in any such
case whether outstanding on the date of the Senior Subordinated
Indenture or the Subordinated Indenture or thereafter created,
incurred or assumed, except that, with respect to the Senior
Subordinated Securities, any particular indebtedness, obligation,
liability, guaranty, assumption, deferral, renewal, extension or
refunding shall not constitute "Senior Indebtedness" if it is
expressly stated in the governing terms, or in the assumption or
guarantee, thereof that the indebtedness involved is not senior in
right of payment to the Senior Subordinated Securities or that such
indebtedness is pari passu with or junior to the Senior Subordinated
Securities and, with respect to Subordinated Securities, any
particular indebtedness, obligation, liability, guaranty, assumption,
deferral, renewal, extension or refunding shall not constitute
"Senior Indebtedness" if it is expressly stated in the governing
terms, or in the assumption or guarantee, thereof that the
indebtedness involved is not senior in right of payment to the
Subordinated Securities or that such indebtedness is pari passu with
or junior to the Subordinated Securities. As of March 31, 1996, the
amount of Senior Indebtedness of the Company was approximately $1.1
billion. FCX Finance has no indebtedness at the date of this
Prospectus.
If this Prospectus is being delivered in connection with a series
of Senior Subordinated Securities or Subordinated Securities, the
accompanying Prospectus Supplement or the information incorporated
herein by reference will set forth the approximate amount of Senior
Indebtedness outstanding as of the end of the Issuer's most recent
fiscal quarter.
In the event that Senior Subordinated Securities or Subordinated
Securities are issued by FCX Finance, the related Guarantees issued
by the Company will be subordinate and junior in right of payment to
Senior Indebtedness of the Company on substantially the same terms
and conditions as the obligations of FCX Finance under the Senior
Subordinated Securities or the Subordinated Securities, as the case
may be, will be subordinate and junior in right of payment to Senior
Indebtedness. Accordingly, in the event of insolvency of the
Company, holders of Senior Securities of FCX Finance and the related
Guarantees may recover less, ratably, than other creditors of the
Company, including holders of Senior Securities of FCX and the
Guarantees related thereto.
Form, Exchange, Registration, Conversion, Transfer and Payment
Debt Securities are issuable in definitive form as Registered Debt
Securities, as Bearer Debt Securities or both. Unless otherwise
indicated in an applicable Prospectus Supplement, Bearer Debt
Securities will have interest coupons attached. Debt Securities are
also issuable in temporary or permanent global form.
Registered Debt Securities of any series will be exchangeable for
other Registered Debt Securities of the same series and of a like
aggregate principal amount and tenor of different authorized
denominations. In addition, with respect to any series of Bearer
Debt Securities, at the option of the holder, subject to the terms of
the Indenture, such Bearer Debt Securities (with all unmatured
coupons, except as provided below, and all matured coupons in
default) will be exchangeable into Registered Debt Securities of the
same series of any authorized denominations and of a like aggregate
principal amount and tenor. Bearer Debt Securities surrendered in
exchange for Registered Debt Securities between a record date and the
relevant date for payment of interest shall be surrendered without
the coupon relating to such date for payment of interest, and
interest accrued as of such date will not be payable in respect of
the Registered Debt Security issued in exchange for such Bearer Debt
Security, but will be payable only to the holder of such coupon when
due in accordance with the terms of the Indenture.
Debt Securities may be presented for exchange as provided above,
and Registered Debt Securities may be presented for registration of
transfer (with the form of transfer endorsed thereon duly executed),
at the office or agency of the Issuer maintained for such purposes
and at any other office or agency maintained for such purpose with
respect to any series of Debt Securities and referred to in the
applicable Prospectus Supplement, without a service charge and upon
payment of any taxes and other governmental charges as described in
the Indenture. Such transfer or exchange will be effected upon the
Issuer or its agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request.
Bearer Debt Securities may only be presented for exchange at an
office or agency of the Issuer (or any other office or agency
maintained for such purpose) located outside the United States and
referred to in the applicable Prospectus Supplement.
In the event of any redemption in part, the Issuer shall not be
required to (a) issue, register the transfer of or exchange Debt
Securities of any series during a period beginning at the opening of
business 15 days prior to the selection of Debt Securities of that
series for redemption and ending on the close of business on (i) if
Debt Securities of the series are issued only as Registered Debt
Securities, the day of mailing of the relevant notice of redemption
and (ii) if Debt Securities of the series are issued as Bearer Debt
Securities, the day of the first publication of the relevant notice
of redemption except that, if Securities of the series are also
issued as Registered Debt Securities and there is no publication, the
day of mailing of the relevant notice of redemption; (b) register the
transfer of or exchange any Registered Debt Security, or portion
thereof, called for redemption, except the unredeemed portion of any
Registered Debt Security being redeemed in part; or (c) exchange any
Bearer Debt Security called for redemption, except to exchange such
Bearer Debt Security for a Registered Debt Security of that series
and like tenor which is simultaneously surrendered for redemption.
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of (and any premium) and interest on
Bearer Debt Securities will be payable, subject to any applicable
laws and regulations, in the designated currency or currency unit, at
the offices of such Paying Agents ("Paying Agents") outside the
United States as the Issuer may designate from time to time, at the
option of the holder, by check or by transfer to an account
maintained by the payee with a bank located outside the United
States; provided, however, that the written certification described
above under "Form, Exchange, Registration and Transfer" has been
delivered prior to the first actual payment of interest. Unless
otherwise indicated in the applicable Prospectus Supplement, payment
of interest on Bearer Debt Securities on any interest payment date
will be made only against surrender to the Paying Agent of the coupon
relating to such interest payment date. No payment with respect to
any Bearer Debt Security will be made at any office or agency of the
Issuer in the United States or by check mailed to any address in the
United States or by transfer to any account maintained with a bank
located in the United States, nor shall any payments be made in
respect of Bearer Debt Securities upon presentation to the Issuer or
its designated Paying Agents within the United States.
Notwithstanding the foregoing, payments of principal of (and any
premium) and interest on Bearer Debt Securities denominated and
payable in U.S. dollars will be made at the office of the Issuer's
Paying Agent in the United States, if (but only if) payment of the
full amount thereof in U.S. dollars at all offices or agencies
outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions.
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of (and any premium) and interest on
Registered Debt Securities will be made in the designated currency or
currency unit at the office of such Paying Agent or Paying Agents as
the Issuer may designate from time to time, except that at the option
of the Issuer payment of any interest may be made by check mailed to
the address of the person entitled thereto as such address shall
appear on records of the Security Registrar. Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any
installment of interest on Registered Debt Securities will be made to
the person in whose name such Registered Debt Security is registered
at the close of business on the record date for such interest.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Corporate Trust Office of the Trustee will be
designated as a Paying Agent for the Trustee for payments with
respect to Debt Securities which are issuable solely as Registered
Debt Securities, and the Issuer will maintain a Paying Agent outside
the United States for payments with respect to Debt Securities
(subject to limitations described above in the case of Bearer Debt
Securities) which are issued solely as Bearer Debt Securities, or as
both Registered Debt Securities and Bearer Debt Securities. Any
Paying Agents outside the United States and any other Paying Agents
in the United States initially designated by the Issuer for the Debt
Securities will be named in an applicable Prospectus Supplement. The
Issuer may at any time designate additional Paying Agents or rescind
the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that, if Debt Securities
of a series are issued solely as Registered Debt Securities, the
Issuer will be required to maintain a Paying Agent in each place of
payment for such series and, if Debt Securities of a series are
issued as Bearer Securities, the Issuer will be required to maintain
(a) a Paying Agent in the United States for principal payments with
respect to any Registered Debt Securities of the series (and for
payments with respect to Bearer Debt Securities of the series in the
circumstances described above, but not otherwise), and (b) a Paying
Agent in a place of payment located outside the United States where
Securities of such series and any coupons appertaining thereto may be
presented and surrendered for payment.
All monies paid by the Issuer to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which
remain unclaimed at the end of two years after such principal,
premium or interest shall have become due and payable will (subject
to applicable escheat laws) be repaid to the Issuer and the holder of
such Debt Security or any coupon will thereafter look only to the
Issuer for payment thereof.
Temporary Global Securities
If so specified in the applicable Prospectus Supplement, all or
any portion of the Debt Securities of a series which are issuable as
Bearer Debt Securities will initially be represented by one or more
temporary global Debt Securities, without interest coupons, to be
deposited with a common depository in London for the Euroclear System
("Euroclear") and CEDEL S.A. ("CEDEL") for credit to the designated
accounts. On and after the date determined as provided in any such
temporary global Debt Security and described in the applicable
Prospectus Supplement, each such temporary global Debt Security will
be exchangeable for definitive Bearer Debt Securities, definitive
Registered Debt Securities or all or a portion of a permanent global
security, or any combination thereof, as specified in the applicable
Prospectus Supplement, but, unless otherwise specified in the
applicable Prospectus Supplement, only upon written certification in
the form and to the effect described under "Form, Exchange,
Registration and Transfer." No Bearer Debt Security delivered in
exchange for a portion of a temporary global Debt Security will be
mailed or otherwise delivered to any location in the United States in
connection with such exchange.
Unless otherwise specified in the applicable Prospectus
Supplement, interest in respect of any portion of a temporary global
Debt Security payable in respect of an payment date occurring prior
to the issuance of definitive Debt Securities or a permanent global
Subordinated Debt Security will be paid to each of Euroclear and
CEDEL with respect to the portion of the temporary global Debt
Security held for its account. Each of Euroclear and CEDEL will
undertake in such circumstances to credit such interest received by
it in respect of a temporary global Debt Security to the respective
accounts for which it holds such temporary global Debt Security only
upon receipt in each case of written certification in the form and to
the effect described above under "Form, Exchange, Registration and
Transfer" as of the relevant payment date regarding the portion of
such temporary global Debt Security on which interest is to be so
credited.
Permanent Global Securities
If any Debt Securities of a series are issuable in permanent
global form, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in
any such permanent global Debt Securities may exchange such interests
for Debt Securities of such series and of like tenor and principal
amount in any authorized form and denomination. No Bearer Debt
Security delivered in exchange for a portion of a permanent global
Debt Security shall be mailed or otherwise delivered to any location
in the United States in connection with such exchange.
Notwithstanding the foregoing, unless otherwise specified in an
applicable Prospectus Supplement, interests in a permanent global
Bearer Debt Security may be exchanged in whole (but not in part) at
the expense of the Issuer, for definitive Bearer Debt Securities, at
the request of any owner of a beneficial interest in such permanent
global Bearer Debt Security.
Book-Entry Debt Securities
The Debt Securities of a series may be issued in whole or in part
in the form of one or more Global Securities that will be deposited
with, or on behalf of, a Depositary ("Depositary") or its nominee
identified in the applicable Prospectus Supplement. In such a case,
one or more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate
principal amount of Outstanding Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until
it is exchanged in whole or in part for Debt Securities in registered
form, a Global Security may not be registered for transfer or
exchange except as a whole by the Depositary for such Global Security
to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such
Depositary or any nominee to a successor Depositary or a nominee of
such successor Depositary and except in the circumstances described
in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to
any portion of a series of Debt Securities to be represented by a
Global Security will be described in the applicable Prospectus
Supplement. The Issuer expects that the following provisions will
apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus
Supplement, Debt Securities which are to be represented by a Global
Security to be deposited with or on behalf of a Depositary will be
represented by a Global Security registered in the name of such
Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf
of the Depositary for such Global Security, the Depositary will
credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by
such Global Security to the accounts of institutions that have
accounts with such Depositary or its nominee ("participants"). The
accounts to be credited will be designated by the underwriters or
agents of such Debt Securities or by the Issuer, if such Debt
Securities are offered and sold directly by the Issuer. Ownership of
beneficial interest in such Global Security will be limited to
participants or Persons that may hold interests through participants.
Ownership of beneficial interests by participants in such Global
Security will be shown on, and the transfer of that ownership
interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of
beneficial interests in such Global Security by Persons that hold
through participants will be shown on, and the transfer of that
ownership interest within such participant will be effected only
through, records maintained by such participant. The laws of some
jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The
foregoing limitations and such laws may impair the ability to
transfer beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee,
is the registered owner of such Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner
or Holder of the Securities represented by such Global Security for
all purposes under the applicable Indenture. Unless otherwise
specified in the applicable Prospectus Supplement, owners of
beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled
to receive physical delivery of Debt Securities of such series in
certificated form and will not be considered the Holders thereof for
any purposes under the applicable Indenture. Accordingly, each
Person owning a beneficial interest in such Global Security must rely
on the procedures of the Depositary and, if such Person is not a
participant, on the procedures of the participant through which such
Person owns its interest, to exercise any rights of a Holder under
the applicable Indenture. The Issuer understands that under existing
industry practices, if the Issuer requests any action of Holders or
an owner of a beneficial interest in such Global Security desires to
give any notice or take any action a Holder is entitled to give or
take under an Indenture, the Depositary would authorize the
participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such
participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning
through them.
Principal of and any premium and interest on a Global Security
will be payable in the manner described in the applicable Prospectus
Supplement.
Limitations on Issuance of Bearer Debt Securities
In compliance with United States Federal tax laws and regulations,
Bearer Debt Securities (including securities in permanent global form
that are either Bearer Debt Securities or exchangeable for Bearer
Debt Securities) will not be offered or sold during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) (generally, the first 40 days after the
closing date, and, with respect to unsold allotments, until sold)
within the United States or to United States persons (each as defined
below) other than to an office located outside the United States of a
United States financial institution (as defined in Section
1.165-12(c)(1)(v) of the United States Treasury Regulations),
purchasing for its own account or for resale or for the account of
certain customers, that provides a certificate stating that it agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the Code and the United States Treasury Regulations thereunder, or
to certain other persons described in Section
1.163-5(c)(2)(i)(D)(1)(iii)(B) of the United States Treasury
Regulations. Moreover, such Bearer Debt Securities will not be
delivered in connection with their sale during the restricted period
within the United States. Any underwriters and dealers participating
in the offering of Bearer Debt Securities must covenant that they
will not offer or sell during the restricted period any Bearer Debt
Securities within the United States or to United States persons
(other than the persons described above) or deliver in connection
with the sale of Bearer Debt Securities during the restricted period
any Bearer Debt Securities within the United States and that they
have in effect procedures reasonably designed to ensure that their
employees and agents who are directly engaged in selling the Bearer
Debt Securities are aware of the restrictions described above. No
Bearer Debt Security (other than a temporary global Bearer Debt
Security) will be delivered in connection with its original issuance
nor will interest be paid on any Bearer Debt Security until receipt
by the Issuer of the written certification described above under
"Form, Exchange, Registration and Transfer." Each Bearer Debt
Security, other than a temporary global Bearer Debt Security, will
bear a legend to the following effect: "Any United States person who
holds this obligation will be subject to limitations under the United
States Federal income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code."
As used herein, "United States person" means any citizen or
resident of the United States, any corporation, partnership or other
entity created or organized in or under the laws of the United States
and any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source, and "United
States" means the United States of America (including the states and
the District of Columbia) and its possessions.
Certain Covenants of the Issuer
The Indentures will provide that the Issuer will not consolidate
with or merge into any Person, or sell, lease, convey, transfer or
otherwise dispose of all or substantially all of its assets to any
Person, and the Issuer will not permit any Person to consolidate or
merge into the Issuer or sell, lease, convey, transfer or otherwise
dispose of all or substantially all of its assets to the Issuer
unless: (a) the Person formed by or surviving such consolidation or
merger (if other than the Issuer), or to which such sale, lease,
conveyance, transfer or other disposition shall be made
(collectively, the "Successor"), is a corporation organized and
existing under the laws of the United States or any State thereof or
the District of Columbia (or, alternatively, in the case of FCX
Finance, organized under the laws of the Netherlands), and the
Successor assumes by supplemental indenture in a form satisfactory to
the Trustee all of the obligations of the Issuer, under the
Indenture; (b) immediately after giving effect to such transaction
and treating any Debt that becomes an obligation of the Issuer or any
subsidiary as a result thereof as having been incurred by the Issuer
or such subsidiary at the time of such transaction, no Default or
Event of Default shall have occurred and be continuing; and (c) the
Issuer shall have delivered to the Trustee an Officer's Certificate
and Opinion of Counsel, each stating that such merger, consolidation,
sale or conveyance and such supplemental indenture, if any, complies
with the Indenture.
Events of Default
An Event of Default is defined under each Indenture with respect
to Debt Securities of any series issued under such Indenture as
being: (a) default for 30 days in payment of any interest or
additional amounts, if any, on the Debt Securities of such series;
(b) default in payment of any principal on the Debt Securities of
such series upon maturity or otherwise; provided that, if such
default is a result of the voluntary redemption by the holders of
such Debt Securities, the amount thereof shall be in excess of
$50,000,000 or the equivalent thereof in any other currency or
composite currency; (c) default for 60 days after written notice in
the observance or performance of any other covenant or agreement in
the Debt Securities of such series or the Indenture other than a
covenant or agreement included in the Indenture which is not
applicable to the Debt Securities of such series; (d) in the case of
Guaranteed Debt Securities, the Guarantees having ceased for any
reason to be in full force or effect or FCX having asserted that the
Guarantees are not in full force an effect and (e) certain events of
bankruptcy, insolvency or reorganization; or (f) failure to pay at
maturity, or other default which results in the acceleration of any
Debt in an amount in excess of $50,000,000 or the equivalent thereof
in any other currency or composite currency without such Debt having
been discharged or such acceleration having been cured, waived,
rescinded or annulled for a period of 30 days after written notice
thereof ("Debt" being defined to mean obligations (other than non-
recourse obligations or the Debt Securities of such series), of, or
guaranteed or assumed by, the Issuer for borrowed money or evidenced
by bonds, debentures, notes or other similar instruments).
Each Indenture provides that (a) if an Event of Default due to the
default in payment of principal, premium or additional amounts, if
any, or interest on, any series of Debt Securities issued under such
Indenture or due to the Default in the performance of any other
covenant or agreement applicable to the Debt Securities of such
series but not applicable to Debt Securities of any other series
issued under such Indenture shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal
amount of the outstanding Debt Securities of such series may declare
the principal (or such portion thereof as may be specified in the
terms thereof) of all Debt Securities of such series and interest
accrued thereof to be due and payable immediately; and (b) if an
Event of Default due to a default in the performance of any covenants
or agreements applicable to outstanding Debt Securities of more than
one series issued under such indenture or an Event of Default
described in clause (e) above shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal
amount of the outstanding Debt Securities of all such affected series
(treated as one class) may declare the principal (or such portion
thereof as may be specified in the terms thereof) of all such Debt
Securities and interest accrued thereon to be due and payable
immediately. If an Event of Default due to certain events of
bankruptcy, insolvency or reorganization shall occur, the principal
(or such portion hereof as may be specified in the terms thereof) of
and interest accrued on all Debt Securities then outstanding shall
become due and payable immediately, without action by the Trustee or
the holders of any such Debt Securities. Upon certain conditions
such declarations may be annulled and past defaults may be waived
(except a continuing default in payment of principal of (or premium,
if any) or interest on, or in respect of the conversion of, such Debt
Securities) by the holders of a majority in principal amount of the
outstanding Debt Securities of all such affected series (treated as
one class).
Each Indenture provides that the Trustee, subject to the duty of
the Trustee during a default to act with the required standard of
care, has no obligation to exercise any right or power granted it
under such Indenture at the request of holders of Debt Securities
unless the Trustee is indemnified by such holders. Subject to such
provisions in each Indenture for the indemnification of the Trustee
and certain other limitations, the holders of a majority in principal
amount of the outstanding Debt Securities of all affected series
issued under such Indenture (treated as one class) may direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to such series.
Each indenture provides that no holder of Debt Securities of any
series issued under such Indenture may institute any action against
the Issuer under such Indenture (except actions for payment of
overdue principal, premium and additional amounts, (if any) or
interest or to enforce conversion rights (if any)) unless (a) such
holder previously shall have given to the Trustee written notice of
default and continuance thereof, (b) the holders of not less than 25%
in principal amount of the Debt Securities of all affected series
issued under such Indenture (treated as one class) shall have made a
written request upon the Trustee to institute such action and shall
have offered the Trustee reasonable indemnity, (c) the Trustee shall
not have instituted such action within 60 days of such request and
(d) the Trustee shall not have received directions inconsistent with
such written request by the holders of a majority in principal amount
of the outstanding Debt Securities of all affected series issued
under such indenture (treated as one class).
Each Indenture contains a covenant that the Issuer will file
annually with the Trustee a certificate of no default or a
certificate specifying any default that exists.
Defeasance
Each Indenture provides that the Issuer may defease and be
discharged from any and all obligations (except as otherwise
described in (a) below) with respect to the Debt Securities of any
series which have not already been delivered to the Trustee for
cancellation and which have either become due and payable or are by
their terms due and payable within one year (or scheduled for
redemption within one year) by irrevocably depositing with the
Trustee, as trust funds, money or, in the case of Debt Securities
payable only in U.S. dollars, U.S. Government Obligations (as
defined) which through the payment of principal and interest in
accordance with their terms will provide money, in an amount
certified to be sufficient to pay at maturity (or upon redemption)
the principal of (and premium, if any) and interest on such Debt
Securities.
In addition, each Indenture provides that with respect to each
series of Debt Securities issued under such Indenture, the Issuer may
elect either (a) to defease and be discharged from any and all
obligations with respect to the Debt Securities of such series
(except for the obligations to register the transfer or exchange or
convert the Debt Securities of such series, to replace temporary or
mutilated, destroyed, lost or stolen Debt Securities of such series,
to maintain an office or agency in respect of the Debt Securities of
such series and to hold moneys for payment in trust) or (b) to be
released from the restrictions described under "Certain Covenants of
the Issuer" and, to the extent specified in connection with the
issuance of such series of Debt Securities, other covenants
applicable to such series of Debt Securities, upon the deposit with
the Trustee (or other qualifying trustee), as trust funds, or money
or, in the case of Debt Securities payable only in U.S. dollars, U.S.
Government Obligations which through the payment of principal and
interest in accordance with their terms will provide money, in an
amount certified to be sufficient to pay at maturity (or upon
redemption) the principal of (and premium and additional amounts, if
any) and interest on the Debt Securities of such series. Such a
trust may only be established if, among other things, the Issuer has
delivered to the Trustee an opinion of counsel (as specified in the
Indenture) to the effect that the holders of the Debt Securities of
such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have bene the case if such defeasance
had not occurred. Such opinion, in the case of a defeasance under
clause (a) above, must refer to and be based upon a ruling of the
Internal Revenue Service or a change in applicable Federal income tax
law occurring after the date of such Indenture.
In the event of any "legal" defeasance of any series of
Subordinated Debt Securities issued thereunder, the Subordinated Debt
Indenture provides that holders of all outstanding Senior
Indebtedness will receive written notice of such defeasance.
The foregoing provisions relating to defeasance may be modified in
connection with the issuance of any series of Debt Securities, and
any such modification will be described in the accompanying
Prospectus Supplement.
Modification of the Indenture
Each Indenture provides that the Issuer and the Trustee may enter
into supplemental indentures without the consent of the holders of
Debt Securities to: (a) secure such Debt Securities, (b) evidence
the assumption by a successor entity of the obligations of the
Issuer, (c) add covenants or Events of Default for the protection of
the holders of any Debt Securities, (d) establish the form or terms
of such Debt Securities of any series, (e) evidence the acceptance of
appointment by a successor trustee or (f) cure any ambiguity or
correct any inconsistency in the Indenture, amend the Indenture in
any other manner which the Issuer may deem necessary or desirable, if
such action will not adversely affect the interests of the holders of
Debt Securities issued thereunder.
Each Indenture also contains provisions permitting the Issuer and
the Trustee, with the consent of the holders of not less than a
majority in principal amount of Debt Securities of all series issued
under such Indenture then outstanding and affected (voting as a
single class), to add any provisions to, or change in any manner or
eliminate any of the provisions of, such Indenture or modify in any
manner the rights of the holders of the Debt Securities of each such
series; provided that the Issuer and the Trustee may not, without the
consent of the holder of each outstanding Debt Security affected
thereby, (a) extend the final maturity of any Debt Security, or
reduce the principal amount thereof, or reduce or alter the method of
computation of any amount payable in respect of interest thereon or
extend the time for payment thereof, or reduce or alter the method of
computation of any amount payable on redemption thereof or extend the
time for payment thereof, or change the currency in which the
principal thereof, premium, if any, or interest thereon is payable,
or reduce the amount payable upon acceleration or alter certain
provisions of the Indenture relating to the Debt Securities issued
thereunder not denominated in U.S. dollars, or impair the right to
institute suit for the enforcement of any conversion or any payment
on any Debt Security when due or materially and adversely affect any
conversion rights or (b) reduce the aforesaid percentage in principal
amount of Debt Securities of any series issued under such Indenture,
the consent of the holders of which is required for any such
modification.
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without
the consent of each holder of Senior Indebtedness then outstanding
that would be adversely affected thereby.
The Trustee
Information regarding the Trustee under an Indenture will be
included in any Prospectus Supplement relating to the Debt Securities
issued thereunder. The Indentures will provide that in case an Event
of Default shall occur (and be continuing), the Trustee will be
required to use the degree of care and skill of a prudent man in the
conduct of his own affairs. The Trustee will be under no obligation
to exercise any of its powers under the Indentures at the request of
any of the holders of the Debt Securities, unless such holders shall
have offered the Trustee reasonable indemnity against the costs,
expenses and liabilities which might be incurred by the Trustee. The
Indentures and provisions of the Trust Indenture Act incorporated by
reference therein contain limitations on the right of a Trustee,
should it become a creditor of the Issuer to obtain payment of claims
in certain cases or to realize on certain property received by it in
respect of any such claim as security or otherwise.
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and
provisions of the Preferred Stock. The particular terms of any
series of Preferred Stock will be described in the applicable
Prospectus Supplement. If so indicated in a Prospectus Supplement,
the terms of any such series may differ from the terms set forth
below. The summary of terms of the Company's Preferred Stock
contained in this Prospectus and the applicable Prospectus Supplement
does not purport to be complete and is subject to, and qualified in
its entirety by, the provisions of the Company's Certificate of
Incorporation and the certificate of designations relating to the
applicable series of the Preferred Stock (the "Certificate of
Designations"), which will be filed as an exhibit to or incorporated
by reference in the Registration Statement of which this Prospectus
is a part at the time of issuance of such series of the Preferred
Stock.
The Company's Certificate of Incorporation authorizes the issuance
of 50,000,000 shares of Preferred Stock, par value of $0.10 per
share. As of March 31, 1996, there were outstanding 8,955,700
depositary shares, each representing 0.05 shares of the Company's 7%
Convertible Exchangeable Preferred Stock, 13,999,800 depositary
shares, each representing 0.05 shares of the Company's Step-Up
Convertible Preferred Stock, 6,000,000 depositary shares, each
representing 0.05 shares of the Company's Gold-Denominated Preferred
Stock, 4,305,580 depositary shares, each representing 0.05 shares of
Gold-Denominated Preferred Stock, Series II, and 4,760,000 depositary
shares, each representing 0.025 shares of the Company's Silver-
Denominated Preferred Stock. See "Outstanding Preferred Stock." The
Company's Preferred Stock may be issued from time to time by the
Board of Directors in one or more series, without stockholder
approval. The Board of Directors is authorized to determine the
voting powers (if any), designation, preferences and relative,
participating, options or other special rights, and qualifications,
limitations or restrictions thereof, for each series of Preferred
Stock that may be issued, and to fix the number of shares of each
such series. Thus, the Board of Directors, without stockholder
approval, could authorize the issuance of Preferred Stock with
voting, conversion and other rights that could adversely affect the
voting power and other rights of holders of Class A Common Stock and
Class B Common Stock or other series of Preferred Stock or that could
have the effect of delaying, deferring or preventing a change in
control of the Company.
General
Reference is made to the Prospectus Supplement for the following
terms of and information relating to the Preferred Stock of any
series (to the extent such terms are applicable to such Preferred
Stock): (a) the specific designation, number of shares, seniority
and purchase price; (b) any liquidation preference per share; (c) any
date of maturity; (d) any redemption, payment or sinking fund
provisions; (e) any dividend rate or rates and the dates on which any
such dividends will be payable (or the method by which such rates or
dates will be determined); (f) any voting rights; (g) the currency or
units based on or relating to currencies in which such Preferred
Stock are denominated and/or in which payments will or may be
payable; (h) the methods by which amounts payable in respect of such
Preferred Stock may be calculated and any commodities, currencies or
indices, or value, rate or price relevant to such calculation; (i)
whether the Preferred Stock is convertible or exchangeable and, if
so, the securities or rights into which such Preferred Stock is
convertible or exchangeable, the terms and conditions upon which such
conversions or exchanges will be effected including the initial
conversion or exchange prices or rates, the conversion or exchange
period and any other related provisions; (j) the place or places
where dividends and other payments on the Preferred Stock will be
payable; and (k) and any additional voting, dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions.
The Preferred Stock offered hereby will be issued in one or more
series. The holders of Preferred Stock will have no preemptive
rights. Preferred Stock, upon issuance against full payment of the
purchase price therefor, will be fully paid and nonassessable.
Neither the par value nor the liquidation preference is indicative of
the price at which the Preferred Stock will actually trade on or
after the date of issuance. All shares of Preferred Stock shall be
of equal rank with each other, regardless of series. The applicable
Prospectus Supplement will contain a description of certain United
States federal income tax consequences relating to the purchase and
ownership of the series of Preferred Stock offered by such Prospectus
Supplement.
As described under "Description of Depositary Shares," the Company
may, at its option, elect to offer depositary shares ("Depositary
Shares") evidenced by depositary receipts ("Depositary Receipts"),
each representing an interest (to be specified in the Prospectus
Supplement relating to the particular series of the Preferred Stock)
in a share of the particular series of the Preferred Stock issued and
deposited with a Depositary (as defined below).
Dividends
Holders of shares of Preferred Stock of each series shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds of the Company legally available for payment,
cash dividends, payable at such dates and at such rates per share per
annum as set forth in the applicable Prospectus Supplement. Such
rate may be fixed or variable or both. Each declared dividend shall
be payable to holders of record as they appear on the stock books of
the Company on such record dates determined by the Board of Directors
or a duly authorized committee thereof.
Dividends on any series of the Preferred Stock may be cumulative
or noncumulative, as provided in the applicable Prospectus
Supplement. If dividends on a series of Preferred Stock are
noncumulative and if the Board of Directors fails to declare a
dividend in respect of a dividend period with respect to such series,
then holders of such Preferred Stock will have no right to receive a
dividend in respect of such dividend period, and the Company will
have no obligation to pay the dividend for such period, whether or
not dividends are declared payable on any future dividend payment
dates.
Unless full cumulative dividends for all past dividend periods on
all outstanding shares of cumulative Preferred Stock and any other
series of capital stock of the Company ranking on a parity with the
Preferred Stock have been paid, or declared and set apart for
payment, the Company may not (a) declare, pay or set apart any
amounts for dividends on, or make any other distribution in cash or
other property in respect of, the Class A or Class B Common Stock or
any other stock of the Company ranking junior to the Preferred Stock
as to dividends or distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Company (the Class A
or Class B Common Stock and such other stock being referred to herein
as "Junior Stock") other than a dividend payable solely in Junior
Stock, (b) purchase, redeem or otherwise acquire for value any shares
of Junior Stock, directly or indirectly, other than as a result of a
reclassification of Junior Stock, or the exchange or conversion of
one Junior Stock for or into another Junior Stock, or other than
through the use of proceeds of a substantially contemporaneous sale
of other Junior Stock, or (c) make any payment on account of, or set
aside money for, a sinking or other like fund for the purchase,
redemption or other acquisition for value of any shares of Junior
Stock. If the funds available for the payment of dividends are
insufficient to pay in full the dividends payable on all outstanding
shares of cumulative Preferred Stock and any other series of capital
stock of the Company ranking on a parity with the Preferred Stock,
the total available funds to be paid in partial dividends on such
Preferred Stock and such other series shall be divided among the
Preferred Stock and such other series in proportion to the aggregate
amount of dividends accrued and unpaid with respect to such Preferred
Stock and such other series. Accruals of dividends will not bear
interest.
Convertibility and Exchangeability
The terms, if any, on which shares of Preferred Stock of any
series may be exchanged for or converted (mandatorily or otherwise)
into shares of Preferred Stock or other securities or rights of the
Company (including rights to receive payments in cash or securities
based on the value, rate or price of one or more specified
commodities, currencies or indices) will be set forth in the
Prospectus Supplement relating thereto. The Preferred Stock will not
be convertible into or exchangeable for Class A or Class B Common
Stock of the Company.
Redemption
The terms, if any, on which shares of Preferred Stock of any
series may be redeemed will be set forth in the related Prospectus
Supplement.
If fewer than all of the outstanding shares of any series of
Preferred Stock are to be redeemed, the number of shares of such
series and the method of effecting such redemption, whether by lot or
pro rata, will be as determined by the Company (with adjustment to
avoid redemption of fractional shares).
Liquidation
Unless otherwise specified in the applicable Prospectus
Supplement, in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, after payment or provision
for payment of the debts and other liabilities of the Company, the
holders of shares of any series of the Preferred Stock, together with
any other Preferred Stock and any other series of capital stock of
the Company ranking on a parity with such series of the Preferred
Stock, will be entitled to receive out of the remaining net assets of
the Company an amount per share as set forth in the related
Prospectus Supplement plus accrued and unpaid dividends before any
distribution is made or set apart for the holders of Junior Stock.
If the amounts payable with respect to such Preferred Stock are not
paid in full, the holders of such Preferred Stock and any stock of
the Company on a parity with such Preferred Stock as to distribution
of assets upon the liquidation, dissolution or winding up of the
Company will have the right to share ratably in any distribution of
the remaining assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After
payment of the full amount of the liquidating distribution to which
they are entitled, the holders of such series of Preferred Stock will
not be entitled to any further participation in any distribution of
the remaining assets by the Company. A consolidation or merger of
the Company with one or more corporations or the sale of all or
substantially all of the assets of the Company will not be deemed to
be a liquidation, dissolution or winding up of the Company.
Voting
The Preferred Stock of a series will not be entitled to vote,
except as provided below or in the applicable Prospectus Supplement
and as required by applicable law. Unless otherwise indicated in the
Prospectus Supplement relating to a series of Preferred Stock, each
share of such series will not be entitled to vote on matters which
holders of such series are entitled to vote. Unless otherwise
specified in the related Prospectus Supplement, at any time dividends
in an amount equal to six quarterly dividend payments on the
Preferred Stock of such series shall have accrued and be unpaid,
holders of such Preferred Stock shall have the right to a separate
class vote together with the holders of shares of other series of
stock of the Company ranking on a parity with such series of
Preferred Stock either as to dividends or the distribution of assets
upon liquidating, dissolution or winding up and upon which like
voting rights have been conferred and are exercisable (such other
series of stock being herein referred to as "Other Voting Stock") to
elect two members to the Board of Directors until dividends on such
Preferred Stock have been paid in full or declared and set apart in
trust for payment. In such case, the Board of Directors will be
increased by two directors, and the holders of Preferred Stock of
such series (either alone or with the holders of Other Voting Stock)
will have the exclusive right as members of such class, as outlined
above, to elect two directors at the next annual meeting of
stockholders. Additionally, without the affirmative vote of the
holders of a majority of the shares of Preferred Stock of such series
then outstanding, voting as a separate class, the Company may not (i)
create, authorize or issue any series or class of stock ranking prior
to the shares of Preferred Stock of such series with respect to
dividends or distributions of assets upon liquidation, dissolution or
winding up or (ii) change the rights, powers or preferences or
qualifications, limitations or restrictions thereof with respect to
the Preferred Stock of such series if such action would materially
adversely affect such holders.
As more fully described under "Description of Depositary Shares"
below, if the Company elects to issue Depositary Shares, each
representing a fraction of a share of a series of the Preferred
Stock, each such Depositary Share will, in effect, be entitled to
such fraction of a vote per Depositary Share.
No Other Rights
The share of a series of Preferred Stock will not have any
preferences, voting powers or relative, participating, optional or
other special rights except as set forth above or in the related
Prospectus supplement, the Certificate of Incorporation or the
Applicable certificate of designations or as otherwise required by
law.
Transfer Agent and Registrar
The transfer agent for each series of Preferred Stock will be
described in the related Prospectus Supplement.
Outstanding Preferred Stock
All of the Company's outstanding Preferred Stock, and any other
series of Preferred Stock upon which the right to vote for directors
has been granted in accordance with the Certificate, have the right
to vote with the holders of the Class A Common Stock, voting together
as a single class, to elect that number of directors that constitutes
20% of the authorized number of members of the Board of Directors (or
if 20% is not a whole number, then the nearest whole number of
directors that is closest to 20% of such membership). Set forth
below is a summary of certain general terms and provisions of the
series of Preferred Stock outstanding as of the date of this
Prospectus.
7% Convertible Preferred Stock. As of March 31, 1996, the Company
had outstanding 447,785 shares of 7% Convertible Exchangeable
Preferred Stock par value $0.10 per share (the "7% Convertible
Preferred Stock"). The 7% Convertible Preferred Stock is represented
by depositary shares, each of which represents .05 shares of 7%
Convertible Preferred Stock and which trade on the NYSE. The 7%
Convertible Preferred Stock is redeemable at the option of the
Company, in whole or in part, at prices declining to $25 per
depositary share. The 7% Convertible Preferred Stock ranks, as to
payments of dividends and distributions upon liquidation, pari passu
with the Company's Step-Up Convertible Preferred Stock (as defined
below), Gold-Denominated Preferred Stock (as defined below) and the
Silver-Denominated Preferred Stock (as defined below) and senior to
the Company's Class A Common Stock and Class B Common Stock. Holders
of shares of 7% Convertible Preferred Stock are entitled to receive
cumulative cash dividends at an annual rate equivalent to $35 per
share ($1.75 per Depositary Share) when and as and if declared by the
Board of directors of the Company, which dividends are payable
quarterly. After full cumulative dividends on 7% Convertible
Preferred Stock for all past and current quarterly dividend periods
have been paid in full, the 7% Convertible Preferred Stock will not
be entitled to participate with the Class A Common Stock and Class B
Common Stock in any further distributions by the Company (except upon
liquidation, dissolution or winding up of the Company). In the event
of any such liquidation, dissolution or winding up, after payment or
provision for payment of the debts and other liabilities of the
Company, the holders of 7% Convertible Preferred Stock will be
entitled to receive out of the remaining net assets of the Company
$500 per share ($25 per Depositary Share) in cash plus accrued and
unpaid dividends before any distribution is made or set apart for the
holders of the Class A Common Stock and Class B Common Stock or any
other stock of the Company ranking junior to the Special Preference
Stock as to dividends or distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Company.
Each depositary share representing 7% Convertible Preferred Stock
is convertible at the option of the holder at any time, unless
previously redeemed, into shares of Class A Common Stock at a rate of
1.0208 shares per depositary share (equivalent to a conversion price
of $24.41 per share of Class A Common Stock), subject to adjustment
in certain circumstances. The depositary shares are exchangeable in
whole at the option of the Company on any quarterly dividend payment
date for the Company's 7% Convertible Subordinated Debentures due
2007 (the "Debentures") at a rate of $25.00 principal amount of
Debentures for each depositary share. The Debentures, if issued,
will be convertible at the option of the holder at any time, unless
previously redeemed, into Class A Common Stock at the conversion
price for depositary shares for which the Debentures have previously
been exchanged, subject to adjustment in certain circumstances.
The 7% Convertible Preferred Stock has limited voting rights
triggered by the failure of the Company to pay dividends in an amount
equal to six full quarterly dividends or by the Company's proposed
amendment to its Certificate of Incorporation so as to adversely
affect the rights of holders of 7% Convertible Preferred Stock.
Voting rights are not triggered upon amendment to the Certificate to
authorize other series of stock of the Company, whether ranking
senior to, on a parity with or junior to the 7% Convertible Preferred
Stock a to dividends or rights upon liquidation.
Step-Up Convertible Preferred Stock. As of March 31, 1996, the
Company had outstanding 699,990 shares of Step-Up Convertible
Preferred Stock, par value $0.10 per share (the "Step-Up Convertible
Preferred Stock"). The Step-Up Convertible Preferred Stock is
represented by depositary shares, each of which represents 0.05
shares of such stock and which trade on the NYSE. The Step-Up
Convertible Preferred Stock ranks, as to payment of dividends and
distribution upon liquidation, pari passu with the Company's 7%
Convertible Preferred Stock, the Gold-Denominated Preferred Stock (as
defined below) and the Silver-Denominated Preferred Stock (as defined
below) and senior to the Company's Class A Common Stock and Class B
Common Stock.
The Step-Up Convertible Preferred Stock has a liquidation
preference equivalent to $25.00 per depositary share and is
convertible at the option of the holder at any time, unless
previously redeemed. Dividends on the Step-Up Convertible Preferred
Stock are cumulative and are payable quarterly in an amount
equivalent to $1.25 per annum per depositary share through August 1,
1996 and thereafter in an amount equivalent to $1.75 per annum per
depositary share until redemption or conversion.
The Step-Up Convertible Preferred Stock is not redeemable prior to
August 1, 1996. Thereafter and prior to August 1, 1999, the Step-Up
Convertible Preferred Stock is redeemable at the option of the
Company, in whole or in part, for such number of shares of Class A
Common Stock as are issuable at the conversion rate. The Company may
exercise this option (and subject to certain other conditions) only
if, for 20 trading days within any period of 30 consecutive trading
days, including the last trading day of such period, the trading
prices of the Class A Common Stock has exceeded 125% of the
conversion price in effect on the last trading day. After August 1,
1999, the Step-Up Convertible Preferred Stock is fully redeemable at
the option of the Company at a redemption price equivalent to $25.00
per depositary share, plus accrued and unpaid dividends. The Company
may, at its option, subject to certain exceptions, pay the redemption
price in cash, Class A Common Stock or any combination thereof.
The Step-Up Convertible Preferred Stock has limited additional
voting rights with respect to the election of directors upon the
failure of the Company to pay dividends in an amount equal to six
full quarterly dividends and the right to vote as a separate class on
any proposal to amend the Certificate so as to adversely affect the
rights of holders of Step-Up Convertible Preferred Stock or create,
authorize or issue any series or class of stock ranking senior to the
shares of Step-Up Convertible Preferred Stock with respect to
dividends or the distribution of assets upon liquidation, dissolution
or winding up of the Company. The Step-Up Convertible Preferred
Stock does not have voting rights with respect to any amendment to
the Certificate to authorize other series of stock of the Company
ranking on a parity with or junior to the Step-Up Convertible
Preferred Stock as to dividends or distributions upon liquidation,
dissolution or winding up.
Gold-Denominated Preferred Stock. As of March 31, 1996, the
Company had outstanding 300,000 shares of Gold-Denominated Preferred
Stock ("Series I") and 215,279 shares of Gold-Denominated Preferred
Stock, Series II ("Series II" and, together with Series I, the "Gold-
Denominated Preferred Stock"). The Gold-Denominated Preferred Stock
is represented by depositary shares, each of which represents 0.05
shares of such stock and which are traded on the NYSE. The Gold-
Denominated Preferred Stock ranks, as to the payment of dividends and
distribution upon liquidation, pari passu with the 7% Convertible
Exchangeable Preferred Stock, the Step-Up Convertible Preferred Stock
and the Silver-Denominated Preferred Stock and senior to the
Company's Class A Common Stock and Class B Common Stock.
The Gold-Denominated Preferred Stock has a liquidation preference
equivalent to the dollar equivalent value of 0.10 ounces of gold per
depositary share plus accrued and unpaid dividends. Dividends on the
Gold-Denominated Preferred Stock are cumulative and are payable
quarterly, in the case of Series I, in an amount equivalent to the
dollar value of 0.000875 ounces of gold per depositary share and, in
the case of Series II, in an amount equivalent to the dollar
equivalent value of 0.0008125 ounces of gold per depositary share.
Each of Series I and Series II is subject to mandatory redemption,
out of funds legally available therefor, on August 1, 2003 and on
February 1, 2006, respectively, at an amount equivalent to the dollar
equivalent value of 0.10 ounce of gold per depositary share plus
accrued and unpaid dividends. The Gold-Denominated Preferred Stock
is not subject to redemption at the option of the Company, except in
limited circumstances. The Company does not have the right to make
any mandatory or optional redemption of any Gold-Denominated
Preferred Stock unless full cumulative dividends for all past
dividend periods shall have been paid or declared and set aside for
payment upon all depositary shares and all other outstanding shares
of stock of the Company ranking, as to dividends, on a parity with
the Gold-Denominated Preferred Stock. For purposes of this
discussion, the "dollar equivalent value" of a specified number of
ounces of gold means that number of ounces multiplied by a reference
price determined by taking the average of the London P.M. gold fixing
price for an ounce of gold on a specified number of days prior to the
date of determination.
The Gold-Denominated Preferred Stock has limited additional voting
rights with respect to the election of directors upon the failure of
the Company to pay dividends in an amount equal to six full quarterly
dividends and the right to vote as a separate class on any proposal
to amend the Certificate so as to adversely affect the rights of
holders of Gold-Denominated Preferred Stock or create, authorize or
issue any series or class of stock ranking senior to the shares of
Gold-Denominated Preferred Stock with respect to dividends or the
distribution of assets upon liquidation, dissolution or winding upon
of the Company. The Gold-Denominated Preferred Stock does not have
voting rights with respect to any amendment to the Certificate to
authorize other series of stock of the Company ranking on a parity
with or junior to the Gold-Denominated Preferred Stock as to
dividends or distributions upon liquidation, dissolution or winding
up.
Silver-Denominated Preferred Stock. As of March 31, 1996, the
Company had outstanding 119,000 shares of Silver-Denominated
Preferred Stock (the "Silver-Denominated Preferred Stock"). The
Silver-Denominated Preferred Stock is represented by depositary
shares, each of which represents 0.025 shares of such stock and which
are traded on the NYSE. The Silver-Denominated Preferred Stock
ranks, as to the payment of dividends and distribution upon
liquidation, pari passu with the 7% Convertible Exchangeable
Preferred Stock, the Step-Up Convertible Stock and the Gold-
Denominated Preferred Stock and senior to the Company's Class A
Common Stock and Class B Common Stock.
The depositary shares have a liquidation preference equivalent to
the dollar equivalent value of 4 ounces of silver per depositary
share, plus accrued and unpaid dividends. Dividends on the Silver-
Denominated Preferred Stock are cumulative and payable quarterly, in
an amount equivalent to the dollar value of 0.04125 ounces of silver
per depositary share.
The Company will redeem annually on August 1 beginning in 1999,
out of funds legally available therefor, a number of Silver-
Denominated Preferred Stock shares equal to one-eighth of the shares
originally issued, at an amount equivalent to the dollar equivalent
value of 40 ounces of silver per depositary share plus accrued and
unpaid dividends. Silver-Denominated Preferred Stock will not
subject to redemption at the option of the Company, except that, if
at any time the total number of shares of Silver-Denominated
Preferred Stock outstanding shall be less than 15% of the total
number of shares of Silver-Denominated Preferred Stock originally
issued, the Company will have the right to redeem the shares of
Silver-Denominated Preferred Stock, in whole but not in part, on any
subsequent quarterly dividend date at a redemption price equivalent
to the dollar equivalent value of the liquidation preference
described above plus a pro rata portion of the accrued and unpaid
dividends on the shares of Silver-Denominated Preferred Stock to the
date fixed for redemption. The Company will not have the right to
make a mandatory or optional redemption of any shares of Silver-
Denominated Preferred Stock unless full cumulative dividends for all
past dividend periods shall have been paid or declared and set aside
for payment upon all shares of Silver-Denominated Preferred Stock and
all other outstanding shares of stock of the Company ranking, as to
dividends pari passu with the Silver-Denominated Preferred Stock.
For purposes of this discussion, the "dollar equivalent value" of a
specified number of ounces of silver means that number of ounces
multiplied by a reference price determined by taking the average of
the London silver fixing price for an ounce of silver on a specified
number of days prior to the date of determination.
The Silver-Denominated Preferred Stock has limited additional
voting rights with respect to the election of directors upon the
failure of the Company to pay dividends in an amount equal to six
full quarterly dividends and the right to vote as a separate class on
any proposal to amend the Certificate so as to adversely affect the
rights of holders of Silver-Denominated Preferred Stock or create,
authorize or issue any series or class of stock ranking senior to the
shares of Silver-Denominated Preferred Stock with respect to
dividends or the distribution of assets upon liquidation, dissolution
or winding up of the Company. The Silver-Denominated Preferred Stock
does not have voting rights with respect to any amendment to the
Certificate to authorize other series of stock of the Company ranking
on a parity with or junior to the Silver-Denominated Preferred as to
dividends or distributions upon liquidation, dissolution or winding
up.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement
of certain provisions of the Deposit Agreement (as defined below) and
of the Depositary Shares and Depositary Receipts does not purport to
be complete and is subject to, and qualified in its entirety by
reference to, the form of Deposit Agreement and form of Depositary
Receipts relating to each series of the Preferred Stock which will be
filed with the Commission as an exhibit to the Registration Statement
of which this Prospectus is a part.
General
The Company may, at its option, elect to have shares of Preferred
Stock represented by Depositary Shares. The shares of any series of
the Preferred Stock underlying the Depositary Shares will be
deposited under a separate deposit agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected
by the Company (the "Depositary"). The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and
address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable interest in the number of shares of
Preferred Stock underlying such Depositary Share, to all the rights
and preferences of the Preferred Stock underlying such Depositary
Share (including dividend, voting, redemption, conversion, exchange
and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement, each of which will
represent the applicable interest in a number of shares of a
particular series of the Preferred Stock described in the applicable
Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, a holder
of Depositary Shares is not entitled to receive the shares of
Preferred Stock underlying the Depositary Shares.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the
record holders of Depositary Shares representing such Preferred Stock
in proportion to the numbers of such Depositary Shares owned by such
holders on the relevant record date.
In the event of a distribution other than in cash, the Depositary
will distribute property received by it to the record holders of
Depositary Shares entitled thereto or the Depositary may, with the
approval of the Company, sell such property and distribute the net
proceeds from such sale to such holders.
The Deposit Agreement also contains provisions relating to the
manner in which any subscription or similar rights offered by the
Company to holders of Preferred Stock shall be made available to
holders of Depositary Shares.
Conversion and Exchange
If any Preferred Stock underlying the Depositary Shares is subject
to provisions relating to its conversion or exchange as set forth in
the Prospectus Supplement relating thereto, each record holder of
Depositary Shares will have the right or obligation to convert or
exchange such Depositary Shares into other securities of the Company
or rights or payments (including rights to receive payments in cash
or securities based on the value, rate or price of one or more
specified commodities, currencies or indices) pursuant to the terms
thereof.
Redemption of Depositary Shares
If Preferred Stock underlying the Depositary Shares is subject to
redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or
in part, of the Preferred Stock held by the Depositary. The
redemption price per Depositary Share will be equal to the aggregate
redemption price payable with respect to the number of shares of
Preferred Stock underlying the Depositary Shares. Whenever the
Company redeems Preferred Stock from the Depositary, the Depositary
will redeem as of the same redemption date a proportionate number of
Depositary Shares representing the shares of Preferred Stock that
were redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by
lot or pro rata as may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and
all rights of the holders of the Depositary Shares will cease, except
the right to receive the redemption price payable upon such
redemption. Any funds deposited by the Company with the Depositary
for any Depositary Shares which the holders thereof fail to redeem
shall be returned to the Company after a period of two years from the
date such funds are so deposited.
Voting
Upon receipt of notice of any meeting or action in lieu of any
meeting at which the holders of any shares of Preferred Stock
underlying the Depositary Shares are entitled to vote, the Depositary
will mail the information contained in such notice to the record
holders of the Depositary Shares relating to such Preferred Stock.
Each record holder of such Depositary Shares on the record date
(which will be the same date as the record date for the Preferred
Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the number of shares
of Preferred Stock underlying such Depositary Shares in accordance
with such instructions, and the Company will agree to take all action
which may be deemed necessary by the Depositary in order to enable
the Depositary to do so.
Amendment of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares
and any provision of the Deposit Agreement may at any time be amended
by agreement between the Company and the Depositary, provided,
however, that any amendment which materially and adversely alters the
rights of the existing holders of Depositary Shares will not be
effective unless such amendment has been approved by the record
holders of at least a majority of the Depositary Shares then
outstanding.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental
charges that arise solely from the existence of the depositary
arrangements. The Company will pay charges of the Depositary in
connection with the initial deposit of the Preferred Stock and any
exchange or redemption of the Preferred Stock. Holders of Depositary
Shares will pay all other transfer and other taxes and governmental
charges, and, in addition, such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
Miscellaneous
The Company, or at the option of the Company, the Depositary, will
forward to the holders of Depositary Shares all reports and
communications from the Company which the Company is required to
furnish to the holders of Preferred Stock.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The
obligations of the Company and the Depositary under the Deposit
Agreement will be limited to performance in good faith of their
duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Share or
Preferred Stock unless satisfactory indemnity has been furnished.
The Company and the Depositary may rely upon written advice of
counsel or accountants, or information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other
persons believed to be competent and on documents believed to be
genuine.
Resignation and Removal of Depositary; Termination of the Deposit
Agreement
The Depositary may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time
remove the Depositary, any such resignation or removal to take effect
upon the appointment of a successor Depositary and its acceptance of
such appointment. Such successor Depositary will be appointed by the
Company within 60 days after delivery of the notice of resignation or
removal. The Deposit Agreement may be terminated at the direction of
the Company or by the Depositary if a period of 90 days shall have
expired after the Depositary has delivered to the Company written
notice of its election to resign and a successor depositary shall not
have been appointed. Upon termination of the Deposit Agreement, the
Depositary will discontinue the transfer of Depositary Receipts, will
suspend the distribution of dividends to the holders thereof, and
will not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit Agreement
except that the Depositary will continue to deliver Preferred Stock
certificates, together with such dividends and distributions and the
net proceeds of any sales of rights, preferences, privileges or other
property in exchange for Depositary Receipts surrendered. Upon
request of the Company, the Depositary shall deliver all books,
records, certificates evidencing Preferred Stock, Depositary Receipts
and other documents relating to the subject matter of the Deposit
Agreement to the Company.
DESCRIPTION OF WARRANTS
General
The Company may issue Warrants, including Warrants to purchase
Debt Securities ("Debt Warrants"), as well as other types of
Warrants. Warrants may be issued independently or together with any
Debt Securities or Preferred Stock and may be attached to or separate
from such Debt Securities or Preferred Stock. Each series of
Warrants will be issued under a separate warrant agreement (each a
"Warrant Agreement") to be entered into between the Company and a
warrant agent ("Warrant Agent"). The following sets forth certain
general terms and provisions of the Warrants offered hereby. Further
terms of the Warrants and the applicable Warrant Agreement are set
forth in the applicable Prospectus Supplement.
Debt Warrants
The applicable Prospectus Supplement will describe the following
terms of the Debt Warrants in respect of which this Prospectus is
being delivered: (a) the title of such Debt Warrants; (b) the
aggregate number of such Debt Warrants; (c) the price or prices at
which such Debt Warrants will be issued; (d) the currency or
currencies, including composite currencies, in which the price of
such Debt Warrants may be payable; (e) the designation, aggregate
principal amount and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants; (f) the price at which and currency
or currencies, including composite currencies, in which the Debt
Securities purchasable upon exercise of such Debt Warrants may be
purchased; (g) the date on which the right to exercise such Debt
Warrants shall commence and the date on which such right shall
expire; (h) if applicable, the minimum or maximum amount of such Debt
Warrants which may be exercised at any one time; (i) if applicable,
the designation and terms of the Debt Securities or Preferred Stock
with which such Debt Warrants are issued and the number of such Debt
Warrants issued with each such Debt Security or Preferred Stock; (j)
if applicable, the date on and after which such Debt Warrants and the
related Debt Securities or Preferred Stock will be separately
transferable; (k) information with respect to book-entry procedures,
if any; (l) if applicable, a discussion of certain United States
Federal income tax considerations; and (m) any other terms of such
Debt Warrants, including terms, procedures and limitations relating
to the exchange and exercise of such Debt Warrants.
Other Warrants
The Company may issue other Warrants. The applicable Prospectus
Supplement will describe the following terms of any such other
Warrants in respect of which this Prospectus is being delivered: (a)
the title of such Warrants; (b) the aggregate number of such
Warrants; (c) the price or prices at which such Warrants will be
issued; (d) the currency or currencies, including composite
currencies, in which the price of such Warrants may be payable; (e)
the securities (other than Class A or Class B Common Stock of the
Company), which may include Preferred Stock, or other rights
(including rights to receive payments in cash or securities based on
the value, rate or price of one or more specified commodities,
currencies or indices), purchasable upon exercise of such Warrants;
(f) the price at which and the currency or currencies, including
composite currencies, in which the securities purchasable upon
exercise of such Warrants may be purchased; (g) the date on which the
right to exercise such Warrants shall commence and the date on which
such right shall expire; (h) if applicable, the minimum or maximum
amount of such Warrants which may be exercised at any one time; (i)
of applicable, the designation and terms of the Debt Securities or
Preferred Stock with which such Warrants are issued and the number of
such Warrants issued with each such Debt Security or share of
Preferred Stock; (j) if applicable, the date on and after which such
Warrants and the related Debt Securities or Preferred Stock will be
separately transferable; (k) information with respect to book-entry
procedures, if any; (l) if applicable, a discussion of certain United
States Federal income tax considerations; and (m) any other terms of
such Warrants, including terms, procedures and limitations relating
to the exchange and exercise of such Warrants.
PLAN OF DISTRIBUTION
The Company may offer Securities to or through underwriters,
through agents or dealers or directly to other purchasers.
The distribution of Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices
related to such market prices or at negotiated prices. The Company
also may offer and sell the Securities in exchange for one or more of
its outstanding issues of securities.
In connection with the sale of Securities, underwriters, dealers
or agents may receive compensation from the Company or from
purchasers in the form of discounts, concessions or commissions.
Underwriters, dealers and agents participating in the distribution of
the Securities may be deemed to be underwriters within the meaning of
the Securities Act.
Pursuant to agreements which may be entered into between the
Company and any underwriters or agents named in the Prospectus
Supplement, such underwriters or agents may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters or other persons acting as agents for the
Company to solicit offers by certain institutional investors to
purchase Debt Securities or Preferred Stock from the Company pursuant
to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial
and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but
shall in all cases be subject to the approval of the Company. The
obligations of the purchaser under any such contract will not be
subject to any conditions except (a) the investment in the Debt
Securities or Preferred Stock by the institution shall not at the
time of delivery be prohibited by the laws of any jurisdiction in the
United States to which such institution is subject, and (b) if a
portion of the Debt Securities or Preferred Stock is being sold to
underwriters, the Company shall have sold to such underwriters the
Debt Securities or Preferred Stock not sold for delayed delivery.
Underwriters and such other persons will not have any responsibility
in respect of the validity or performance of such contracts.
All Debt Securities, Preferred Stock and Warrants offered will be
a new issue of securities with no established trading market. Any
underwriters to whom such Debt Securities, Preferred Stock and
Warrants are sold by the Company for public offering and sale may
make a market in such Debt Securities, Preferred Stock and Warrants,
but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets
for any Debt Securities, Preferred Stock or Warrants.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with and perform services for
the Company in the ordinary course of business.
The specific terms and manner of sale of the Securities in respect
of which this Prospectus is being delivered are set forth or
summarized in the Prospectus Supplement.
LEGAL MATTERS
The validity of the Securities offered will be passed upon for the
Company by Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. Counsel to any underwriters, dealers or agents with respect
to any distribution or Securities will be named in the applicable
Prospectus Supplement.
EXPERTS
The audited financial statements and schedules of the Company
incorporated in this Prospectus by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1995 have been
audited by Arthur Andersen LLP, independent public accountants as
indicated in their report with respect thereto, and are incorporated
herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing in giving said report. Future
audited financial statements and schedules of the Company and the
reports thereon of the Company's independent public accountants also
will be incorporated by reference in this Prospectus in reliance upon
the authority of those accountants as experts in giving those reports
to the extent said firm has audited those financial statements and
consented to the use of their reports thereon.
The Company's reserves as of December 31, 1994 and 1995
incorporated in this Prospectus by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1995 have been
verified by Independent Mining Consultants, Inc., and such reserve
information has been incorporated by reference in this Prospectus in
reliance upon the authority of said firm as experts in mining,
geology and reserve determination.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses to be paid by the Registrant in
connection with the securities being registered are as follows:
SEC registration fee $ 258,621
Rating agency fees
Legal fees and expenses *
Accounting fees and expenses *
Printing expenses *
Trustees' fees and expenses *
Blue Sky fees and expenses *
Miscellaneous *
_________
Total *
=========
*All amounts listed above other than the registration fee
are estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware
empowers the Company to indemnify, subject to the standards
therein prescribed, any person in connection with any action,
suit or proceeding brought or threatened by reason of the fact
that such person is or was a director, officer, employee or agent
of the Company. Article VIII of the Company's Certificate of
Incorporation and Article XXV of the Company's by-laws provides
that each person who was or is made a party to (or is threatened
to be made a party to) or is otherwise involved in any action,
suit, or proceeding by reason of the fact that such person is or
was a director, officer, employee or agent of the Company shall
be indemnified and held harmless by the Company to the fullest
extent authorized by the General Corporation Law of Delaware
against all expenses, liability and loss (including, without
limitation, attorneys' fees, judgments, fines and amounts paid in
settlement) reasonably incurred by such person in connection
therewith. The rights conferred by Article VIII of the Company's
Certificate of Incorporation and Article XXV of the Company's by-
laws, as the case may be, are contractual rights and include the
right to be paid by the Company the expenses incurred in
defending such action, suit or proceeding in advance of the final
disposition thereof.
Article VIII of the Company's Certificate of Incorporation
provides that the Company's directors will not be personally
liable to the Company or its stockholders for monetary damages
resulting from breaches of their fiduciary duty as directors
except (a) for any breach of the duty of loyalty to the Company
or its stockholders, (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the General Corporation Law of
Delaware, which makes directors liable for unlawful dividend or
unlawful stock repurchases or redemptions or (d) transactions
from which directors derive improper personal benefit.
The Company has an insurance policy insuring the Company's
directors and officers against certain liabilities, including
liabilities under the Securities Act of 1933.
Item 16. Exhibits.
1.1 Form of Underwriting Agreement.**
1.2 Form of Sales Agency Agreement.**
1.3 Form of Distribution Agreement.**
3.1 Composite Copy of the Certificate of Incorporation of the
Company, as amended. Incorporated by reference to
Exhibit 3.1 to the Quarterly Report on Form 10-Q of the
Company for the quarter ended June 30, 1995.
3.2 By-Laws of the Company, as amended. Incorporated by
reference to Exhibit 3.2 to the Quarterly Report on Form
10-Q of the Company for the quarter ended June 30, 1995.
3.3 Articles of Association of Finance dated March 4, 1996.*
4.1 Form of Indenture for Senior Debt Securities. *
4.2 Form of Senior Debt Security.**
4.3 Form of Indenture for Subordinated Securities.*
4.4 Form of Subordinated Debt Security.**
4.5 Form of Indenture for Senior Guaranteed Debt Securities.*
4.6 Form of Senior Guaranteed Debt Securities.**
4.7 Form of Indenture for Subordinated Guaranteed Debt
Securities.*
4.8 Form of Subordinated Guaranteed Debt Security.**
4.9 Form of Certificate of Designations of Preferred Stock.*
4.10 Form of Stock Certificate of the Class A Common Stock.*
4.11 Form of Stock Certificate of the Class B Common Stock.*
4.12 Form of Deposit Agreement.*
4.13 Form of Depositary Receipt.*
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P., as to the legality of the Securities.*
12 Statement re computation of ratios.*
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P. included as part of Exhibit 5.*
23.3 Consent of Independent Mining Consultants, Inc.*
24 Powers of Attorney.*
25.1 Statement of Eligibility of Trustee on Form T-1 with
respect to Senior Debt Securities.**
25.2 Statement of Eligibility of Trustee on Form T-1 with
respect to Subordinated Debt Securities.**
25.3 Statement of Eligibility of Trustee on Form T-1 with
respect to Senior Guaranteed Debt Securities.**
25.4 Statement of Eligibility of Trustee on Form T-1 with
respect to Subordinated Guaranteed Debt Securities.**
_____________________
* Filed herewith
** To be filed by amendment or subsequently incorporated
herein.
Item 17. Undertakings
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act")
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such information
in this registration statement.
Provided, however, that the undertakings set forth in paragraphs
(i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with the Commission by either
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act, each filing of a Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of either Registrant pursuant to the
foregoing provisions or otherwise, the Registrants have been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of
expenses incurred or paid by a director, officer or controlling
person of the Registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(6) The undersigned Registrant hereby undertakes to file
an application for the purpose of determining the eligibility of
the trustee to act under Subsection (a) of Section 310 of the
Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2)
of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
New Orleans, Louisiana, on the 19th day of April, 1996.
Freeport-McMoRan Copper & Gold Inc.
(Registrant)
By: /s/ James R. Moffett
______________________________
James R. Moffett,
Chairman of the Board
and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons on behalf of the Registrant and in the
capacities indicated on April 19, 1996.
Signature Title
__________ ______
/s/ James R. Moffett Chairman of the Board, Chief
___________________ Executive Officer and Director
James R. Moffett (Principal Executive Officer)
*
____________________ Executive Vice President and Chief
Richard C. Adkerson Financial Officer (Principal
Financial and Accounting Officer)
* Director
_____________________
Robert W. Bruce III
* Director
______________________
R. Leigh Clifford
* Director
_______________________
Thomas B. Coleman
* Director
_______________________
Bobby E. Cooper
* Director
________________________
Robert A. Day
* Director
_________________________
Leland O. Erdahl
* Director
_________________________
William B. Harrison, Jr.
* Director
_________________________
Henry A. Kissinger
* Director
_________________________
Bobby Lee Lackey
* Director
___________________________
Rene L. Latiolais
* Director
___________________________
Gabrielle K. McDonald
* Director
____________________________
George A. Mealey
* Director
____________________________
George Putnam
* Director
____________________________
B.M. Rankin, Jr.
* Director
____________________________
Wolfgang F. Siegel
* Director
____________________________
Eiji Umene
* Director
____________________________
J. Taylor Wharton
* Director
____________________________
Ward W. Woods, Jr.
*By: /s/ James R. Moffett
____________________________
James R. Moffett
Attorney-in-Fact
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in New Orleans, Louisiana, on the 19th day of
April, 1996.
FCX Finance Company B.V.
(Registrant)
By: /s/ Richard C. Adkerson
_________________________
Richard C. Adkerson
Managing Director
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons on behalf of the Registrant and in the
capacities indicated on April 19, 1996.
Signature Title
____________ ______
/s/ Richard C. Adkerson Managing Director (Principal Executive,
________________________ Financial and Accounting Officer and
Richard C. Adkerson Authorized Representative in the United
States)
/s/ Henry A. Miller
_________________________ Managing Director
Henry A. Miller
/s/ R. Foster Duncan Managing Director
_________________________
R. Foster Duncan
/s/ John L. Koch, III Managing Director
_________________________
John L. Koch, III
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Document Description Page
1.1 Form of Underwriting Agreement.**
1.2 Form of Sales Agency Agreement.**
1.3 Form of Distribution Agreement.**
3.1 Composite Copy of the Certificate of
Incorporation of the Company, as
amended. Incorporated by reference to
Exhibit 3.1 to the Quarterly Report on
Form 10-Q of Fox for the quarter ended
June 30, 1995.
3.2 By-Laws of the Company, as amended.
Incorporated by reference to Exhibit
3.2 to the Quarterly Report on Form 10-
Q for the quarter ended June 30, 1995.
3.3 Articles of Association of Finance
dated March 4, 1996.*
4.1 Form of Indenture for Senior Debt
Securities.*
4.2 Form of Senior Debt Security.**
4.3 Form of Indenture for Subordinated
Securities.*
4.4 Form of Subordinated Debt Security.**
4.5 Form of Indenture for Senior Guaranteed
Debt Securities.*
4.6 Form of Senior Guaranteed Debt
Securities.**
4.7 Form of Indenture for Subordinated
Guaranteed Debt Securities.*
4.8 Form of Subordinated Guaranteed Debt
Security.**
4.9 Form of Certificate of Designations of Preferred
Stock.*
4.10 Form of Stock Certificate of the Class
A Common Stock.*
4.11 Form of Stock Certificate of the Class
B Common Stock.*
4.12 Form of Deposit Agreement.*
4.13 Form of Depositary Receipt.*
5 Opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P.,
as to the legality of the Securities.*
12 Statement re computation of ratios.*
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P.
included as part of Exhibit 5.*
23.3 Consent of Independent Mining Consultants, Inc.*
24 Powers of Attorney.*
25.1 Statement of Eligibility of Trustee on Form T-1
with respect to Senior Debt Securities.**
25.2 Statement of Eligibility of Trustee on Form T-1
with respect to Subordinated Debt Securities.**
25.3 Statement of Eligibility of Trustee on Form T-1
with respect to Senior Guaranteed Debt
Securities.**
25.4 Statement of Eligibility of Trustee on Form T-1
with respect to Subordinated Guaranteed Debt
Securities.**
____________________
* Filed herewith.
** To be filed by amendment or subsequently
incorporated herein.
Dates Referenced Herein and Documents Incorporated by Reference
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