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
EX-3 — Exhibit 3.3
INCORPORATION PRIVATE COMPANY WITH LIMITED LIABILITY
On the fourth day of March nineteen hundred ninety-six,
there appeared before me, "Mr" Michiel George van Ravesteyn,
civil law notary, officiating in Rotterdam:
"Mr" Iris Catharina Johanna Maria van der Wee, deputy civil
law notary, residing at 3331 EH Zwijndrecht, H. Kamerlingh
Onnesstraat 59, according to her statement born at Zwijndrecht,
on the twenty-first day of February nineteen hundred and sixty-
four, single, of whom the identity has been confirmed by me,
civil law notary, by her Dutch drivers license, number
0066874871, the validity of which has not expired, for the
purposes hereof acting as written attorney of the company,
organised under the laws of Delaware, United States of America:
Freeport-McMoRan Copper & Gold Inc., with registered office at
New Orleans, Louisiana, United States of America, and with
offices at 1615 Poydras Street, New Orleans, Louisiana 70112,
United States of America.
The said power of attorney appears from a private deed which
has been attached to this deed after authentication by the
appearer.
The appearer, acting as beforementioned, hereby incorporates
a private company with limited liability with the following
articles:
Name and registered office
Article 1
1. The name of the company is: FCX Finance Company B.V.
2. It has its registered office in Rotterdam.
Objects
Article 2
The objects of the company are:
a. to borrow, to lend and to raise funds, including the issue
of bonds, promissory notes or other securities or evidence
of indebtedness as well as to enter into agreements in
connection with the aforementioned;
b. to participate in, to finance, to co-operate, to manage and
to supply advice and to render services to enterprises and
other companies;
c. to render guarantees, to bind the company and to pledge its
assets for obligations of the companies and enterprises with
which it forms a group and on behalf of third parties;
d. as well as everything pertaining to the foregoing, relating
thereto or conducive thereto; all in the widest sense of the
word.
Duration
Article 3
The company is established for an unlimited period.
Capital and shares
Article 4
1. The authorised capital of the company amounts to two hundred
thousand Dutch guilders (NLG 200,000.-), divided into two
hundred (200) shares numbered 1 upto and including 200, each
with a nominal value of one thousand Dutch guilders (NLG
1,000.-).
2. The shares are to be registered shares.
3. No share certificates shall be issued for the shares.
4. The issue of shares, alienation of shares in the capital of
the company by the company, as well as the granting of
rights to acquire these shares, is effected by the board of
directors pursuant to a resolution of the general meeting of
shareholders, hereinafter referred to as: the general
meeting - such resolution shall state the time of issue, the
number of shares to be issued, as well as the other
conditions, provided that the issue may not take place below
par.
5. The general meeting may assign its power to adopt the
resolutions referred to in the previous paragraph to another
corporate body, and may withdraw this assignment.
6. On the issue of shares, each shareholder shall have, subject
to legal provisions, a right of preference in proportion to
the aggregate amount of his shares. The right of preference
cannot be transferred.
7. The issue may only be effected against payment in full.
8. The company may only grant loans in view of the acquisition
of shares in the capital of the company or of depositary
receipts thereof to the amount of the freely distributable
reserves.
Usufruct and right of pledge on shares
Article 5
1. A right of usufruct or pledge may be established on the
shares of the company.
2. Usufructuaries and pledgees have no voting rights.
3. Usufructuaries and pledgees do not have the rights granted
by law to holders of depositary receipts for shares issued
with the cooperation of the company.
Depositary receipts for shares
Article 6
1. The company will not co-operate with the issue of depositary
receipts for shares.
2. No bearer share-certificates may be issued.
Register of shareholders
Article 7
1. The board of directors will keep a register which contains:
a. the names and addresses of shareholders;
b. the amount paid on each share;
c. the names and addresses of those who have a right of
usufruct or pledge;
d. each release of liability for payment due on shares.
2. The register must be regularly updated.
3. Each shareholder is obliged to ensure that his address is
known to the company.
4. If requested, the board of directors will, free of charge,
provide a shareholder, a usufructuary or pledgee with an
extract from the register with respect to his rights to a
share.
5. The board of directors makes the register available for
inspection by shareholders at the company's offices.
Shares in joint-ownership
Article 8
1. If shares are jointly owned, the persons entitled to these
shares may only exercise the rights attached to these shares
if they are represented for this purpose vis-a-vis the
company by a person appointed by them in writing or by the
judge.
2. The name and address of this representative are entered in
the register of shareholders.
Restrictions on transfer of shares
Article 9
1. Transfer of shares in the company - excluding transfer of
shares the company holds in its own share capital - may only
be effected with due observance of the provisions of this
article.
2. A shareholder, who wishes to transfer one or more shares,
requires the approval thereto of the general meeting.
3. The transfer should be effected within three months after
the approval has been granted or is deemed to have been
granted.
4. The approval is deemed to have been granted if the general
meeting has not, simultaneously with the refusal to approve,
notified the offering shareholder of one or more interested
parties who are willing to purchase all the shares, for
which transfer the approval is required, against payment in
cash for the price as referred to in paragraph 5 hereof; the
company may itself only be nominated as an interested party
with the approval of the offering shareholder. The approval
is also deemed to have been granted if the general meeting
has not, within six weeks after the request to approve has
been submitted, resolved thereon.
5. The price as referred to in paragraph 4 of this article is
the price as determined by mutual agreement by the offering
shareholder and the/those party/parties selected by him.
Failing an agreement thereon, the price shall be determined
by an independent expert, to be appointed by the board of
directors and the offering party in mutual agreement.
6. If the board of directors and the offering shareholder do
not reach an agreement on the appointment of the independent
expert, the appointment shall be made by the Chairman of the
Chamber of Commerce and Industries, within which territory
the company has its registered office.
7. If the beforementioned price for the shares has been
determined by the independent expert, the offering
shareholder shall be free, for a period of one month after
such price determination, to decide whether to transfer his
shares to the appointed interested party/parties.
Acquisition of own shares
Article 10
1. The company may only acquire shares in its own capital free
of charge, or if all of the following provisions are
complied with:
a. the company's own equity minus the acquisition price is
not smaller than the paid-in and called up part of the
share capital plus the reserves which must be
maintained by law;
b. the nominal amount of the shares in its capital to be
acquired and those already held by the company and its
subsidiaries does not amount to more than half of the
subscribed capital;
c. authorisation of the acquisition has been granted by
the general meeting or by another company body
appointed by it.
2. The amount of the company's own capital according to the
most recently adopted balance sheet, minus the acquisition
price for the shares in the company's capital, and minus the
distributions out of the profits or reserves to others which
were owed by the company and its subsidiaries after the date
the balance was adopted, determines the validity of the
acquisition. If more than six months have passed after a
close of the financial year without annual accounts having
been adopted, the acquisition in accordance with paragraph 1
is not permitted.
3. The previous paragraphs do not apply to shares acquired by
the company by operation of law.
4. Acquisition by the company of not fully paid-up shares in
her own capital is void.
Issue and transfer of shares
Article 11
1. For issue of shares after incorporation or for the transfer
of shares or for the creation or transfer of a limited right
thereon, a notarial deed is required.
2. Unless the company herself is a party to the transfer, the
rights attached to the shares may not be exercised before
the acknowledgement by the company - whether or not of her
own accord - of the transfer, or before the transfer has
been served to the company.
Management
Article 12
1. The company is managed by a board of directors, consisting
of a number of directors to be determined by the general
meeting.
2. If a vacancy arises in the board of directors, the board of
directors retains its powers.
3. In the event of the absence or failure to appear of all the
directors, or of the sole director, the general meeting will
make temporarily provisions.
Appointment, dismissal and salaries of directors
Article 13
1. The directors are appointed by the general meeting.
2. The general meeting will determine the salaries and other
conditions of employment of every director.
3. Directors may be suspended or dismissed by the general
meeting at any time.
4. The board of directors adopt a charter, setting out rules on
the decisionmaking process of the board of directors. The
charter requires the approval of the general meeting.
5. The board of directors may adopt an allocation of duties
stating for which duty each director has a prime
responsibility. Such allocation of duties requires the
approval of the general meeting.
Approval of management decisions
Article 14
1. The general meeting may submit resolutions of the board of
directors to its approval. Such resolutions are to be
clearly defined and notified in writing to the board of
directors.
2. The approval referred to in the previous paragraph does not
have to be given for each individual case if it has been
granted in a general sense.
3. The board of directors has to act in accordance with the
directions of the general meeting concerning the financial,
social and personnel management.
Representation of the company
Article 15
1. The company is represented in and outside law by the board
of directors and by each director.
2. If the company has conflicting interests with one or more
directors, the company may still be represented by that
director. The general meeting is always empowered to
appoint one or more persons for this purpose.
3. Legal acts between the company and the holder of all the
shares in the capital of the company have to be laid down in
writing if the company has been represented by the
shareholder. The obligation to lay down the legal act in
writing also applies if the company is represented by a
person who is entitled to a matrimonial community of goods
of which all shares are a part.
4. For the application of paragraph 3, shares held by the
company or its subsidiaries are not taken into account.
Paragraph 3 does not apply if the legal acts, and their
conditions as agreed on, are part of the customary conduct
of the business of the company.
General Meeting
Article 16
1. The annual general meeting is held no more than six months
after the end of the financial year.
2. The agenda of that meeting will contain at least the
following points:
a. the annual report;
b. adoption of the annual accounts;
c. determination of the distribution of profits.
3. Extraordinary general meetings are held whenever one of the
directors considers this desirable, or one or more
shareholders, collectively representing at least one tenth
of the issued share capital, request this in writing,
detailing the subjects to be dealt with.
Place and calling of the meeting
Article 17
1. The general meetings will be held in, Rotterdam, Amsterdam
and Haarlemmermeer (Schiphol Airport).
2. All the shareholders must be notified of a general meeting.
3. The meeting is called by the board of directors by letters
sent to the addresses stated in the register of
shareholders.
4. The letters contain the time and place of the meeting, as
well as the subjects to be dealt with.
5. The meeting will be called no later than fifteen days before
the day of the meeting.
Chairmanship
Article 18
The general meeting chooses its own chairman.
Minutes
Article 19
1. Minutes of the business of the general meeting shall be
drawn up, which are signed by the chairman of the meeting
and by a person appointed by him.
2. If an official record of the business of the meeting is
drawn up by a notary, it suffices for the chairman of the
meeting to co-sign this.
Rights related to the meeting
Article 20
1. Each shareholder is entitled to attend and speak at the
general meeting.
2. Each shareholder may be represented at the meeting by
someone authorised in writing.
Decision making
Article 21
1. Each share confers the right to cast one vote.
2. All resolutions are adopted with an absolute majority of the
votes cast, unless these Articles of Association require a
larger majority.
3. Blank votes and invalid votes are considered not to have
been cast.
4. Voting on business matters occurs orally; voting on persons
takes place in writing by unsigned ballot.
5. In the case of a tie in votes on business matters, the
proposal has been rejected.
6. If no one has acquired an absolute majority in a vote on
persons in the first vote, a new, free vote is held. If
again there is no absolute majority, there is another vote
between the two persons who obtained the most votes between
them in the second vote. If necessary, an interim vote is
held to decide between which two persons the new vote will
be held. In the case of a tie in votes after the new vote
lots will be drawn by the chairman of the meeting to reach a
decision.
7. All proposals may be accepted by acclamation if none of the
persons entitled to vote opposes this.
8. No vote may be cast in the general meeting for a share which
is held by the company or by a subsidiary company.
9. In determining to what extent the shareholders are voting,
attending or represented, or to what extent the share
capital is made available or represented, the shares for
which the law states that no vote can be cast, are not taken
into account.
Decision-making when the entire subscribed capital is present
Article 22
The general meeting may adopt resolutions regarding all subjects
which arise, provided that there is an unanimous vote, if all the
shareholders are present, even if the provisions on the place and
calling of the meeting have not been complied with.
Decision-making without calling a meeting
Article 23
Shareholders may also adopt resolutions without calling a
meeting, provided that all the shareholders have declared to be
in favour of the proposal in writing, by telegraph, telex or fax.
Financial year
Article 24
The financial year coincides with the calendar year.
Annual accounts
Article 25
1. The board of directors will draw up the annual accounts,
consisting of the balance sheets and a profit and loss
account, with an explanation thereto, within five months of
the end of the financial year, unless this period has been
extended by the general meeting for a maximum of six months
on grounds of special circumstances.
2. The annual accounts are signed by all directors; if any
signature is missing, the reason for this is stated.
Discharge of the management
Article 26
The unconditional adoption of the annual accounts by the general
meeting discharges, subject to legal limitations, the directors
for their management for the financial year concerned.
Dividend
Article 27
1. The profit is entirely at the disposal of the general
meeting.
2. The company may only make distributions to shareholders and
others entitled to profits, in as far as its equity is
larger than the paid-up and called part of the capital, plus
the reserves which must be maintained by law.
3. Distribution of profits occurs after the annual accounts
have been adopted, evidencing that such is justified.
4. The company may only make interim distributions if the
provisions of paragraph 2 have been complied with.
5. No profit is paid on shares to the company.
6. The claim to dividend expires after five years.
Amendments to the Articles of Association and dissolution of the
company
Article 28
1. A resolution to amend the Articles of Association, or to
dissolve the company, may only be adopted by the general
meeting.
2. In calling a general meeting in which there shall be dealt
with a proposal to amend the Articles of Association, the
text of the proposed amendment to the Article of Association
shall be included in the notification. In addition, this
text will be made available at the company's offices for
inspection by shareholders from the day the meeting is
called until after the meeting.
Liquidation
Article 29
1. Following the dissolution of the company, the liquidation
will be effected by the board of directors, unless the
general meeting resolves otherwise.
2. The general meeting determines the remuneration of the
liquidators.
3. During the liquidation, the provisions of the Articles of
Association will remain in force in as far as possible, such
that the provisions on the board of directors apply to the
liquidators.
4. Anything remaining after payment to the creditors is paid to
the shareholders in proportion to the number of shares they
own.
5. The books and records of the company will remain with the
person appointed for this purpose by the general meeting for
the period required by the law.
Finally the appearer declared:
- that forty (40) shares of the authorised capital numbered 1
upto and including 40 have been issued to the incorporator,
resulting in the subscribed capital amounting to forty
thousand Dutch guilders (NLG. 40.000-);
- that for the benefit of the company the incorporator has
agreed to pay up his shares in full in cash, which payment
has been effected, which appears from the statement to be
attached to this deed as referred to in the law, which
payment is hereby accepted by the company;
- that payment in foreign currency is permitted;
- that the first managing directors shall be:
Mr. Richard Carl Adkerson, residing at New Orleans,
Louisiana 70116, United States of America, 1217 Burgundy,
born at Brownsville, Tennessee, United States of America, on
December twenty-seven nineteen hundred and forty-six, of
American nationality;
Mr. Henry Allen Miller, residing at 3717 Edenborn Avenue,
Metairie, Louisiana 70002, United States of America, born
at Winston-Salem, North Carolina, United States of America,
on the twenty-sixth day of May nineteen hundred fifty-one,
of American nationality;
Mr. R. Foster Duncan, residing at 1615 Poydras Street, New
Orleans, Louisiana, United States of America, born at New
Orleans, Louisiana, United States of America, on the twenty-
second day of February nineteen hundred fifty-four, of
American nationality;
Mr. John Lester Koch, III, residing at New Orleans,
Louisiana 70116, United States of America, 1307 Philip
Street, born at Bryn Mawr, Pennsylvania, United States of
America, on September fourteen, nineteen hundred fifty-
three, of American nationality;
- that the first office address shall be: (3012 AG) Rotterdam,
the Netherlands, Coolsingel 139;
- that the first financial year shall run up to and including
the thirty-first of December nineteen hundred ninety-six;
- that the ministerial declaration of non-objection, as
referred to in Section 175 Book 2 of the Civil Code was
granted on the fourth day of February nineteen hundred
ninety-six, under B.V. 557.754 and placed on the draft of
this deed attached to this original.
The appearer is known to me, notary.
Whereof an original deed was executed in Rotterdam on the date
stated at the head.
After the meaning of this deed has been stated to the appearer
and he declared that he had noted the content of the deed and did
not desire the deed to be read out in full, after being read out
in part, this deed was immediately signed by the appearer and me,
notary.
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