REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
FREEPORT-McMoRan COPPER & GOLD INC.
AND
FCX INVESTMENT LTD.
AS ISSUERS,
AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
AS INITIAL PURCHASER
DATED AS OF AUGUST 7, 2001
THIS REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of August 7,
2001, by and between Freeport-McMoRan Copper & Gold
Inc., a Delaware corporation (the "Company"), FCX
Investment Ltd., a Cayman Islands exempted limited
liability company (the "Co-Obligor," and together with
the Company, the "Issuers," and each an "Issuer") and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Initial Purchaser") pursuant to that certain Purchase
Agreement, dated August 1, 2001 (the "Purchase
Agreement") between the Issuers and the Initial
Purchaser.
In order to induce the Initial Purchaser to enter
into the Purchase Agreement, the Issuers have agreed to
provide the registration rights set forth in this
Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
Each Issuer, jointly and severally, agrees with
the Initial Purchaser (i) for its benefit as Initial
Purchaser and (ii) for the benefit of the beneficial
owners (including the Initial Purchaser) from time to
time of the Notes (as defined herein) and the
beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion
of the Notes (each of the foregoing a "Holder" and
together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used
herein without definition shall have their respective
meanings set forth in the Purchase Agreement. As used
in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means with respect to any specified
person, an "affiliate," as defined in Rule 144, of such
person.
"Amendment Effectiveness Deadline Date" has the
meaning set forth in Section 2(d) hereof.
"Applicable Conversion Price" as of any date of
determination means the Conversion Price in effect as
of such date of determination or, if no Notes are then
outstanding, the Conversion Price that would be in
effect were Notes then outstanding.
"Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York are
authorized or obligated by law or executive order to
close.
"Common Stock" means the shares of Class A Common
Stock, par value $.10 per share, and Class B Common
Stock, par value $.10 per share, of the Company and any
other shares of common stock as may constitute "Common
Stock" for purposes of the Indenture, including the
Underlying Common Stock.
"Conversion Price" has the meaning assigned to
such term in the Indenture.
"Damages Accrual Period" has the meaning set forth
in Section 2(e) hereof.
"Damages Payment Date" means each interest payment
date under the Indenture in the case of Notes, and each
January 31 and July 31 in the case of the Underlying
Common Stock.
"Deferral Notice" has the meaning set forth in
Section 3(i) hereof.
"Deferral Period" has the meaning set forth in
Section 3(i) hereof.
"Effectiveness Deadline Date" has the meaning set
forth in Section 2(a) hereof.
"Effectiveness Period" means the period commencing
on the last date of original issuance of the Notes and
terminating upon the earliest of the following: (A)
when all the Notes covered by the Shelf Registration
Statement have been sold pursuant to the Shelf
Registration Statement or when all shares of Common
Stock issued upon conversion of any such Notes that had
not been sold pursuant to the Shelf Registration
Statement have been sold pursuant to the Shelf
Registration Statement and (B) when, in the written
opinion of counsel to the Issuers, all outstanding
Registrable Securities held by persons that are not
Affiliates of the Issuers may be resold without
registration under the Securities Act pursuant to Rule
144(k) under the Securities Act or any successor
provision thereto.
"Event" has the meaning set forth in Section 2(e)
hereof.
"Event Date" has the meaning set forth in Section
2(e) hereof.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the rules and regulations of
the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth
in Section 2(a) hereof.
"Holder" has the meaning set forth in the third
paragraph of this Agreement.
"Indenture" means the Indenture, dated as of
August 7, 2001, between the Issuers and The Bank of New
York, as trustee, pursuant to which the Notes are being
issued.
"Initial Purchaser" means Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated.
"Initial Shelf Registration Statement" has the
meaning set forth in Section 2(a) hereof.
"Issue Date" means the first date of original
issuance of the Notes.
"Liquidated Damages Amount" has the meaning set
forth in Section 2(e) hereof.
"Material Event" has the meaning set forth in
Section 3(i) hereof.
"Notes" means the 8 1/4% Convertible Senior Notes due
2006 of the Issuers to be purchased pursuant to the
Purchase Agreement.
"Notice and Questionnaire" means a written notice
delivered to the Issuers containing substantially the
information called for by the Selling Securityholder
Notice and Questionnaire attached as Annex A to the
Offering Memorandum of the Issuers dated August 1, 2001
relating to the Notes.
"Notice Holder" means, on any date, any Holder
that has delivered a Notice and Questionnaire to the
Issuers on or prior to such date, so long as all of
their Registrable Securities that have been registered
for resale pursuant to a Notice and Questionnaire have
not been sold in accordance with a Registration
Statement.
"Purchase Agreement" has the meaning set forth in
the preamble hereof.
"Prospectus" means the prospectus included in any
Registration Statement (including, without limitation,
a prospectus that discloses information previously
omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 415
promulgated under the Securities Act), as amended or
supplemented by any amendment or prospectus supplement,
including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be
incorporated by reference in such Prospectus.
"Record Holder" means (i) with respect to any
Damages Payment Date relating to any Notes as to which
any such Liquidated Damages Amount has accrued, the
holder of record of such Note on the record date with
respect to the interest payment date under the
Indenture on which such Damages Payment Date shall
occur and (ii) with respect to any Damages Payment Date
relating to the Underlying Common Stock as to which any
such Liquidated Damages Amount has accrued, the
registered holder of such Underlying Common Stock
fifteen (15) days prior to such Damages Payment Date.
"Registrable Securities" means the Notes until
such Notes have been converted into or exchanged for
the Underlying Common Stock and, at all times the
Underlying Common Stock and any securities into or for
which such Underlying Common Stock has been converted
or exchanged, and any security issued with respect
thereto upon any stock dividend, split or similar event
until, in the case of any such security, (A) the
earliest of (i) its effective registration under the
Securities Act and resale in accordance with the
Registration Statement covering it, (ii) expiration of
the holding period that would be applicable thereto
under Rule 144(k) or (iii) its sale to the public
pursuant to Rule 144 (or any similar provision then in
force, but not Rule 144A) under the Securities Act, and
(B) as a result of the event or circumstance described
in any of the foregoing clauses (i) through (iii), the
legend with respect to transfer restrictions required
under the Indenture are removed or removable in
accordance with the terms of the Indenture or such
legend, as the case may be.
"Registration Expenses" has the meaning set forth
in Section 5 hereof.
"Registration Statement" means any registration
statement of the Issuers that covers any of the
Registrable Securities pursuant to the provisions of
this Agreement including the Prospectus, amendments and
supplements to such registration statement, including
post-effective amendments, all exhibits, and all
materials incorporated by reference or explicitly
deemed to be incorporated by reference in such
registration statement.
"Restricted Securities" has the meaning given such
term in Rule 144.
"Rule 144" means Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the
SEC.
"Rule 144A" means Rule 144A under the Securities
Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the
SEC.
"SEC" means the Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933,
as amended, and the rules and regulations promulgated
by the SEC thereunder.
"Shelf Registration Statement" has the meaning set
forth in Section 2(a) hereof.
"Subsequent Shelf Registration Statement" has the
meaning set forth in Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means The Bank of New York, the Trustee
under the Indenture.
"Underlying Common Stock" means the Common Stock
into which the Notes are convertible or issued upon any
such conversion.
Section 2. Shelf Registration. (a) The Issuers
shall prepare and file or cause to be prepared and
filed with the SEC, as soon as practicable but in any
event by the date (the "Filing Deadline Date") that is
ninety (90) days after the Issue Date, a Registration
Statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities
Act (a "Shelf Registration Statement") registering the
resale from time to time by Holders thereof of all of
the Registrable Securities (the "Initial Shelf
Registration Statement"). The Initial Shelf
Registration Statement shall be on Form S-3 or another
appropriate form permitting registration of such
Registrable Securities for resale by such Holders in
accordance with the reasonable methods of distribution
elected by the Holders, approved by the Issuers, and
set forth in the Initial Shelf Registration Statement.
The Issuers shall use their best efforts to cause the
Initial Shelf Registration Statement to be declared
effective under the Securities Act as promptly as is
practicable but in any event by the date (the
"Effectiveness Deadline Date") that is one hundred
eighty (180) days after the Issue Date, and to keep the
Initial Shelf Registration Statement (or any Subsequent
Shelf Registration Statement) continuously effective
under the Securities Act until the expiration of the
Effectiveness Period. At the time the Initial Shelf
Registration Statement is declared effective, each
Holder that became a Notice Holder on or prior to the
date that is ten (10) Business Days prior to such time
of effectiveness shall be named as a selling
securityholder in the Initial Shelf Registration
Statement and the related Prospectus in such a manner
as to permit such Holder to deliver such Prospectus to
purchasers of Registrable Securities in accordance with
applicable law.
(b) If the Initial Shelf Registration Statement or
any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the
Effectiveness Period, the Issuers shall use their best
efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event
shall within five (5) Business Days of such cessation
of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration
Statement covering all of the securities that as of the
date of such filing are Registrable Securities (a
"Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the
Issuers shall use their best efforts to cause the
Subsequent Shelf Registration Statement to become
effective as promptly as is practicable after such
filing and to keep such Registration Statement (or
subsequent Shelf Registration Statement) continuously
effective until the end of the Effectiveness Period.
(c) The Issuers shall supplement and amend the
Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the
registration form used by the Issuers for such Shelf
Registration Statement, if required by the Securities
Act or as reasonably requested by the Initial Purchaser
or by the Trustee on behalf of the Holders of the
Registrable Securities covered by such Shelf
Registration Statement.
(d) Each Holder of Registrable Securities agrees
that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement
and related Prospectus, it will do so only in
accordance with this Section 2(d) and Section 3(i).
Each Holder of Registrable Securities wishing to sell
Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a
Notice and Questionnaire to the Issuers at least three
(3) Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration
Statement; provided that Holders of Registrable
Securities shall have at least twenty (20) Business
Days from the date on which the Notice and
Questionnaire is first received by such Holders to
return a completed and signed Notice and Questionnaire
to the Issuers. From and after the date the Initial
Shelf Registration Statement is declared effective, the
Issuers shall, as promptly as practicable after the
date a Notice and Questionnaire is delivered, and in
any event within the later of (x) five (5) Business
Days after such date or (y) five (5) Business Days
after the expiration of any Deferral Period in effect
when the Notice and Questionnaire is delivered or put
into effect within five (5) Business Days of such
delivery date, (i) if required by applicable law, file
with the SEC a post-effective amendment to the Shelf
Registration Statement or, if required by applicable
law, prepare and file a supplement to the related
Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other
required document so that the Holder delivering such
Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of
the Registrable Securities in accordance with
applicable law and, if the Issuers shall file a post-
effective amendment to the Shelf Registration
Statement, use their best efforts to cause such post-
effective amendment to be declared effective under the
Securities Act as promptly as is practicable, but in
any event by the date (the "Amendment Effectiveness
Deadline Date") that is thirty (30) days after the date
such post-effective amendment is required by this
clause to be filed; (ii) provide such Holder copies of
any documents filed pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable
after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section
2(d)(i); provided that if such Notice and Questionnaire
is delivered during a Deferral Period, or a Deferral
Period is put into effect within five (5) Business Days
after such delivery date, the Issuers shall so inform
the Holder delivering such Notice and Questionnaire and
shall take the actions set forth in clauses (i), (ii)
and (iii) above within five (5) Business Days after
expiration of the Deferral Period in accordance with
Section 3(i); provided further that if under applicable
law, the Issuers have more than one option as to the
type or manner of making any such filing, the Issuers
will make the required filing or filings in the manner
or of a type that is reasonably expected to result in
the earliest availability of the Prospectus for
effecting resales of Registrable Securities.
Notwithstanding anything contained herein to the
contrary, the Issuers shall be under no obligation to
name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or
related Prospectus; provided, however, that any Holder
that becomes a Notice Holder pursuant to the provisions
of this Section 2(d) (whether or not such Holder was a
Notice Holder at the time the Registration Statement
was declared effective) shall be named as a selling
securityholder in the Registration Statement or related
Prospectus in accordance with the requirements of this
Section 2(d).
(e) The parties hereto agree that the Holders of
Registrable Securities will suffer damages, and that it
would not be feasible to ascertain the extent of such
damages with precision, if (i) the Initial Shelf
Registration Statement has not been filed on or prior
to the Filing Deadline Date, (ii) the Initial Shelf
Registration Statement has not been declared effective
under the Securities Act on or prior to the
Effectiveness Deadline Date, (iii) the Issuers have
failed to perform their obligations set forth in
Section 2(b) within the time period required therein,
(iv) the Issuers have failed to perform their
obligations set forth in Section 2(d) within the time
periods required therein or (v) the aggregate duration
of Deferral Periods in any period exceeds the number of
days permitted in respect of such period pursuant to
Section 3(i) hereof (each of the events of a type
described in any of the foregoing clauses (i) through
(v) are individually referred to herein as an "Event,"
and the Filing Deadline Date in the case of clause (i),
the Effectiveness Deadline Date in the case of clause
(ii), the date by which the Issuers are required to
perform their obligations set forth in Section 2(b) in
the case of clause (iii), the date by which the Issuers
are required to perform their obligations set forth in
Section 2(d) in the case of clause (iv) (including the
filing of any post-effective amendment prior to the
Amendment Effectiveness Deadline Date), and the date on
which the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted by Section
3(i) hereof in the case of clause (v), being referred
to herein as an "Event Date"). Events shall be deemed
to continue until the following dates with respect to
the respective types of Events: the date the Initial
Shelf Registration Statement is filed in the case of an
Event of the type described in clause (i), the date the
Initial Shelf Registration Statement is declared
effective under the Securities Act in the case of an
Event of the type described in clause (ii), the date
the Issuers perform their obligations set forth in
Section 2(b) in the case of an Event of the type
described in clause (iii), the date the Issuers perform
their obligations set forth in Section 2(d) in the case
of an Event of the type described in clause (iv)
(including, without limitation, the date the relevant
post-effective amendment to the Shelf Registration
Statement is declared effective under the Securities
Act), and termination of the Deferral Period that
caused the limit on the aggregate duration of Deferral
Periods in a period set forth in Section 3(i) to be
exceeded in the case of the commencement of an Event of
the type described in clause (v).
Accordingly, commencing on (and including) any
Event Date and ending on (but excluding) the next date
on which there are no Events that have occurred and are
continuing (a "Damages Accrual Period"), each Issuer,
jointly and severally, agrees to pay, as liquidated
damages and not as a penalty, an amount (the
"Liquidated Damages Amount"), payable on the Damages
Payment Dates to Record Holders of Notes that are
Registrable Securities and of shares of Underlying
Common Stock issued upon conversion of Notes that are
Registrable Securities, as the case may be, accruing,
for each portion of such Damages Accrual Period
beginning on and including a Damages Payment Date (or,
if the first date of any Damages Accrual Period for
which the Liquidated Damages Amount is to be paid to
Holders as a result of the occurrence of any particular
Event is other than a Damages Payment Date, then the
Event Date) and ending on but excluding the first to
occur of (A) the date of the end of the Damages Accrual
Period or (B) the next Damages Payment Date, at a rate
per annum equal to one-quarter of one percent (0.25%)
for the first 90-day period from the Event Date, and
thereafter at a rate per annum equal to one-half of one
percent (0.5%) of (i) the aggregate principal amount of
such Notes or, without duplication, (ii) in the case of
Notes that have been converted into or exchanged for
Underlying Common Stock, the Applicable Conversion
Price of such shares of Underlying Common Stock on the
date of conversion, as the case may be, in each case
determined as of the Business Day immediately preceding
the next Damages Payment Date; provided that in the
case of a Damages Accrual Period that is in effect
solely as a result of an Event of the type described in
clause (iv) of the immediately preceding paragraph,
such Liquidated Damages Amount shall be paid only to
the Holders that have delivered Notice and
Questionnaires that caused the Issuers to incur the
obligations set forth in Section 2(d) the non-
performance of which is the basis of such Event:
provided further that any Liquidated Damages Amount
accrued with respect to any Note or portion thereof
called for redemption on a redemption date or converted
into Underlying Common Stock on a conversion date prior
to the Damages Payment Date, shall, in any such event,
be paid instead to the Holder who submitted such Note
or portion thereof for redemption or conversion on the
applicable redemption date or conversion date, as the
case may be, on such date (or promptly following the
conversion date, in the case of conversion).
Notwithstanding the foregoing, no Liquidated Damages
Amounts shall accrue as to any Registrable Security
from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y)
expiration of the Effectiveness Period. The rate of
accrual of the Liquidated Damages Amount with respect
to any period shall not exceed the rate provided for in
this paragraph notwithstanding the occurrence of
multiple concurrent Events. Following the cure of all
Events requiring the payment by the Issuers of
Liquidated Damages Amounts to the Holders of
Registrable Securities pursuant to this Section, the
accrual of Liquidated Damages Amounts will cease
(without in any way limiting the effect of any
subsequent Event requiring the payment of Liquidated
Damages Amount by the Issuers).
The Trustee shall be entitled, on behalf of
Holders of Notes, to seek any available remedy for the
enforcement of this Agreement, including for the
payment of any Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that
the sole damages payable for a violation of the terms
of this Agreement with respect to which liquidated
damages are expressly provided shall be such liquidated
damages.
All of the Issuers' obligations set forth in this
Section 2(e) that are outstanding with respect to any
Registrable Security at the time such security ceases
to be a Registrable Security shall survive until such
time as all such obligations with respect to such
security have been satisfied in full (notwithstanding
termination of this Agreement pursuant to Section
8(k)).
The parties hereto agree that the liquidated
damages provided for in this Section 2(e) constitute a
reasonable estimate of the damages that may be incurred
by Holders of Registrable Securities by reason of the
failure of the Shelf Registration Statement to be filed
or declared effective or available for effecting
resales of Registrable Securities in accordance with
the provisions hereof.
Section 3. Registration Procedures. In
connection with the registration obligations of the
Issuers under Section 2 hereof, the Issuers shall:
(a) Prepare and file with the SEC a Registration
Statement or Registration Statements on any appropriate
form under the Securities Act available for the sale of
the Registrable Securities by the Holders thereof in
accordance with the intended method or methods of
distribution thereof, and use their best efforts to
cause each such Registration Statement to become
effective and remain effective as provided herein;
provided that before filing any Registration Statement
or Prospectus or any amendments or supplements thereto
with the SEC, the Issuers shall furnish to the Initial
Purchaser and counsel for the Holders and for the
Initial Purchaser (or, if applicable, separate counsel
for the Holders) copies of all such documents proposed
to be filed and use their best efforts to reflect in
each such document when so filed with the SEC such
comments as the such counsel reasonably shall propose
within three (3) Business Days of the delivery of such
copies to the Initial Purchaser and such counsel.
(b) Prepare and file with the SEC such amendments
and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration
Statement continuously effective until the expiration
of the Effectiveness Period; cause the related
Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and use their
best efforts to comply with the provisions of the
Securities Act applicable to them with respect to the
disposition of all securities covered by such
Registration Statement during the Effectiveness Period
in accordance with the intended methods of disposition
by the sellers thereof set forth in such Registration
Statement as so amended or such Prospectus as so
supplemented.
(c) As promptly as practicable give notice to the
Notice Holders, the Initial Purchaser and counsel for
the Holders and for the Initial Purchaser (or, if
applicable, separate counsel for the Holders) (i) when
any Prospectus, Prospectus supplement, Registration
Statement or post-effective amendment to a Registration
Statement has been filed with the SEC and, with respect
to a Registration Statement or any post-effective
amendment, when the same has been declared effective,
(ii) of any request, following the effectiveness of the
Initial Shelf Registration Statement under the
Securities Act, by the SEC or any other federal or
state governmental authority for amendments or
supplements to any Registration Statement or related
Prospectus or for additional information, (iii) of the
issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the
initiation or threatening of any proceedings for that
purpose, (iv) of the receipt by the Issuers of any
notification with respect to the suspension of the
qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for
such purpose, (v) after the effective date of any
Registration Statement filed pursuant to this Agreement
of the occurrence of (but not the nature of or details
concerning) a Material Event and (vi) of the
determination by the Issuers that a post-effective
amendment to a Registration Statement will be filed
with the SEC, which notice may, at the discretion of
the Issuers (or as required pursuant to Section 3(i)),
state that it constitutes a Deferral Notice, in which
event the provisions of Section 3(i) shall apply.
(d) Use their best efforts to prevent the issuance
of, and, if issued, to obtain the withdrawal of any
order suspending the effectiveness of a Registration
Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for
sale, in either case at the earliest possible moment,
and provide prompt notice to each Notice Holder and the
Initial Purchaser of the withdrawal of any such order.
(e) If reasonably requested by the Initial
Purchaser or any Notice Holder, as promptly as
practicable incorporate in a Prospectus supplement or
post-effective amendment to a Registration Statement
such information as the Initial Purchaser, such Notice
Holder or counsel for the Holders and for the Initial
Purchaser (or, if applicable, separate counsel for the
Holders) shall, on the basis of a written opinion of
nationally-recognized counsel experienced in such
matters, determine to be required to be included
therein by applicable law and make any required filings
of such Prospectus supplement or such post-effective
amendment provided that the Issuers shall not be
required to take any actions under this Section 3(e)
that, in the written opinion of counsel for the
Issuers, are not in compliance with appliance law.
(f) As promptly as practicable furnish to each
Notice Holder, counsel for the Holders and for the
Initial Purchaser (or, if applicable, separate counsel
for the Holders) and the Initial Purchaser, without
charge, at least one (1) conformed copy of the
Registration Statement and any amendment thereto,
including financial statements but excluding schedules,
all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested
in writing to the Issuers by such Notice Holder, such
counsel or the Initial Purchaser).
(g) During the Effectiveness Period, deliver to
each Notice Holder, counsel for the Holders and for the
Initial Purchaser (or, if applicable, separate counsel
for the Holders) and the Initial Purchaser, in
connection with any sale of Registrable Securities
pursuant to a Registration Statement, without charge,
as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement
thereto as such Notice Holder may reasonably request;
and the Issuers hereby consent (except during such
periods that a Deferral Notice is outstanding and has
not been revoked) to the use of such Prospectus or each
amendment or supplement thereto by each Notice Holder,
in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or
any amendment or supplement thereto in the manner set
forth therein.
(h) Prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration
Statement, use their best efforts to register or
qualify or cooperate with the Notice Holders in
connection with the registration or qualification (or
exemption from such registration or qualification) of
such Registrable Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions
within the United States as any Notice Holder
reasonably requests in writing (which request may be
included in the Notice and Questionnaire); prior to any
public offering of the Registrable Securities pursuant
to the Shelf Registration Statement, use their best
efforts to keep each such registration or qualification
(or exemption therefrom) effective during the
Effectiveness Period in connection with such Notice
Holder's offer and sale of Registrable Securities
pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or
things reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable
Securities in the manner set forth in the relevant
Registration Statement and the related Prospectus;
provided that the Issuers will not be required to (i)
qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where they would not
otherwise be required to qualify but for this Agreement
or (ii) take any action that would subject them to
general service of process in suits or to taxation in
any such jurisdiction where they are not then so
subject.
(i) Upon (A) the issuance by the SEC of a stop
order suspending the effectiveness of the Shelf
Registration Statement or the initiation of proceedings
with respect to the Shelf Registration Statement under
Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any fact as
a result of which any Registration Statement shall
contain any untrue statement of a material fact or omit
to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, or (C) the occurrence
or existence of any pending corporate development (a
"Material Event") that, in the reasonable discretion of
the Issuers, makes it appropriate to suspend the
availability of the Shelf Registration Statement and
the related Prospectus, (i) in the case of clause (B)
above, subject to the next sentence, as promptly as
practicable prepare and file, if necessary pursuant to
applicable law, a post-effective amendment to such
Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by
reference or file any other required document that
would be incorporated by reference into such
Registration Statement and Prospectus so that such
Registration Statement does not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and such Prospectus does not contain any
untrue statement of a material fact or omit to state
any material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading (it being
understood that the Issuers may rely on information
provided by each Notice Holder with respect to such
Notice Holder), as thereafter delivered to the
purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective
amendment to a Registration Statement, subject to the
next sentence, use their best efforts to cause it to be
declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders and counsel for
the Holders and for the Initial Purchaser (or, if
applicable, separate counsel for the Holders) that the
availability of the Shelf Registration Statement is
suspended (a "Deferral Notice") and, upon receipt of
any Deferral Notice, each Notice Holder agrees not to
sell any Registrable Securities pursuant to the
Registration Statement until such Notice Holder's
receipt of copies of the supplemented or amended
Prospectus provided for in clause (i) above, or until
it is advised in writing by the Issuers that the
Prospectus may be used, and has received copies of any
additional or supplemental filings that are
incorporated or deemed incorporated by reference in
such Prospectus. The Issuers will use their best
efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause
(B) above, as soon as, in the reasonable judgment of
the Issuers, the Registration Statement does not
contain any untrue statement of a material fact or
omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading and the Prospectus does not contain any
untrue statement of a material fact or omits to state
any material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, and (z) in
the case of clause (C) above, as soon as, in the
reasonable discretion of the Issuers, such suspension
is no longer appropriate. The period during which the
availability of the Registration Statement and any
Prospectus is suspended (the "Deferral Period") without
the Issuers incurring any obligation to pay liquidated
damages pursuant to Section 2(e), shall not exceed
thirty (30) days in any ninety- (90-) day period and
ninety (90) days in any twelve- (12-) month period.
(j) Make available for inspection during normal
business hours by a representative for the Notice
Holders of such Registrable Securities, and any broker-
dealers, attorneys and accountants retained by such
Notice Holders, all relevant financial and other
records and pertinent corporate documents and
properties of the Issuers and their subsidiaries, and
cause the appropriate officers, directors and employees
of the Issuers and their subsidiaries to make available
for inspection during normal business hours all
relevant information reasonably requested by such
representative for the Notice Holders, or any such
broker-dealers, attorneys or accountants in connection
with such disposition, in each case as is customary for
similar "due diligence" examinations; provided,
however, that such persons shall first agree in writing
with the Issuers that any information that is
reasonably and in good faith designated by the Issuers
in writing as confidential at the time of delivery of
such information shall be kept confidential by such
persons and shall be used solely for the purposes of
exercising rights under this Agreement, unless (i)
disclosure of such information is required by court or
administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of
such information is required by law (including any
disclosure requirements pursuant to federal securities
laws in connection with the filing of any Registration
Statement or the use of any Prospectus referred to in
this Agreement), (iii) such information becomes
generally available to the public other than as a
result of a disclosure or failure to safeguard by any
such person or (iv) such information becomes available
to any such person from a source other than the Issuers
and such source is not bound by a confidentiality
agreement or is not otherwise under a duty of trust to
the Issuers, and provided that the foregoing inspection
and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Notice
Holders and the other parties entitled thereto by the
counsel referred to in Section 5.
(k) Comply with all applicable rules and
regulations of the SEC and make generally available to
its securityholders earning statements (which need not
be audited) satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no
later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if
such period is a fiscal year) commencing on the first
day of the first fiscal quarter of the Issuers
commencing after the effective date of a Registration
Statement, which statements shall cover said 12-month
periods.
(l) Cooperate with each Notice Holder to facilitate
the timely preparation and delivery of certificates
representing Registrable Securities sold pursuant to a
Registration Statement, which certificates shall not
bear any restrictive legends, and cause such
Registrable Securities to be in such denominations as
are permitted by the Indenture and registered in such
names as such Notice Holder may request in writing at
least (2) Business Days prior to any sale of such
Registrable Securities.
(m) Provide a CUSIP number for all Registrable
Securities covered by each Registration Statement not
later than the effective date of such Registration
Statement and provide the Trustee and the transfer
agent for the Common Stock with printed certificates
for the Registrable Securities that are in a form
eligible for deposit with The Depository Trust Company.
(n) Cooperate and assist in any filings required to
be made with the National Association of Securities
Dealers, Inc.
(o) Upon (i) the filing of the Initial Registration
Statement and (ii) the effectiveness of the Initial
Registration Statement, announce the same, in each case
by release to Business Wire.
(p) Enter into such customary agreements and take
all such other necessary actions in connection
therewith (including those requested by the holders of
a majority of the Registrable Securities being sold) in
order to expedite or facilitate disposition of such
Registrable Securities.
(q) Cause the Indenture to be qualified under the
TIA not later than the effective date of any
Registration Statement; and in connection therewith,
cooperate with the Trustee to effect such changes to
the Indenture as may be required for the Indenture to
be so qualified in accordance with the terms of the TIA
and execute, and use its best efforts to cause the
Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents
required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner.
Section 4. Holder's Obligations. Each Holder
agrees, by acquisition of the Registrable Securities,
that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities
pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has
furnished the Issuers with a Notice and Questionnaire
as required pursuant to Section 2(d) hereof (including
the information required to be included in such Notice
and Questionnaire) and the information set forth in the
next sentence. Each Notice Holder agrees promptly to
furnish to the Issuers all information required to be
disclosed in order to make the information previously
furnished to the Issuers by such Notice Holder not
misleading and any other information regarding such
Notice Holder and the distribution of such Registrable
Securities as the Issuers may from time to time
reasonably request. Any sale of any Registrable
Securities by any Holder shall constitute a
representation and warranty by such Holder that the
information relating to such Holder and its plan of
distribution is as set forth in the Prospectus
delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a
material fact relating to or provided by such Holder or
its plan of distribution and that such Prospectus does
not as of the time of such sale omit to state any
material fact relating to or provided by such Holder or
its plan of distribution necessary in order to make the
statements in such Prospectus, in the light of the
circumstances under which they were made, not
misleading.
Section 5. Registration Expenses. Each Issuer,
jointly and severally, shall bear all fees and expenses
incurred in connection with the performance by the
Issuers of their obligations under Sections 2 and 3 of
this Agreement whether or not any of the Registration
Statements are declared effective. Such fees and
expenses ("Registration Expenses") shall include,
without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses
(x) with respect to filings required to be made with
the National Association of Securities Dealers, Inc.
and (y) of compliance with federal and state securities
or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of counsel for the
Holders in connection with Blue Sky qualifications of
the Registrable Securities under the laws of such
jurisdictions as the Notice Holders of a majority of
the Registrable Securities being sold pursuant to a
Registration Statement may designate), (ii) printing
expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust
Company), (iii) duplication expenses relating to copies
of any Registration Statement or Prospectus delivered
to any Holders hereunder, (iv) fees and disbursements
of counsel for the Issuers and the fees and
disbursements of one counsel for the Holders in
connection with the Shelf Registration Statement, (v)
fees and disbursements of the Trustee and its counsel
and of the registrar and transfer agent for the Common
Stock and (vi) Securities Act liability insurance
obtained by the Issuers in their sole discretion. In
addition, the Issuers shall pay the internal expenses
of the Issuers (including, without limitation, all
salaries and expenses of officers and employees
performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in
connection with the listing by the Issuers of the
Registrable Securities on any securities exchange on
which similar securities of the Issuers are then listed
and the fees and expenses of any person, including
special experts, retained by the Issuers.
Section 6. Indemnification; Contribution.
(a) Each Issuer, jointly and severally, agrees to
indemnify and hold harmless the Initial Purchaser, each
Holder and each person, if any, who controls the
Initial Purchaser or any Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934
Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged
untrue statement of a material fact contained in
any Registration Statement (or any amendment or
supplement thereto) pursuant to which Registrable
Securities were registered under the 1933 Act,
including all documents incorporated therein by
reference, or the omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements
therein not misleading, or arising out of any
untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation
or proceeding by any governmental agency or body,
commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d)
below) any such settlement is effected with the
written consent of the Issuers; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of
counsel chosen by any indemnified party),
reasonably incurred in investigating, preparing or
defending against any litigation, or any
investigation or proceeding by any governmental
agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity agreement shall
not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with
written information furnished to the Issuers by the
Initial Purchaser or such Holder expressly for use in a
Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement
thereto).
(b) Each Holder severally, but not jointly, agrees
to indemnify and hold harmless the Issuers, the Initial
Purchaser, the other selling Holders, and each of their
respective directors and officers, and each person, if
any, who controls the any Issuer, the Initial Purchaser
or any other selling Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in
Section 6(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus
included therein (or any amendment or supplement
thereto) in reliance upon and in conformity with
written information with respect to such Holder
furnished to the Issuers by such Holder expressly for
use in the Shelf Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment
or supplement thereto); provided, however, that no such
Holder shall be liable for any claims hereunder in
excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant
to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying
party of any action or proceeding commenced against it
in respect of which indemnity may be sought hereunder,
but failure so to notify an indemnifying party shall
not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than
on account of this indemnity agreement. An
indemnifying party may participate at its own expense
in the defense of such action; provided, however, that
counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall
the indemnifying party or parties be liable for the
fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one
action or separate but similar or related actions in
the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party
shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which
indemnification or contribution could be sought under
this Section 6 (whether or not the indemnified parties
are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from
all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel,
such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
(e) If the indemnification provided for in this
Section 6 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in
such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other
hand in connection with the statements or omissions
that resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of the Issuers on the one hand
and the Holders and the Initial Purchaser on the other
hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged
omission to state a material fact relates to
information supplied by the Issuers, the Holders or the
Initial Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Issuers, the Holders and the Initial Purchaser
agree that it would not be just and equitable if
contribution pursuant to this Section 6(e) were
determined by pro rata allocation or by any other
method of allocation that does not take account of the
equitable considerations referred to above in this
Section 6(e). The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by
an indemnified party and referred to above in this
Section 6(e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against
any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 6,
neither the Initial Purchaser nor any Holder shall be
required to indemnify or contribute any amount in
excess of the amount by which the total price at which
the Registrable Securities sold by Holder or
underwritten by the Initial Purchaser, as the case may
be, and distributed to the public were offered to the
public exceeds the amount of any damages that such
Holder or Initial Purchaser has otherwise been required
to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6, each person, if
any, who controls the Initial Purchaser or any Holder
within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the
same rights to contribution as such Initial Purchaser
or Holder, and each director of the Issuers, and each
person, if any, who controls any Issuer within the
meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same
rights to contribution as such Issuer.
Section 7. Information Requirements. (a) Each
Issuer covenants that, if at any time before the end
of the Effectiveness Period such Issuer is not
subject to the reporting requirements of the Exchange
Act, it will cooperate with any Holder of Registrable
Securities and take such further reasonable action as
any Holder of Registrable Securities may reasonably
request in writing (including, without limitation,
making such reasonable representations as any such
Holder may reasonably request), all to the extent
required from time to time to enable such Holder to
sell Registrable Securities without registration
under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under
the Securities Act and customarily taken in
connection with sales pursuant to such exemptions.
Upon the written request of any Holder of Registrable
Securities, each Issuer shall deliver to such Holder
a written statement as to whether it has complied
with such filing requirements, unless such a
statement has been included in such Issuer's most
recent report filed pursuant to Section 13 or Section
15(d) of Exchange Act. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require
the Issuers to register any of its securities (other
than the Common Stock) under any section of the
Exchange Act.
(b) Each Issuer shall file the reports required to
be filed by it under the Exchange Act and shall comply
with all other requirements set forth in the
instructions to Form S-3 in order to allow such Issuer
to be eligible to file registration statements on Form
S-3.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. Each Issuer is not,
as of the date hereof, a party to, nor shall it, on or
after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts
with the rights granted to the Holders of Registrable
Securities in this Agreement. Each Issuer represents
and warrants that the rights granted to the Holders of
Registrable Securities hereunder do not in any way
conflict with the rights granted to the holders of such
Issuer's securities under any other agreements.
Notwithstanding the foregoing, the Initial Purchaser
acknowledges that each Issuer is obligated, and may
obligate itself from time to time in the future, to
register its securities for other holders pursuant to
separate registration statements.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence,
may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions
hereof may not be given, unless the Issuers have
obtained the written consent of Holders of a majority
of the then outstanding Underlying Common Stock
constituting Registrable Securities (with Holders of
Notes deemed to be the Holders, for purposes of this
Section, of the number of outstanding shares of
Underlying Common Stock into which such Notes are or
would be convertible or exchangeable as of the date on
which such consent is requested). Notwithstanding the
foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to
a Registration Statement and that does not directly or
indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being
sold by such Holders pursuant to such Registration
Statement; provided that the provisions of this
sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the
immediately preceding sentence. Each Holder of
Registrable Securities outstanding at the time of any
such amendment, modification, supplement, waiver or
consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent
effected pursuant to this Section 8(b), whether or not
any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent
appears on the Registrable Securities or is delivered
to such Holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in
writing by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail,
return receipt requested, and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon
confirmation, if made by telecopier, (iii) one (1)
Business Day after being deposited with such courier,
if made by overnight courier or (iv) on the date
indicated on the notice of receipt, if made by first-
class mail, to the parties as follows:
(x) if to a Holder of Registrable Securities, at
the most current address given by such Holder to the
Issuers in a Notice and Questionnaire or any
amendment thereto;
(y) if to the Issuers, to:
Freeport-McMoRan Copper & Gold Inc.
FCX Investment Ltd.
c/o Freeport-McMoRan Copper & Gold Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
(z) if to the Initial Purchaser, to:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
or to such other address as such person may have
furnished to the other persons identified in this
Section 8(c) in writing in accordance herewith.
(d Approval of Holders. Whenever the consent or
approval of Holders of a specified percentage of
Registrable Securities is required hereunder,
Registrable Securities held by the Issuers or their
affiliates (as such term is defined in Rule 405 under
the Securities Act) (other than the Initial Purchaser
or subsequent Holders of Registrable Securities if such
subsequent Holders are deemed to be such affiliates
solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of
such required percentage.
(e Successors and Assigns. Any person who
purchases any Registrable Securities from the Initial
Purchaser shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchaser.
This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the
parties and shall inure to the benefit of and be
binding upon each Holder of any Registrable Securities.
(f Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed
shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(g Headings. The headings in this Agreement are
for convenience of reference only and shall not limit
or otherwise affect the meaning hereof.
(h Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
(i Severability. If any term, provision, covenant
or restriction of this Agreement is held to be invalid,
illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby,
and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the
same or substantially the same result as that
contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights
and privileges of the parties shall be enforceable to
the fullest extent permitted by law.
(j Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement
and is intended to be a complete and exclusive
statement of the agreement and understanding of the
parties hereto in respect of the subject matter
contained herein and the registration rights granted by
the Issuers with respect to the Registrable Securities.
Except as provided in the Purchase Agreement, there are
no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with
respect to the registration rights granted by the
Issuers with respect to the Registrable Securities.
This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such
registration rights. No party hereto shall have any
rights, duties or obligations other than those
specifically set forth in this Agreement. In no event
will such methods of distribution take the form of an
underwritten offering of the Registrable Securities
without the prior agreement of the Issuers.
(k Termination. This Agreement and the obligations
of the parties hereunder shall terminate upon the end
of the Effectiveness Period, except for any liabilities
or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for
liquidated damages under Section 2(e) hereof to the
extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in
effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
FREEPORT-McMoRan COPPER & GOLD INC.
By:____________________________
Name:
Title:
FCX INVESTMENT LTD.
By:____________________________
Name:
Title:
Confirmed and accepted as of the date
first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:______________________________________
Name:
Title:
