EXHIBIT 10.3
STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "Agreement") is entered into this _____
day of ____________, 1997, by and between McMoRan Oil & Gas Co., a Delaware
corporation ("MOXY"), and Freeport-McMoRan Resource Partners, Limited
Partnership, a Delaware limited partnership ("FRP").
R E C I T A L S
WHEREAS, MOXY has filed a Registration Statement with the SEC relating to
the Rights Offering;
WHEREAS, pursuant to the Standby Purchase Agreement, FRP has agreed to
purchase at the Rights Offering subscription price all shares of Common Stock
offered in the Rights Offering that are not purchased by holders of the Rights,
and MOXY has agreed that if, pursuant to its subscription rights and its standby
commitment, FRP has not acquired 30% of the Common Stock outstanding upon
completion of the Rights Offering, FRP will have the option to acquire at the
subscription price such additional shares of Common Stock in an amount not in
excess of the number of shares as would be necessary to provide it with up to
30% of MOXY's outstanding Common Stock after giving effect to such acquisition;
WHEREAS, MOXY and FRP are entering into this Agreement to establish certain
corporate governance arrangements to take effect after the date hereof as well
as certain matters relating to FRP's registration rights with respect to the
Registrable Securities; and
WHEREAS, MOXY and FRP believe that these arrangements will be in the best
interests of MOXY and all of its stockholders.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. The following capitalized terms when used in this
Agreement shall have the following meanings:
"Affiliate" or "Associate" shall have the respective meanings assigned
thereto in Rule 405 as presently promulgated under the Securities Act of 1933.
"Beneficial Owner" means beneficial ownership calculated in accordance
with Rules 13d-3 and 13d-5 under the Exchange Act.
"Board of Directors" means the board of directors of MOXY.
"By-laws" means the By-laws of MOXY.
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"Certificate of Incorporation" means the Amended and Restated
Certificate of Incorporation of MOXY.
"Common Stock" means the shares of common stock, $.01 par value per
share, of MOXY.
"Demand Registration" means a Demand Registration as defined in
Section 4(a) hereof.
"Director" means any member of the Board of Directors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FRP Designee" has the meaning set forth in Section 2(b) hereof.
"FRP Percentage" means, at any time, a fraction, expressed as a
percentage, (a) the numerator of which is the number of outstanding shares of
Common Stock owned by FRP at such time, and (b) the denominator of which is the
total number of outstanding shares of Common Stock at such time.
"Independent Committee" has the meaning set forth in Section 2(i)
hereof.
"Independent Director" means, at any time, any member of the Board of
Directors who both (a) would qualify as an "independent director" within the
meaning given to such term under the rules of the New York Stock Exchange and
(b) is not an Affiliate or Associate of FRP, other than solely as a result of
being a director of MOXY.
"Master Agreement" means the Master Agreement dated as of July 14,
1997 between MOXY and FRP.
"Material Transaction" means (a) any sale, lease, transfer or other
disposition by MOXY of any of its properties or assets to, (b) any purchase of
property or assets by MOXY from, (c) any investment by MOXY in, (d) any
agreement by MOXY with or for the benefit of, or (e) any other transaction
between MOXY and one or more of its Affiliates (other than a wholly-owned
subsidiary of MOXY) that involves aggregate payments in excess of $5 million and
is not in effect on the date hereof or contemplated by the Master Agreement.
"Participation Agreement" means the Participation Agreement, including
all exhibits thereto, substantially in the form of Exhibit "B" to the Master
Agreement.
"Person" means any person, firm, corporation, partnership, limited
liability partnership or company, trust or other association or organization of
any kind.
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"Piggyback Registration" means a Piggyback Registration as defined in
Section 4(b) hereof.
"Registrable Securities" means all shares of Common Stock owned by
FRP.
"Registration Statement" means the registration statement on Form S-3,
including any amendments or supplements thereto, to be filed by MOXY with the
SEC relating to the Rights Offering.
"Rights" means transferable subscription rights to purchase shares of
Common Stock that will be distributed by MOXY in the Rights Offering to the
holders of the Common Stock pursuant to the terms set forth in the Registration
Statement.
"Rights Offering" means the distribution to the holders of the Common
Stock of the Rights pursuant to the terms set forth in the Registration
Statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Standby Purchase Agreement" means the Standby Purchase Agreement
dated as of July 14, 1997 between MOXY and FRP.
"Stockholder Rights Plan" means the Rights Agreement dated as of May
19, 1994, as amended to the date hereof, between MOXY and Mellon Securities
Trust Company, as Rights Agent.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
2. Composition of Board of Directors
(a) Number of Directors. Subject to the terms of this Agreement and
the Certificate of Incorporation and the By-laws, MOXY and FRP agree that the
Board of Directors shall consist of such number of Directors as may be fixed
from time to time by a majority of the Directors then in office, giving effect
to the provisions of this Agreement.
(b) Number of FRP Designees. As long as FRP shall be the Beneficial
Owner of at least 10% but less than a majority of the outstanding Common Stock,
FRP shall be entitled to designate by written notice to MOXY from time to time
that number of Directors (each an "FRP Designee") equal to the nearest whole
number obtained by multiplying the FRP Percentage by the number of Directors
that are to serve on the Board of Directors after giving effect to the election
of the FRP Designees and the Independent Directors required pursuant to Section
2(i). Upon receipt of a written request of FRP to exercise its rights under this
Section 2(b), MOXY shall create that
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number of vacancies on the Board of Directors as determined in accordance with
the preceding sentence either by (i) an increase in the number of Directors in
accordance with the terms of the Certificate of Incorporation and the By-laws,
(ii) Director resignations or (iii) a combination thereof.
(c) Election of FRP Designees. The Board of Directors shall elect FRP
Designees as soon as practicable following receipt of a notice from FRP in
accordance with Section 2(b) to fill the vacancies on the Board of Directors
created in accordance with the last sentence of Section 2(b), to serve from the
time when they are elected until their successors are elected and qualified.
Each of the FRP Designees shall be elected to a different class of the Board of
Directors as provided by the Certificate of Incorporation and the By-laws,
unless the Board of Directors elects more than three FRP Designees, in which
case the FRP Designees shall be elected to different classes as proportionally
as practicable.
(d) Nomination and Election of Subsequent FRP Designees. The Board of
Directors (or any committee of the Board of Directors that nominates Directors)
shall, in connection with each meeting of stockholders of MOXY at which the term
of any FRP Designee expires (if FRP shall then have the right to designate
Directors), nominate for election as a Director, in accordance with MOXY's
procedures for nomination of Directors as provided for in its By-laws, one or
more FRP Designees designated in accordance with Section 2(b) to stand for
election for the next succeeding term, and shall vote all management proxies in
favor of such nominees, except for such proxies that specifically indicate to
the contrary. MOXY shall recommend that its stockholders vote in favor of such
nominees, and shall use reasonable efforts to solicit from its stockholders
proxies voted in favor of such nominees.
(e) FRP Designee Replacements. If any FRP Designee shall decline or
be unable to serve for any reason, or if such FRP Designee resigns or is removed
(other than in the case of a resignation pursuant to Section 2(d) hereof), the
Board of Directors shall promptly upon the request of FRP nominate or elect, as
the case may be, a new FRP Designee to replace such resigned or removed FRP
Designee.
(f) Voting. As long as FRP shall be the Beneficial Owner of at least
10% of the Common Stock, at each meeting of stockholders of MOXY, FRP shall vote
the shares of Common Stock held by FRP for the nominees recommended by the Board
of Directors.
(g) Resignation of FRP Designees. At such time as FRP shall become
the Beneficial Owner of less than 10% of the outstanding Common Stock, FRP
shall, at the request of MOXY, use its best efforts to cause any FRP Designees
then serving as Directors to resign from the Board of Directors.
(h) Information Regarding FRP Designees. FRP shall use its best
efforts to cause each FRP Designee to promptly provide to MOXY, as MOXY may from
time to time reasonably request, information regarding such FRP Designee for
inclusion in any form, report, schedules, registration statement, definitive
proxy statement or other documents required to be filed by MOXY with the SEC.
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(i) Independent Committee. Within six months after the date hereof,
MOXY shall create two vacancies on the Board of Directors either by (i) an
increase in the number of Directors in accordance with the terms of the
Certificate of Incorporation and the By-laws, (ii) Director resignations or
(iii) a combination thereof and shall designate, and the Board of Directors
shall elect at least two Independent Directors to the Board of Directors. The
Board of Directors shall, in connection with each meeting of stockholders of
MOXY at which the term of any Independent Director expires, select one or more
individuals who would qualify for membership on the Independent Committee to
stand for election for the next succeeding term. If any Independent Director
shall decline or be unable to serve for any reason, or if such Independent
Director resigns, the Board of Directors shall promptly nominate or elect, as
the case may be, a new Independent Director to replace such resigned Independent
Director. The Independent Directors shall constitute the Independent Committee
of the Board of Directors (the "Independent Committee"). The affirmative vote
of a majority of the Independent Directors shall be the act of the Independent
Committee.
3. Approval by Independent Committee.
(a) Actions by MOXY. After the Independent Committee has been elected
in accordance with Section 2(i), for as long as FRP shall be the Beneficial
Owner of 10% or more of the outstanding Common Stock, subject to the Certificate
of Incorporation and applicable law, MOXY shall not take any of the following
actions without the approval of the Independent Committee:
(i) repurchase any outstanding shares of Common Stock;
(ii) enter into any Material Transaction;
(iii) enter into any "Rule 13e-3 transaction" within the meaning
of Rule 13e-3 under the Exchange Act;
(iv) amend, modify or grant any waiver under the Stockholder
Rights Plan, the Participation Agreement or this Agreement; or
(v) in connection with any merger or business combination
involving MOXY and a third party, treat FRP and the other holders of Common
Stock on other than equivalent terms.
(b) Actions by FRP. For as long as FRP shall be the Beneficial Owner
of more than 10% of the outstanding Common Stock, except as specifically
approved by the Independent Committee, neither FRP nor any of FRP's Affiliates
shall, directly or indirectly, (i) by purchase or otherwise, acquire, agree to
acquire or offer to acquire beneficial ownership of any additional shares of
Common Stock (other than through open-market purchases that do not constitute a
"Rule 13e-3 transaction" within the meaning of Rule 13e-3 under the Exchange
Act), or (ii) enter into, propose to enter into, solicit or support any merger
or business combination or similar transaction involving
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FRP or any of its Affiliates and MOXY. In considering whether any of the
foregoing transactions would be in the best interests of and fair to the holders
of Common Stock other than FRP and its Affiliates, the Independent Committee
shall consider the value of MOXY as a whole without any reduction related to the
size of FRP's ownership interest in MOXY.
4. Registration Rights.
(a) Demand Registration. (i) FRP may at any time and from time to
time make a written request for registration under the Securities Act of not
less than 10% of the outstanding Common Stock (a "Demand Registration");
provided that MOXY shall not be obligated to effect more than one Demand
Registration in any 12-month period or more than an aggregate of three Demand
Registrations pursuant to this Section 4(a). Such request will specify the
number of shares of Registrable Securities proposed to be sold and will also
specify the intended method of disposition thereof. A registration will not
count as a Demand Registration until it has become effective; provided, however,
that a Demand Registration that is either withdrawn or not declared effective at
FRP's request shall count as a Demand Registration unless FRP also bears all of
the expenses specified in Section 4(e) hereof (as being payable by MOXY) with
respect to such Demand Registration.
(ii) If FRP so elects, the offering of such Registrable Securities
pursuant to such Demand Registration shall be in the form of an underwritten
offering. FRP shall select the managing Underwriters and any additional
investment bankers and managers to be used in connection with the offering;
provided that such managing Underwriters and additional investment bankers must
be reasonably satisfactory to MOXY.
(b) Piggyback Registration. If MOXY proposes to file a registration
statement under the Securities Act with respect to an offering of Common Stock
(i) for MOXY's own account (other than a registration statement on Form S-4 or
S-8 (or any substitute form that may be adopted by the SEC)) or (ii) for the
account of any of its holders of Common Stock (other than FRP), then MOXY shall
give written notice of such proposed filing to FRP as soon as practicable (but
in no event less than 10 days before the anticipated filing date), and such
notice shall offer FRP the opportunity to register such number of shares of
Registrable Securities as FRP may request on the same terms and conditions as
MOXY's or such holder's Common Stock (a "Piggyback Registration").
(c) Reduction of Offering. Notwithstanding anything contained herein,
if the managing Underwriter of an offering described in Section 4(b) delivers a
written opinion to MOXY that the size of the offering that FRP, MOXY and any
other Persons whose securities are included in such offering intend to make are
such that the success of the offering would be materially and adversely
affected, then the amount of Registrable Securities to be offered for the
account of FRP and any other Person shall be reduced to the extent necessary to
reduce the total amount of common stock to be included in such offering to the
amount recommended by such managing Underwriter; provided that if Common Stock
is being offered for the account of Persons other than MOXY, then the proportion
by which the amount of such Registrable Securities intended to be offered for
the
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account of FRP is reduced shall not exceed the proportion by which the amount of
such securities intended to be offered for the account of such other Persons is
reduced.
(d) Filings; Information. Whenever FRP requests that any Registrable
Securities be registered pursuant to Section 4(a) hereof, MOXY will use its
reasonable efforts to effect the registration of such Registrable Securities as
promptly as is practicable, and in connection with any such request:
(i) MOXY will as expeditiously as possible prepare and file with
the SEC a registration statement on any form for which MOXY then qualifies
and which counsel for MOXY shall deem appropriate and available for the
sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its
reasonable efforts to cause such filed registration statement to become and
remain effective for a period of not less than 120 days (or such shorter
period which will terminate when all Registrable Securities covered by such
registration statement have been sold); provided that if MOXY shall furnish
to FRP a certificate signed by MOXY's Chief Executive Officer stating that
in his good faith judgment it would be detrimental or otherwise
disadvantageous to MOXY or its shareholders for such a registration
statement to be filed as expeditiously as possible, MOXY shall have a
period of not more than 120 days within which to file such registration
statement measured from the date of MOXY's receipt of FRP's request for
registration in accordance with Section 4(a) hereof.
(ii) MOXY will, if requested, prior to filing such registration
statement or any amendment or supplement thereto, furnish to FRP and each
applicable managing Underwriter, if any, copies thereof, and thereafter
furnish to FRP and each such Underwriter, if any, such number of copies of
such registration statement, amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein) and the prospectus included in such registration statement
(including each preliminary prospectus) as FRP or each such Underwriter may
reasonably request in order to facilitate the sale of the Registrable
Securities.
(iii) After the filing of the registration statement, MOXY will
promptly notify FRP of any stop order issued or, to MOXY's knowledge,
threatened to be issued by the SEC and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered.
(iv) MOXY will endeavor to qualify the Registrable Securities for
offer and sale under such other securities or blue sky laws of such
jurisdictions in the United States as FRP reasonably requests; provided
that MOXY will not be required to (A) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this subparagraph 4(d)(iv), (B) subject itself
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to taxation in any such jurisdiction or (C) consent to general service of
process in any such jurisdiction.
(v) MOXY will as promptly as is practicable notify FRP, at any
time when a prospectus relating to the sale of the Registrable Securities
is required by law to be delivered in connection with sales by an
Underwriter or dealer, of the occurrence of any event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an 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, in the light of the circumstances under which
they were made, not misleading and promptly make available to FRP and to
the Underwriters any such supplement or amendment. FRP agrees that, upon
receipt of any notice from MOXY of the occurrence of any event of the kind
described in the preceding sentence, FRP will forthwith discontinue the
offer and sale of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until receipt by FRP and the
Underwriters of the copies of such supplemented or amended prospectus and,
if so directed by MOXY, FRP will deliver to MOXY all copies, other than
permanent file copies then in FRP's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of
such notice. In the event MOXY shall give such notice, MOXY shall extend
the period during which such registration statement shall be maintained
effective as provided in Section 4(d)(i) by the number of days during the
period from and including the date of the giving of such notice to the date
when MOXY shall make available to FRP such supplemented or amended
prospectus.
(vi) MOXY will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as
are reasonably required in order to expedite or facilitate the sale of such
Registrable Securities.
(vii) MOXY will furnish to FRP and to each Underwriter a signed
counterpart, addressed to FRP or such Underwriter, of an opinion or
opinions of counsel to MOXY and a comfort letter or comfort letters from
MOXY's independent public accountants, each in customary form and covering
such matters of the type customarily covered by opinions or comfort
letters, as the case may be, as FRP or the managing Underwriter reasonably
requests.
(viii) MOXY will make generally available to its security holders,
as soon as reasonably practicable, an earnings statement covering a period
of 12 months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the SEC thereunder.
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(ix) MOXY will use its reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange or over-
the-counter market on which the Common Stock is then listed.
MOXY may require FRP promptly to furnish in writing to MOXY such
information regarding FRP, the plan of distribution of the Registrable
Securities and other information as MOXY may from time to time reasonably
request or as may be legally required in connection with such registration.
(e) Registration Expenses. In connection with any Demand Registration
or any Piggyback Registration, MOXY shall pay the following expenses incurred in
connection with such registration: (i) filing fees with the SEC, (ii) fees and
expenses of compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel in connection with blue sky qualifications of
the Registrable Securities), (iii) printing expenses, (iv) fees and expenses
incurred in connection with the listing of the Registrable Securities, (v) fees
and expenses of counsel and independent certified public accountants for MOXY
and (vi) the reasonable fees and expenses of any additional experts retained by
MOXY in connection with such registration. FRP shall pay any underwriting fees,
discounts or commissions attributable to the sale of Registrable Securities and
any out-of-pocket expenses of FRP.
(f) Indemnification by MOXY. MOXY agrees to indemnify and hold
harmless FRP, its officers and directors, and each Person, if any, who controls
FRP within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
the Registrable Securities (as amended or supplemented if MOXY shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information, relating to FRP or the plan of distribution
furnished in writing to MOXY by or on behalf of FRP expressly for use therein;
provided that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of FRP if a copy of the most current
prospectus at the time of the delivery of the Registrable Securities was not
provided to purchaser and such current prospectus would have cured the defect
giving rise to such loss, claim, damage or liability. MOXY also agrees to
indemnify any Underwriters of the Registrable Securities, their officers and
directors and each person who controls such Underwriters on substantially the
same basis as that of the indemnification of FRP provided in this subparagraph.
(g) Indemnification by FRP. FRP agrees to indemnify and hold harmless
MOXY, its officers and directors, and each Person, if any, who controls MOXY
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from MOXY to FRP,
but only with reference to information relating to FRP or the plan of
distribution furnished in writing by or on behalf of FRP expressly for use in
any
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registration statement or prospectus relating to the Registrable Securities,
or any amendment or supplement thereto, or any preliminary prospectus. FRP also
agrees to indemnify and hold harmless any Underwriters of the Registrable
Securities, their officers and directors and each person who controls such
Underwriters on substantially the same basis as that of the indemnification of
MOXY provided in this subparagraph.
(h) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to Section 4(f) or
Section 4(g), such Person (the "Indemnified Party") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall have the right to assume the defense of
such proceeding and retain counsel reasonably satisfactory to such Indemnified
Party to represent such Indemnified Party and any others the Indemnifying Party
may designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnified Party
and the Indemnifying Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Indemnified Parties,
and that all such fees and expenses shall be reimbursed as they are incurred.
In the case of any such separate firm for the Indemnified Parties, such firm
shall be designated in writing by the Indemnified Parties. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment.
(i) Contribution. If the indemnification provided for in this
Agreement is unavailable to an Indemnified Party in respect of any losses,
claims, damages or liabilities referred to herein, then each such Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by MOXY, FRP and the Underwriters from
the offering of the securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of MOXY, FRP and the Underwriters in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by MOXY, FRP and the Underwriters shall be deemed to
be in the same respective proportions as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by each of MOXY and FRP and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in
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the table on the cover of the prospectus, bear to the aggregate public offering
price of the securities. The relative fault of MOXY, FRP and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
MOXY and FRP agree that it would not be just and equitable if
contribution pursuant to this Section 4(i) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4(i), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and FRP shall not be
required to contribute any amount in excess of the amount by which the net
proceeds of the offering (before deducting expenses) received by FRP exceeds the
amount of any damages which FRP 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 Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(j) Participation in Underwritten Registrations. No Person may
participate in any underwritten registered offering contemplated hereunder
unless such Person (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and these
Registration Rights.
(k) Rule 144. MOXY covenants that it will file any reports required
to be filed by it under the Securities Act and the Exchange Act and that it will
take such further action as FRP may reasonably request to the extent required
from time to time to enable FRP to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by 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.
Upon the request of FRP, MOXY will deliver to FRP a written statement as to
whether it has complied with such reporting requirements.
(l) Holdback Agreements. FRP agrees not to offer, sell, contract to
sell or otherwise dispose of any Registrable Securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
14 days prior to, and during the 180-day period
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beginning on, the effective date of such registration statement other than (i)
the Registrable Securities to be sold pursuant to such registration statement,
and (ii) any shares of Common Stock sold upon the exercise of an option or
warrant or the conversion of a security outstanding at such date.
5. Miscellaneous.
(a) Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally or sent by
certified or registered mail, postage prepaid, and shall be deemed to be given,
dated and received when so delivered personally or, if mailed, three business
days after the date of mailing to the following address or to such other address
or addresses as such person may subsequently designate by notice given
hereunder.
If to MOXY, to:
McMoRan Oil & Gas Co.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Co-Chairman of the Board and
Chief Executive Officer
If to FRP, to
Freeport-McMoRan Resource Partners, Limited Partnership
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, President and Chief Executive
Officer
Any party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice specifying
such change to the other party hereto.
(b) Termination. The respective covenants and agreements of MOXY and
FRP contained in this Agreement will continue in full force and effect until the
earliest to occur of any of the following: (i) the mutual written agreement of
MOXY and FRP or (ii) at such time as FRP shall no longer be the Beneficial Owner
of 10% or more of the outstanding Common Stock. Notwithstanding the termination
of this Agreement, nothing contained herein shall relieve any party hereto from
liability for breach of any of its covenants or agreements contained in this
Agreement.
(c) Waivers and Amendments; Noncontractual Remedies; Specific
Performance. This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by or on behalf of each party hereto or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising a
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any such right, power or privilege, nor
any single or partial exercise of any such
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right, power or privilege, preclude a further exercise thereof or the exercise
of any other such right, power or privilege. MOXY and FRP agree that any breach
by either of them of any provision of this Agreement would irreparably injure
the other party and that money damages would be an inadequate remedy therefor.
Accordingly, each of MOXY and FRP agrees that the other party shall be entitled
to one or more injunctions enjoining any such breach and requiring specific
performance of this Agreement and consents to the entry thereof.
(d) Severability. If any provision of this Agreement or the
applicability of any such provision to a person or circumstances shall be
determined by any court of competent jurisdiction to be invalid or unenforceable
to any extent, the remainder of this Agreement or the application of such
provision to persons or circumstances other than those for which it is so
determined to be invalid and unenforceable, shall not be affected thereby, and
each provision of this Agreement shall be valid and shall be enforced to the
fullest extent permitted by law. To the extent permitted by applicable law, each
party hereto hereby waives any provision or provisions of law which would
otherwise render any provision of this Agreement invalid, illegal or
unenforceable in any respect.
(e) Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts and when so executed shall constitute one
Agreement, notwithstanding that all parties are not signatories to the same
counterpart.
(f) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such state, without regard to the conflict
of law rules of such state.
(g) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the successors and assigns of the
parties hereto; provided that the registration rights granted by MOXY in Section
4 may only be transferred to transferees who are the holder of 5% or more of the
Registrable Securities.
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IN WITNESS WHEREOF, each party has caused this Agreement to be signed by
its respective officers thereunto duly authorized, all as of the first date
written above.
McMoRan OIL & GAS CO.
By: ___________________________________
Xxxxxxx X. Xxxxxxxx
Co-Chairman of the Board
and Chief Executive Officer
FREEPORT-McMoRan RESOURCE PARTNERS,
LIMITED PARTNERSHIP
By: Freeport-McMoRan Inc., as Administrative
Managing General Partner
By: ___________________________________
Xxxx X. Xxxxxxxxx
President
and Chief Executive Officer
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