Exhibit 4.21
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Amendment No. 1 dated as of February 26, 2002 to the
Rights Agreement dated as of May 3, 2000 (the "Rights
Agreement") between Freeport-McMoRan Copper & Gold Inc. (the
"Company") and Mellon Investor Services LLC (as successor to
ChaseMellon Shareholder Services, L.L.C.) (the "Rights
Agent").
WITNESSETH
WHEREAS, at the 2002 annual meeting the Company is
asking its stockholders to vote on a proposal to reclassify
the Company's two classes of common stock into a single
class of common stock by amending the Company's certificate
of incorporation to convert each outstanding share of the
Company's Class A common stock into one share of the
Company's Class B common stock (the "Reclassification
Proposal");
WHEREAS, if the stockholders approve the
Reclassification Proposal, then the Rights Agreement will
need to be amended to remove all references to Class A
common stock of the Company;
WHEREAS, one beneficial owner of Class A common stock
recently inadvertently crossed the Threshold Percentage of
ownership for the Class A common stock;
WHEREAS, if the Reclassification Proposal passes, then
this beneficial owner will hold less than the Threshold
Percentage after the two classes of common stock are
combined;
WHEREAS, if the Reclassification Proposal passes, then
the Company will file an amendment to its certificate of
incorporation converting each outstanding share of Class A
common stock into a share of Class B common stock (the
"Amended Certificate of Incorporation");
WHEREAS, the Company desires to exempt the beneficial
owner from the definition of Acquiring Person until after
the stockholders vote on the Reclassification Proposal;
WHEREAS, the parties desire to amend the Rights
Agreement to reflect these matters;
NOW, THEREFORE, the parties agree as follows:
1. Defined Terms and References. Unless otherwise
specifically defined herein, each term used herein which is
defined in the Rights Agreement has the meaning assigned to
such term in the Rights Agreement. Each reference to
Shereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and
each other similar reference contained in the Rights
Agreement shall, after this Amendment becomes effective,
refer to the Rights Agreement as amended hereby.
2. Temporary Amendment to Rights Agreement. Until
the earlier of the filing of the Amended
Certificate of Incorporation or May 31, 2002,
Section 1. Definitions. is hereby amended by
restating the definition of "Exempt Person" in its
entirety to read as follows:
"Exempt Person" shall mean (i) the Company or
any Subsidiary of the Company, in each case
including, without limitation, in its
fiduciary capacity, or any employee benefit
plan of the Company or of any Subsidiary of
the Company, or any entity or trustee holding
Common Stock for or pursuant to the terms of
any such plan or for the purpose of funding
any such plan or funding other employee
benefits for employees of the Company or of
any Subsidiary of the Company and (ii)
Prudential Financial Inc. and all beneficial
owners listed in its Schedule 13G filed with
the SEC on February 13, 2002 as long as this
group does not exceed the Threshold
Percentage of the Common Stock and continues
to hold the Class A Common Stock without
intent to exercise control or influence the
Company.
3. Amendments to Rights Agreement if Reclassification
Proposal Passes. If the Reclassification Proposal passes,
immediately upon the filing of the Amended Certificate of
Incorporation, the Agreement shall be amended as follows:
(a) Section 1. Definitions. of the agreement is
hereby amended by adding the following definition
as follows:
"Amended Certificate of Incorporation" means
the amendment to the Company's certificate of
incorporation that was filed shortly after
the Company's stockholders approved the
proposal at the 2002 annual meeting of
stockholders to reclassify the Class A Common
Stock and the Class B Common Stock into a
single class of common stock by converting
each outstanding share of Class A Common
Stock into one share of Class B Common Stock.
(b) Section 1. Definitions. is hereby amended by
restating the definition of "Common Stock" in its
entirety to read as follows:
"Common Stock" means the former outstanding
Class A Common Stock that was converted into
Class B Common Stock on a one share for one
share basis immediately upon the filing of
the Amended Certificate of Incorporation, the
Class B Common Stock and any other common
stock of the Company, except that, when used
with reference to any Person other than the
Company, "Common Stock" means the capital
stock of such Person with the greatest voting
power, or the equity securities or other
equity interest having power to control or
direct the management, of such Person.
(c) All references to "Class A Common Stock"
throughout the Rights Agreement shall be deemed to
refer to the Company's Class B Common Stock, as
amended by this Amendment.
4. Restatement. Following the Company's 2002 annual
meeting of stockholders, the Agreement shall be restated in
its entirety to incorporate this Amendment.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of
Delaware without regard to any applicable conflicts of law
rules.
6. Counterparts. This Amendment may be signed in any
number of counterparts, each of which shall be an original,
with the same effect as if the signatures were upon the same
instrument.
7. Effectiveness. This Amendment shall become effective
as of the date first above written.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above
written.
Freeport-McMoRan Copper & Gold Inc.
By:_________________________________
Richard C. Adkerson
President & Chief
Financial Officer
Mellon Investor Services LLC
By:________________________________
Name:
Title: