DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES, SERIES II,
EACH REPRESENTING 0.05 OF A SHARE OF
GOLD-DENOMINATED PREFERRED STOCK, SERIES II
OF
FREEPORT-McMoRan COPPER & GOLD INC.
(Incorporated under the Laws of the State of Delaware)
No.
Mellon Securities Trust Company (the "Depositary") hereby
certifies that _______________________ is the registered owner of
__________ Depositary Shares, Series II (the "Depositary
Shares"), each Depositary Share representing 0.05 of a share of
Gold-Denominated Preferred Stock, Series II, $0.10 par value
(the "Stock"), of Freeport-McMoRan Copper & Gold Inc., a
corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), deposited with the Depositary
and the same proportionate interest in any and all other property
received by the Depositary in respect of such shares of Stock and
held by the Depositary under the Deposit Agreement (as defined
below). Subject to the terms of the Deposit Agreement, each
owner of a Depositary Share is entitled, proportionately, to all
the rights, preferences and privileges of the Stock represented
thereby, including the dividend, redemption, voting, liquidation
and other rights contained in the Certificate of Designations
establishing the rights, preferences, privileges and limitations
of the Stock (the "Certificate of Designations"), copies of which
are on file at the office of the Depositary at which at any
particular time its business in respect of matters governed by
the Deposit Agreement shall be administered, which at the time of
the execution of the Deposit Agreement is located at the
Depositary's corporate trust office in the Borough of Manhattan
in the City of New York (the "New York City Office").
This Depositary Receipt ("Receipt") shall not be entitled to
any benefits under the Deposit Agreement or be valid or
obligatory for any purpose unless this Receipt shall have been
executed manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile by the
Depositary by the signature of a duly authorized officer and, if
executed by facsimile signature of the Depositary, shall have
been countersigned manually by such Registrar by the signature of
a duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY
DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE
CORRECTNESS OF THE DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH
CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING CERTAIN
PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET FORTH
IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF
ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE
DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY
OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE
RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE
DEPOSITARY SHARES.
The Company will furnish to any holder of this Receipt
without charge, upon request addressed to its executive office, a
full statement of the designation, relative rights, preferences
and limitations of the shares of each authorized class, and of
each class of preferred stock authorized to be issued, so far as
the same may have been fixed, and a statement of the authority of
the Board of Directors of the Company to designate and fix the
relative rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the
same effect as if set forth at this place.
Dated:
MELLON SECURITIES TRUST COMPANY,
as Depositary, Transfer Agent and Registrar
By:___________________________________
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt
Appear on the Reverse Side.
FORM OF REVERSE
OF DEPOSITARY RECEIPT
1. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available
upon the terms and conditions set forth in the Deposit Agreement,
dated as of January 15, 1994 (the "Deposit Agreement"), among the
Company, the Depositary and all holders from time to time of
Receipts. The Deposit Agreement (copies of which are on file at
the office of the Depositary in Ridgefield Park, New Jersey,
located at 85 Challenger Road (the "Corporate Office"), in the
New York City Office and at the office of any agent of the
Depositary) sets forth the rights of holders of Receipts and the
rights and duties of the Depositary. The statements made on the
face and the reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made.
In the event of any conflict between the provisions of this
Receipt and the provisions of the Deposit Agreement, the
provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein
provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption by the Company; Repurchase by the Company.
Whenever the Company shall redeem shares of Stock in accordance
with the Certificate of Designations, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than 5 business days' prior
notice of the proposed date of the mailing of a notice of
redemption and the simultaneous redemption of the Depositary
shares representing the Stock to be redeemed and of the number of
such shares of Stock held by the Depositary to be redeemed. The
Depositary shall, as directed by the Company in writing, mail,
first class postage prepaid, notice of the redemption of Stock,
and the proposed simultaneous, redemption of Depositary Shares
representing the Stock to be redeemed, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares, to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed, at
the addresses of such holders as the same appear on the records
of the Depositary. On the date of any such redemption the
Depositary shall surrender the certificate or certificates held
by the Depositary evidencing the number of shares of Stock to be
redeemed in the manner specified in the notice of redemption. The
Depositary shall, thereafter, redeem the number of Depositary
shares representing such redeemed Stock upon the surrender of
Receipts evidencing such Depositary Shares in the manner provided
in the notice sent to record holders of Receipts. Notice having
been mailed as aforesaid, from and after the redemption date
(unless the Company shall have failed to redeem the shares of
Stock to be redeemed by it upon the surrender of the certificate
or certificates therefor by the Depositary as described above),
the Depositary Shares called for redemption shall be deemed no
longer to be outstanding and all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to
receive the cash, if any, payable upon redemption upon surrender
of such Receipts) shall, to the extent of such Depositary Shares,
cease and terminate. The foregoing is subject further to the
terms and conditions of the Certificate of Designations.
Whenever the Company shall be required to make a repurchase
of Depositary Shares in accordance with the Certificate of
Designations, it shall give the Depositary in its capacity as
Depositary not less than 5 business days' prior notice of the
required date of the mailing of a notice of the repurchase offer.
The Depositary shall, as directed by the Company in writing,
mail, first class postage prepaid, notice of the relevant terms
and conditions of the repurchase offer, as provided by the
Company, to the record holders of the Receipts evidencing the
Depositary Shares to be repurchased by the Company, at the
addresses of such holders as the same appear on the records of
the Depositary. The Depositary shall, thereafter, collect any
notices, guarantees and Receipts evidencing the Depositary Shares
from the holders in the manner provided for in the notice sent to
the holders from the Company. In case the aggregate number of
Depositary Shares exceeds the amount the Company is required to
repurchase, the Depositary Shares to be repurchased shall be
selected by the Depositary on a pro rata basis at the direction
of the Company. The foregoing is subject further to the terms and
conditions of the Certificate of Designations.
4. Withdrawal of Stock Not Permitted. Holders of Receipts
are not entitled to receive any of the shares of Stock
represented by such Receipts.
5. Transfers, Split-ups, Combinations. Subject to
Paragraphs 6, 7 and 8 below, this Receipt is transferable on the
books of the Depositary upon surrender of this Receipt to the
Depositary at the Corporate Office or the New York City Office,
or at such other offices as the Depositary may designate,
properly endorsed or accompanied by a properly executed
instrument of transfer, and upon such transfer the Depositary
shall sign and deliver a Receipt or Receipts to or upon the order
of the person entitled thereto, all as provided in and subject to
the Deposit Agreement. This Receipt may be split into other
Receipts or combined with other Receipts into one Receipt
evidencing the same aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc., of
Receipts. Prior to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of this
Receipt, the delivery of any distribution hereon, the Depositary,
any of the Depositary's Agents or the Company may require any or
all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax
or other governmental charge with respect thereto (including any
such tax or charge with respect to Stock being deposited or
withdrawn or with respect to other securities or property of the
Company being issued upon redemption); (ii) production of proof
satisfactory to it as to the identity and genuineness of any
signature; and (iii) compliance with such reasonable regulations,
if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement. Any person presenting
Stock for deposit, or any holder of this Receipt, may be required
to file such proof of information, to execute such certificates
and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of
this Receipt, the registration of transfer, redemption, or
conversion of this Receipt, or the distribution of any dividend
or other distribution until such proof or other information is
filed, such certificates are executed or such representations and
warranties are made.
7. Suspension of Delivery, Transfer, etc. The
registration of transfer, split-up, combination, surrender or
exchange of this Receipt may be suspended (i) during any period
when the register of stockholders of the Company is closed, (ii)
if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any
time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any
provision of the Deposit Agreement, or (iii) with the approval of
the Company, for any other reason. The Depositary shall not be
required (a) to issue, transfer or exchange any Receipts for a
period beginning at the opening of business 15 days next
preceding any selection of Depositary Shares and Stock to be
redeemed and ending at the close of business on the day of the
mailing of notice of redemption of Depositary Shares or (b) to
transfer or exchange for another Receipt any Receipt evidencing
Depositary Shares called or being called for redemption, in whole
or in part, subject to conversion except as provided in the last
sentence of Paragraph 3.
8. Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to (i) this Receipt, (ii)
the Depositary Shares evidenced by this Receipt, (iii) the Stock
(or fractional interest therein) or other property represented by
such Depositary Shares, or (iv) any transaction referred to in
Section 4.06, of the Deposit Agreement, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of this Receipt, who shall
pay the amount thereof to the Depositary. Until such payment is
made, registration or transfer of this Receipt or any split-up or
combination hereof may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property represented by the Depositary Shares evidenced by
this Receipt may be sold for the account of the holder hereof
(after attempting by reasonable means to notify such holder prior
to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of this Receipt
remaining liable for any deficiency.
9. Amendment. The form of the Receipts and any provision
of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in
any respect that they may deem necessary or desirable; provided,
however, that no such amendment that shall materially and
adversely alter the rights of the holders of Receipts shall be
effective as to outstanding Receipts until the expiration of 90
days after notice of such amendment shall have been given to the
record holders of outstanding Receipts and unless such amendment
shall have been approved by the holders of at least a majority of
the Depositary Shares outstanding. Every holder of an outstanding
Receipt at the time 90 days after such notice of amendment shall
have been given shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound
by the Deposit Agreement as amended thereby.
10. Fees, Charges and Expenses. The Company will pay all
fees, charges and expenses of the Depositary, except for taxes
(including transfer taxes, if any) and other governmental charges
and such charges as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing Stock,
holders of Receipts or other persons.
11. Title to Receipts. It is a condition of this Receipt,
and every successive holder hereof by accepting or holding the
same consents and agrees, that title to this Receipt (and to the
Depositary Shares evidenced hereby), when properly endorsed or
accompanied by a properly executed instrument of transfer, is
transferable by delivery with the same effect as in the case of
investment securities in general; provided, however, that the
Depositary may, notwithstanding any notice to the contrary, treat
the record holder hereof at such time as the absolute owner
hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice
provided for in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the
Stock, the Depositary shall, subject to the provisions of the
Deposit Agreement, distribute to record holders of Receipts such
amounts of such sums as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be
required by law to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner
of Depositary Shares a fraction of one cent and any balance not
so distributable shall be held by the Depositary (without
liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
13. Subscription on Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the
persons in whose name Stock is registered on the books of the
Company any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions
of the Deposit Agreement, be made available by the Depositary to
the record holders of Receipts in such manner as the Company
shall instruct.
14. Notice of Dividends, Fixing of Record Date. Whenever
(i) any cash dividend or other cash distribution shall become
payable, or any distribution other than cash shall be made, or
any rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or (ii) the Depositary shall
receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to
notice, or of the mandatory conversion of, or any election on the
part of the Company to call for redemption of, any shares of
Stock, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by
the Company with respect to the Stock) for the determination of
the holders of Receipts (x) who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) who shall be entitled to
give instructions for the exercise of voting rights at any such
meeting or of such meeting or to receive notice of such
redemption.
15. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record
holders of Receipts a notice, which shall contain (i) such
information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business
on a specified record date determined as provided in Paragraph 14
will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designations,
to instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their respective
Depositary Shares, and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written request
of a holder of this Receipt on such record date the Depositary
shall endeavor insofar as practicable to vote or cause to be
voted the Stock represented by the Depositary Shares evidenced by
this Receipt in accordance with the instructions set forth in
such request. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to
be voted. In the absence of specific instructions from the holder
of this Receipt, the Depositary will abstain from voting to the
extent of the Stock represented by the Depositary Shares
evidenced by this Receipt.
16. Reports, Inspection of Transfer Books. The Depositary
shall make available for inspection by holders of Receipts at the
Corporate Office, the New York City Office and at such other
places as it may from time to time deem advisable during normal
business hours any reports and communications received from the
Company that are received by the Depositary as the holder of
Stock. The Depositary, acting as transfer agent and Registrar,
shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times will be
open for inspection by the record holders of Receipts; provided
that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an
owner of Depositary Shares.
17. Liability of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor the Company shall incur
any liability to any holder of this Receipt, if by reason of any
provision of any present or future law or regulation thereunder
of any governmental authority or, in the case of the Depositary,
the Registrar or any Depositary's Agent, by reason of any
provision, present or future, of the Certificate of Incorporation
or the Certificate of Designations or, in the case of the
Company, the Depositary, the Registrar or any Depositary's Agent,
by reason of any act of God or war or other circumstances beyond
the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing
that the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, the
Registrar or the Company incur any liability to any holder of
this Receipt (i) by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing that the
terms of the Deposit Agreement provide shall or may be done or
performed or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement
except, in the case of the Depositary, any Depositary's Agent or
the Registrar, if such exercise or failure to exercise discretion
is caused by its negligence or bad faith.
18. Obligations of the Depositary, the Depositary's Agent,
the Registrar and the Company. The Company assumes no obligation
and shall be subject to no liability under the Deposit Agreement
or this Receipt to the holder hereof or other persons, except to
perform in good faith such obligations as are specifically set
forth and undertaken by it to perform in the Deposit Agreement.
Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under
the Deposit Agreement or this Receipt to the holder hereof or
other persons, except to perform such obligations as are
specifically set forth and undertaken by it to perform in the
Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with
respect to Stock, Depositary Shares or Receipts or Common Stock
that in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company will be liable for any action or
failure to act by it in reliance upon the advice of or
information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of this Receipt or any
other person believed by it in good faith to be competent to give
such advice or information.
19. Termination of Deposit Agreement. Whenever so directed
by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the record
holders of all Receipts then outstanding at least 30 days prior
to the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any
time 45 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to
resign and a successor depositary shall not have been appointed
and accepted its appointment as provided in Section 5.04 of the
Deposit Agreement. Upon the termination of the Deposit Agreement,
the Company shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.07 and 5.08 of the
Deposit Agreement.
If any Receipts remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter
shall discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as
specifically provided therein.
20. Governing Law. The Deposit Agreement and this Receipt
and all rights thereunder and hereunder and provisions thereof
and hereof shall be governed by, and construed in accordance
with, the law of the State of New York without giving effect to
principles of conflict of laws.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Receipt, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
______ Custodian ______
(Cust)
(Minor)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
under Uniform Gifts to Minors
survivorship and not as tenants
Act ___________________
in common
(State)
Additional abbreviations may also be used though not on the above
list.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ___________________ the within Receipt and all
rights and interests represented by the Depositary Shares
evidenced thereby, and hereby irrevocably constitutes and
appoints ___________________ his attorney, to transfer the same
on the books of the within-named Depositary, with full power of
substitution in the premises.
Dated: Signature:_____________________________
________
NOTE: The signature to this
assignment must correspond with
the name as written upon the face
of the Receipt in every
particular, without alteration or
enlargement, or any change
whatever.