Exhibit 3.1
COMPOSITE COPY
OF THE
CERTIFICATE OF INCORPORATION
OF
FREEPORT-McMoRan COPPER & GOLD INC.
FIRST: The name of the corporation is FREEPORT-McMoRan COPPER
& GOLD INC.
SECOND: The address of the registered office of
the corporation in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of
New Castle, and the name of its registered agent at
such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes
to be conducted or promoted are:
1. To enter into, maintain, operate and carry
on the business of mining in all its branches in the
United States of America and in any other part of the
world, and to quarry, mine, pump, extract, remove and
otherwise produce, and to grind, treat, concentrate,
smelt, refine, dress and otherwise prepare, produce,
buy, sell and in every way deal in and with minerals,
ores, concentrates and other mineral and chemical
substances of all kinds, metallic and nonmetallic,
including, but without in any way limiting the
generality of the foregoing, antimony, barite,
chromium, coal, cobalt, copper, gas, gold, iron,
lead, molybdenum, nickel, oil, potash, salt, silica,
sand, silver, sulphur, tantalum, tin, titanium,
tungsten, uranium, zinc and ores and concentrates
thereof.
2. To purchase, locate, denounce, lease or
otherwise acquire, take, hold and own, and to assign,
transfer, lease, exchange, mortgage, pledge, sell or
otherwise dispose of and in any manner deal with and
contract with reference to, mines, wells, mining
claims, mining rights, mineral lands, mineral leases,
mineral rights, royalty rights, water rights, timber
lands, timber and timber rights, and real and
personal property of every kind, and any interest
therein, in the United States of America or in any
other country, to prospect, explore, work, exercise,
develop, manage, operate and turn the same to
account, and to engage in mining, geological,
economic, feasibility, development, and other studies
in the United States of America or in any other
country.
3. To make, manufacture, treat, process,
produce, buy, sell and in every way deal in and with
minerals, ores, concentrates and chemicals of every
description, organic or inorganic, natural or
synthetic, in the form of raw materials, intermediate
or finished products and any other related products
and substances whatsoever related thereto or of a
like or similar nature or which may enter into the
manufacture of any of the foregoing or be used in
connection therewith, and derivatives and by-products
derived from the manufacture thereof and products to
be made therefrom and generally without limitation by
reference of the foregoing, all other products and
substances of every kind, character and description.
4. To engage in any lawful act or activity,
whether or not related to the foregoing, for which
corporations may be organized under the General
Corporation Law of Delaware.
FOURTH:
I. The total number of shares of all classes of
capital stock that the corporation shall have
authority to issue is 312,000,000 shares, with a par
value of $0.10 per share. Of such shares,
110,000,000 shares shall consist of Special Stock,
200,000,000 shares shall consist of Class B Common
Stock and 2,000,000 shares shall consist of Preferred
Stock.
II. Special Stock.
A. Class A Common Stock
Within the limits of the authorized
Special Stock, the Corporation shall
have authority to designate shares
of Special Stock as shares of Class
A Common Stock, the terms of which
are as follows:
(1) Dividends. (a) Until and
including May 1, 1993 (the
"Preferential Period"), the holders
of shares of Class A Common Stock
will be entitled to receive
cumulative cash dividends (the
"Cumulative Dividend") when, as and
if declared by the Board of
Directors of the corporation,
payable quarterly on the first day
of each February, May, August and
November, at an annual rate equal to
$0.205 per share for periods
commencing August 1, 1992; provided,
if the corporation shall subdivide
or split by dividend or otherwise
the issued shares of Class A Common
Stock into a larger number of shares
or combine the issued shares of
Class A Common Stock into a smaller
number of shares, such annual rate
shall be adjusted by multiplying
such annual rate by a fraction, the
numerator of which shall be the
number of shares of Class A Common
Stock that are issued and
outstanding prior to such
subdivision, split or combination
and the denominator of which shall
be the total number of shares of
Class A Common Stock that are issued
and outstanding following such
subdivision, split or combination;
provided further, that the Board of
Directors may, at any time during
the Preferential Period, at its sole
discretion, increase the amount of
the Cumulative Dividend to which
holders of Class A Common Stock will
be entitled. During the
Preferential Period, Cumulative
Dividends on the Class A Common
Stock will accrue and be cumulative
from the date of its original issue
and will be payable to the holder of
record on such respective record
dates as may be fixed by the Board
of Directors in advance of the
payment of each Cumulative Dividend.
(b) Unless full Cumulative
Dividends on all outstanding shares
of Class A Common Stock for all past
quarterly dividend periods in the
Preferential Period and for the
current quarterly dividend period
(if during the Preferential Period)
have been paid, or declared and set
apart for payment, (i) the
corporation may not declare, pay or
set apart any amounts for dividends
on, or make any other distribution
in cash or other property in respect
of, the Class B Common Stock or any
other stock of the corporation
ranking junior to the Class A Common
Stock as to dividends or
distribution of assets upon
liquidation, dissolution or winding
up of the affairs of the corporation
(the Class B Common Stock and such
other stock being referred to
hereinafter as "Junior Stock") other
than a dividend payable solely in
Junior Stock, (ii) neither the
corporation nor any subsidiary of
the corporation may purchase, redeem
or otherwise acquire for value any
shares of Junior Stock, directly or
indirectly, other than as a result
of a reclassification of Junior
Stock, or the exchange or conversion
of one Junior Stock for or into
another Junior Stock, or other than
through the use of proceeds of a
substantially contemporaneous sale
of other Junior Stock, and (iii)
neither the corporation nor any
subsidiary of the corporation may
make any payment on account of, or
set aside money for, a sinking or
other like fund for the purchase,
redemption or other acquisition for
value of any shares of Junior Stock.
If the funds available for the
payment of dividends are
insufficient to pay in full the
Cumulative Dividends payable on all
outstanding shares of Class A Common
Stock and any other series or class
of capital stock ranking on a parity
as to dividends with the Class A
Common Stock, the total available
funds to be paid in partial
dividends on the Class A Common
Stock and such other series or class
shall be divided among the Class A
Common Stock and such other series
or class in proportion to the
aggregate amount of dividends
accrued and unpaid with respect to
the Class A Common Stock and such
other series or class. Accruals of
Cumulative Dividends will not bear
interest.
(c) After full Cumulative Dividends
on all outstanding shares of Class A
Common Stock for all past quarterly
dividend periods in the Preferential
Period and the current quarterly
dividend period (if during the
Preferential Period) and full
preferential dividends on all
outstanding shares of any other
series of Special Stock ranking
senior in priority as to payment of
such preferential dividends to the
Class B Common Stock have been paid,
or declared and set apart for
payment, the corporation may declare
dividends on the Class B Common
Stock for such quarter in an amount
per share up to the per share
Cumulative Dividend for such current
quarter on the Class A Common Stock.
No additional dividends may be
declared or paid in such quarter on
the Class B Common Stock unless an
equal additional amount per share
shall be declared or paid on the
Class A Common Stock and any other
series of Special Stock entitled to
participate therein.
(d) After May 1, 1993, and after
full Cumulative Dividends on all
outstanding shares of Class A Common
Stock for all past quarterly
dividend periods in the Preferential
Period have been paid, or declared
and set apart for payment, the Class
A Common Stock and the Class B
Common Stock shall be treated for
all purposes as though they were of
the same class. Prior to such time,
the corporation may not split or
reclassify the Class B Common Stock
or pay a dividend in Class B Common
Stock on the Class B Common Stock,
unless it similarly splits or
reclassifies the Class A Common
Stock or pays a similar dividend in
Class A Common Stock on the Class A
Common Stock.
(2) Liquidation Rights. Until May
1, 1993, in the event of any
voluntary or involuntary
liquidation, dissolution or winding
up of the corporation or P.T.
Freeport Indonesia Company ("PT-
FI"), after payment or provision for
payment of the debts and other
liabilities of the Corporation or
PT-FI, the holders of Class A Common
Stock will be entitled to receive in
cash out of the remaining net assets
of the corporation an amount per
share initially equal to $2.1875
reduced by 1.25 per cent on each
quarterly dividend payment date
commencing August 1, 1988, plus
accrued and unpaid dividends, before
any distribution is made or set
apart for the holders of Junior
Stock; provided, if the corporation
shall subdivide or split by dividend
or otherwise the issued shares of
Class A Common Stock into a larger
number of shares or combine the
issued shares of Class A Common
Stock into a smaller number of
shares, such amount per share as in
effect at the time of such
subdivision, split or combination
shall be adjusted by multiplying
such amount per share by a fraction,
the numerator of which shall be the
number of shares of Class A Common
Stock that are issued and
outstanding prior to such
subdivision, split or combination
and the denominator of which shall
be the total number of shares of
Class A Common Stock that are issued
and outstanding following such
subdivision, split or combination.
If the amounts payable with respect
to the Class A Common Stock are not
paid in full, the holders of the
Class A Common Stock and any stock
of the corporation on a parity with
Class A Common Stock as to
distribution of assets in the event
of any voluntary or involuntary
liquidation, dissolution or winding
up of the corporation will have the
right to share ratably in any
distribution of the remaining assets
of the corporation in proportion to
the full respective preferential
amounts to which they are entitled.
After payment of the full amount of
the liquidating distribution to
which the holders of the Class A
Common Stock are entitled, the
holders of shares of Class B Common
Stock will be entitled to
participate in any distribution of
the remaining assets by the
corporation up to an amount per
share equal to the per share
liquidating distribution (excluding
any amounts received with respect to
accrued and unpaid preferential
dividends) received by the holders
of the Class A Common Stock, subject
to the rights of the holders of any
other class or series of the
corporation's capital stock.
Thereafter, the holders of the Class
A Common Stock and the holders of
the Class B Common Stock shall be
entitled to participate in any
distribution of the remaining assets
on an equal per share basis, subject
to the rights of the holders of any
other class or series of the
corporation's capital stock. A
consolidation or merger of the
corporation or PT-FI with one or
more corporations other than
Freeport-McMoRan Inc. or any of its
subsidiaries of affiliates (the "FTX
Group") or the sale of all or
substantially all of the assets of
the corporation or PT-FI outside the
FTX Group will be deemed to be a
liquidation, dissolution or winding
up of the corporation or PT-FI. In
the event of any nationalization or
expropriation of PT-FI's rights
under its current Contract of Work
with the Government of Indonesia or
all or substantially all of the
operating assets of PT-FI prior to
May 1, 1993, the corporation will
effect a liquidation or dissolution
in a manner designed to maximize the
remaining assets of the corporation
available for distribution. The
Class A Common Stock will have a
similar preferential right in the
event of any such voluntary or
involuntary liquidation, dissolution
or winding up of the corporation or
PT-FI after May 1, 1993 to the
extent, but only to the extent, of
any accrued and unpaid cumulative
dividends applicable to the
Preferential Period.
(3) At all times during the
Preferential Period, there shall
remain outstanding shares of Class B
Common Stock in an amount equal to
not less than sixty percent of the
total of all shares of Class A
Common Stock, other Special Stock
and Class B Common Stock then issued
and outstanding.
(4) No Preferred Stock may be
issued during the Preferential
Period.
B. Additional Shares of Special Stock
The Board of Directors is expressly
authorized to adopt, from time to
time, a resolution or resolutions
providing for the issuance of the
remaining 70,000,000 shares of
Special Stock in one or more series,
to fix the number of shares in each
such series (subject to the
aggregate limitations thereon in
this Article), and to fix the
designations, powers, preferences
and rights and the qualifications,
limitations and restrictions of
each such series. Within the limits
of the authorized Special Stock, the
corporation will be authorized to
issue additional shares of Class A
Common Stock and shares of
additional Special Stock (including
stock having preferential rights
which are similar to those of Class
A Common Stock but which extend
beyond the Preferential Period,
providing that during the
Preferential Period such rights do
not permit the payment of
preferential dividends per share in
excess of the preferential rights of
the Class A Common Stock), including
the issuance in exchange for shares
of Class B Common Stock of such
shares for sale to the public. The
authority of the Board of Directors
with respect to each series shall
include, but not be limited to,
determination of the following
(which may vary as between the
different series of Special Stock):
(a) The number of shares
constituting the shares of the
series and the distinctive
designation of the series;
(b) The dividend rate of the shares
of the series and the extent, if
any, to which dividends thereon
shall be cumulative;
(c) Whether shares of the series
shall be redeemable and, if
redeemable, the redemption price
payable on redemption thereof, which
price may, but need not, vary
according to the time or
circumstances of such redemption;
(d) The amount or amounts payable
upon the shares of the series in the
event of voluntary or involuntary
liquidation, dissolution or winding
up of the corporation prior to any
payment or distribution of the
assets of the corporation to any
class or classes of stock of the
corporation ranking junior to the
Special Stock;
(e) Whether the shares of the
series shall be entitled to the
benefit of a sinking or retirement
fund to be applied to the purchase
or redemption of shares of the
series and, if so entitled, the
amount of such fund and the manner
of its application, including the
price or prices at which the shares
may be redeemed or purchased through
the application of such fund;
(f) Whether the shares of the
series shall be convertible into, or
exchangeable for, shares of any
other class or classes or of any
other series of the same or any
other class or classes of stock of
the corporation, and, if so
convertible or exchangeable, the
conversion price or prices, or the
rates of exchange, and the
adjustment thereof, if any, at which
such conversion or exchange may be
made, and any other terms and
conditions of such conversion or
exchange;
(g) The extent, if any, to which
the holders of shares of the series
shall be entitled to vote on any
questions or in any proceedings or
to be represented at and to receive
notice of any meeting of
stockholders of the corporation;
(h) Whether, and the extent to
which, any of the voting powers,
designations, preferences, rights,
qualifications, limitations or
restrictions of any such series may
be made dependent upon facts
ascertainable outside of this
Certificate of Incorporation or of
any amendment hereto or outside the
resolution or resolutions providing
for the issuance of such series
adopted by the Board of Directors,
provided that the manner in which
such facts shall operate upon the
voting powers, designations,
preferences, rights, qualifications,
limitations or restrictions of such
series is clearly and expressly set
forth in the resolution or
resolutions providing for the
issuance of such series adopted by
the Board of Directors; and
(i) Any other preferences,
privileges or powers and any
relative, participating, optional or
other special rights and
qualifications, limitations or
restrictions of such series, as the
Board of Directors may deem
advisable, which shall not affect
adversely any other class or series
of Special Stock at the time
outstanding and which shall not be
inconsistent with the provisions of
this Certificate of Incorporation.
III. (a) Except as described in
Paragraph II above, the
holders of outstanding
shares of Special Stock,
including Class A Common
Stock, and Class B Common
Stock are entitled to
receive dividends out of
assets legally available
therefor at such times and
such equal per share
amounts as the Board of
Directors may from time to
time determine and upon
liquidation, dissolution or
winding up of the
corporation, the holders of
Special Stock, including
Class A Common Stock, and
Class B Common Stock are
entitled to receive on an
equal per share basis the
assets of the corporation
which are legally available
for distribution, after
payment of all debts and
other liabilities of the
corporation, except as
otherwise provided by the
Board of Directors,
pursuant to clause (B)(d)
of Paragraph II above, with
respect to any series of
Special Stock other than
the Class A Common Stock.
The shares of Special
Stock, including Class A
Common Stock, and Class B
Common Stock are neither
redeemable nor convertible,
and the holders thereof
have no preemptive or
subscription rights to
purchase any securities of
the corporation, except as
otherwise provided by the
Board of Directors,
pursuant to clauses (B)(c)
and (B)(f) of Paragraph II
above, with respect to any
series of Special Stock
other than the Class A
Common Stock.
(b) Each outstanding share of
Special Stock, including Class A
Common Stock, and Class B Common
Stock is entitled to one vote on all
matters submitted to a vote of
stockholders, except as otherwise
provided by the Board of Directors,
pursuant to clause (B)(g) of
Paragraph II above, with respect to
any series of Special Stock other
than the Class A Common Stock.
There is no cumulative voting. The
Special Stock entitled to vote,
including Class A Common Stock, and
the Class B Common Stock shall vote
as a single class, except that,
during the Preferential Period, the
holders of the Class A Common Stock
shall be entitled to vote as a
separate class upon any proposed
amendment to this Certificate of
Incorporation or any merger
transaction or recapitalization if
as a result the aggregate number of
authorized shares of Special Stock,
including Class A Common Stock,
would increase beyond 110,000,000
shares or the par value of the Class
A Common Stock would increase or
decrease or the powers, preferences
or special rights of the Class A
Common Stock would be altered or
changed so as to affect the holders
thereof adversely.
IV. Preferred Stock.
The Preferred Stock may be divided into
and issued in series. The Board of
Directors is hereby expressly
authorized, at any time or from time to
time, to divide any or all of the shares
of the Preferred Stock into series, and
in the resolution or resolutions
establishing a particular series, before
issuance of any of the shares thereof,
to fix and determine the powers,
designations, preferences and relative,
participating, optional or other rights,
and any qualifications, limitations or
restrictions, of the series so
established, to the fullest extent now
or hereafter permitted by the laws of
the State of Delaware, including, but
not limited to, the variations between
different series in the following
respects:
(a) The distinctive serial
designation of such series;
(b) The annual dividend rate
for such series; and the
date or dates from which
dividends shall commence to
accrue;
(c) The redemption price or
prices, if any, for shares
of such series and the
terms and conditions on
which such shares may be
redeemed;
(d) The sinking fund
provisions, if any, for the
redemption or purchase of
shares of such series;
(e) The preferential amount or
amounts payable upon shares
of such series in the event
of the voluntary or
involuntary liquidation of
the corporation;
(f) The voting rights of shares
of such series;
(g) The terms and conditions,
if any, upon which shares
of such series may be
converted and the class or
classes or series of shares
of the corporation into
which such shares may be
converted; and
(h) Such other terms,
limitations and relative
rights and preferences, if
any, of shares of such
series as the Board of
Directors may, at the time
of such resolutions,
lawfully fix and determine
under the laws of the State
of Delaware.
All shares of the Preferred Stock shall
be of equal rank with each other,
regardless of series.
FIFTH: The name and mailing address of the
incorporator is:
NAME MAILING ADDRESS
_____ ________________
R. Blain Andrus 6110 Plumas Street
Reno, Nevada 89509
SIXTH: The names and mailing addresses of the
persons who are to serve as directors until the first
annual meeting of stockholders or until their
successors are elected and qualify are as follows:
NAME MAILING ADDRESS
____ _______________
Milton H. Ward 1615 Poydras Street
New Orleans, LA 70112
Joseph W. Murray Mountain City Star Route
Elko, NV 89801
Richard Block Mountain City Star Route
Elko, NV 89801
SEVENTH: In furtherance, and not in limitation,
of the powers conferred by statute, (a) the Board of
Directors is expressly authorized to adopt, amend or
repeal the by-laws of the corporation in any manner
not inconsistent with the laws of the State of
Delaware or the certificate of incorporation of the
corporation, subject to the power of the stockholders
to adopt, amend or repeal the by-laws or to limit or
restrict the power of the Board of Directors to adopt,
amend or repeal the by-laws, and (b) the corporation
may in its by-laws confer powers and authorities upon
its Board of Directors in addition to those conferred
upon it by statute.
EIGHTH: Election of directors need not be by
ballot unless the by-laws of the corporation shall so
provide.
NINTH: (a) A director of this Corporation
shall not be liable to the Corporation or its
stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve
intentional misconduct or a knowing violation of the
law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from
which the director derived an improper personal
benefit.
(b) The Corporation shall indemnify any person
who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the
request of the Corporation as a director, officer,
employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, to the
fullest extent permitted by applicable law. The
determination as to whether such person has met the
standard required for indemnification shall be made in
accordance with applicable law.
Expenses incurred by such a director, officer,
employee or agent in defending a civil or criminal
action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay
such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the
Corporation as authorized in this Article NINTH.
(c) The provisions of this Article NINTH shall be
deemed to be a contract between the corporation and
each person who serves as such director, officer,
employee or agent of the corporation in any capacity
at any time while this Article NINTH is in effect. No
repeal or modification of the foregoing provisions of
this Article NINTH nor, to the fullest extent
permitted by law, any modification of law shall
adversely affect any right or protection of a
director, officer, employee or agent of the
corporation existing at the time of such repeal or
modification.
The foregoing indemnification shall not be deemed
exclusive of any other rights to which those seeking
indemnification may be entitled under any applicable
law, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
TENTH: The corporation reserves the right to
amend, alter, change or repeal any provision contained
in this certificate of incorporation, in the manner
now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject
to this reservation.