Exhibit 4.6
NOT MORE DEPOSITARY RECEIPT NOT MORE
THAN 100,000 FOR DEPOSITARY SHARES, THAN 100,000
SHARES EACH REPRESENTING SHARES
0.05 OF A SHARE OF
NUMBER STEP-UP CONVERTIBLE DEPOSITARY SHARES
FCXP PREFERRED STOCK
OF SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 35671D 50 1
FREEPORT-McMoRaN COPPER & GOLD INC.
(incorporated under the laws of the State of Delaware)
Mellon Securities Trust Company (the "Depositary") hereby certifies that
is the registered owner of Depositary Shares
(the "Depositary Shares"), each Depositary Share representing 0.05 of a
share of Step-Up Convertible Preferred Stock, $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, conversion, exchange, 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
FURTHER CONDITIONS AND AGREEMENTS
FORMING PART OF THIS 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 July 1, 1993 (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 Corporate Office, the office maintained by the Depositary in the
Borough of Manhattan, the City of New York which at the time of the
execution of the Deposit Agreement is located at 120 Broadway, New York,
N.Y. (the "New York 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 at the Option of the Company; Conversion at the Option
of the Holder. Whenever the Company shall elect to redeem shares of Stock
into shares of Class A Common 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 15 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. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed shall be selected by the Depositary by lot or on a pro rata
basis at the direction of the Company. 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 to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the shares
of Class A Common Stock and 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. If fewer than all of the
Depositary Shares evidenced by this Receipt are called for redemption, the
Depositary will deliver to the holder of this Receipt upon its surrender to
the Depositary, together with the redemption price (whether to be paid in
the form of cash, shares of Class A Common Stock or other form or forms of
consideration) and all accrued and unpaid dividends to and including the
date fixed for redemption payable in respect of the Depositary Shares
called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
Whenever a record holder of receipts shall duly deliver, in person or by
a duly authorized attorney, such Receipts (properly endorsed or assigned for
transfer, as the Depositary shall require) to the Depositary at the New York
Office, together with written notice of such record holder's election to
convert the Depositary Shares evidenced by such Receipts into Class A Common
Stock (provided that any delivery of Receipts evidencing Depositary Shares
that have been called for redemption may not not occur after the close of
business on the date fixed for redemption) the Depositary shall promptly
notify the Company of such record holder's election and deliver to the
Company certificates evidencing such Stock as are represented by the
Depositary Shares evidenced by such Receipts delivered by such record
holder for conversion. From and after the close of business on any
business day on which a record holder duly delivers the foregoing documents
to the Depositary, such Depositary Shares shall be deemed converted into
Class A Common Stock at a conversion rate to be communicated to the
Depositary in writing, which conversion rate will be equal to 0.05 times
the conversion rate for each share of Stock as set forth in 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 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 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 or the deposit of Stock, 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 Class A Common Stock or other
securities or property of the Company being issued upon conversion or
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 deposit of Stock may be
refused and the delivery of this Receipt against Stock or 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
of 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 (including Class A Common Stock or
securities received in connection with a conversion or redemption of Stock)
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 to 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 property 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 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 of 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 90
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.
CONVERSION NOTICE
To Freeport-McMoRan Copper & Gold Inc.
The undersigned owner of the Depositary Shares evidenced by this
Receipt hereof irrevocably exercises the option to convert the shares of
Preferred Stock of Freeport-McMoRan Copper & Gold Inc. represented by such
Depositary Shares or the number of full shares represented by the number of
Depositary Shares set forth below, into shares of Class A Common Stock of
Freeport-McMoRan Copper & Gold Inc. in accordance with the terms of the
Certificate of Incorporation and the statement of designations, preferences
and relative rights of the Preferred Stock of Freeport-McMoRan Copper &
Gold Inc. and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares be
issued in the name of and delivered to the undersigned unless a different
name has been indicated below. If shares are to be issued in the name of
a person other than the undersigned, the undersigned will pay any
transfer taxes payable with respect thereto.
Dated:
Fill in for registration of shares:
____________________________________ _______________________________
(Name) Signature
Portion to be converted if less than all:
___________________________________ ________________Depositary Shares
(Street Address)
___________________________________ _________________________________
(City, State and Zip Code) Social Security or Other
Identification Number
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______
TEN ENT__as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to Minors
JT TEN--as joint tenants with Act_________________________
right of survivorship (State)
and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
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the within Receipts 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 assign-
ment must correspond with the name
as written upon the face of the
Receipt in every particular, without
alteration or enlargement, or any
change whatever.