Exhibit 4.9
NOT MORE DEPOSITARY RECEIPT NOT MORE
MORE MORE
THAN 100,000 FOR DEPOSITARY SHARES, THAN 100,000
SHARES EACH REPRESENTING SHARES
0.05 OF A SHARE OF
NUMBER GOLD-DENOMINATED
FCXG PREFERRED STOCK DEPOSITARY SHARES
OF
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 35671D 60 0
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 Gold-Denominated 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, 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 by
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
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 August 12, 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 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 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 Designation, 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 Deposit 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, 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 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 Office, or at such other offices as 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 umber 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 or 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 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
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 or 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
recorded 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 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 once 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 note 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 persons, 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 obligations 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 its Receipts and the
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______
TEN ENT - as tenants by the (Cust) (Minor)
entireties
JT TEN - as joint tenants with under Uniform Gifts to Minors
right of survivorship Act__________________________
and not as tenants in (State)
common
Additional abbreviations may be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfer unto
Please insert Social Security or other
identifying number of Assignee
______________________________________
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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.