CONFORMED COPY
950,000 Shares
FREEPORT-McMoRan COPPER & GOLD INC.
Depositary Shares
Each Initially Representing 0.025 Shares of
Silver-Denominated Preferred Stock
(Par Value $0.10 Per Share)
INTERNATIONAL UNDERWRITING AGREEMENT
July 22, 1994
LEHMAN BROTHERS INTERNATIONAL (EUROPE)
GOLDMAN SACHS INTERNATIONAL
KIDDER, PEABODY INTERNATIONAL plc
MERRILL LYNCH INTERNATIONAL LIMITED
S.G. WARBURG SECURITIES LTD.
As Lead Managers (the "Lead Managers") for each of
the several International Managers named in Schedule 1,
c/o LEHMAN BROTHERS INTERNATIONAL (EUROPE)
1 Broadgate
London EC2M 7HA
England
Dear Sirs:
Subject to all of the terms and conditions herein set forth,
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the "Company"),
proposes to sell to the International Managers named in Schedule 1 hereto (the
"International Managers") 950,000 shares (the "International Firm Stock") of
the Company's Depositary Shares (the "Depositary Shares"), each initially
representing 0.025 Shares of Silver-Denominated Preferred Stock, par value
$0.10 per share (the "Securities"), and to grant to the International Managers
an option to purchase up to an additional 142,320 Depositary Shares (the
"International Option Stock"). The Securities are to be deposited by the
Company against delivery of Depositary Receipts ("Depositary Receipts")
evidencing the Depositary Shares, which are to be issued by Mellon Securities
Trust Company, as depositary (the "Depositary"), under a Deposit Agreement, to
be dated as of July 25, 1994 (the "Deposit Agreement"), among the Company, the
Depositary and the holders from time to time of the Depositary Receipts issued
thereunder. The International Firm Stock and the International Option Stock,
if purchased, are hereinafter collectively called the "Stock." This is to
confirm the agreement concerning the purchase of the Stock from the Company by
the International Managers.
It is understood by all parties that the Company is concurrently
entering into an agreement dated the date hereof (the "U.S. Underwriting
Agreement") providing for the sale by the Company of up to 4,380,000
Depositary Shares (consisting of 3,810,000 shares of Firm Stock and up to
570,000 shares of Option Stock (each as defined therein)) (the "U.S. Stock")
through arrangements with certain underwriters in the United States
(collectively, the "U.S. Underwriters"), for whom Lehman Brothers Inc.,
Goldman, Sachs & Co., Kidder, Peabody & Co. Incorporated, Merrill Lynch,
Pierce, Fenner & Smith Incorporated and S.G.Warburg & Co. Inc. are acting as
representatives (the "Representatives"). The International Managers and the
U.S. Underwriters are simultaneously entering into an agreement between the
international and U.S. underwriting syndicates (the "Agreement Between U.S.
Underwriters and International Managers") which provides for, among other
things, the transfer of Depositary Shares between the two syndicates. Two
forms of prospectus are to be used in connection with the offering and sale of
Depositary Shares contemplated by the foregoing, one relating to the Stock and
the other relating to the U.S. Stock. The latter form of prospectus will be
identical to the former except for certain substitute pages. Except as used
in Sections 2, 3, 4, 9 and 10 herein, and except as the context may otherwise
require, references herein to the Stock shall include all the Depositary
Shares which may be sold pursuant to either this agreement or the U.S.
Underwriting Agreement, and reference herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall
include both the international and the U.S. versions thereof.
1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a)A registration statement on Form S-3 (File No. 33-52503) with
respect to, among other things, the Securities and the Depositary
Shares representing the Securities, including a prospectus, has been
carefully prepared by the Company in conformity with the requirements
of the Securities Act of 1933 ("Act") and the rules and regulations
("Rules and Regulations") of the Securities and Exchange Commission
("Commission") thereunder and filed with the Commission and has become
effective. Such registration statement and prospectus may have been
amended or supplemented prior to the date of this Agreement; any such
amendment or supplement was so prepared and filed and any such
amendment filed after the effective date of such registration statement
has become effective. No stop order suspending the effectiveness of
the registration statement or preventing or suspending the use of any
Preliminary Prospectus (as hereinafter defined) has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission. A prospectus supplement ("Prospectus Supplement") setting
forth the terms of the Securities and the Depositary Shares and of
their sale and distribution has been or will be so prepared and will be
filed pursuant to Rule 424(b) of the Rules and Regulations on or before
the second business day after the date hereof (or such earlier time as
may be required by the Rules and Regulations); and the Rules and
Regulations do not require the Company to, and, without the consent of
the Lead Managers, the Company will not, file a post-effective
amendment after the time of execution of this Agreement and prior to
the filing of such Prospectus Supplement (other than any document filed
under the Securities Exchange Act of 1934 (the "Exchange Act") that
upon filing is deemed to be incorporated by reference therein). Copies
of such registration statement and prospectus, any such amendment or
supplement and all documents incorporated by reference therein that
were filed with the Commission on or prior to the date of this
Agreement (including one fully executed copy of the registration
statement and of each amendment thereto for each of the Lead Managers
and for counsel for the International Managers) have been delivered to
the Lead Managers. Such registration statement, as it may have
heretofore been amended, is referred to herein as the "Registration
Statement", and the final form of prospectus included in the
Registration Statement, as supplemented by the Prospectus Supplement,
is referred to herein as the "Prospectus". Each form of Prospectus,
Prospectus Supplement, or Prospectus and Prospectus Supplement, if any,
heretofore made available for use in offering the Securities is
referred to herein as a "Preliminary Prospectus". Any reference herein
to the Registration Statement, the Prospectus, any amendment or
supplement thereto or any Preliminary Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein,
and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or Prospectus
shall be deemed to refer to the filing of any document with the
Commission deemed to be incorporated by reference therein that has not
heretofore been delivered to the Lead Managers.
(b)Each part of the Registration Statement, when such part
became or becomes effective, each Preliminary Prospectus, on the date
of filing thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof with the
Commission and on each Delivery Date (as hereinafter defined),
conformed or will conform in all material respects with the
requirements of the Act and the Rules and Regulations; each part of the
Registration Statement, when such part became or becomes effective, did
not or will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; each Preliminary
Prospectus, on the date of filing thereof with the Commission, and the
Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the Commission and on each Delivery Date, did not
or will not include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company by any Lead Manager, through the Lead Managers
by or on behalf of any International Manager or by any U.S. Underwriter
specifically for inclusion therein.
(c)The documents incorporated by reference in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
Preliminary Prospectus, when they became or become effective under the
Act or were or are filed with the Commission under the Exchange Act, as
the case may be, conformed or will conform in all material respects
with the requirements of the Act or the Exchange Act, as applicable,
and the Rules and Regulations of the Commission thereunder.
(d)The consolidated financial statements of the Company included
or incorporated by reference in the Registration Statement and
Prospectus present fairly the consolidated financial position of the
Company as at the dates indicated and its consolidated results of
operations and cash flows for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
indicated therein.
(e)The Company does not have any subsidiaries that would
constitute significant subsidiaries within the meaning of Rule 405
under the Act other than P.T. Freeport Indonesia Company, a limited
liability company organized under the laws of Indonesia and
domesticated in Delaware ("PT-FI"), and Rio Tinto Minera, S.A., a
limited liability company organized under the laws of Spain ("RTM").
(f)Each of the Company, Eastern Mining Company, Inc., a Delaware
corporation ("EMC"), and RTM has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; PT-FI has been domesticated in the State
of Delaware and is in good standing under the laws of its jurisdiction
of domestication and is a limited liability company duly organized
under the laws of the Republic of Indonesia; each of the Company, PT-FI,
EMC and RTM has full power and authority (corporate and other) to own
its properties and conduct its business as described in the
Registration Statement and Prospectus; and each of the Company, PT-FI
and EMC has been duly qualified as a foreign corporation for the
transaction of business and is in good standing to the extent
applicable under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except where the failure to be so qualified or in good
standing, considering all such cases in the aggregate, does not involve
a material risk to the business, properties, financial position or
results of operations of the Company and its subsidiaries.
(g)Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, none of the Company, PT-FI, EMC or RTM
has incurred any liabilities or obligations, direct or contingent, or
entered into any transactions, not in the ordinary course of business,
that are material to the Company and its subsidiaries, and there has
not been any material change, on a consolidated basis, in the capital
stock, short-term debt or long-term debt of the Company and its
subsidiaries, or any material adverse change in the prospects, or any
material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or other),
business, net worth or results of operations of the Company and its
subsidiaries.
(h)The Company has an authorized capitalization as set forth in
the Prospectus, and all the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; all the issued shares of capital stock of
PT-FI and EMC have been duly and validly authorized and issued, are
fully paid and non-assessable and the portion of such shares shown by
the Prospectus as beneficially owned by the Company are so owned
subject to no security interest, other encumbrance or adverse claim;
and the shares of RTM subscribed for by the Company constitute all the
issued and outstanding shares of RTM and the Company has good and
marketable title to such shares, free and clear of any mortgage, lien,
pledge, charge, security interest, encumbrance or other adverse claim
of any kind and free of any other limitation or restriction (including
any restriction on the right to vote, sell or otherwise dispose of such
shares), except that the Company is currently negotiating a sale to a
third party of approximately five percent of the stock of a subsidiary
of the Company that acts as a holding company for the shares of RTM.
(i)The Securities and the Depositary Shares have been duly
authorized by the Company and the Securities, when issued and delivered
against payment therefor as contemplated hereby, will be validly
issued, fully paid and non-assessable; when the Depositary Receipts are
issued in accordance with the provisions of the Deposit Agreement, such
Depositary Receipts will entitle the holders thereof to the rights
specified in such Depositary Receipts and in the Deposit Agreement; and
the issuance of the Securities and the Depositary Shares are not
subject to the preemptive rights of any stockholder of the Company.
(j)Neither the Company nor any of its agents or other persons
acting on its behalf (other than the International Managers or the U.S.
Underwriters, as to which no representation is made), has marketed the
Securities or the Depositary Shares as futures contracts or commodity
options or, except to the extent necessary to describe the functioning
of the Securities and Depositary Shares or to comply with applicable
disclosure requirements, as having the characteristics of futures
contracts or commodity options.
(k)The Deposit Agreement has been duly authorized, and when duly
executed and delivered by the Company, the Deposit Agreement will
constitute a valid and binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
persons in whose names such Depositary Receipts are registered will be
entitled to the rights specified in such Depositary Receipts and in the
Deposit Agreement.
(l)Pursuant to the terms of the Certificate of Designations, and
as described in the Prospectus, the Securities are subject to mandatory
redemption, out of funds legally available therefor, in equal portions
by the Company on August 1 of each year commencing August 1, 1999 and
concluding with the redemption of all remaining outstanding Securities
on August 1, 2006.
(m)The Depositary Shares, the Deposit Agreement and the
Securities conform, or when so issued will conform, in all material
respects to the descriptions thereof contained in the Prospectus.
(n)The statements in the Prospectus under the captions
"Relationship of the Company Group with the FTX Group", "Description of
Preferred Stock" and "Description of Depositary Shares" and in the
Prospectus Supplement under the captions "Description of
Silver-Denominated Preferred Stock" and "Description of Depositary
Shares", insofar as such statements constitute summaries of the
documents and matters referred to therein, fairly and accurately
present the information called for with respect to such documents and
matters.
(o)Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Company, threatened, any action, suit or
proceeding to which the Company, PT-FI, EMC or RTM is a party before or
by any court or governmental agency or body, which could reasonably be
expected to result in any material adverse change in the condition
(financial or other), business, prospects, net worth or results of
operations of the Company and its subsidiaries, or would reasonably be
expected to materially and adversely affect the properties or assets
thereof.
(p)The issuance and delivery of the Depositary Shares and the
Securities, the execution and delivery of this Agreement and the
Deposit Agreement by the Company, the consummation by the Company of
the transactions herein and therein contemplated, and the compliance by
the Company with the terms hereof and thereof do not and will not
conflict with, or result in a breach or violation of, any of the terms
or provisions of, or constitute a default under, the Certificate of
Incorporation or By-laws, as amended (or analogous documents), of the
Company, PT-FI, EMC or RTM or the Certificate of Domestication of PT-FI
or any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, PT-FI, EMC or RTM is a
party or by which any of their respective properties or assets are
bound, or any applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company, PT-FI, EMC
or RTM or any of their respective properties or assets (other than any
such conflict, breach, violation or default which, individually or in
the aggregate, would not have a material adverse effect on the
condition (financial or other), business, prospects, net worth or
results of operations of the Company and its subsidiaries taken as a
whole); and no consent, approval, authorization, order, registration or
qualification of or with any government, governmental instrumentality
or court, domestic or foreign, including, without limitation, the U.S.
Commodity Futures Trading Commission (the "CFTC"), is required for the
valid authorization by the Company of the Securities or the Depositary
Shares, the issuance and delivery of the Depositary Shares, the valid
authorization, execution, delivery and performance by the Company of
this Agreement and the Deposit Agreement or the consummation by the
Company of the transactions contemplated by this Agreement and the
Deposit Agreement, except the filing with the Secretary of State of the
State of Delaware of a certificate of designations with respect to the
Securities and except such consents, approvals, authorizations, orders,
registrations or qualifications as are required under the Act and the
securities or Blue Sky laws of the various states in connection with
the purchase by the International Managers and distribution of the
Securities and the Depositary Shares.
(q)This Agreement has been duly authorized, executed and
delivered by the Company.
(r)The Company will apply the net proceeds from the sale of the
Securities as set forth in the Prospectus.
(s)There are no contracts or documents of the Company, PT-FI,
EMC or RTM that are required to be filed as exhibits to the
Registration Statement or to any of the documents incorporated by
reference therein by the Act, the Exchange Act or the Rules and
Regulations of the Commission thereunder that have not been so filed.
2. Purchase of Stock by the International Managers. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell 950,000
shares of the International Firm Stock to the several International Managers
and each of the International Managers, severally and not jointly, agrees to
purchase the number of shares of the International Firm Stock set opposite
that International Manager's name in Schedule 1 hereto, as such number may be
increased in accordance with Section 9.
In addition, the Company hereby grants to the International
Managers an option to purchase up to 142,320 shares of International Option
Stock. Such option is granted solely for the purpose of covering
over-allotments in the sale of International Firm Stock and is exercisable as
provided in Section 4 hereof. Shares of International Option Stock shall be
purchased severally for the account of the International Managers in
proportion to the number of shares of International Firm Stock set opposite
the name of such International Managers in Schedule 1 hereto. The respective
purchase obligations of each International Manager with respect to the
International Option Stock shall be adjusted by the Lead Managers so that no
International Manager shall be obligated to purchase International Option
Stock other than in 100 share amounts.
The purchase price of both the International Firm Stock and any
International Option Stock shall be $19.96 per share.
The Company shall not be obligated to deliver any of the Stock
to be delivered on the First Delivery Date or the Second Delivery Date (each,
as hereinafter defined), as the case may be, except upon payment for all the
Stock (including the U.S. Stock) to be purchased on such Delivery Date as
provided herein and in the U.S. Underwriting Agreement.
3. Offering of Stock by the International Managers. Upon
authorization by the Lead Managers of the release of the International Firm
Stock, the several International Managers propose to offer the International
Firm Stock for sale upon the terms and conditions set forth in the Prospectus.
Each International Manager agrees that, except to the extent
permitted by the Agreement Between U.S. Underwriters and International
Managers, (A) it is not purchasing any Stock for the account of any U.S.
Person (as defined below) and (B) it has not offered or sold, and will not
offer, sell, resell or deliver, directly or indirectly, any of the Stock or
distribute any Preliminary Prospectus or Prospectus to any U.S. Person. As
used herein, the terms "United States" and "U.S." shall mean the United States
of America (including the states thereof and the District of Columbia) and its
territories, its possessions and other areas subject to its jurisdiction, and
the term "U.S. Person" shall mean any resident or national of the United
States, any corporation, partnership or other entity created or organized in
or under the laws of the United States or any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source (other than a foreign branch of any U.S. Person), and includes a United
States branch of a person other than a U.S. Person. Each International
Manager hereby makes with the Company the agreements of such International
Manager contained in paragraphs (i) and (j) of Section 5 of the Agreement
Among International Managers dated as of the date hereof among the
International Managers.
Each International Manager represents, warrants and agrees that
neither it nor any of its agents or other persons acting on its behalf has
marketed or will market the Securities or the Depositary Shares as futures
contracts or commodity options or, except to the extent necessary to describe
the functioning of the Securities and Depositary Shares or to comply with
applicable disclosure requirements, as having the characteristics of futures
contracts or commodity options; and the Lead Managers confirm to the Company
that each dealer who has marketed or will market the Securities or Depositary
Shares as a "Selected Dealer" at the written request of the Lead Managers has
agreed to comply with such limitations.
4. Delivery of and Payment for the Stock. Delivery of and
payment for the International Firm Stock shall be made at the office of Lehman
Brothers Inc., 388 Greenwich Street (Cashier's Window, Main Level), New York,
New York 10013, at approximately 10:00 a.m., New York City time, on the fifth
full business day following the date of this Agreement or at such other date
or place as shall be determined by agreement between the Lead Managers and the
Company. This date and time are sometimes referred to as the "First Delivery
Date." On the First Delivery Date, the Company shall deliver or cause to be
delivered certificates representing the International Firm Stock to the Lead
Managers for the account of each International Manager against payment to or
upon the order of the Company of the purchase price by certified or official
bank check or checks payable in Federal (immediately available) funds. Time
shall be of the essence, and delivery of, and payment for, the International
Firm Stock at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each International Manager and the
Company hereunder. Upon delivery, the International Firm Stock shall be
registered in such names and in such denominations as the Lead Managers shall
request in writing not less than two full business days prior to the First
Delivery Date. For the purpose of expediting the checking and packaging of
the certificates for the International Firm Stock, the Company shall make the
certificates representing the International Firm Stock available for
inspection by the Lead Managers in New York, New York, not later than 2:00
p.m., New York City time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement, the option granted in Section 2 may be exercised by written
notice being given to the Company by the Lead Managers. Such notice shall set
forth the aggregate number of shares of International Option Stock as to which
the option is being exercised, the names in which the shares of International
Option Stock are to be registered, the denominations in which the shares of
International Option Stock are to be issued and the date and time, as
determined by the Lead Managers, when the shares of International Option Stock
are to be delivered; provided, however, that this date and time shall not be
earlier than the First Delivery Date nor earlier than the third business day
after the date on which the option shall have been exercised nor later than
the fifth business day after the date on which the option shall have been
exercised. The date and time the shares of International Option Stock are
delivered are sometimes referred to as the "Second Delivery Date" and the
First Delivery Date and the Second Delivery Date are each sometimes referred
to as a "Delivery Date."
Delivery of and payment for the International Option Stock shall
be made at the office of Lehman Brothers Inc., 388 Greenwich Street (Cashier's
Window, Main Level), New York, New York 10013 (or at such other place as
shall be determined by agreement between the Lead Managers and the Company)
at approximately 10:00 a.m., New York City time, on the Second Delivery Date.
On the Second Delivery Date, the Company shall deliver or cause to be
delivered the certificates representing the International Option Stock to the
Lead Managers for the account of each International Manager against payment to
or upon the order of the Company of the purchase price by certified or
official bank check or checks payable in Federal (immediately available)
funds. Time shall be of the essence, and delivery of, and payment for, the
International Option Stock at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each International
Manager and the Company hereunder. Upon delivery, the International Option
Stock shall be registered in such names and in such denominations as the Lead
Managers shall request in the aforesaid written notice. For the purpose of
expediting the checking and packaging of the certificates for the
International Option Stock, the Company shall make the certificates
representing the International Option Stock available for inspection by the
Lead Managers in New York, New York, not later than 2:00 p.m., New York City
time, on the business day prior to the Second Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a)The Company will cause the Prospectus Supplement to be filed
as required by Section 1(a) hereof (but only if the Lead Managers have
not reasonably objected thereto by notice to the Company after having
been furnished a copy a reasonable time prior to filing) and will
notify the Lead Managers promptly of such filing; as long as a
prospectus is required to be delivered under the Act in connection with
the sale of the Depositary Shares, the Company will notify the Lead
Managers promptly of the time when any subsequent amendment to the
Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed (and furnish the Lead
Managers with copies thereof) and of any request by the Commission for
any amendment or supplement to the Registration Statement or the
Prospectus or for additional information; it will prepare and file with
the Commission, promptly upon request of the Lead Managers, any
amendments or supplements to the Registration Statement or the
Prospectus that, in the opinion of the Lead Managers, may be necessary
or advisable in connection with the distribution of the Securities and
the Depositary Shares by the International Managers; it will file no
amendment or supplement to the Registration Statement or Prospectus
(other than any document filed under the Exchange Act that upon filing
is deemed to be incorporated by reference therein) to which the Lead
Managers shall reasonably object by notice to the Company after having
been furnished a copy a reasonable time prior to the filing; and it
will furnish to the Lead Managers at or prior to the filing thereof a
copy of any document that upon filing is deemed to be incorporated by
reference in the Registration Statement or the Prospectus.
(b)The Company will advise the Lead Managers, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement, of any order preventing or suspending the use
of any prospectus relating to the Securities or the Depositary Shares,
of the suspension of the qualification of the Securities or the
Depositary Shares for offering or sale in any jurisdiction or of the
initiation or threatening of any proceeding for any such purpose; and
it will promptly use its best efforts to prevent the issuance of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities or the Depositary Shares or
suspending any such qualification or to obtain its withdrawal if such a
stop order or order should be issued.
(c)Within the time during which a prospectus relating to the
Securities or the Depositary Shares is required to be delivered under
the Act, the Company will comply as far as it is able with all
requirements imposed upon it by the Act and by the Rules and
Regulations, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Securities or the
Depositary Shares as contemplated by the provisions hereof and the
Prospectus. If during such period any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period
it is necessary to amend or supplement the Registration Statement or
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, the Company will promptly notify the Lead
Managers and will amend or supplement the Registration Statement or the
Prospectus or file such document (at the expense of the Company) so as
to correct such statement or omission or effect such compliance.
(d)The Company will arrange to qualify the Securities and the
Depositary Shares for sale under the securities laws of such
jurisdictions as the Lead Managers designate and will maintain such
qualifications in effect so long as required for the distribution of
such Securities and Depositary Shares, except that the Company shall
not be required in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process in
any such jurisdiction.
(e)Neither the Company nor any of its agents or other persons
acting on its behalf (other than the International Managers and the
U.S. Underwriters, as to which the Company makes no covenant) will
market the Securities or the Depositary Shares as futures contracts or
commodity options or, except to the extent necessary to describe the
functioning of the Securities and Depositary Shares or to comply with
applicable disclosure requirements, as having the characteristics of
futures contracts or commodity options.
(f)The Company will furnish to the Lead Managers and their
counsel without charge, conformed copies of the Registration Statement
as originally filed and all amendments thereto, whether filed before or
after such Registration Statement originally became effective
(including all exhibits thereto), and each Preliminary Prospectus, the
Prospectus (including all documents incorporated by reference therein)
and any amendments thereof and supplements thereto, in each case as
soon as available and in such quantities as the Lead Managers may from
time to time reasonably request.
(g)The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 45 days
after the end of the 12-month period beginning at the end of the fiscal
quarter of the Company during which the effective date of the
Registration Statement occurs, an earning statement of the Company (in
form complying with the provisions of Rule 158 under the Rules and
Regulations), covering such 12-month period that shall satisfy the
provisions of Section 11(a) of the Act, it being understood that the
Company intends to satisfy this requirement by filing of its annual
report on Form 10-K and its quarterly reports on Form 10-Q.
(h)The Company shall not, directly or indirectly, except with
the prior written consent of the Lead Managers, during the period
beginning from the date hereof and continuing to and including the day
90 days after the date hereof, offer, sell, contract to sell to any
person other than the International Managers or otherwise dispose of
any securities of the Company which are, or which are convertible or
exchangeable or exercisable for securities which are, substantially
similar to the Depositary Shares or the Securities (the "Restricted
Securities"), except for the Stock.
(i)The Company will promptly after the date hereof, in the event
it has not already done so, file an application for the listing of the
Depositary Shares on the New York Stock Exchange and will arrange to
cause such Depositary Shares to be duly authorized for listing thereon,
subject to official notice of issuance. The Company will use its best
efforts to cause the Depositary Shares to be registered under the
Exchange Act.
(j)During the period of five years hereafter, the Company will
furnish to the Lead Managers, as soon as practicable after the end of
each fiscal year, a copy of its annual report to stockholders for such
year; and the Company will furnish to the Lead Managers (i) as soon as
available, a copy of each report or definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
shareholders and (ii) from time to time, such other information
concerning the Company as the Lead Managers may reasonably request.
6. Expenses. The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is terminated, will
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing,
filing and distribution of any Preliminary Prospectuses, the Prospectus, the
Registration Statement and any amendments thereof or supplements thereto, (ii)
the preparation, printing and distribution of this Agreement, the
International Managers' Questionnaire, the Agreement Among International
Managers, the Supplemental Agreement Among U.S. Underwriters, the
International Underwriting Agreement, the Agreement Between U.S. Underwriters
and International Managers, any Selling Agreement, the Securities, the
Depositary Receipts, the Deposit Agreement, the Certificate of Designations,
the shares of Common Stock and any Blue Sky memoranda, (iii) the distribution
of the terms of agreement relating to the organization of the underwriting
syndicate and the selling group to the members thereof by mail, telex or other
means of communication, (iv) the issuance and delivery of the Depositary
Receipts to you, (v) the fees and disbursements of the Company's counsel and
accountants and other experts, (vi) the expenses of qualifying the Securities
and the Depositary Shares under state securities laws in accordance with the
provisions of Section 5(d), including filing fees and reasonable fees and
disbursements of your counsel in connection therewith and in connection with
any Blue Sky memoranda, (vii) the fees and expenses of the Depositary and any
agent of the Depositary, including the fees and disbursements of counsel for
the Depositary in connection with the Deposit Agreement and the Depositary
Shares, (viii) the fees and expenses, if any, incurred in connection with the
listing of the Depositary Shares on the New York Stock Exchange and (ix) any
filing fee of the National Association of Securities Dealers, Inc. relating to
the Securities. If the sale of the Securities and the Depositary Shares
provided for herein is not consummated by reason of any failure, refusal or
inability on the part of the Company to perform any agreement on its part to
be performed, or because any other condition of your obligations hereunder
required to be fulfilled by the Company is not fulfilled, the Company will
reimburse you for all reasonable out-of-pocket disbursements (including
reasonable fees and disbursements of counsel) incurred by you in connection
with your investigation, preparing to market and marketing the Securities and
the Depositary Shares or in contemplation of performing your obligations
hereunder. The Company shall not in any event be liable to you for loss of
anticipated profits from the transactions covered by this Agreement.
7. Conditions of International Managers' Obligations. The
respective obligations of the International Managers hereunder are subject to
the accuracy, when made and on each Delivery Date, of the representations and
warranties of the Company contained herein, to the performance by the Company
of its obligations hereunder and to each of the following additional terms and
conditions:
(a)The Prospectus Supplement shall have been filed as required
by Section 1(a) hereof; and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceeding
for that purpose shall have been instituted or threatened by the
Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the
satisfaction of the Lead Managers.
(b)No International Manager or U.S. Underwriter shall have
advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of
fact that in the opinion of the Lead Managers is material, or omits to
state a fact that in the opinion of the Lead Managers or counsel for
the International Managers is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c)Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any change, on
a consolidated basis, in the capital stock (other than changes
resulting from issuances of shares of the Company's Class A Common
Stock, par value $0.10 per share (the "Common Stock"), in connection
with the conversion or exchange of any security of the Company
outstanding on the date as of which such information is given),
short-term debt or long-term debt of the Company and its subsidiaries,
or any adverse change in the prospects, or any adverse change, or any
development involving a prospective adverse change, in the condition
(financial or other), business, net worth or results of operations of
the Company and its subsidiaries or any change in the rating assigned
to any securities of the Company that, in the judgment of the Lead
Managers, makes it impractical or inadvisable to offer or deliver the
Depositary Shares on the terms and in the manner contemplated in the
Prospectus.
(d)The Lead Managers shall have received the opinion of Davis
Polk & Wardwell, special counsel for the Company, dated such Delivery
Date, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of its
jurisdiction of incorporation and PT-FI has been domesticated
and is in good standing under the laws of its jurisdiction of
domestication;
(ii) The Securities being delivered on such Delivery Date
have been duly authorized and validly issued and are fully paid
and non-assessable; and the issuance of such Securities is not
subject to the preemptive rights of any stockholder of the
Company;
(iii) The Depositary Shares being delivered on such Delivery
Date have been duly issued in accordance with the provisions of
the Deposit Agreement and the persons in whose names the
Depositary Receipts being delivered on such Delivery Date are
registered are entitled to the rights specified in such
Depositary Receipts and in the Deposit Agreement;
(iv) The Deposit Agreement has been duly authorized,
executed and delivered by the Company, and the Deposit Agreement
constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(v) Pursuant to the terms of the Certificate of
Designations, and as described in the Prospectus, the Securities
are subject to mandatory redemption, out of funds legally
available therefor, in equal portions by the Company on August 1
of each year commencing August 1, 1999 and concluding with the
redemption of all remaining outstanding Securities on August 1,
2006;
(vi) The statements in the Prospectus under the captions
"Relationship of the Company Group with the FTX Group",
"Description of Preferred Stock" and "Description of Depositary
Shares", and in the Prospectus Supplement under the captions
"Description of Silver-Denominated Preferred Stock" and
"Description of Depositary Shares", insofar as such statements
constitute summaries of the documents and matters referred to
therein, fairly and accurately present the information called
for with respect to such documents and matters;
(vii) The Registration Statement has become effective under
the Act; the Prospectus Supplement has been filed as required by
Section 1(a) hereof; and to the best knowledge of such counsel
no stop order suspending the effectiveness of the Registration
Statement or order preventing or suspending the use of any
prospectus relating to the Securities or the Depositary Shares
has been issued under the Act and no proceedings for that
purpose have been instituted or threatened;
(viii) Each part of the Registration Statement, when such part
became effective, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the
Commission, complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations; and
such counsel has no reason to believe that any such part of the
Registration Statement, when such part became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the
Prospectus, as of its date and on such Delivery Date, and any
amendment or supplement thereto, as of the date thereof and on
such Delivery Date, contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data included or incorporated by
reference in any of the documents mentioned in this clause
(viii);
(ix) This Agreement has been duly authorized, executed and
delivered by the Company;
(x) The issuance and delivery by the Company of the
Securities and the Depositary Shares, the execution and delivery
of this Agreement and the Deposit Agreement by the Company, the
consummation by the Company of the transactions herein and
therein contemplated and compliance by the Company with the
terms of this Agreement and the Deposit Agreement, will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under (a) the charter or
by-laws of the Company or PT-FI, or (b) to the best of such
counsel's knowledge, but without any independent investigation,
any Federal securities law of the United States, any law of the
State of New York or the Delaware General Corporation Law, or of
any order, writ, judgment, decree, determination or award
binding on the Company; and no consent, approval, authorization
or order of, or filing with, any court or governmental agency or
body, including, without limitation, the CFTC, is required for
the consummation of the transactions contemplated by this
Agreement, except (i) the filing of the Certificate of
Designations which has been made prior to the First Delivery
Date and (ii) such as have been obtained under the Act and such
as may be required under state laws in connection with the
purchase and distribution of the Depositary Shares by the
several U.S. Underwriters; and
(xi) The offer and sale of the Depositary Shares and the
Securities do not violate the United States Commodity Exchange
Act, as amended (the "CEA"), or the rules and regulations of the
CFTC thereunder.
(e)The Lead Managers shall have received the opinion of John G.
Amato, Esq., General Counsel of the Company, dated such Delivery Date,
to the effect that:
(i) Each of the Company and PT-FI has full power and
authority (corporate and other) to conduct its business as
described in the Prospectus and is duly qualified to do business
in each jurisdiction in which it owns or leases real property or
in which the conduct of its business requires such qualification
except where the failure to be so qualified, considering all
such cases in the aggregate, does not involve a material risk to
the business, properties, financial position or results of
operations of the Company and its subsidiaries;
(ii) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, complied
as to form in all material respects with the requirements of the
Exchange Act and the Rules and Regulations thereunder; and such
counsel believes that none of such documents, when such
documents were so filed, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading, it being understood that such
counsel need express no opinion as to the financial statements
or other financial data included in any of the documents
mentioned in this clause (ii);
(iii) The descriptions in the Prospectus of statutes, legal
and governmental proceedings, contracts and other documents are
accurate and fairly present the information required to be
shown; and such counsel does not know of any statutes or legal or
governmental proceedings required to be described in the
Prospectus that are not described as required, or of any
contracts or documents of a character required to be described
in the Prospectus (or required to be filed under the Exchange
Act if upon such filing they would be incorporated by reference
therein) or to be filed as exhibits to the Registration Statement
that are not described and filed as required;
(iv) The performance of this Agreement and the Deposit
Agreement and the consummation of the transactions herein and
therein contemplated will not result in a breach or violation of
any of the terms and provisions of, or constitute a default
under, any statute, any agreement or instrument known to such
counsel to which the Company or PT-FI is a party or by which any
of them is bound or to which any of the property of any of them
is subject, or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or PT-FI or any of their
properties; and
(v) The Company has an authorized capitalization as set
forth in the Prospectus (other than changes resulting from
issuances of shares of Common Stock in connection with the
conversion or exchange of any security of the Company
outstanding on the date as of which such information is given);
all the issued shares of capital stock of PT-FI shown in the
Prospectus as beneficially owned by the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable and are so owned subject to no security interest,
other encumbrance or adverse claim.
(f)The Lead Managers shall have received the opinion of Miller &
Chevalier, special tax counsel for the Company, dated such Delivery
Date, to the effect that the description contained under "Certain
Federal Income Tax Consequences" in the Prospectus Supplement is
complete, fair and accurate in all material respects.
(g)The Lead Managers shall have received the opinion of Ali
Budiardjo, Nugroho, Reksodiputro, special Indonesian counsel for the
Company, dated such Delivery Date, to the effect that:
(i) PT-FI has been duly organized and is an existing
corporation in good standing under the laws of Indonesia;
(ii) the Contract of Work, dated December 30, 1991, between
the Ministry of Mines of the Government of The Republic of
Indonesia, acting for such Government, and PT-FI (the "Contract
of Work"), has been duly authorized, executed and delivered by
and constitutes the valid and binding obligation of the parties
thereto, is in full force and effect and is enforceable in
accordance with its terms;
(iii) other than those already granted in or pursuant to the
Contract of Work and routine authorizations, permissions,
consents or approvals (including approvals required under
certain routine administrative regulations), which are of a
minor nature and which are customarily granted in due course
after application, or the denial of which would not materially
adversely affect the business, present or proposed, of PT-FI, no
registration with, or authorization or order of, The Government
of Indonesia or any subdivision thereof is required to permit
PT-FI to carry out its operations, including those described in
the Prospectus; to procure and import equipment and other
materials therefor; to export its products, or to construct,
equip, own, operate or maintain its assets or business; and
(iv) to the best of such counsel's knowledge after due
inquiry, other than routine tax audits conducted in accordance
with the terms of the Contract of Work, there is no action,
suit, proceeding or investigation by or before any Indonesian
court or governmental authority pending or threatened against or
affecting PT-FI or any of its properties or rights which, if
determined adversely to PT-FI, would in the aggregate have a
material adverse effect on its present or future business or
condition.
(h)The Lead Managers shall have received from Sullivan &
Cromwell, counsel to the International Managers, such opinion or
opinions, dated such Delivery Date, with respect to the incorporation
of the Company, the validity of the Securities and the Depositary
Shares being delivered on such Delivery Date, the Deposit Agreement,
the Registration Statement, the Prospectus and other related matters as
the Lead Managers reasonably may request, and such counsel shall have
received such papers and information as they request to enable them to
pass upon such matters.
(i)The Lead Managers shall have received the opinion of Cleary,
Gottlieb, Steen & Hamilton, special commodities counsel to the
International Managers, dated such Delivery Date, to the effect that
the offer, sale, issuance and delivery by the Company of the Securities
and the Depositary Shares being delivered on such Delivery Date in the
manner contemplated by this Agreement, the U.S. Underwriting Agreement
and the Prospectus, the execution and delivery of this Agreement, the
U.S. Underwriting Agreement and the Deposit Agreement and the
performance by the Company of its obligations under the terms of the
Securities and the Depositary Shares will not violate the CEA or the
rules and regulations of the CFTC thereunder.
(j)At the time of execution of this Agreement and on each
Delivery Date, the Lead Managers shall have received a letter from
Arthur Andersen & Co., dated the date of delivery thereof, to the
effect that (i) they are independent certified public accountants with
respect to the Company and PT-FI within the meaning of the Act and the
Rules and Regulations and that the answer to Item 10 of the
Registration Statement form is correct insofar as it relates to them;
(ii) in their opinion, the financial statements and schedules examined
by them included or incorporated by reference in the Registration
Statement and Prospectus comply as to form in all material respects
with the applicable requirements of the Act or the Exchange Act, as
applicable, and the published Rules and Regulations thereunder; and
(iii) as to such other matters as the Lead Managers may reasonably
request and in form and substance satisfactory to the Lead Managers.
(k)The Lead Managers shall have received from the Company a
certificate, signed by the Chairman of the Board, the President or a
Vice President and by the principal financial or accounting officer,
dated such Delivery Date, to the effect that, to the best of their
knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company in
this Agreement are true and correct, as if made at and as of
such Delivery Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for
that purpose has been instituted or is threatened by the
Commission; and
(iii) Since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or
Prospectus that has not been so set forth, and there has been no
document required to be filed under the Exchange Act and the
Rules and Regulations thereunder that upon such filing would be
deemed to be incorporated by reference in the Prospectus that
has not been so filed.
(k)The Depositary Shares shall have been duly approved for
listing by the New York Stock Exchange, subject only to official notice
of issuance.
(m)On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or limitation in trading in the
Common Stock or in securities generally on the New York Stock Exchange
or the American Stock Exchange or any setting of minimum or maximum
prices or ranges of prices for trading on any such Exchange; (ii) a
moratorium on banking activities in New York declared by either Federal
or New York State authorities; or (iii) any material adverse change in
the financial markets in the United States or any outbreak or
escalation of hostilities or other calamity or crisis involving the
United States, or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in clause
(iii) above in the judgment of the Lead Managers makes it impracticable
or inadvisable to proceed with the public offering or the delivery of
the Depositary Shares to be purchased by the International Managers.
(n)The Company shall have furnished to the Lead Managers such
further certificates and documents as the Lead Managers shall have
reasonably requested.
(o)The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the First Delivery
Date.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to
counsel for the International Managers.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
International Manager and each person who controls each International Manager
within the meaning of the Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, joint or several, to which such
International Manager may become subject, under the Act or otherwise,
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any part of the Registration Statement (or
any amendment thereto), when such part became effective, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus or
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they are made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, joint or several, to which such
International Manager may become subject, under the Act or otherwise,
to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred by each
International Manager (including, subject to Section 8(c) hereof, the
fees and disbursements of counsel chosen by the International
Managers), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
the Lead Managers, or by any International Manager through the Lead Managers,
or by any U.S. Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto); and provided, further, that the Company
shall not be liable to any International Manager under the indemnity agreement
in this Section 8(a) with respect to any Preliminary Prospectus to the extent
that any such loss, claim, damage or liability of such International Manager
results from the fact that such International Manager sold Stock to a person
as to whom it shall be established that there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus or of
the Prospectus as then amended or supplemented (in either case excluding
documents incorporated therein by reference) in any case where such delivery
is required by the Act if the Company has previously furnished copies thereof
in sufficient quantity to such International Manager and the loss, claim,
damage or liability of such International Manager results from an untrue
statement or omission of a material fact contained in the Preliminary
Prospectus which was identified in writing at such time to such International
Manager and corrected in the Prospectus or in the Prospectus as then amended
or supplemented (in either case excluding documents incorporated therein by
reference).
(b) Each International Manager agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signed
the Registration Statement, and each person who controls the Company within
the meaning of the Act, to the same extent as the foregoing indemnity from the
Company to the International Managers, but only to the extent the related
untrue statement or alleged untrue statement or omission or alleged omission
was made in the related document referred to in the foregoing indemnity in
reliance upon and in conformity with written information relating to the Lead
Managers furnished to the Company by the Lead Managers, or by such
International Manager through the Lead Managers, expressly for inclusion in
the preparation of the documents referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party or
parties in writing of the commencement thereof; but the omission so to notify
the indemnifying party or parties shall not relieve it from any liability that
it may have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party, and it
shall notify the indemnifying party or parties of the commencement thereof,
the indemnifying party or parties shall be entitled to participate in, and, to
the extent that it shall elect, jointly with any other indemnifying party
similarly notified, by written notice delivered to such indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party); provided, however, that if, in the
judgment of such indemnified party, a conflict of interest exists where it is
advisable for such indemnified party to be represented by separate counsel,
the indemnified party shall have the right to employ separate counsel in any
such action, in which event the fees and expenses of such separate counsel
shall be borne by the indemnifying party or parties, and after notice from the
indemnifying party or parties to such indemnified party of its election so to
assume the defense thereof and approval by the indemnified party of counsel,
the indemnifying party or parties shall not be liable to such indemnified party
under such subsection for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party or parties shall not be liable for the expenses of more
than one such separate counsel representing the indemnified parties under
subparagraph (a) of this Section 8 who are parties to such action), (ii) the
indemnifying party or parties shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party or parties have authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party or parties; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
International Managers on the other from the offering of the Stock to which
such loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the International
Managers on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
International Managers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the International Managers, in each case
as set forth in the table on the cover page of the U.S. Prospectus Supplement.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the International Managers on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and the International Managers agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were to be
determined by pro rata allocation (even if the International Managers were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending against any such action or claim.
Notwithstanding the provisions of this subsection (d), no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the Stock underwritten by it and distributed to
the public was offered to the public exceeds the amount of any damages which
such International Manager has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The International Managers'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The International Managers severally confirm that the
statements with respect to the public offering of the Stock set forth on the
cover page of, and under the caption "Underwriting" in, the Prospectus are
correct and constitute the only information furnished in writing to the
Company by or on behalf of the International Managers specifically for
inclusion in the Registration Statement and the Prospectus.
(f) All representations, warranties, and agreements of the
Company herein or in certificates or letters of officers delivered pursuant
hereto, and the agreements of the several International Managers contained in
this Section 8, shall remain operative and in full force and effect regardless
of any termination of this Agreement or any investigation made by or on behalf
of the Company or any International Manager or any controlling person, and
shall survive delivery of any Depositary Shares to the International Managers.
9. Defaulting International Managers. (a) If any of the
International Managers or U.S. Underwriters shall fail to take up and pay for
the amount of Stock or U.S. Stock, as the case may be, agreed by such
International Manager or U.S. Underwriter to be purchased hereunder or under
the U.S. Underwriting Agreement on any Delivery Date, upon tender of such
Stock or U.S. Stock in accordance with the terms hereof or thereof, and the
amount of Stock and U.S. Stock not purchased does not aggregate more than 10%
of the total amount of Stock and U.S. Stock that the International Managers
and U.S. Underwriters are obligated to purchase hereunder and thereunder on
such Delivery Date, the remaining International Managers shall be obligated to
take up and pay for (in proportion to their respective underwriting
obligations hereunder except as may otherwise be determined by the Lead
Managers) the Stock that the withdrawing or defaulting International Managers
agreed but failed to purchase.
(b)If any International Managers or U.S. Underwriters shall fail
to take up and pay for the amount of Stock or U.S. Stock, as the case may be,
agreed by such International Manager or U.S. Underwriter to be purchased
hereunder or under the U.S. Underwriting Agreement on any Delivery Date, upon
tender of such Stock or U.S. Stock in accordance with the terms hereof or
thereof, and the amount of Stock and U.S. Stock not purchased aggregates more
than 10% of the total amount of Stock and U.S. Stock that the International
Managers and U.S. Underwriters are obligated to purchase hereunder and
thereunder on such Delivery Date, and arrangements satisfactory to the Lead
Managers, the Representatives and the Company for the purchase of such Stock
and U.S. Stock by other persons are not made within 36 hours thereafter, this
Agreement shall terminate. In the event of any such termination the Company
shall not be under any liability to any International Manager with respect to
Stock not purchased by reason of such termination (except to the extent
provided in Section 6 and Section 8 hereof) nor shall any International
Manager (other than an International Manager who shall have failed, otherwise
than for some reason permitted under this Agreement, to purchase the amount of
Stock agreed by such International Manager to be purchased hereunder) be under
any liability to the Company with respect to such Stock (except to the extent
provided in Section 8 hereof).
10. Termination. The obligations of the International Managers
hereunder may be terminated by the Lead Managers, in their absolute
discretion, by notice given to and received by the Company prior to delivery
of any payment for the Firm Stock if, prior to that time, any of the events
described in Sections 7(c) or 7(m) have occurred.
11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a)if to the International Managers, shall be delivered or
sent by mail, telex or facsimile transmission to Lehman Brothers
International (Europe), 1 Broadgate, London EC2M 7HA, England,
Attention: Syndicate Department; and
(b)if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: John G.
Amato, Esq., General Counsel;
provided, however, that any notice to an International Manager pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile
transmission to such International Manager at its address set forth in its
acceptance telex to the representatives, which address will be supplied to any
other party hereto by the Lead Managers upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the International
Managers by Lehman Brothers International (Europe) on behalf of the Lead
Managers.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of, and be binding upon the International Managers,
the Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any International Manager within the
meaning of Section 15 of the Act and for the benefit of each International
Manager (and controlling persons thereof) who offers or sells any shares of
Stock in accordance with the terms of the Agreement Between U.S. Underwriters
and International Managers and (B) the indemnity agreement of the
International Managers contained in Section 8(b) of this Agreement shall be
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 13, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
13. Definition of Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading, other than a day on which banks
are authorized or obligated by law or executive order to close in New York
City and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
15. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
16. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Company and the International Managers please indicate your acceptance in the
space provided for the purpose below.
Very truly yours,
FREEPORT-McMoRan COPPER & GOLD INC.
By: /s/ STEPHEN M. JONES
--------------------------
Name: Stephen M. Jones
Title: Vice President
Accepted:
LEHMAN BROTHERS INTERNATIONAL (EUROPE)
GOLDMAN SACHS INTERNATIONAL
KIDDER, PEABODY INTERNATIONAL plc
MERRILL LYNCH INTERNATIONAL LIMITED
S.G. WARBURG SECURITIES LTD.
For themselves and as Lead Managers
for each of the several International
Managers named on Schedule 1 hereto
By: LEHMAN BROTHERS INTERNATIONAL (EUROPE)
By: /s/ LAURA HANSEN
-------------------------------------
Authorized Representative
SCHEDULE 1
Amount of
Depositary
Shares
to be
International Manager Purchased
Lehman Brothers International (Europe)............................. 170,050
Goldman Sachs International........................................ 155,800
Kidder, Peabody International plc.................................. 155,800
Merrill Lynch International Limited................................ 155,800
S.G. Warburg Securities Ltd........................................ 155,800
ABN AMRO Bank N.V.................................................. 14,250
Banque Indosuez.................................................... 14,250
Barclays de Zoete Wedd Limited..................................... 14,250
Burns Fry Limited.................................................. 14,250
Commerzbank Aktiengesellschaft..................................... 14,250
Deutsche Bank Aktiengesellschaft................................... 14,250
Hambros Equities UK Limited........................................ 14,250
NatWest Securities Limited......................................... 14,250
Nikko Europe plc................................................... 14,250
N M Rothschild & Sons Limited...................................... 14,250
UBS Limited........................................................ 14,250
Total....................................................... 950,000