$450,000,000
FREEPORT-McMoRan COPPER & GOLD INC.
$200,000,000
7.50% Senior Notes Due 2006
$250,000,000
7.20% Senior Notes Due 2026
_______________
Underwriting Agreement
November 13, 1996
UBS SECURITIES LLC
CHASE SECURITIES INC.
CS FIRST BOSTON CORPORATION
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation ("FCX"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the
underwriters named in Schedule I hereto (the "Underwriters")
$200,000,000 aggregate principal amount of its 7.50% Senior
Notes due November 15, 2006 (the "2006 Notes") and
$250,000,000 aggregate principal amount of its 7.20% Senior
Notes due November 15, 2026 (the "2026 Notes", and together
with the 2006 Notes, the "Senior Notes" or the "Securities")
to be issued under an indenture, dated as of November 14,
1996 (the "Indenture"), between FCX and The Chase Manhattan
Bank, as Trustee.
FCX has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3 (File No. 333-02699) and pre-effective amendment
no. 1 thereto for the registration of, among other things,
the Securities under the Securities Act of 1933, as amended
(the "1933 Act") and the offering thereof from time to time
in accordance with Rule 415 thereunder. Such registration
statement (as so amended, if applicable) has been declared
effective by the Commission, and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statement (as so
amended, if applicable) is referred to herein as the
"Registration Statement"; and the final prospectus and the
final prospectus supplement relating to the offering of the
Securities, in the form first furnished to the Underwriters
by FCX for use in connection with the offering of the
Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be
deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934,
as amended (the "1934 Act"). A "Preliminary Prospectus"
shall be deemed to refer to any prospectus and any
prospectus supplement, whether or not filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto used before the Registration Statement
became effective and any prospectus and any prospectus
supplement, that omitted information to be included upon
pricing in a form of prospectus filed with the Commission
pursuant to Rule 424(b) of the rules and regulations of the
Commission that was used after such effectiveness and prior
to the execution and delivery of this Agreement. For
purposes of this Underwriting Agreement, all references to
the Registration Statement, Preliminary Prospectus,
Prospectus or any amendment or supplement thereto shall be
deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Underwriting Agreement to
financial statements and schedules and other information
which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement,
Preliminary Prospectus, Prospectus or any amendment or
supplement thereto shall be deemed to mean and include all
such financial statements and schedules and other
information which is incorporated by reference in the
Registration Statement, Preliminary Prospectus, Prospectus
or any amendment or supplement thereto, as the case may be;
and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement,
Preliminary Prospectus or Prospectus shall be deemed to mean
and include the filing of any document under the 1934 Act
which is incorporated by reference in the Registration
Statement, Preliminary Prospectus or Prospectus, as the case
may be.
1. (a) FCX represents and warrants to, and
agrees with, each of the several Underwriters, as of the
date hereof, and as of the Closing Date (as defined below),
as follows:
(i) FCX meets the requirements for use of Form S-3
under the 1933 Act. The Registration Statement has
become effective under the 1933 Act, and no stop order
suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act, and no
proceedings for that purpose have been instituted or,
to the knowledge of FCX, are contemplated by the
Commission, and any request on the part of the
Commission for additional information has been complied
with. In addition, the Indenture has been duly
qualified under the 1939 Act.
Each part of the Registration Statement, when
such part became or becomes effective, and the
Prospectus, and any amendment or supplement thereto, on
the date of filing thereof with the Commission and on
the Closing Date (as hereinafter defined), conformed or
will conform in all material respects with the
requirements of the 1933 Act, the 1939 Act and the
rules and regulations of the Commission thereunder;
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; the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with
the Commission and on the Closing 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, Prospectus or any amendment or
supplement thereto in reliance upon and in conformity
with written information furnished to FCX by any
Underwriter specifically for inclusion therein.
Each Prospectus delivered to the Underwriters
for use in connection with the offering of the
Securities will, at the time of such delivery, be
identical to any electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T of the
rules and regulations of the Commission.
(ii) The documents incorporated or to be
incorporated by reference in the Registration
Statement, Prospectus or any amendment or supplement
thereto, as described under "Incorporation of Certain
Documents by Reference" in the Prospectus, when they
became or become effective under the 1933 Act or were
or are filed with the Commission under the 1934 Act, as
the case may be, conformed or will conform in all
material respects with the requirements of the 1933 Act
or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder; and, when
read together with the other information in the
Prospectus, at the date of the Prospectus and at the
Closing 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.
(iii) The Senior Notes have been duly authorized
and, when issued and authenticated by the Trustee in
accordance with the terms of the Indenture and
delivered pursuant to this Agreement, will have been
duly executed, authenticated, issued and delivered by
FCX and will be entitled to the benefits of the
Indenture; the Indenture has been duly authorized by
FCX and, when executed and delivered in accordance with
its terms, will have been validly executed and
delivered by FCX and will have been duly qualified
under the 1939 Act; and the Senior Notes and the
Indenture will constitute valid and legally binding
obligations of FCX, enforceable in accordance with
their respective terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability
relating to or affecting creditors' rights and to
general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity
or at law).
(iv) The Indenture and the Securities will
conform in all material respects to the descriptions
thereof contained in the Prospectus.
(v) The statements in the Prospectus under the
caption "Description of the Senior Notes," "Description
of Debt Securities and Guarantees," "Description of
Preferred Stock," "Description of Depositary Shares,"
and "Description of Warrants," 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.
(vi) Except as set forth in the Prospectus, there
is not pending or, to the knowledge of FCX, threatened,
any action, suit or proceeding to which FCX, P.T.
Freeport Indonesia Company, a limited liability company
organized under the laws of Indonesia and domesticated
in Delaware ("PT-FI"), Eastern Mining Company, Inc., a
Delaware corporation ("EMC"), Atlantic Copper Holding,
S.A., a limited liability company organized under the
laws of Spain ("Atlantic"), 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 FCX and its subsidiaries taken as a whole, or would
reasonably be expected to materially and adversely
affect the properties or assets thereof, taken as a
whole.
(vii) This Agreement has been duly authorized,
executed and delivered by FCX.
(viii) FCX will apply the net proceeds from the
sale of the Securities as set forth in the Prospectus
under the caption "Use of Proceeds".
(ix) There are no contracts or documents of FCX,
PT-FI, EMC, Atlantic or FCX Finance Company B.V., a
private company with limited liability incorporated
under the laws of the Kingdom of the Netherlands ("FCX
Finance"), that are required to be filed as exhibits to
the Registration Statement or to any of the documents
incorporated by reference therein by the 1933 Act, the
1934 Act or the rules and regulations of the Commission
thereunder that have not been so filed.
(x) The issuance and delivery of the Securities,
the execution and delivery of this Agreement and the
Indenture by FCX, the consummation by FCX of the
transactions herein and therein contemplated, the
compliance by FCX with the terms hereof and thereof and
the application of the proceeds of the issuance of the
Securities as described in the Prospectus under the
caption "Use of Proceeds" 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 FCX, PT-FI, EMC or
Atlantic or the Certificate of Domestication of PT-FI,
the Credit Agreement, dated as of June 30, 1995 (the
"FCX Bank Credit Facility"), among FCX, PT-FI and the
banks named therein, as amended, and the Composite
Credit Agreement, dated as of July 17, 1995 (the "PT-FI
Bank Credit Facility", and together with the FCX Bank
Credit Facility, the "Credit Facilities"), among PT-FI,
FCX and the banks named therein, as amended, or any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which FCX, PT-FI, EMC
or Atlantic 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
FCX, PT-FI, EMC, Atlantic 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 FCX
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, is
required for the valid authorization by FCX of the
Senior Notes, the issuance and delivery of the Senior
Notes, the valid authorization, execution, delivery and
performance by FCX of this Agreement and the Indenture,
the consummation by FCX of the transactions
contemplated by this Agreement and the Indenture, or
the application of the proceeds of the issuance of the
Securities as described in the Prospectus under the
caption "Use of Proceeds," except such consents,
approvals, authorizations, orders, registrations,
filings or qualifications as have been obtained or made
under the 1933 Act and the securities or Blue Sky laws
of the various states in connection with the purchase
by the Underwriters and distribution of the Securities
as described in the Prospectus; and provided that PT-FI
must register any loans from FCX with the Bank of
Indonesia or such loans may become subject to currency
exchange restrictions.
(xi) FCX is not an open-end investment company,
unit investment trust or face-amount certificate
company that is or is required to be registered under
Section 8 of the United States Investment Company Act
of 1940, as amended (the "Investment Company Act"), nor
is it a closed-end investment company required to be
registered, but not registered, thereunder; and FCX is
not and, after giving effect to the offering and sale
of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment
Company Act.
(xii) The consolidated financial statements of
FCX included or incorporated by reference in the
Registration Statement and the Prospectus present
fairly the consolidated financial position of FCX and
its consolidated subsidiaries as at the dates indicated
and the consolidated results of operations and cash
flows of such entities 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.
(xiii) FCX does not have any subsidiaries that
would constitute significant subsidiaries within the
meaning of Rule 405 under the 1933 Act other than PT-FI
and Atlantic.
(xiv) Each of FCX, EMC and Atlantic has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
organization or incorporation; PT-FI is a limited
liability company duly organized under the laws of the
Republic of Indonesia and PT-FI has been domesticated
in the State of Delaware and is in good standing under
the laws of the State of Delaware; each of FCX, PT-FI,
EMC, Atlantic and FCX Finance has full power and
authority (corporate and other) to own its properties
and conduct its business as described in the
Registration Statement, Prospectus and any amendment or
supplement thereto; and each of FCX, PT-FI, EMC,
Atlantic and FCX Finance 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 (if any) 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 FCX and
its subsidiaries taken as a whole.
(xv) FCX has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares
of capital stock of FCX have been duly and validly
authorized and issued and are fully paid and non-
assessable.
(xvi) 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 FCX, PT-FI, EMC or Atlantic 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
FCX and its subsidiaries taken as a whole, and there
has not been any material change in the capital stock
(changes (x) resulting from repurchases by FCX of its
Class A Common Stock, par value $0.10 per share, and
its Class B Common Stock, par value $0.10 per share
(the "FCX Common Stock"), in an amount not exceeding
the shares of FCX Common Stock described in the
Prospectus as having been repurchased through the date
as of which such information is given in the Prospectus
or (y) in connection with the conversion or exchange of
any security of FCX outstanding on the date as of which
such information is given in the Prospectus shall not
constitute material changes in capital stock for
purposes of this clause (xvi)) or any increase in
short-term debt or long-term debt of FCX and its
subsidiaries (other than borrowings under the Credit
Facilities as set forth in the Prospectus) 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 FCX and its subsidiaries taken as a
whole.
(xvii) Neither FCX nor any of its affiliates does
business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes.
2. On the basis of the representations,
warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, FCX agrees to
issue and sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from FCX, (a)
at a purchase price of 98.825% of the principal amount
thereof plus accrued interest from November 18, 1996 to the
Closing Date, the respective principal amounts of 2006 Notes
set forth opposite the names of the Underwriters in
Schedule I hereto and (b) at a purchase price of 99.268% of
the principal amount thereof plus accrued interest from
November 18, 1996 to the Closing Date, the respective
principal amounts of 2026 Notes set forth opposite the names
of the Underwriters in Schedule I hereto. FCX hereby
confirms to the Underwriters that, within the preceding
twelve months, neither FCX nor any other person acting on
its behalf has offered or sold to any person any Securities,
or any securities of the same or a similar class as the
Securities, other than Securities offered or sold to the
Underwriters.
3. FCX will deliver the Securities to you,
against payment of the purchase price by wire transfer of
immediately available funds to such account or accounts as
FCX shall specify prior to the Closing Date (as defined
below) at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 9:30 A.M., New York time,
on November 18, 1996, or at such other time thereafter as
you and FCX determine, such time being herein referred to as
the "Closing Date". A meeting will be held at the offices
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on the business day next preceding
the Closing Date, at which meeting final drafts of the
documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. Except
as set forth in the following sentence, all of the
Securities to be purchased by each Underwriter hereunder
will be represented by one or more certificates in
definitive form, in such authorized denominations as you may
request upon at least 48 hours prior written notice to FCX
and registered in the name of Cede & Co., as nominee for The
Depository Trust Company ("DTC"), which certificates will be
deposited by or on behalf of FCX with DTC or its designated
custodian. Such Securities, if any, as the Underwriters may
request upon at least 48 hours' prior written notice to FCX
(such request to include the authorized denominations and
the names in which they are to be registered), shall be
delivered in definitive certificated form by or on behalf of
FCX on the Closing Date at the office of UBS Securities LLC
for the account of certain of the Underwriters.
4. It is understood that the several
Underwriters propose to offer the Securities for sale to the
public as set forth in the Prospectus.
5. FCX agrees with each of the Underwriters
that:
(a) FCX will prepare the Prospectus in a form
approved by you.
(b) FCX, subject to Section 5(c), will comply with
the requirements of Rule 430A and/or Rule 434 of the
rules and regulations under the 1933 Act, if and as
applicable, and will notify the Underwriters
immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the
receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the
Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the
use of the Prospectus, or of the suspension of the
qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. FCX will
promptly effect the filings necessary pursuant to Rule
424 and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted
for filing under Rule 424 was received for filing by
the Commission and, in the event that it was not, it
will promptly file the Prospectus. FCX will make every
reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) FCX will give the Underwriters notice of its
intention to file or prepare any amendment to the
Registration Statement or any amendment, supplement or
revision to either the prospectus included in the
Registration Statement at the time it became effective
or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the
Underwriters with copies of any such documents prior to
such proposed filing or use, as the case may be, and
will not file or use any such document to which the
Underwriters (or counsel for the Underwriters) shall
reasonably object by notice to FCX after a reasonable
period to review, which shall not in any case be longer
than three business days after receipt of such copies;
this Section 5(c) applies to any such amendment,
supplement or revision to that extent that it relates
in any way to the Securities or is filed or prepared
during any period in which the Securities are being
distributed.
(d) FCX will comply with the 1933 Act and the 1934
Act and the rules and regulations of the Commission
thereunder so as to permit the completion of the
distribution of the Securities as contemplated in this
Agreement, in the Registration Statement and in the
Prospectus. If, at any time when the Prospectus is
required by the 1933 Act or the 1934 Act to be
delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of
counsel for the Underwriters or for FCX, to amend the
Registration Statement in order that the Registration
Statement 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 or to amend or
supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to
make the statements therein not misleading in the light
of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary,
in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements
of the 1933 Act or the 1934 Act or the rules and
regulations of the Commission thereunder, FCX will
notify you of such event or condition and will promptly
prepare and file with the Commission, subject to
Section 5(c), at its own expense, such amendment or
supplement as may be necessary to correct such
statement or omission or to make the Registration
Statement or the Prospectus comply with such
requirements, and FCX will furnish to the Underwriters,
without charge, such number of copies of such amendment
or supplement as the Underwriters may reasonably
request. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(e) FCX shall timely file such reports pursuant to
the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as
practicable an earnings statement for the purposes of,
and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(f) FCX has furnished or will deliver to the
Underwriters and counsel for the Underwriters, without
charge, as soon as available, signed copies of the
Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith
or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and
certificates of experts, and will also deliver to the
Underwriters, without charge, a conformed copy of the
Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the
Underwriters. Copies of the Registration Statement and
each amendment thereto furnished to the Underwriters
will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(g) FCX will furnish to each Underwriter, without
charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Prospectus as such
Underwriter may reasonably request. The Prospectus and
any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T of the rules and regulations of the
Commission.
(h) FCX will arrange for the qualification of the
Senior Notes for sale and the determination of their
eligibility for investment under the laws of such
jurisdictions as you designate and will continue such
qualifications in effect so long as required for the
completion of the distribution of the Securities by the
Underwriters; provided that in no event shall FCX be
obligated to qualify to do business in any jurisdiction
where it is not so qualified or to take any other
action which would subject it to service of process in
suits, other than those arising from the offering or
sale of securities in any jurisdiction where it is not
now so subject.
(i) During the period beginning on the date of the
Prospectus and ending on the date that is five years
thereafter (or such earlier date as there shall no
longer be any Securities outstanding under the
Indenture), FCX will furnish to you (i) as soon as
available, a copy of each report or definitive proxy
statement of FCX filed with the Commission under the
1934 Act or mailed to stockholders, and (ii) from time
to time, such other information concerning FCX as you
may reasonably request.
(j) During the period of three years after the
Closing Date, FCX will not be or become an open-end
investment company, unit investment trust or face-
amount certificate company that is or is required to be
registered under Section 8 of the Investment Company
Act, and is not, and will not be or become, a closed-
end investment company required to be registered, but
not registered, under the Investment Company Act.
(k) FCX, 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 the
Registration Statement and Prospectus and any
amendments or supplements thereto, (ii) the
preparation, printing and distribution of this
Agreement, any agreement among the Underwriters, the
Securities, the Indenture and any Blue Sky memoranda,
(iii) the issuance and delivery of the Securities to
you, (iv) the fees and disbursements of FCX's counsel
and accountants and other experts, (v) the expenses of
qualifying the Securities under state securities laws
in accordance with the provisions of Section 5(h),
including filing fees and reasonable fees and disburse-
ments of your counsel in connection therewith and in
connection with any Blue Sky memoranda, (vi) the fees
and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, and (vii) any
filing fee of the National Association of Securities
Dealers, Inc. relating to the Securities. If the sale
of the Securities provided for herein is not
consummated by reason of any failure, refusal or
inability on the part of FCX to perform any agreement
on its part to be performed, or because any other
condition of your obligations hereunder (other than the
conditions specified in Sections 6(c)(iv) or (v))
required to be fulfilled by FCX is not fulfilled, FCX
will reimburse you for all reasonable out-of-pocket
disbursements (including reasonable fees and disburse-
ments of counsel) incurred by you in connection with
your investigation, preparing to market and marketing
the Securities or in contemplation of performing your
obligations hereunder. FCX shall not in any event be
liable to you for loss of anticipated profits from the
transactions covered by this Agreement.
(l) During the period beginning from the date
hereof and continuing to and including the Closing
Date, FCX will not offer, sell, contract to sell or
otherwise dispose of any debt securities of FCX that
mature more than one year after the Closing Date and
which are substantially similar to the Securities,
without the prior written consent of the Underwriters.
(m) FCX shall use the proceeds of the offering of
the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
6. The obligations of the several Underwriters
to purchase and pay for the Securities will be subject to
the accuracy of the representations and warranties on the
part of FCX herein, to the accuracy of the statements of
officers of FCX made in any certificate or other writing
pursuant to the provisions hereof, to the performance by FCX
of its obligations hereunder and to the following additional
conditions precedent:
(a) The Registration Statement shall have become
effective under the 1933 Act, and no stop order
suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and
no proceedings for that purpose shall have been
initiated or be pending or threatened by the
Commission, and any request on the part of the
Commission for additional information shall have been
complied with to the reasonable satisfaction of the
Underwriters. A prospectus containing information
relating to the Securities, the specific method of
distribution and similar matters shall have been filed
with the Commission in accordance with Rule 424(b)(1),
(2), (3), (4) or (5) of the rules and regulations of
the Commission, as applicable (or any required post-
effective amendment providing such information shall
have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if FCX has
elected to rely upon Rule 434 under the 1933 Act, a
term sheet including the Rule 434 Information shall
have been filed with the Commission in accordance with
Rule 424(b)(7).
(b) You shall have received a letter, dated the
date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
confirming that they are independent public accountants
with respect to FCX within the meaning of the 1933 Act
and the applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the financial state-
ments and schedules of FCX examined by them and
included in the Registration Statement comply in
form in all material respects with the applicable
accounting requirements of the 1933 Act and the
related published rules and regulations
thereunder;
(ii) they have made a review in accordance
with standards established by the American
Institute of Certified Public Accountants of the
unaudited condensed consolidated statements of
income, consolidated balance sheets and
consolidated statements of cash flows included in
the Prospectus as indicated in their reports
thereon copies of which have been separately
furnished to you; and on the basis of specified
procedures including inquiries of officials of the
Company who have responsibility for financial and
accounting matters regarding whether the unaudited
condensed consolidated statements of income,
balance sheets and statements of cash flows
included in the Registration Statement comply as
to form in all material respects with the
applicable accounting requirements of the Act and
the related published rules and regulations,
nothing came to their attention that caused them
to believe that the unaudited condensed
consolidated financial statements do not comply as
to form in all material respects with the
applicable accounting requirements of the Act and
the Exchange Act and the related published rules
and regulations or that any material modifications
should be made to the unaudited condensed
consolidated financial statements, for them to be
in conformity with generally accepted accounting
principles;
(iii) on the basis of a reading of the
latest available interim financial statements of
FCX, inquiries of officials of FCX who have
responsibility for financial and accounting
matters and other specified procedures, nothing
came to their attention that caused them to
believe that:
(A) at a specified date not more than
five days prior to the date of this
Agreement, there was any change in the
capital stock or any increase in short-term
indebtedness or long-term debt of FCX and its
subsidiaries consolidated or, at the date of
the latest available balance sheet read by
such accountants, there was any decrease in
consolidated net current assets, net assets
or stockholders' equity, as compared with
amounts shown on the latest balance sheet
included or incorporated by reference in the
Prospectus; or
(B) for the period from the closing date
of the latest income statement included in
the Prospectus to a subsequent specified date
not more than five days prior to the date of
this Agreement, there were any decreases, as
compared with the corresponding period of the
previous year, in consolidated net sales or
net operating income, or in the total or per-
share amounts of consolidated income before
extraordinary items or net income or in the
ratio of earnings to fixed charges;
except in all cases set forth in clauses (A) and
(B) above for changes, increases or decreases
which the Registration Statement, the Prospectus
and any amendment or supplement thereto disclose
have occurred or may occur or which are described
in such letter; and
(iv) they have compared specified dollar
amounts (or percentages derived from such dollar
amounts) and other financial information contained
in the Registration Statement (to the extent that
such dollar amounts, percentages and other
financial information are derived from the general
accounting records of FCX and its subsidiaries
subject to the internal controls of FCX's
accounting system or are derived directly from
such records by analysis or computation) with the
results obtained from inquiries, a reading of such
general accounting records and other procedures
specified in such letter and have found such
dollar amounts, percentages and other financial
information to be in agreement with such results,
except as otherwise specified in such letter.
All financial statements and schedules included in
material incorporated by reference into the
Registration Statement or the Prospectus shall be
deemed included in such documents for purposes of this
subsection.
(c) Subsequent to the execution and delivery of
this Agreement, there shall not have occurred (i) any
material change, on a consolidated basis, in the
capital stock (changes (x) resulting from repurchases
by FCX of shares of the FCX Common Stock in an amount
not exceeding the shares described in the Prospectus as
having been repurchased through the date as which such
information is given in the Prospectus or (y) in
connection with the conversion or exchange of any
security of FCX outstanding on the date as of which
such information is given in the Prospectus shall not
constitute material changes in capital stock for
purposes of this Section 6(c)), short-term debt or
long-term debt of FCX and its subsidiaries (other than
borrowings under the Credit Facilities as set forth in
the Prospectus) (ii) any change, or any development
involving a prospective change, in or affecting
particularly the business or properties of FCX or its
subsidiaries which, in the judgment of a majority in
interest of the Underwriters, including you, materially
impairs the investment quality of the Securities;
(iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange or
the American Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension
of trading of any securities of FCX on any exchange or
in the over-the-counter market; (iv) any banking
moratorium declared by Federal or New York authorities;
or (v) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration
of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters,
including you, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion
of the sale of and payment for the Securities.
(d) You shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., special counsel for FCX, to
the effect that:
(i) FCX has been duly incorporated and is an
existing corporation in good standing under the
laws of the State of Delaware and PT-FI has been
domesticated and is in good standing under the
laws of the State of Delaware;
(ii) The Indenture has been duly authorized,
executed and delivered by FCX and has been duly
qualified under the 1939 Act; the Senior Notes
have been duly authorized, executed, issued and
delivered by FCX and authenticated by the Trustee;
and the Indenture and the Senior Notes constitute
valid and binding obligations of FCX, enforceable
in accordance with their respective terms, subject
to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of
general applicability relating to or affecting
creditors' rights and to general equity
principles;
(iii) The statements in the Registration
Statement, Prospectus and any amendment or
supplement thereto under the captions "Description
of the Senior Notes", Description of Debt
Securities and Guarantees," "Description of
Preferred Stock," "Description of Depositary
Shares" and "Description of Warrants", 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 and the
Securities and the Indenture conform in all
material respects to the descriptions thereof in
the Registration Statement, Prospectus and any
amendment or supplement thereto;
(iv) This Agreement has been duly
authorized, executed and delivered by FCX;
(v) The issuance and delivery of the Senior
Notes, the execution and delivery of this
Agreement and the Indenture by FCX, the
consummation by FCX of the transactions herein and
therein contemplated, and compliance by FCX with
the terms of this Agreement, the Indenture and the
Senior Notes 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 FCX 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 States of
Louisiana or New York or the Delaware General
Corporation Law, or of any order, writ, judgment,
decree, determination or award binding on FCX
(assuming compliance with all applicable state
securities and "blue sky" laws); and no consent,
approval, authorization or order of, or filing
with, any court or governmental agency or body is
required for the consummation of the transactions
contemplated by this Agreement, except such as
have been obtained under the 1933 Act and such as
may be required under state laws in connection
with the purchase and distribution of the Senior
Notes by the several Underwriters;
(vi) The Registration Statement has become
effective under the 1933 Act; the Prospectus has
been filed as required by the 1933 Act and the
rules and regulations of the Commission
thereunder; 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 has been issued under the 1933
Act and no proceedings for that purpose have been
instituted or threatened;
(vii) 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 1933 Act,
the 1939 Act and the rules and regulations of the
Commission thereunder; and
(viii) FCX is not an open-end investment
company, unit investment trust or face-amount
certificate company that is or is required to be
registered under the Investment Company Act and is
not a close-end investment company that is
required to be registered under the Investment
Company Act.
In addition, such counsel shall state that they
have participated in conferences with officers and
representatives of FCX, representatives of the
independent accountants of FCX and representatives of
the Underwriters at which the contents of the
Registration Statement, Prospectus and any amendment or
supplement thereto were discussed and have reviewed the
information included therein and, between the date of
the Prospectus Supplement dated November 13, 1996 and
the Closing Date have reviewed certificates of certain
officers of FCX, certain opinions addressed to the
Underwriters and letters addressed to the Underwriters
from FCX's independent accountants and independent
mining engineers, and although such counsel have
undertaken no independent verification of the
information in the Registration Statement, Prospectus
and any amendment or supplement thereto (other than the
information referred to in Section 6(d)(iii) above), on
the basis of the foregoing, such counsel shall state
that they have no reason to believe that any 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 and any
amendments or supplements thereto made by FCX prior to
the Closing Date contained as of its date or contains
as of the Closing Date an untrue statement of a
material fact or omitted or omits, as the case may be,
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 or
the information regarding reserves included or
incorporated by reference in any of such documents.
Such counsel may state that they do not assume
responsibility for the accuracy, completeness or
fairness of the statements contained in the
Registration Statement, Prospectus and any amendment or
supplement thereto (other than the information referred
to in Section 6(d)(iii) above).
Such counsel shall be entitled to state that such
opinion is limited to the Federal laws of the United
States, the laws of the State of New York and the State
of Louisiana and the General Corporation Law of the
State of Delaware.
(e) You shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of
FCX, to the effect that:
(i) Each of FCX and PT-FI has full power and
authority (corporate and other) to conduct its
business as described in the Registration
Statement, Prospectus and any amendment or
supplement thereto 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 FCX
and its subsidiaries;
(ii) FCX's Annual Report on Form 10-K most
recently filed with the Commission and all
subsequent reports filed by FCX on or before the
date of such opinion pursuant to the 1934 Act were
timely filed with the Commission, and such
reports, when they were filed with the Commission,
complied as to form in all material respects with
the requirements of the 1934 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 Registration
Statement, Prospectus and any amendment or
supplement thereto of statutes, legal and
governmental proceedings, contracts and other
documents are accurate and fairly present the
information shown; and such counsel does not know
of any statutes or legal or governmental
proceedings necessary to be described in the
Registration Statement, Prospectus or any
amendment or supplement thereto to make the
statements therein not misleading that are not
described in the manner necessary to make such
statements not misleading, or of any contracts or
documents of a character necessary to be described
in the Registration Statement, Prospectus or any
amendment or supplement thereto to make the
statements therein not misleading (or required to
be filed under the 1934 Act) that are not so
described therein or filed as required;
(iv) The performance of this Agreement, the
Indenture and the Senior Notes 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, the constituent
documents of FCX or PT-FI or any statute, any
agreement or instrument known to such counsel to
which FCX or PT-FI is a party or by which either
of them is bound or to which any of the property
of either 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 FCX or PT-FI or any of their respective
properties; and no consent, approval,
authorization or order of, or filing with, any
governmental agency or body or any court is
required for the issuance and delivery of the
Senior Notes, the compliance by FCX or PT-FI, as
the case may be, with the terms thereof or the
consummation of the transactions contemplated by
this Agreement; and
(v) All the issued shares of capital stock
of PT-FI shown in the Registration Statement,
Prospectus and any amendment or supplement thereto
as beneficially owned by FCX have been duly and
validly authorized and issued and are fully paid
and non-assessable and are so owned subject to no
security interest, other encumbrance or adverse
claim.
(f) You shall have received the opinion, dated the
Closing Date, of ▇▇▇ ▇▇▇▇▇▇▇▇▇, Nugroho, Reksodiputro,
special Indonesian counsel for FCX, 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 the Republic of Indonesia or to
any subdivision thereof is required to permit PT-
FI to carry out its operations, including those
described in the Registration Statement,
Prospectus and any amendment or supplement
thereto; 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; however, as disclosed in the
Prospectus certain additional authorizations and
consents will be required in connection with
PT-FI's proposed mining and milling expansion; 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.
(g) You shall have received from ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the
validity of the Senior Notes, the Registration
Statement, Prospectus and any amendment or supplement
thereto, and other related matters as you may require,
and FCX shall have furnished to such counsel such
documents as they request for the purpose of enabling
them to pass upon such matters. Such counsel shall be
entitled to state that such opinion is limited to the
Federal laws of the United States, the laws of the
State of New York and the General Corporation Law of
the State of Delaware.
(h) You shall have received a certificate or
certificates, dated the Closing Date, of the Chairman
of the Board, the Vice Chairman of the Board, the
Executive Vice President, any Senior Vice-President or
any Vice-President, and the treasurer or a principal
financial or accounting officer, of FCX, in which such
officers, to the best of their knowledge after
reasonable investigation, shall state that the
representations and warranties of FCX in this Agreement
are true and correct, that FCX has complied with all
agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the
Closing Date, and that, subsequent to the date of the
most recent financial statements in the Registration
Statement, Prospectus and any amendment or supplement
thereto, there has been no material adverse change in
the financial position or results of operation of FCX
and its subsidiaries taken as a whole except as set
forth in or contemplated by the Registration Statement,
Prospectus and any amendment or supplement thereto or
as described in such certificate.
(i) You shall have received a letter, dated the
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the
requirements of subsection (b) of this Section, except
that the specified date referred to in such subsection
will be a date not more than five days prior to the
Closing Date for the purposes of this subsection.
(j) On or prior to the Closing Date the Securities
shall have been conditionally rated "BBB-" by Standard
& Poor's Corporation ("S&P"), "Ba1" by ▇▇▇▇▇'▇
Investors Services ("▇▇▇▇▇'▇"), and "BBB-" by Fitch
Investors Service ("Fitch", and together with S&P and
▇▇▇▇▇'▇, the "Rating Agencies"), such ratings to be
conditioned only upon such matters as you shall regard
as sufficiently certain to occur, and none of S&P,
Moody's or Fitch shall have withdrawn or qualified such
ratings.
(k) If any condition specified in this Section
shall not have been fulfilled when and as required to
be fulfilled, other than by reason of any default by
the Underwriters, such failure to fulfill a condition
may be waived by the Underwriters, or this Agreement
may be terminated by the Underwriters by notice to FCX
at any time at or prior to the Closing Date, and such
termination shall be without liability of any party to
any other party, except as provided in Sections 5(k)
and 7 hereof. The obligations of the Underwriters may
be terminated by the Underwriters, in their absolute
discretion, by notice given to and received by FCX
prior to delivery of any payment for the Securities,
if, prior to that time, any of the events described in
Section 6(c) have occurred.
7. (a) FCX will indemnify and hold harmless
each Underwriter and each person who controls each
Underwriter within the meaning of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, joint or
several, to which such Underwriters may become subject,
under the 1933 Act or otherwise, arising out of any
untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement,
Preliminary Prospectus, Prospectus or any amendment or
supplement thereto, 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;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, joint or
several, to which such Underwriters may become subject,
under the 1933 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 untrue statement or
alleged untrue statement of a material fact contained
in the Registration Statement, Preliminary Prospectus,
Prospectus or any amendment or supplement thereto 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, if such settlement is effected with the
written consent of FCX, which consent shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as
incurred by each Underwriter (including, subject to
Section 7(c) hereof, the fees and disbursements of
counsel chosen by the Underwriters), 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 untrue statement or alleged untrue statement
of a material fact contained in the Registration
Statement, Preliminary Prospectus, Prospectus or any
amendment or supplement thereto, 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, 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
FCX by any Underwriter through you expressly for use in the
Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto); and provided, further, that FCX
shall not be liable to any Underwriter under the indemnity
agreement in this Section 7(a) with respect to any
Preliminary Prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold Securities 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 1933 Act if FCX has previously
furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of
a material fact contained in the Preliminary Prospectus
which was corrected in the Prospectus or in the Offering
Circular as then amended or supplemented (in either case
excluding documents incorporated therein by reference).
(b) Each Underwriter agrees to indemnify and hold
harmless FCX and each person who controls FCX within the
meaning of the 1933 Act, to the same extent as the foregoing
indemnity from FCX to the Underwriters, 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 such Underwriter furnished to FCX by such
Underwriter 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, an actual or
potential 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. 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 indemni-
fying 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 7 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). Each indemnified party, as the
condition of the indemnity agreements contained in Sections
7(a) and 7(b), shall use all reasonable efforts to cooperate
with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall be liable for
any settlement for any such action effected without its
written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if
there be a final judgment in favor of the plaintiff of any
such action the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 7 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 FCX on the one
hand and the Underwriters on the other from the offering of
the Securities 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 FCX on the one hand and the Underwriters
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 FCX on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities
(before deducting expenses) received by FCX bear to the
total discounts received by the Underwriters, in each case
as set forth in the table on the cover page of the
Prospectus. 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 FCX on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. FCX and the
Underwriters 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 Underwriters
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 Underwriter shall
be required to contribute any amount in excess of the amount
by which the total price at which the Securities purchased
by it and resold to investors were offered to such investors
exceeds the amount of any damages which such Underwriter 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 1933 Act) shall be entitled
to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations
in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not
joint.
(e) All representations, warranties, and
agreements of FCX herein or in certificates or letters of
officers, delivered pursuant hereto, and the agreements of
the several Underwriters contained in this Section 7, 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 FCX or any Underwriter or any controlling
person, and shall survive delivery of any Securities to the
Underwriters.
8. If any Underwriter or Underwriters default in
their obligations to purchase Securities hereunder and the
aggregate principal amount of the Securities that such
defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total principal amount
of the Securities, you may make arrangements satisfactory to
FCX for the purchase of such Securities by other persons,
including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-
defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to
purchase the Securities that such defaulting Underwriters
agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount
of the Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of
the Securities and arrangements satisfactory to you and FCX
for the purchase of such Securities by other persons are not
made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-
defaulting Underwriter or FCX, except as provided in Section
9. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. The respective indemnities, agreements,
representations, warranties and other statements of FCX or
their officers and of the several Underwriters set forth in
or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as
to the results thereof, made by or on behalf of any
Purchaser, FCX, or any of their respective representatives,
officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this
Agreement is terminated pursuant to Section 6 or 8 or if for
any reason the purchase of the Securities by the
Underwriters is not consummated, FCX shall remain
responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the obligations of FCX pursuant to
Section 7 shall remain in effect.
10. All communications hereunder will be in
writing and, if sent to you, will be mailed, delivered or
transmitted by facsimile and confirmed to you, c/o UBS
Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. 10171,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (with a copy to ▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇.
10004); or if sent to FCX, will be mailed, delivered or
transmitted by facsimile and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, General Counsel; provided, however, that any notice
to an Underwriter pursuant to Section 7 will be mailed,
delivered or transmitted by facsimile and confirmed to such
Underwriter.
11. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the controlling persons referred to in
Section 7, and no other person will have any right or
obligation hereunder.
12. Any action under this Agreement taken by you
jointly or by UBS Securities LLC will be binding upon each
of you.
13. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together
constitute one and the same Agreement.
14. Each of the parties hereto irrevocably agrees
that any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated
hereby may be instituted in any New York court, irrevocably
waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying
of venue of any such proceeding and irrevocably submits to
the jurisdiction of such courts in any such suit, action or
proceeding.
15. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New
York.
If the foregoing is in accordance with your
understanding of our agreement, kindly sign and return to us
one of the counterparts hereof, whereupon it will become a
binding agreement among FCX and the several Underwriters in
accordance with its terms.
Very truly yours,
FREEPORT-McMoRan COPPER & GOLD INC.
By/s/▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice-President and Treasurer
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
UBS SECURITIES LLC
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
CHASE SECURITIES INC.
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CS FIRST BOSTON CORPORATION
By /s/▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
SCHEDULE I
Underwriters Principal Principal
Amount of Amount of
2006 2026
Notes to be Notes
Purchased to be
Purchased
______________ _____________
UBS Securities LLC $66,666,668 $83,333,334
Chase Securities Inc. 66,666,666 83,333,333
CS First Boston Corporation. 66,666,666 83,333,333
______________ ______________
Total 200,000,000 250,000,000