Exhibit 7
Execution Copy
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated as of
March 22, 2004, is by and between Freeport-McMoRan Copper & Gold Inc.
("Freeport") and Rio Tinto plc ("Rio Tinto") and Rio Tinto International
Holdings Limited, a wholly owned subsidiary of Rio Tinto ("Holdings").
WHEREAS, Holdings owns 23,931,100 shares of Class B Common Stock
of Freeport (the "Shares"), and Rio Tinto desires to permit Holdings to
sell and Freeport desires to purchase all of the Shares for the
consideration and on the terms and conditions set forth in this Agreement;
WHEREAS, Rio Tinto has the right pursuant to the Registration
Rights Agreement dated as of May 12, 1995, between Freeport, on the one
hand, and Rio Tinto (then named The RTZ Corporation PLC), Rio Tinto America
Holdings Inc. (then named RTZ America, Inc.) and Rio Tinto Indonesia
Limited (then named RTZ Indonesia Limited), on the other hand (the
"Registration Rights Agreement"), to cause Freeport to register the Shares
for sale by Holdings in a public offering;
WHEREAS, Freeport and Rio Tinto have concluded that, in lieu of a
registered public offering, it would be in the best interest of both
companies for Freeport to purchase the Shares using the proceeds derived
from a simultaneous sale of convertible preferred stock pursuant to the
Preferred Stock Offering; and
WHEREAS, in addition to the terms defined herein, capitalized
terms used herein are defined in Article 9 hereof.
NOW, THEREFORE, in consideration of the respective
representations, warranties and covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Freeport, Rio Tinto and Holdings, the parties agree as
follows:
ARTICLE 1
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of
this Agreement, at the Closing Holdings shall sell to Freeport, and
Freeport shall purchase from Holdings, the Shares, free of any and all
Liens.
1.2 Purchase Price. The aggregate purchase price (the "Purchase
Price") for the Shares shall equal 97% of the product of 23,931,100 and the
price of a share of Freeport's Class B Common Stock that is used to
establish the conversion price of the convertible preferred stock to be
sold in the Preferred Stock Offering (the "Freeport Share Reference
Price").
ARTICLE 2
CLOSING
2.1 Closing. The closing of the purchase and sale of the Shares
(the "Closing") shall occur on the Preferred Stock Offering Closing Date at
the offices of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, One New York
Plaza, New York, New York, at 11:00 a.m., or on such other date and at such
other time and place as the parties shall agree in writing; provided that
if any of the conditions to Closing required by Article 6 has not been met
or waived by the party or parties entitled so to waive by April 15, 2004,
this Agreement (other than Section 8.2 and Article 10) shall, unless the
parties otherwise agree, automatically terminate and no party shall have
any claim of any nature whatsoever against any other party under this
Agreement (save as provided in Section 8.2).
2.2 Closing Obligations. At the Closing and subject to the terms
and conditions herein contained:
(a) Freeport shall deliver to Holdings the Purchase Price in
cash by wire transfer to an account or accounts, which shall be specified
in writing by Rio Tinto to Freeport not less than 24 hours prior to the
Closing.
(b) Holdings shall deliver to Freeport the stock
certificates representing the Shares duly endorsed by Holdings to Freeport.
(c) The parties shall deliver to each other:
(1) the certificates and opinions referred to in Article
6;
(2) satisfactory evidence of the termination of each of
the Registration Rights Agreement and the 1995 Share
Acquisition Agreement; and
(3) such other documents as may be necessary to
consummate the transactions contemplated hereunder.
(d) The parties shall take such other actions as are
required to consummate the transactions contemplated by this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF RIO TINTO AND HOLDINGS
Rio Tinto and Holdings represent and warrant to Freeport with
respect to itself as follows:
3.1 Organization. Each of Rio Tinto and Holdings is a company
duly organized and validly existing under the laws of England and has full
power and authority to own and lease its properties and assets, including
the Shares, and to carry on its business as it is now being conducted.
3.2 Authority. Rio Tinto and Holdings each has all necessary
corporate power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by each of Rio Tinto and
Holdings and constitutes a valid and legally binding obligation of each of
Rio Tinto and Holdings, enforceable against Rio Tinto and Holdings in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws or court decisions relating to or affecting creditors' rights
generally and principles limiting the availability of equitable remedies.
3.3 No Approvals or Conflicts. Neither the execution, delivery or
performance by Rio Tinto and Holdings of this Agreement nor the
consummation of the transactions contemplated by this Agreement does or
will (a) violate, conflict with or result in the breach of any provision of
the organizational documents of Rio Tinto or Holdings, (b) violate,
conflict with or result in a breach of any provision of, or constitute a
default under, or result in the termination or cancellation of, or
accelerate the performance required by, or result in the creation of any
Lien upon the Shares under, any note, bond, mortgage, indenture, license,
lease, contract, agreement or other instrument or commitment or obligation
to which Rio Tinto or Holdings may be bound or that may affect the Shares,
(c) violate any order, writ, injunction, decree, judgment, ruling, law,
rule or regulation of any Governmental Entity, domestic or foreign,
applicable to Rio Tinto or Holdings or any of their respective properties,
or (d) require any consent, approval or authorization of, or notice to, or
declaration, filing or registration with, any Governmental Entity in
connection with the execution, delivery and performance of this Agreement
by Rio Tinto or Holdings.
3.4 Ownership of Shares. Holdings is the sole legal and record
owner of the Shares, has good and valid title to the Shares, and has the
sole and absolute right to sell and transfer the Shares in accordance with
this Agreement, free and clear of all Liens.
3.5 Broker's Fees. No agent, broker, person or firm acting on
behalf of Rio Tinto or Holdings is, or will be, entitled to any commission
or broker's fees from Freeport or any Affiliate of Freeport, in connection
with the Stock Sale.
3.6 Disclosure. None of this Agreement, any certificate delivered
in accordance with the terms hereof and any document or statement in
writing that has been supplied by or on behalf of Rio Tinto or Holdings in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact, or omits any statement of a material fact
necessary in order to make the statements contained herein or therein not
misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF FREEPORT
Freeport hereby represents and warrants to Rio Tinto and Holdings
as follows:
4.1 Corporate Existence. Freeport is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has full power and authority to own and lease its
properties and assets and to carry on its business as it is now being
conducted.
4.2 Authority. Freeport has all necessary corporate power and
authority to execute, deliver and perform this Agreement and to consummate
the transactions contemplated hereby. This Agreement has been duly executed
and delivered by Freeport and constitutes a valid and legally binding
obligation of Freeport, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws or court decisions
relating to or affecting creditors' rights generally and principles
limiting the availability of equitable remedies.
4.3 No Approvals or Conflicts. Neither the execution, delivery or
performance by Freeport of this Agreement nor the consummation by it of the
transactions contemplated by this Agreement (including, without limitation,
the Preferred Stock Offering), does or will (a) violate, conflict with or
result in the breach of any provision of its organizational documents, (b)
violate, conflict with or result in a breach of any provision of, or
constitute a default under, or result in the termination or cancellation of,
or accelerate the performance required by, or result in the creation of any
Lien upon any of its properties or assets under, any note, bond, mortgage,
indenture, license, lease, contract, agreement or other instrument or
commitment or obligation to which it or any of its properties may be bound or
affected, (c) violate any order, writ, injunction, decree, judgment, ruling,
law, rule or regulation of any Governmental Entity, domestic or foreign,
applicable to it or any of its respective properties, or (d) require any
consent, approval or authorization of, or notice to, or declaration, filing
or registration with, any Governmental Entity in connection with the
execution, delivery and performance of this Agreement by it.
4.4 Broker's Fees. No agent, broker or other person acting on
behalf of Freeport is, or will be, entitled to any commission or broker's
fees from Rio Tinto, Holdings or any of their Affiliates in connection with
the Stock Sale.
4.5 Disclosure. None of this Agreement, any certificate delivered
in accordance with the terms hereof and any document or statement in
writing that has been supplied by or on behalf of Freeport in connection
with the transactions contemplated hereby contains any untrue statement of
a material fact, or omits any statement of a material fact necessary in
order to make the statements contained herein or therein not misleading.
ARTICLE 5
OTHER COVENANTS
5.1 Cooperation and Best Efforts. Each party will cooperate with
the other and use its reasonable best efforts to satisfy all conditions to
the Closing and to effect the Stock Sale at the earliest practicable date.
5.2 Public Announcements. The parties will consult with each
other before issuing, and will provide each other with a reasonable
opportunity to review and comment upon, any press release or other public
statement regarding the transactions contemplated by this Agreement, and
shall not issue any such press release or make any such public statement
without the consent of the other party, except as may be required by
applicable law, rule or regulation, by court process, or by obligations
pursuant to any listing agreement with or requirements of any national
securities exchange or transaction reporting system so long as the other
party is notified promptly by the disclosing party of such press release or
public statement. The parties acknowledge that, with respect to these
transactions, Rio Tinto and Holdings will file an amendment to their report
on Schedule 13D and Freeport will file a current report on Form 8-K.
5.3 Preferred Stock Offering. Freeport agrees that the Preferred
Stock Offering will commence with the indicative terms to which Rio Tinto
previously agreed. Because substantially all of the Purchase Price must be
funded out of the net proceeds of the Preferred Stock Offering, Freeport
will use its reasonable best efforts to conduct and consummate the
Preferred Stock Offering. Freeport will consult with Rio Tinto and its
advisers in relation to the conduct of the Preferred Stock Offering.
5.4 Waiver of Rights. Pursuant to Section 11 of the 1995 Share
Acquisition Agreement, Rio Tinto has certain preemptive rights and first
offer rights if Freeport proposes to issue shares of its common stock,
including shares convertible into its common stock. Rio Tinto hereby waives
those rights with respect to the Preferred Stock Offering.
ARTICLE 6
CONDITIONS TO THE CLOSING
6.1 Conditions to Each Party's Obligation. The obligations of
each party hereto to consummate the transactions contemplated by this
Agreement are subject to the satisfaction or waiver on or prior to the
Closing (but, with regard to the condition set forth in paragraph (c), on
the Pricing Date) of the following conditions:
(a) No Injunction. The consummation of the transactions
contemplated by this Agreement shall not be prohibited or restricted by any
injunction or order of any Governmental Entity and no statute, rule,
regulation, executive order or decree shall have been enacted, promulgated
or enforced that prohibits, makes illegal or unlawful, or materially and
adversely restricts the transactions contemplated by this Agreement.
(b) Preferred Stock Offering. The Preferred Stock Offering
shall have closed.
(c) Pricing of Preferred Stock Offering. On the Pricing
Date, Rio Tinto shall have confirmed to Freeport that it is satisfied with
the Freeport Share Reference Price.
6.2 Additional Conditions to Freeport's Obligations. The
obligations of Freeport to consummate the transactions contemplated by this
Agreement are subject to the satisfaction or waiver, prior to or at the
Closing, of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Rio Tinto and Holdings contained in this Agreement shall be
true and correct in all material respects as of the date of Closing.
(b) Compliance with this Agreement. Rio Tinto and Holdings
shall have performed and complied with all covenants and conditions
required by this Agreement to be performed or complied with by them prior
to or at the Closing.
(c) Closing Certificate. Freeport shall have received a
certificate from an appropriate officer of each of Rio Tinto and Holdings
dated as of the date of Closing, certifying that the conditions specified
in Sections 6.2(a) and (b) hereof have been fulfilled.
(d) Secretary's Certificates. Freeport shall have received
copies, certified by the Secretary of each of Rio Tinto and Holdings, of
the resolutions of the Board of Directors (or a committee thereof) of each
of Rio Tinto and Holdings approving and authorizing this Agreement and the
execution of this Agreement and (in the case of Holdings) the Stock Sale.
6.3 Additional Conditions to Obligations of Rio Tinto and
Holdings. The obligations of Rio Tinto and Holdings to consummate the
transactions contemplated by this Agreement are subject to the satisfaction
or waiver, prior to or at the Closing, of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Freeport contained in this Agreement shall be true and
correct in all material respects as of the date of Closing.
(b) Compliance with this Agreement. Freeport shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by it prior to or at the
Closing.
(c) Closing Certificate. Rio Tinto and Holdings shall have
received a certificate from an appropriate officer of Freeport dated the
date of Closing certifying that the conditions specified in Sections 6.3(a)
and 6.3(b) hereof have been fulfilled.
(d) Secretary's Certificate. Rio Tinto and Holdings shall
have received a copy, certified by the Secretary of Freeport, of the
resolutions of the Board of Directors (or a committee thereof) of Freeport
approving and authorizing this Agreement, the execution of this Agreement
and the Stock Sale.
ARTICLE 7
INDEMNIFICATION
7.1 Indemnification.
(a) Subject to the terms and conditions of this Article 7,
Rio Tinto shall, indemnify and hold harmless Freeport and its officers,
directors, employees, agents and representatives (the "Freeport
Indemnitees") from, and will pay to the Freeport Indemnitees the amount
(net of any related insurance proceeds and any related quantifiable tax
benefits) of, any loss, liability, judgment, damage, cost or expense
(including reasonable fees and expenses of attorneys, accountants and other
professional advisors) (collectively, "Losses") arising from or in
connection with any breach of any representation, warranty or covenant of
Rio Tinto or Holdings contained in this Agreement or in any certificate,
agreement or other document delivered pursuant hereto.
(b) Subject to the terms and conditions of this Article 7,
Freeport shall indemnify and hold harmless Rio Tinto, Holdings and their
respective officers, directors, employees, agents and representatives (the
"Rio Tinto Indemnitees") from, and will pay to the Rio Tinto Indemnitees
the amount (net of any related insurance proceeds and any quantifiable tax
benefits) of, any Losses arising from or in connection with any breach of
any representation, warranty or covenant of Freeport contained in this
Agreement or in any certificate, agreement or other document delivered
pursuant hereto.
7.2 Third Party Claims.
(a) Promptly after receipt by a Person entitled to indemnity
under Section 7.1 (an "Indemnified Person") of notice of the assertion by a
third-party of a claim, threatened claim or Proceeding, against it, such
Indemnified Person shall give notice to the Person obligated to indemnify
under such section (an "Indemnifying Person") of the assertion of such
claim, threatened claim or Proceeding, provided that the failure to so
notify the Indemnifying Person shall not relieve the Indemnifying Person of
any liability that it may have to such Indemnified Person, except to the
extent that the defense of such action is prejudiced by the Indemnified
Person's failure to give such notice.
(b) If an Indemnified Person gives notice to the
Indemnifying Person pursuant to Section 7.2(a) of the assertion of a
third-party claim, threatened claim or Proceeding, the Indemnifying Person
shall be entitled to participate in the defense of such third-party claim,
threatened claim or Proceeding and, to the extent that it desires (unless
the Indemnifying Person is also a Person against whom the third-party
claim, threatened claim or Proceeding is made and the Indemnified Person
determines in good faith that joint representation would be inappropriate),
to assume the defense of such third-party claim, threatened claim or
Proceeding with counsel reasonably satisfactory to the Indemnified Person.
After notice from the Indemnifying Person to the Indemnified Person of its
election to assume the defense of such third-party claim, threatened claim
or Proceeding, the Indemnifying Person shall not, so long as it diligently
conducts such defense, be liable to the Indemnified Person under this
Section 7.2 for any fees of other counsel or any other expenses with
respect to the defense of such third-party claim, threatened claim or
Proceeding in each case subsequently incurred by the Indemnified Person in
connection with the defense thereof, other than reasonable costs of
investigation. If the Indemnifying Person assumes the defense of a
third-party claim, threatened claim or Proceeding, no compromise or
settlement of such third-party claim, threatened claim or Proceeding may be
effected by the Indemnifying Person without the Indemnified Person's
consent unless the sole relief provided is monetary damages that are paid
in full by the Indemnifying Person. If notice is given to an Indemnifying
Person of the assertion of any third-party claim, threatened claim or
Proceeding and the Indemnifying Person does not, within 30 days after the
Indemnified Person's notice is given, give notice to the Indemnified Person
of its election to assume the defense of such claim, threatened claim or
Proceeding, the Indemnifying Person will be bound by any determination made
in such claim or any compromise or settlement effected by the Indemnified
Person.
(c) Notwithstanding the foregoing, if an Indemnified Person
determines in good faith that there is a reasonable probability that a
third-party claim may adversely affect it or its Affiliates other than as a
result of monetary damages for which it would be entitled to
indemnification under this Agreement, the Indemnified Person may, by notice
to the Indemnifying Person, participate in the defense, compromise or
settlement of such third-party claim, but the Indemnifying Person will not
be bound by any determination of any third-party claim so defended for the
purposes of this Agreement or any compromise or settlement effected without
its consent (which may not be unreasonably withheld, conditioned or
delayed).
(d) With respect to any claim subject to indemnification
under this Section 7.2, (a) both the Indemnified Person and the
Indemnifying Person, as the case may be, shall keep the other Person fully
informed of the status of such claim and any related Proceedings at all
stages thereof where such Person is not represented by its own counsel, and
(b) the parties agree (each at its own expense) to render to each other
such assistance as they may reasonably require of each other and to
cooperate in good faith with each other in order to ensure the proper and
adequate defense of any claim.
ARTICLE 8
TERMINATION
8.1 Termination. This Agreement may, by notice given prior to the
Closing, be terminated:
(a) By the mutual written consent of Freeport and Rio Tinto.
(b) By Freeport or Rio Tinto if (1) trading generally shall
have been suspended or materially limited on the New York Stock Exchange,
the American Stock Exchange or in the Nasdaq National Market, (2) trading
of any securities issued or guaranteed by Freeport shall have been
suspended on the New York Stock Exchange, the American Stock Exchange or in
the Nasdaq National Market, (3) a general moratorium on commercial banking
activities shall have been declared by federal or New York State
authorities or (4) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets in the United States or in
the international financial markets, or any calamity or crisis, either
within or outside the United States, that is material and adverse and makes
it impracticable or inadvisable to proceed with the Stock Sale.
8.2 Effect of Termination; Survival. If this Agreement is
terminated pursuant to Section 2.1 or Section 8.1 and the transactions
contemplated by this Agreement are not consummated, all rights and
obligations of the parties under or pursuant to this Agreement shall
terminate without further liability of any party to the other parties
hereto except for any liability of a party hereto arising out of a breach
of its representations and warranties contained herein or arising out of a
breach of any covenant in this Agreement prior to the date of termination
or any covenant that survives pursuant to the following sentence. This
Section 8.2 and Article 10 shall survive any termination of this Agreement.
ARTICLE 9
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, each of the following
terms shall have the meanings set forth below:
An "Affiliate" means, with respect to any natural person,
corporation, partnership, limited liability company, trust and any other
entity or organization of any kind ("Person"), any other Person that,
directly or indirectly, through one or more intermediaries, controls, has
the right to control (in fact or by agreement), is controlled by, or is
under control with, such Person. The term "control" as used herein means
possession, directly or indirectly, of the power to direct or cause
direction of management and policies through ownership of voting
securities, contract, voting trust or otherwise.
"Agreement" has the meaning specified in the preamble hereto.
"Closing" has the meaning specified in Section 2.1.
"Freeport" has the meaning specified in the preamble hereto.
"Freeport Indemnitees" has the meaning specified in Section
7.1(a).
"Freeport Share Reference Price" has the meaning specified in
Section 1.2.
"Governmental Entity" means any court or tribunal in any
jurisdiction or any public, governmental or regulatory body, agency,
department, commission, board, bureau or other authority or
instrumentality.
"Holdings" has the meaning specified in the preamble hereto.
"Indemnified Person" has the meaning specified in Section 7.2(a).
"Indemnifying Person" has the meaning specified in Section
7.2(a).
A "Lien" means any title defect, lien, mortgage, pledge, charge,
transfer restriction, right of first refusal, preemptive right, option,
claim, security interest, right of others or other encumbrance of any
nature whatsoever, other than restrictions imposed by federal or state
securities laws.
"Losses" has the meaning specified in Section 7.1(a).
"Person" has the meaning specified in the definition of
"Affiliate" in this Article 9.
"Preferred Stock Offering" means a private offering under Rule
144A promulgated under the Securities Act of 1933 of convertible preferred
stock, having final terms substantially similar to the indicative terms to
which Rio Tinto previously agreed and with final terms satisfactory to
Freeport, for the purpose of generating net proceeds to fund substantially
all of the Purchase Price.
"Preferred Stock Offering Closing Date" means the date on which
Freeport completes the Preferred Stock Offering by selling the convertible
preferred stock contemplated thereby and receiving the proceeds therefrom.
"Pricing Date" means the date on which (a) Freeport enters into a
definitive purchase agreement for the sale of convertible preferred stock
in the Preferred Stock Offering and (b) the Freeport Share Reference Price
shall be established.
"Proceeding" means any action, arbitration, hearing,
investigation, litigation or suit (whether civil, criminal, administrative,
judicial or investigative, whether formal or informal, whether public or
private) commenced, brought, conducted or heard by or before, or otherwise
involving, any Governmental Entity or arbitrator.
"Purchase Price" has the meaning specified in Section 1.2.
"Registration Rights Agreement" has the meaning specified in the
recitals hereto.
"Rio Tinto" has the meaning specified in the preamble hereto.
"Rio Tinto Indemnitees" has the meaning specified in Section
7.1(b).
"Shares" has the meaning specified in the recitals hereto.
"Stock Sale" means the sale of the Shares by Holdings to Freeport
in accordance with this Agreement.
"1995 Share Acquisition Agreement" means the agreement dated as
of May 2, 1995 between Freeport-McMoRan Inc. and Freeport, on the one hand,
and Rio Tinto (then named The RTZ Corporation PLC), Rio Tinto Indonesia
Limited (then named RTZ Indonesia Limited) and Rio Tinto America Holdings
Inc. (then named Rio Tinto America, Inc.), on the other hand, pursuant to
which, among other things, the Shares were issued to an Affiliate of Rio
Tinto.
ARTICLE 10
MISCELLANEOUS
10.1 Amendments and Waivers. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto. By an instrument in writing Freeport, on the one hand, and Rio
Tinto (on behalf of itself and Holdings), on the other hand, may waive
compliance by the other parties with any term or provision of this
Agreement that such other party was or is obligated to comply with or
perform.
10.2 Expenses. Each party shall pay its own expenses incidental
to the preparation of this Agreement, the carrying out of the provisions of
this Agreement and the consummation of the transactions contemplated
hereby. The parties acknowledge that the expenses relating to the Preferred
Stock Offering will be expenses of Freeport.
10.3 Entire Agreement; Amendment. This Agreement sets forth the
entire understanding of the parties hereto with respect to the transactions
contemplated hereby. Any and all previous agreements and understandings
between or among the parties regarding the subject matter hereof, whether
written or oral, are superseded by this Agreement. This Agreement shall not
be amended or modified except by written instrument duly executed by each
of the parties hereto.
10.4 Assignment and Binding Effect. This Agreement is personal to
the parties.
10.5 Waiver. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a
written instrument duly executed by such party.
10.6 Notices. Any notice, request, demand, waiver, consent,
approval or other communication which is required or permitted hereunder
shall be in writing and shall be deemed given only upon of delivery by: (a)
personal delivery to the designated individual; (b) prepaid mail, return
receipt requested; (c) a nationally recognized overnight courier service
with confirmation of receipt; or (d) facsimile transmission with
confirmation of receipt. All such notices must be addressed as follows or
such other address as to which any party hereto may have notified the other
in writing:
If to Freeport, to:
Freeport-McMoRan Copper & Gold Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇) ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, II
Facsimile: (▇▇) ▇▇▇-▇▇▇-▇▇▇▇
If to Rio Tinto or Holdings, to:
Rio Tinto plc
▇ ▇▇. ▇▇▇▇▇'▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇-▇▇▇▇-▇▇▇▇/2113
With a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇) ▇▇▇-▇▇▇-▇▇▇▇
10.7 Governing Law. This Agreement shall be governed by and
interpreted and enforced in accordance with the internal laws and not the
choice of law rules of the State of New York.
10.8 No Benefit to Others. The representations, warranties,
covenants and agreements contained in this Agreement are for the sole
benefit of the parties hereto and, in the case of Article 7 hereof, the
other indemnified parties, and their legal representatives, successors and
assigns, and they shall not be construed as conferring any rights on any
other persons.
10.9 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by reason of
any rule of law or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of the transactions contemplated hereby
is not affected in any adverse manner to either party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible, and
in any case such term or provision shall be deemed amended to the extent
necessary to make it no longer invalid, illegal or unenforceable.
10.10 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when executed and delivered shall be deemed
to be an original and all of which counterparts taken together shall
constitute but one and the same instrument.
[Signatures are on following page.]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written.
FREEPORT-MCMORAN COPPER & GOLD INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President & CEO
RIO TINTO PLC
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive
RIO TINTO INTERNATIONAL HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director