J.P. Morgan
Securities Inc.
277 Park Avenue
New York, New York 10172
Freeport-McMoRan
Copper & Gold Inc., a Delaware corporation (the
“Company”), confirms its agreement with J.P. Morgan
Securities Inc., as agent and/or principal under any Terms
Agreement (as defined in Section 1(a) below) (“you” or
“JPMS”), with respect to the issuance and sale from
time to time by the Company, in the manner and subject to the terms
and conditions described below (this “Agreement”), of
shares (the “Shares”) of common stock, $0.10 par value
per share (the “Common Stock”), of the Company having
an aggregate Gross Sales Price (as defined in Section 2(b) below)
of up to $750,000,000 (the “Maximum Amount”) on the
terms set forth in Section 1 of this Agreement. The Shares are
described in the Prospectus referred to below.
The Company has
filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(No. 333-140997) for the registration of the Shares under the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “Act”);
the Registration Statement (as defined below) sets forth the
material terms of the offering, sale and plan of distribution of
the Shares and contains additional information concerning the
Company and its business. Except where the context otherwise
requires, “Registration Statement”, as used herein,
means the registration statement, as amended at the time of such
registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to JPMS,
including (1) all documents filed as a part thereof or
incorporated, or deemed to be incorporated, by reference therein
and (2) any information contained or incorporated by reference
in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, to the extent such information is deemed, pursuant
to Rule 430B or Rule 430C under the Act, to be part of
the registration statement at the effective time. Except where the
context otherwise requires, “Basic Prospectus”, as used
herein, means the prospectus dated March 1, 2007, filed as
part of the Registration Statement, including the documents
incorporated by reference therein as of the date of such
prospectus. Except where the context otherwise requires,
“Prospectus Supplement”, as used herein, means the most
recent prospectus supplement relating to the Shares, to be filed by
the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after the date hereof (or
such earlier time as may be required under the Act), in the form
furnished by the Company to JPMS in connection with the offering of
the Shares. Except where the context otherwise requires,
“Prospectus”, as used herein, means the Prospectus
Supplement (and any additional prospectus supplement prepared in
accordance with the provisions of Sections 4(b) or 4(h) of this
Agreement and filed in accordance with the provisions of
Rule 424(b)) together with the Basic Prospectus attached to or
used with the Prospectus Supplement. “Permitted Free Writing
Prospectuses”, as used herein, has the meaning set forth in
Section 3(b). Any reference herein to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall, unless
otherwise stated, be deemed to refer to and
include the
documents, if any, incorporated, or deemed to be incorporated, by
reference therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if
any, filed as exhibits to such Incorporated Documents. Any
reference herein to the terms “amend”,
“amendment” or “supplement” with respect to
the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus
shall, unless stated otherwise, be deemed to refer to and include
the filing of any document under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) on or
after the initial effective date of the Registration Statement or
the date of the Basic Prospectus, the Prospectus Supplement, the
Prospectus or such Permitted Free Writing Prospectus, as the case
may be, and deemed to be incorporated therein by
reference.
The Company and
JPMS agree as follows:
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1.
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Issuance and Sale
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(a)
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Upon the basis of the
representations and warranties and subject to the terms and
conditions set forth herein, on any Exchange Business Day (as
defined below) selected by the Company, the Company and JPMS shall
enter into an agreement in accordance with Section 2 hereof
regarding the number of Shares to be placed by JPMS and the manner
in which and other terms upon which such placement is to occur
(each such transaction being referred to as an “Agency
Transaction” or a “Transaction”). The Company may
also offer to sell the Shares directly to JPMS, as principal, in
which event it will enter into a separate agreement (each, a
“Terms Agreement”) in substantially the form of
Exhibit F hereto, relating to such sale in accordance with
Section 2(g) of this Agreement. As used in this Agreement,
(i) the “Term” shall be the period commencing on
the date hereof and ending on the earliest of (x) the date on
which the Gross Sales Price of Shares issued and sold pursuant to
this Agreement and any Terms Agreements is equal to the Maximum
Amount and (y) the termination of this Agreement pursuant to
Section 8 or 9 (the “Termination Date”),
(ii) an “Exchange Business Day” means any day
during the Term that is a trading day for the Exchange, and (iii)
“Exchange” means the New York Stock
Exchange.
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(b)
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Subject to the terms and conditions
set forth below, the Company appoints JPMS as agent in connection
with the offer and sale of Shares in any Agency Transactions
entered into hereunder. JPMS will use commercially reasonable
efforts to sell such Shares in accordance with the terms and
conditions hereof and of the applicable Transaction Notice (as
defined below). Neither the Company nor JPMS shall have any
obligation to enter into an Agency Transaction. The Company shall
be obligated to issue and sell through JPMS, and JPMS shall be
obligated to use commercially reasonable efforts, as provided
herein and in the applicable Transaction Notice, to place Shares
issued by the Company only if and when a Transaction Notice related
to such an Agency Transaction has been delivered by JPMS and
accepted by the Company as provided in Section 2
below.
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(c)
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JPMS, as agent in any Agency
Transaction, hereby covenants and agrees not to make any sales of
the Shares on behalf of the Company, pursuant to this Agreement,
other than (i) by means of ordinary brokers’
transactions between members of the Exchange that qualify for
delivery of a Prospectus in accordance with Rule 153 under the
Act and meet the definition of an “at the market
offering” under Rule 415(a)(4) under the Act (such
transactions are hereinafter referred to as “At the Market
Offerings”) and (ii) such other sales of the Shares on
behalf of the Company in its capacity as agent of the Company as
shall be agreed by the Company and JPMS in writing.
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(d)
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JPMS will confirm in writing to the
Company the number of Shares sold on any Exchange Business Day, the
related Gross Sales Price and, if Shares are to be sold in an
Agency Transaction in an At the Market Offering, the related Net
Sales Price (as each of such terms is defined in Section 2(b)
below) no later than the opening of trading on the immediately
following Exchange Business Day.
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(e)
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If
the Company shall default on its obligation to deliver Shares to
JPMS pursuant to the terms of any Agency Transaction or Terms
Agreement, (i) the Company shall hold JPMS harmless against
any loss, claim or damage arising from or as a result of such
default by the Company and (ii) notwithstanding such default,
pay to JPMS any fee to which it would otherwise be entitled in
connection with such sale.
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2.
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Transaction Notices
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(a)
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The
Company may, from time to time during the Term, propose to JPMS
that they enter into an Agency Transaction, to be executed on a
specified Exchange Business Day or over a specified period of
Exchange Business Days. If JPMS agrees to the terms of such
proposed Transaction or if the Company and JPMS mutually agree to
modified terms for such proposed Transaction, then JPMS shall
promptly send to the Company by the means set forth under
Section 11 hereof a notice, substantially in the form of
Exhibit A hereto (each, a “Transaction Notice”),
confirming the agreed terms of such proposed Transaction. If the
Company wishes such proposed Transaction to become a binding
agreement between it and JPMS, the Company shall promptly indicate
its acceptance thereof by countersigning and returning such
Transaction Notice to JPMS or sending a written acceptance of such
Transaction Notice to JPMS, in each case by the means set forth
under Section 11 hereof. The terms reflected in a Transaction
Notice shall become binding on JPMS and the Company only if
accepted by the Company no later than the times specified in
Section 2(b) below. Each Transaction Notice shall specify, among
other things:
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(i) the Exchange
Business Day(s) on which the Shares subject to such Transaction are
intended to be sold (each, a “Purchase
Date”);
(ii) the maximum
number of Shares that the Company intends to sell (the
“Specified Number of Shares”) on, or over the course
of, such Purchase
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Date(s);
provided that the number of Shares sold on each such
Purchase Date shall be no more than 25% of the average daily
trading volume in the Common Stock on the Exchange for the 30
Exchange Business Days preceding the date of delivery of the
Transaction Notice, or as otherwise agreed between the Company and
JPMS; and
(iii) the lowest
price (if any) at which the Company is willing to sell Shares on
each such Purchase Date (each, a “Floor
Price”).
The Company shall
have responsibility for maintaining records with respect to the
aggregate dollar amount of Shares sold, or for otherwise monitoring
the availability of Shares for sale under the Registration
Statement. In the event that more than one Transaction Notice with
respect to any Purchase Date(s) is accepted by the Company, the
latest of any executed Transaction Notice shall govern any sales of
Shares for the relevant Purchase Date(s), except to the extent of
any action occurring pursuant to a prior accepted Transaction
Notice and prior to the acceptance of such latest Transaction
Notice. The Company or JPMS may, upon notice to the other party
hereto by telephone (confirmed promptly by telecopy or electronic
mail), suspend the offering of the Shares; provided,
however, that such suspension or termination shall not affect
or impair the parties’ respective obligations with respect to
the Shares sold hereunder prior to the giving of such notice.
Notwithstanding the foregoing, if the terms of any Agency
Transaction contemplate that Shares shall be sold on more than one
Purchase Date, then the Company and JPMS shall mutually agree to
such additional terms and conditions as they deem necessary in
respect of such multiple Purchase Dates, and such additional terms
and conditions shall be binding to the same extent as any other
terms contained in the relevant Transaction Notice.
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(b)
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JPMS’s commission shall be
1.25% of the actual sales price of the Shares (the “Gross
Sales Price”) sold pursuant to this Agreement (the Gross
Sales Price less JPMS’s commission is referred to herein at
the “Net Sales Price”) and such rate of compensation
shall not apply when JPMS acts as principal.
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(c)
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Payment of the Net Sales Price for
Shares sold by the Company on any Purchase Date pursuant to a
Transaction Notice shall be made to the Company by federal funds
wire transfer to the account of the Company, the details of which
are set forth on Schedule III hereto, against delivery
of such Shares to JPMS. Such payment and delivery shall be made at
or about 10:00 a.m., local time in New York, New York, on the
third Exchange Business Day (or such other day as may, from time to
time, become standard industry practice for settlement of such a
securities issuance) following each Purchase Date (each, a
“Closing Date”).
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(d)
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If,
as provided in the related Transaction Notice, a Floor Price has
been agreed to by the parties with respect to a Purchase Date, and
JPMS thereafter determines and notifies the Company that the Gross
Sales Price for such Transaction would not be at least equal to
such Floor Price, then the Company shall not be
obligated
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to
issue and sell through JPMS, and JPMS shall not be obligated to
place, the Shares proposed to be sold pursuant to such Transaction
on such Purchase Date.
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(e)
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Under no circumstances shall the
Gross Sales Price of the Shares sold pursuant to this Agreement and
any Terms Agreements exceed the Maximum Amount.
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(f)
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If
either party hereto has reason to believe that the exemptive
provisions set forth in Rule 101(c)(1) of Regulation M
under the Exchange Act are not satisfied with respect to the
Shares, it shall promptly notify the other party and sales of the
Shares under this Agreement, any Transaction Notice or any Terms
Agreement shall be suspended until that or other exemptive
provisions have been satisfied in the judgment of each party. On or
prior to the delivery of a prospectus that is required (whether
physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with the offering or sale of the
Shares, JPMS shall calculate the average daily trading volume (as
defined by Rule 100 of Regulation M under the Exchange
Act) of the Common Stock based on market data provided by Bloomberg
L.P. or such other sources as agreed upon by JPMS and the
Company.
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(g)
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(i) If the Company wishes to
issue and sell the Shares pursuant to this Agreement but other than
as set forth in Section 2(a) of this Agreement (each such sale, a
“Placement”), it will notify JPMS of the proposed terms
of such Placement. If JPMS, acting as principal, wishes to accept
such proposed terms (which it may decline to do for any reason in
its sole discretion) or, following discussions with the Company,
wishes to accept amended terms, JPMS and the Company will enter
into a Terms Agreement setting forth the terms of such
Placement.
(ii) The terms set forth in a Terms Agreement will not be
binding on the Company or JPMS unless and until the Company and
JPMS have each executed such Terms Agreement accepting all of the
terms of such Terms Agreement. In the event of a conflict between
the terms of this Agreement and the terms of a Terms Agreement, the
terms of such Terms Agreement will control.
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(h)
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Each sale of the Shares to JPMS in a
Placement shall be made in accordance with the terms of this
Agreement and a Terms Agreement, which will provide for the sale of
such Shares to, and the purchase thereof by, JPMS. Such Terms
Agreement may also specify certain provisions relating to the
reoffering of such Shares by JPMS. The commitment of JPMS to
purchase the Shares pursuant to any Terms Agreement shall be deemed
to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Any such Terms Agreement
shall specify the number of the Shares to be purchased by JPMS
pursuant thereto, the price to be paid to the Company for such
Shares, any provisions relating to rights of, and default by,
underwriters acting together with JPMS in the reoffering of the
Shares, the time and date (each such time and date being referred
to herein as a “Time of Delivery”) and the place of
delivery of and payment for such Shares.
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(i)
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The
Company agrees that any offer to sell, any solicitation of an offer
to buy, or any sales of Shares or any other equity security of the
Company shall only be effected by or through JPMS on any single
given day; provided, however, that the foregoing limitation
shall not apply to (i) the exercise of any option, warrant,
right or any conversion privilege set forth in the instrument
governing such security or (ii) sales solely to employees or
security holders of the Company or its subsidiaries, or to a
trustee or other person acquiring such securities for the accounts
of such persons.
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3.
Representations and Warranties of the Company . The Company
represents and warrants to JPMS, on and as of (i) the date
hereof, (ii) each date on which the Company accepts a
Transaction Notice (a “Time of Acceptance”),
(iii) each Time of Sale (as defined below) and each Closing
Date (each such date listed in (i) through (iv), a
“Representation Date”) that:
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(a)
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There is no order preventing or
suspending the use of the Registration Statement or the Prospectus;
the Registration Statement complied when it initially became
effective, complies as of the date hereof and, as amended or
supplemented, at each Representation Date will comply, in all
material respects, with the requirements of the Act; the conditions
to the use of Form S-3 in connection with the offering and sale of
the Shares as contemplated hereby have been satisfied; the
Registration Statement meets, and the offering and sale of the
Shares as contemplated hereby complies with, the requirements of
Rule 415 under the Act (including, without limitation,
Rule 415(a)(5)); the Prospectus complied or will comply, at
the time it was or will be filed with the Commission and complies
as of each Representation Date, in all material respects, with the
requirements of the Act; the Registration Statement did not, as of
the time of its initial effectiveness, 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; as of each Time of Acceptance, each Time of Sale and
each Closing Date, the Prospectus, as then amended or supplemented,
together with all of the then issued Permitted Free Writing
Prospectuses, if any, will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading ; provided,
however, that the Company makes no representation or warranty
with respect to any statement contained in the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus
in reliance upon and in conformity with information concerning JPMS
and furnished in writing by or on behalf of JPMS expressly for use
in the Registration Statement, the Prospectus or such Permitted
Free Writing Prospectus, which consists of the information set
forth on Schedule II hereto (the “Agent
Information”). “Time of Sale” means,
(i) with respect to each offering of Shares pursuant to this
Agreement, the time of JPMS’s initial entry into contracts
with investors for the sale of such Shares and (ii) with
respect to each offering of Shares pursuant to any relevant Terms
Agreement, the time of sale of such Shares.
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(b)
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Prior to the execution of this
Agreement, the Company has not, directly or indirectly, offered or
sold any of the Shares by means of any “prospectus”
(within the meaning of the Act) or used any
“prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other
than the Basic Prospectus. The Company represents and agrees that,
unless it obtains the prior consent of JPMS, until the termination
of this Agreement, it has not made and will not make any offer
relating to the Shares that would constitute an “issuer free
writing prospectus”, as defined in Rule 433, or that
would otherwise constitute a “free writing prospectus”,
as defined in Rule 405. Any such free writing prospectus
relating to the Shares consented to by JPMS is hereinafter referred
to as a “Permitted Free Writing Prospectus”. The
Company represents that it has complied and will comply in all
material respects with the requirements of Rule 433 applicable
to any Permitted Free Writing Prospectus, including timely filing
with the Commission where required, legending and record keeping.
The conditions set forth in one or more of subclauses
(i) through (iv), inclusive, of Rule 433(b)(1) under the
Act are satisfied, and the registration statement relating to the
offering of the Shares contemplated hereby, as initially filed with
the Commission, includes a prospectus that, other than by reason of
Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act; neither the Company nor
JPMS is disqualified, by reason of subsection (f) or (g) of
Rule 164 under the Act, from using, in connection with the
offer and sale of the Shares, “free writing
prospectuses” (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Company is
not an “ineligible issuer” (as defined in Rule 405
under the Act) as of the eligibility determination date for
purposes of Rules 164 and 433 under the Act with respect to
the offering of the Shares contemplated by the Registration
Statement.
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(c)
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The
Incorporated Documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and none of such documents
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, in light of the circumstances under
which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement,
the Prospectus or any Permitted Free Writing Prospectus, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as
applicable.
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(d)
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The
consolidated financial statements of the Company and its
subsidiaries and of Phelps Dodge Corporation (“Phelps
Dodge”) and its subsidiaries and the related notes thereto
included or incorporated by reference in the Registration
Statement, the Prospectus and any Permitted Free Writing Prospectus
comply in all material respects with the applicable requirements of
the Act and the Exchange Act, as applicable, and present fairly the
financial position of (i) the Company and its consolidated
subsidiaries, in the case of the consolidated financial statements
of the Company and its subsidiaries, and (ii) Phelps Dodge and
its consolidated subsidiaries, in the case of the consolidated
financial statements of Phelps Dodge
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and
its subsidiaries, in each case as of the dates indicated and the
results of their respective operations and the changes in their
respective cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods covered thereby, except as otherwise disclosed in the
financial statement footnotes, and the supporting schedules
included or incorporated by reference in the Registration
Statement, the Prospectus and any Permitted Free Writing Prospectus
present fairly the information required to be stated therein; the
other financial information included or incorporated by reference
in the Registration Statement, the Prospectus and any Permitted
Free Writing Prospectus has been derived from the accounting
records of the Company and its subsidiaries or Phelps Dodge and its
subsidiaries, as the case may be, and presents fairly the
information shown thereby; and the pro forma financial information
and the related notes thereto included or incorporated by reference
in the Registration Statement, the Prospectus and any Permitted
Free Writing Prospectus have been prepared in accordance with the
applicable requirements of the Act and the Exchange Act, as
applicable, and the assumptions underlying such pro forma financial
information are reasonable and are included or incorporated by
reference in the Registration Statement, the Prospectus and any
such Permitted Free Writing Prospectus.
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(e)
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Since the date of the most recent
financial statements of the Company included or incorporated by
reference in the Registration Statement, the Prospectus and any
Permitted Free Writing Prospectus, (i) no material change in
the capital stock or long-term debt of the Company or any of its
subsidiaries has occurred, (ii) no dividend or distribution of
any kind has been declared, set aside for payment, paid or made by
the Company on any class of capital stock, except dividends
declared and paid pursuant to the terms of the Company’s
outstanding preferred stock, (iii) there has not been any
material adverse change, nor any development that would reasonably
be expected to have a material adverse change, in or affecting the
business, properties, management, financial position, results of
operations or prospects of the Company and its subsidiaries, taken
as a whole, (iv) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is
material to the Company and its subsidiaries, taken as a whole, or
incurred any liability or obligation, direct or contingent, that is
material to the Company and its subsidiaries, taken as a whole, and
(v) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority that, in the case of this clause (v),
individually or in the aggregate, has had or would reasonably be
expected to have a Material Adverse Effect (as defined in Section
3(f)), except, in each case (i) through (v), as otherwise
disclosed in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus.
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(f)
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The
Company and each of its Identified Subsidiaries (as defined below)
have been duly organized and are validly existing and in good
standing under the laws of
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their respective jurisdictions of
organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure
to be so qualified, in good standing or have such power or
authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management,
financial position, results of operations or prospects of the
Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”). As used in this Agreement,
“Identified Subsidiary” means the subsidiaries listed
in Schedule I to this Agreement. The Company does not
have any significant subsidiaries that are not listed on
Schedule I hereto.
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(g)
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The
Company has an authorized capitalization as set forth in the
Registration Statement, the Prospectus and any Permitted Free
Writing Prospectus; all the outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; except as described in or expressly
contemplated by the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or
options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interests in the
Company or any of its subsidiaries, nor any contracts, commitments,
agreements, understandings or arrangements of any kind relating to
the issuance of any capital stock of the Company or any such
subsidiary, any such convertible or exchangeable securities or any
such rights, warrants or options; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Registration Statement, the Prospectus and any
Permitted Free Writing Prospectus; and all the outstanding shares
of capital stock or other equity interests of each Identified
Subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable (except, in the case of
any foreign subsidiary, for directors’ qualifying shares) and
are owned directly or indirectly by the Company, free and clear of
any lien, charge, encumbrance, security interest, restriction on
voting or transfer or any other claim of any third party (except as
otherwise described in the Registration Statement, the Prospectus
or any Permitted Free Writing Prospectus).
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(h)
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The
Company has full right, power and authority to execute and deliver
this Agreement and any Terms Agreement and perform its obligations
hereunder or thereunder; and all action required to be taken for
the due and proper authorization, execution and delivery by it of
this Agreement and any Terms Agreement and the consummation by it
of the transactions contemplated hereby and thereby has been duly
and validly taken (or, in the case of any Terms Agreement, such
action will have been duly and validly authorized), subject, in the
case of the issuance and sale of Shares, to the execution and
delivery of a Transaction Notice by the persons specified in the
resolutions of the pricing committee of the Company’s board
of directors.
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(i)
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This Agreement has been, and any
Terms Agreement will have been, duly authorized, executed and
delivered by the Company.
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(j)
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This Agreement conforms in all
material respects to the description thereof contained in the
Registration Statement, the Prospectus and any Permitted Free
Writing Prospectus.
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(k)
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The
Shares to be issued and sold by the Company hereunder or under any
Terms Agreement have been duly authorized by the Company and, when
issued and delivered and paid for as provided herein or in any
Terms Agreement, will be duly and validly issued, will be fully
paid and nonassessable and will conform to the description thereof
in the Registration Statement, the Prospectus, and any Permitted
Free Writing Prospectus; the Shares and all other shares of
outstanding capital stock of the Company conform to the description
thereof contained in the Registration Statement, the Prospectus and
any Permitted Free Writing Prospectus; and the shareholders of the
Company do not have any preemptive or similar rights with respect
to the Shares.
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(l)
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Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject; or (iii) in
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and
(iii) above, for any such default or violation that would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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(m)
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The
execution, delivery and performance by the Company of this
Agreement or any Terms Agreement, the issuance and sale of the
Shares, the compliance by the Company with the terms hereof or of
any Terms Agreement and the consummation of the transactions
contemplated hereby or by any Terms Agreement will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its Identified Subsidiaries or (iii) result
in the violation of any law or statute or any judgment, order, rule
or regulation of any court or arbitrator or governmental
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or regulatory
authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation or
default that would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
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(n)
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No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of this Agreement or any Terms
Agreement, the issuance and sale of the Shares and compliance by
the Company with the terms hereof or of any Terms Agreement and the
consummation of the transactions contemplated hereby or by any
Terms Agreement, except for those that have been obtained and for
the registration of the Shares under the Act and such consents,
approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities
laws.
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(o)
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Except as described in the
Registration Statement, the Prospectus or any Permitted Free
Writing Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is the subject
that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect; to the best knowledge
of the Company, no such investigations, actions, suits or
proceedings are threatened or contemplated by any governmental or
regulatory authority or threatened by others; and (i) there
are no current or pending legal, governmental or regulatory
actions, suits or proceedings that are required under the Act to be
described in the Registration Statement or the Prospectus that are
not so described in the Registration Statement or the Prospectus
and (ii) there are no statutes, regulations or contracts or
other documents that are required under the Act to be filed as
exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus that are not so filed as
exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus.
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(p)
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Ernst & Young LLP, who have
audited certain consolidated financial statements of the Company
and its subsidiaries are independent public accountants with
respect to the Company and its subsidiaries within the applicable
rules and regulations adopted by the Commission and the Public
Company Accounting Oversight Board (United States) (the
“PCAOB”) and as required by the Act.
PricewaterhouseCoopers LLP, who have audited certain consolidated
financial statements of Phelps Dodge and its subsidiaries, were
independent public accountants with respect to Phelps Dodge and its
subsidiaries within the applicable rules and regulations adopted by
the Commission and the PCAOB and as required by the Act at the
dates of the financial statements of Phelps Dodge and its
subsidiaries incorporated by reference in the Registration
Statement and the Prospectus.
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(q)
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The
Company and its subsidiaries have good and marketable title in fee
simple to, or have valid rights to lease or otherwise use, all
items of real and personal
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property that are material to the
businesses of the Company and its subsidiaries, taken as a whole,
in each case free and clear of all liens, encumbrances, claims and
defects and imperfections of title except those that (i) do
not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries, (ii) are
disclosed in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus or (iii) would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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(r)
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The
Company and its subsidiaries own or possess adequate rights to use
all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct, in all material respects, of their businesses, taken as a
whole; and the conduct of their businesses, taken as a whole, will
not conflict in any material respect with any such rights of
others, and the Company and its subsidiaries have not received any
notice of any material claim of infringement or conflict with any
such rights of others.
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(s)
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No
relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders or other affiliates of the
Company or any of its subsidiaries, on the other, that is required
by the Act to be described in the Registration Statement or the
Prospectus and that is not so described in such
documents.
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(t)
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Neither the Company nor any of its
subsidiaries is, and after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as
described in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus, will not be an “investment
company” or an entity “controlled” by an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
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(u)
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The
Company and its subsidiaries have filed all federal, state, local
and foreign tax returns required to be filed or have requested
extensions of the filing deadlines therefore, except in any case
where the failure to so file would not reasonably be expected to
have a Material Adverse Effect; the Company and its subsidiaries
have paid all federal, state, local and foreign taxes required to
be paid through the date hereof, except any such taxes that are
being contested in good faith by appropriate proceedings and for
which the Company, to the extent required by generally accepted
accounting principles (“GAAP”), has set aside on its
books adequate reserves, except for any inadequate reserves that
would not, individually or in the aggregate, have a Material
Adverse Effect; and except as otherwise disclosed in the
Registration Statement, the Prospectus or any Permitted Free
Writing Prospectus, there is no tax deficiency that has been, or
would reasonably be expected to be, asserted against the Company or
any of its subsidiaries or any
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of their
respective properties or assets, except those as would not,
individually or in the aggregate, have a Material Adverse
Effect.
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(v)
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The
Company and its subsidiaries possess all licenses, certificates,
permits and other authorizations issued by, and have made all
declarations and filings with, the appropriate federal, state,
local or foreign governmental or regulatory authorities that are
necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses as described in the
Registration Statement, the Prospectus and any Permitted Free
Writing Prospectus, except where the failure to possess or make the
same would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and except as
described in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus, neither the Company nor any of
its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the
ordinary course, except where such revocation, modification or
renewal would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
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(w)
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Except as described in the
Registration Statement, Prospectus or any Permitted Free Writing
Prospectus, no labor disturbance by or dispute with employees of
the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is contemplated or threatened, except for those as
would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.
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(x)
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(i) Except as described in the
Registration Statement, the Prospectus or any Permitted Free
Writing Prospectus, the Company and its subsidiaries (A) are,
and at all prior times were, in compliance with any and all
applicable federal, state, local and foreign laws, rules,
regulations, requirements, decisions and orders relating to the
pr
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