As filed with the Securities and Exchange Commission on November 10, 2014
Registration No. 333-179420
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
Post-Effective
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Freeport-McMoRan Inc.
(Exact Name of Registrant as Specified in Its Charter)
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| Delaware |
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74-2480931 |
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Incorporation or Organization) |
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(I.R.S. Employer Identification Number) |
333 North Central Avenue
Phoenix, Arizona 85004-2189
(602)
366-8100
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant’s Principal Executive Offices)
Douglas N.
Currault II
Assistant General Counsel and Corporate Secretary
333 North Central Avenue
Phoenix, Arizona 85004-2189
(602)
366-8100
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent For Service)
Copy to:
Richard D. Truesdell, Jr.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
(212)
450-4000
Approximate date of
commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only
securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. x
If this Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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| Large accelerated filer |
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x |
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Accelerated filer |
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| Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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¨ |
CALCULATION OF REGISTRATION FEE(1)
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Title Of Each Class Of Securities
To Be Registered |
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Amount To Be
Registered |
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Proposed Maximum
Aggregate Price Per Unit |
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Proposed Maximum
Aggregate Offering Price |
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Amount Of
Registration Fee |
| Common Stock, $0.10 par value |
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| Preferred Stock, $0.10 par value |
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| Debt Securities |
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| Warrants |
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| Purchase Contracts |
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| Units |
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Guarantees(2) |
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An indeterminate amount of securities to be offered at indeterminate prices is being registered pursuant to this registration statement. The registrant is deferring
payment of the registration fee pursuant to Rule 456(b) and is omitting this information in reliance on Rule 456(b) and Rule 457(r). |
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No separate consideration will be received for the Guarantees being registered hereby. Pursuant to Rule 457(n) under the Securities Act, no separate registration fee is
due for guarantees. |
TABLE OF ADDITIONAL REGISTRANT GUARANTOR
The following subsidiary of Freeport-McMoRan Inc., and each other subsidiary that is or becomes a guarantor of the securities registered
hereby, is hereby deemed to be a registrant.
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| Exact Name of Registrant as Specified in Its Charter(1) |
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State or Other
Jurisdiction of
Incorporation or Organization |
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I.R.S.
Employer
Identification
Number |
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Primary Standard
Industrial
Classification Code
Number |
| Freeport-McMoRan Oil & Gas LLC |
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Delaware |
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46-2548126 |
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1311 |
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The address and telephone number of the principal executive office for the additional registrant is c/o Freeport-McMoRan Inc., 333 North Central Avenue, Phoenix,
Arizona 85004-2189, telephone number (602) 366-8100. |
EXPLANATORY NOTE
This post-effective Amendment No. 1 to the Registrants’ Registration Statement on Form S-3 (File No. 333-179420) (the “Original
Filing”) is being filed for the purpose of (i) adding Freeport-McMoRan Oil & Gas LLC (“FM O&G”), an indirect subsidiary of Freeport-McMoRan Inc., as a registrant guarantor to the Original Filing, (ii) modifying the
description of securities that may be offered hereby, (iii) updating certain information in Item 15 of Part II with respect to the Registrant Guarantor and (iv) making certain updates to reflect the name change of the Registrant
Freeport-McMoRan Copper & Gold Inc. to Freeport-McMoRan Inc. For ease of reading, this Amendment amends and restates the Registration Statement and includes certain updates related to the passage of time.
Prospectus
Freeport-McMoRan Inc.
Common stock, Preferred stock, Debt
securities, Warrants, Purchase contracts and units
Freeport-McMoRan Oil & Gas LLC
Guarantees
Freeport-McMoRan Inc.
(“FCX”) may offer from time to time common stock, preferred stock, debt securities, warrants, purchase contracts or units. Such debt securities may be fully and unconditionally guaranteed by Freeport-McMoRan Oil & Gas LLC, an
indirect subsidiary of FCX. In addition, certain selling securityholders to be identified in a prospectus supplement may offer and sell these securities from time to time, in amounts, at prices and on terms that will be determined at the time the
securities are offered. We urge you to read this prospectus and the accompanying prospectus supplement, together with the documents we incorporate by reference, which will describe the specific terms of these securities, carefully before you make
your investment decision.
Our common stock is listed on the New York Stock Exchange under the trading symbol “FCX.”
Investing in these securities involves certain risks. See “Risk Factors” in the applicable Prospectus Supplement and in our most recent annual report on Form 10-K, along with the disclosure related to the risk factors contained in our subsequent reports on Form 10-Q, as updated by our subsequent filings with the SEC, which are
incorporated by reference herein.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of these securities, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
The date of
this prospectus is November 10, 2014
We have not authorized anyone to provide any information other than that contained or incorporated by
reference in this prospectus, in any prospectus supplement we prepare or authorize and in any related free writing prospectus or other information to which we have referred you. We take no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. If you are in a jurisdiction where offers to sell, or solicitations of offers to purchase, the securities offered by this document are unlawful, or if you are a person to whom it is
unlawful to direct these types of activities, then the offer prescribed in this prospectus does not extend to you. You should assume that the information contained and incorporated by reference in this prospectus, any accompanying prospectus
supplement and in any related free writing prospectus filed by us with the Securities and Exchange Commission (the “SEC”) is only accurate as of the respective dates of such documents. Our business, financial condition, results of
operations and prospects may have changed since that date. All references to the “Company,” “FCX,” “we,” “us” and “our” in this prospectus mean Freeport-McMoRan Inc. and its consolidated subsidiaries
and all references to “FM O&G” or the “guarantor” refer solely to Freeport-McMoRan Oil & Gas LLC and not its subsidiaries.
Table of contents
i
About this prospectus
This prospectus is part of a registration statement that we filed with the SEC, utilizing a “shelf” registration process. Under this shelf
process, we may sell any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading “Where you can find more information.”
We have filed or
incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that may be important to you.
Risk factors
Investing in these securities involves certain risks. Please see the “Risk Factors” section in our most recent annual report on Form 10-K, along with the
disclosure related to the risk factors contained in our subsequent quarterly reports on Form 10-Q, which are incorporated by reference in this prospectus, as updated by our subsequent filings with the SEC.
Before making an investment decision, you should carefully consider these risks as well as other information contained or incorporated by reference in this prospectus. The prospectus supplement applicable to each sale of securities we offer pursuant
to this prospectus may contain a discussion of additional risks applicable to an investment in us and the securities we are offering under that prospectus supplement.
Freeport-McMoRan Inc.
Freeport-McMoRan Inc., or FCX, is a
leading international natural resources company with headquarters in Phoenix, Arizona. We operate large, long-lived, geographically diverse assets with significant proven and probable reserves of copper, gold, molybdenum, cobalt, crude oil and
natural gas. We have a dynamic portfolio of operating, expansion and growth projects in the copper industry. We are also the world’s largest producer of molybdenum and a significant gold, oil and natural gas producer. Our portfolio of mining
assets includes the Grasberg minerals district in Indonesia, one of the world’s largest copper and gold deposits; significant mining operations in the Americas, including the large-scale Morenci minerals district in North America and the Cerro
Verde operation in South America; and the Tenke Fungurume minerals district in the Democratic Republic of Congo. Our portfolio of oil and natural gas assets includes oil production facilities in California, significant production facilities and
growth potential in the Deepwater Gulf of Mexico, large onshore resources in the Haynesville natural gas shale play in Louisiana and natural gas production from the Madden area in Wyoming. In addition, we are an industry leader in the emerging
Inboard Lower Tertiary/Cretaceous natural gas trend with sizeable potential, located offshore in the shallow waters of the Gulf of Mexico and onshore in South Louisiana.
FCX’s principal executive offices are located at 333 North Central Avenue, Phoenix, Arizona 85004-2189, and our telephone number at that address is
(602) 366-8100. We maintain a website at http://www.fcx.com, where general information about us is available. Information on or accessible through our website is not a part of, and we are not
incorporating the contents of our website or other such information into, this prospectus.
Use of
proceeds
Unless otherwise indicated in a prospectus supplement, the net proceeds from the sale of the securities will be used for general
corporate purposes, including working capital, acquisitions, retirement of debt and other business opportunities. In the case of a sale by a selling securityholder, we will not receive any of the proceeds from such sale.
1
Ratio of earnings to fixed charges
The following table sets forth our ratio of earnings to fixed charges for the periods indicated.
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Nine Months
Ended
September 30, |
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Years ended December 31, |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
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2009 |
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| Ratio of earnings to fixed charges |
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4.9x |
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7.4x |
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19.8x |
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20.7x |
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16.3x |
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9.3x |
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| Ratio of earnings to combined fixed charges and preferred stock dividends |
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4.9x |
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7.4x |
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19.8x |
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20.7x |
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13.9x |
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6.1x |
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For purposes of computing the consolidated ratio of earnings to fixed charges, earnings consist of income from continuing
operations before income taxes, equity in affiliated companies’ net earnings, and cumulative effect of accounting changes. Non-controlling interests were not deducted from earnings as all such subsidiaries had fixed charges. Fixed charges from
continuing operations consist of interest (including capitalized interest) of all indebtedness; amortization of debt discounts, premiums and expenses; and that portion of rental expense that FCX believes to be representative of interest. For
purposes of calculating the ratio of earnings to combined fixed charges and preferred stock dividends, the preferred stock dividend requirements were assumed to be equal to the pre-tax earnings that would be
required to cover such dividend requirements. The amount of pre-tax earnings required to cover such preferred stock dividends was computed using the effective tax rate for each applicable year.
Description of securities
This prospectus contains a summary of the securities that FCX or certain selling securityholders to be identified in a prospectus supplement may sell. These summaries are not meant to be a complete
description of each security. However, this prospectus and the accompanying prospectus supplement contain the material terms of the securities being offered.
Description of capital stock
The following summary of the terms
of the capital stock of FCX is not meant to be complete and is qualified by reference to the relevant provisions of the General Corporation Law of the State of Delaware (the “Delaware General Corporation Law”) and the FCX certificate of
incorporation and bylaws. Copies of the FCX certificate of incorporation and bylaws are incorporated herein by reference and will be sent to you at no charge upon request. See “Where you can find more information” below.
Authorized capital stock
Under our
certificate of incorporation, our authorized capital stock consists of 1,800,000,000 shares of common stock, $0.10 par value per share, and 50,000,000 shares of preferred stock, $0.10 par value per share. As of October 31, 2014, there were
issued and outstanding 1,039 million shares of common stock (not including 127 million shares held in treasury) and no preferred shares outstanding.
As of September 30, 2014, 45 million shares of common stock were authorized for issuance upon exercise of stock options (of which 35 million were exercisable) and 9 million shares were authorized for
issuance upon the vesting of restricted stock units (of which 6 million are stock-settled restricted stock units and 3 million are cash- settled restricted stock units). In addition, as of September 30, 2014, we also had 1 million stock
appreciation rights outstanding (all of which were exercisable) that will be settled in cash upon exercise.
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Description of common stock
Common stock outstanding. The issued and outstanding shares of common stock are, and the shares of common stock that we may issue in the future will be, validly issued, fully paid and
nonassessable.
Voting rights. Subject to the rights of holders of any subsequently issued shares of preferred stock, holders of common
stock are entitled to elect all of the authorized number of members of the board of directors. Each share of common stock has one vote. With respect to all other matters submitted to a vote of stockholders, except as required by law, the holders of
the common stock vote together as a single class, and record holders have one vote per share.
Dividend rights; rights upon
liquidation. Holders of the common stock will share ratably in any cash dividend that may from time to time be declared with respect to the common stock by our board of directors. In the event of a voluntary or involuntary liquidation,
dissolution or winding up of our company, subject to the rights, if any, of the holders of any outstanding series of preferred stock, the holders of the common stock will share ratably, according to the number of shares held by them, in our
remaining assets, if any.
Other rights. Shares of common stock are not redeemable and have no subscription, conversion or preemptive
rights.
Transfer agent. The transfer agent and registrar for the common stock is Computershare Shareowner Services LLC.
NYSE. Our common stock is listed on the New York Stock Exchange under the symbol “FCX.”
Certain provisions of our certificate of incorporation and by-laws
Supermajority voting/fair price requirements. Our certificate of incorporation provides that the approval of the holders of not less than 66 2/3%
of our outstanding common stock is required for:
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Any merger or consolidation of our company or any of our subsidiaries with or into any person or entity, or any affiliate of that person or entity, who
was within the two years prior to the transaction a beneficial owner of 20 percent or more of our common stock or any class of our common stock, which we refer to as an interested party; |
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any merger or consolidation of an interested party with or into our company or any of our subsidiaries; |
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any sale, lease, exchange, mortgage, pledge, transfer or other disposition of more than 10 percent of the fair market value of the total assets of our
company or any of our subsidiaries in one or more transactions involving an interested party; |
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the adoption of any plan or proposal for liquidation or dissolution of our company proposed by or on behalf of any interested party;
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the issuance or transfer by us or any of our subsidiaries of securities having a fair market value of $10 million or more to any interested party; or
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any recapitalization, reclassification, merger or consolidation of our company or any of our subsidiaries that would increase an interested
party’s voting power in our company or any of our subsidiaries. |
However, the
two-thirds voting requirement is not applicable if:
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our board approves the transaction, or approves the acquisition of the common stock that caused the interested person to become an interested person,
and the vote includes the affirmative vote of a majority of our directors who are not affiliates of the interested party and who were members of our board prior to the time the interested party became the interested party;
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the transaction is solely between us and any of our wholly owned subsidiaries or between any of our wholly owned subsidiaries; or
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the transaction is a merger or consolidation and the consideration to be received by our common stockholders is at least as high as the highest price
per share paid by the interested party for our common stock on the date the common stock was last acquired by the interested party or during a period of two years prior. |
Amendments to supermajority voting requirement. The affirmative vote of at least 66 2/3% of our company’s outstanding common stock is required to amend, alter, change or repeal the provisions
in our certificate of incorporation providing for the supermajority voting/fair price requirements described above.
Effects of authorized
but unissued common stock and blank check preferred stock. One of the effects of the existence of authorized but unissued common stock and undesignated preferred stock may be to enable our board of directors to make more difficult or to
discourage an attempt to obtain control of our company by means of a merger, tender offer, proxy contest or otherwise, and thereby to protect the continuity of management. If, in the due exercise of its fiduciary obligations, the board of directors
were to determine that a takeover proposal was not in our best interest, such shares could be issued by the board of directors without stockholder approval in one or more transactions that might prevent or render more difficult or costly the
completion of the takeover transaction by diluting the voting or other rights of the proposed acquirer or insurgent stockholder group, by putting a substantial voting block in institutional or other hands that might undertake to support the position
of the incumbent board of directors, by effecting an acquisition that might complicate or preclude the takeover, or otherwise.
In addition,
our certificate of incorporation grants our board of directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings
and assets available for distribution to holders of shares of common stock. The issuance also may adversely affect the rights and powers, including voting rights, of those holders and may have the effect of delaying, deterring or preventing a change
in control of our company.
Advance notice of intention to nominate a director. Our by-laws
permit a stockholder to nominate a person for election as a director only if written notice of such stockholder’s intent to make a nomination has been delivered to our Secretary not later than the close of business on the 120th day nor earlier
than the close of business on the 210th day prior to the first anniversary of the preceding year’s annual meeting. This provision also requires that the notice set forth, among other things, a description of all arrangements or understandings
between the nominee and the stockholder pursuant to which the nomination is to be made or the nominee is to be elected and such other information regarding the nominee as would be required to be included in a proxy statement filed pursuant to the
proxy rules promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), had the nominee been nominated by our board. Any nomination that fails to comply with these requirements may be disqualified.
Advance notice of stockholder proposals. Our by-laws permit a stockholder proposal to be presented at a
stockholders’ meeting only if prior written notice of the proposal is provided to us within the time periods and in the manner specified in the by-laws.
No ability of stockholders to call special meetings. Our by-laws deny stockholders the right to call a
special meeting of stockholders, except to the extent that holders of preferred stock have been granted the right to call a special meeting. Our by-laws provide that, except to that extent, only the board of
directors, the chairman of the board, the vice chairman of the board or the president may call special meetings of the stockholders.
Action by written consent. Our by-laws permit our stockholders to take any action required or permitted to
be taken at any annual or special meeting of stockholders by written consent of stockholders having not less than a minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted.
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Removal of directors; filling vacancies on board of directors. Our certificate of incorporation
provides that any director may be removed, with cause, by a vote of the holders of common stock and the holders of any voting preferred stock, voting together. In addition, any vacancies on the board of directors resulting by the death, resignation
or removal of a director may be filled by a vote of holders of common stock and holders of voting preferred stock, voting together. The certificate of incorporation also provides that the remaining directors, regardless of any quorum requirements
set out in the by-laws, may also fill any vacancy (including any resulting from an increase in the authorized number of directors) by majority vote.
Amendment of by-laws. Our certificate of incorporation and by-laws provide that the
by-laws may be altered, amended, changed or repealed by vote of the stockholders or at any meeting of the board of directors by the vote of a majority of the directors present or as otherwise provided by
statute.
Limitation of liability of directors and officers. As permitted by the Delaware General Corporation Law, our certificate of
incorporation includes a provision that eliminates the personal liability of our directors for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to our
company or its stockholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) under section 174 of the Delaware General Corporation Law or (4) for any transaction
from which the director derived an improper personal benefit. The effect of this provision is to eliminate our rights and our stockholders’ rights to recover monetary damages against a director or officer for breach of a fiduciary duty of care.
The provision does not eliminate or limit our right, or the right of a stockholder, to seek non-monetary relief, such as an injunction or rescission. The SEC has taken the position that this provision will
have no effect on claims arising under the federal securities laws.
In addition, our certificate of incorporation provides for mandatory
indemnification rights, subject to limited exceptions, to any director or executive officer who (because of the fact that he or she is or was our director or officer) is involved in a legal proceeding of any nature. These indemnification rights
include reimbursement for expenses incurred by the director or officer in advance of the final disposition of a proceeding according to applicable law.
Preferred stock
We may issue shares of preferred stock in series and may, at the time of
issuance, determine the rights, preferences and limitations of each series. Satisfaction of any dividend preferences of outstanding shares of preferred stock would reduce the amount of funds available for the payment of dividends on shares of common
stock. Holders of shares of preferred stock may be entitled to receive a preference payment in the event of any liquidation, dissolution or winding-up of our company before any payment is made to the holders
of shares of common stock. In some circumstances, the issuance of shares of preferred stock may render more difficult or tend to discourage a merger, tender offer or proxy contest, the assumption of control by a holder of a large block of our
securities or the removal of incumbent management. Upon the affirmative vote of a majority of the total number of directors then in office, our board of directors, without stockholder approval, may issue shares of preferred stock with voting and
conversion rights which could adversely affect the holders of shares of common stock. The issuance of any shares of preferred stock in the future could adversely affect the rights of the holders of common stock.
Description of debt securities
The debt securities will be our direct unsecured general obligations. The debt securities will be either senior debt securities or subordinated debt securities. The debt securities will be issued under
one or more separate indentures between us and U.S. Bank National Association, as trustee. Senior debt securities will be issued under a senior indenture. Subordinated debt securities will be issued under a subordinated indenture. Each of the senior
indenture and the subordinated indenture is referred to as an indenture. The material terms of any indenture will be set forth in the applicable prospectus supplement.
5
Description of guarantees
Our obligations under the debt securities, including the payment of principal, premium, if any, and interest, may be fully and unconditionally guaranteed
by a guarantor, as set forth in one or more corresponding indentures and in the applicable prospectus supplement. The guarantee or guarantees of such guarantor will rank equally with all other general unsecured and unsubordinated obligations of the
guarantor.
Description of warrants
We may issue warrants to purchase our debt or equity securities or securities of third parties or other rights, including rights to receive payment in cash or securities based on the value, rate or price
of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants may be issued independently or together with any other securities and may be attached to, or separate from, such securities. Each
series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The terms of any warrants to be issued and a description of the material provisions of the applicable warrant agreement will be
set forth in the applicable prospectus supplement.
Description of purchase contracts
We may issue purchase contracts for the purchase or sale of:
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debt or equity securities issued by us or securities of third parties, a basket of such securities, an index or indices of such securities or any
combination of the above as specified in the applicable prospectus supplement; |
Each
purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities, currencies or commodities at a specified purchase price, which may be based on a formula, all as set
forth in the applicable prospectus supplement. We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value of the property otherwise deliverable or,
in the case of purchase contracts on underlying currencies, by delivering the underlying currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may
purchase or sell such securities, currencies or commodities and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract.
The purchase contracts may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable prospectus supplement, and
those payments may be unsecured or prefunded on some basis. The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be described in the applicable prospectus supplement. Alternatively, purchase
contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued. Our obligation to settle such pre-paid purchase contracts on the relevant settlement date may
constitute indebtedness. Accordingly, pre-paid purchase contracts will be issued under either the senior indenture or the subordinated indenture.
Description of units
As specified in the applicable prospectus supplement, we may issue units consisting of one or more purchase contracts, warrants, debt securities, shares of preferred stock, shares of common stock or any
combination of such securities.
6
Forms of securities
Each debt security, warrant and unit will be represented either by a certificate issued in definitive form to a particular investor or by one or more
global securities representing the entire issuance of securities. Certificated securities in definitive form and global securities will be issued in registered form. Definitive securities name you or your nominee as the owner of the security, and in
order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable.
Global securities name a depositary or its nominee as the owner of the debt securities, warrants or units represented by these global securities. The depositary maintains a computerized system that will reflect each investor’s beneficial
ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered global securities
We may issue the registered debt securities, warrants and
units in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases,
one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until
it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any
successors of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement with respect to any
securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary
or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal
or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a
registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to
interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge
beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a registered
global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable indenture, warrant agreement or
unit agreement. Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be
entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement or unit agreement. Accordingly, each person owning a
beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its
interest, to exercise any rights of a holder under the applicable indenture, warrant agreement or unit agreement. We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a
registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement or unit
7
agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would
authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities, and any payments to holders with respect to warrants or units, represented by a registered global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of FCX, the trustees, the warrant agents, the unit agents or any other agent of FCX, agent
of the trustees or agent of the warrant agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for
maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of
the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will immediately
credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial
interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in
“street name,” and will be the responsibility of those participants.
If the depositary for any of these securities represented by a
registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not
appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security
will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions
received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
Plan of distribution
FCX and/or the selling securityholders,
if applicable, may sell the securities in one or more of the following ways (or in any combination) from time to time:
| • |
|
through underwriters or dealers; |
| • |
|
directly to a limited number of purchasers or to a single purchaser; |
| • |
|
through a combination of any such methods; or |
| • |
|
through any other methods described in a prospectus supplement. |
The prospectus supplement will state the terms of the offering of the securities, including:
| • |
|
the name or names of any underwriters, dealers or agents; |
| • |
|
the purchase price of such securities and the proceeds to be received by FCX, if any; |
| • |
|
any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; |
| • |
|
any initial public offering price; |
| • |
|
any discounts or concessions allowed or reallowed or paid to dealers; and |
8
| • |
|
any securities exchanges on which the securities may be listed. |
Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If we and/or the selling securityholders, if applicable, use underwriters in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one
or more transactions, including:
| • |
|
negotiated transactions; |
| • |
|
at a fixed public offering price or prices, which may be changed; |
| • |
|
at market prices prevailing at the time of sale; |
| • |
|
at prices related to prevailing market prices; or |
Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary
closing conditions and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.
We and/or the
selling securityholders, if applicable, may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions we pay to them. Generally, any agent
will be acting on a best efforts basis for the period of its appointment.
We and/or the selling securityholders, if applicable, may authorize
underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from FCX at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
Underwriters and agents may be entitled under agreements entered into with FCX and/or the selling securityholders, if applicable, to indemnification by
FCX and/or the selling securityholders, if applicable, against certain civil liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”), or to contribution with respect to payments which the
underwriters or agents may be required to make. Underwriters and agents may be customers of, engage in transactions with, or perform services for FCX and its affiliates in the ordinary course of business.
Each series of securities will be a new issue of securities and will have no established trading market other than the common stock, which is listed on
the New York Stock Exchange. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time
without notice. The securities, other than the common stock, may or may not be listed on a national securities exchange.
Where you can find more information
We file annual, quarterly and current reports, proxy statements and other information with the
SEC. These SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov and our website at http://www.fcx.com. Information on our website is not a part of, and we are not incorporating the contents of our
website into, this prospectus. You may also read and copy any document we file with the SEC at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room.
We are “incorporating by reference” into this prospectus specific documents that we filed with the SEC, which means that we can disclose important information to you by referring you to those
documents that are considered
9
part of this prospectus. Information that we file subsequently with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below, and
any future documents that we file (other than information in the documents or filings that is deemed to have been furnished and not filed) with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, until the termination of the
offerings of all of the securities covered by this prospectus. This prospectus is part of a registration statement filed with the SEC.
We are
“incorporating by reference” into this prospectus the following documents:
|
|
|
| FCX SEC Filings |
|
Period or date filed |
| Annual Report on Form 10-K |
|
Fiscal year ended December 31, 2013 filed February 7, 2014 (including portions of our Proxy Statement filed April 29, 2014 for our 2014 annual meeting of holders of our
common shares held on June 6, 2014 to the extent specifically incorporated by reference in such Form 10-K) |
|
|
| Quarterly Reports on Form 10-Q |
|
Fiscal quarter ended March 31, 2014 filed May 9, 2014
Fiscal quarter ended June 30, 2014 filed August 11, 2014
Fiscal quarter ended September 30, 2014 filed November 7,
2014 |
|
|
| Current Reports on Form 8-K |
|
Filed March 3, 2014, March 11, 2014, March 21, 2014, March 31, 2014, June 2, 2014, June 18, 2014, June 23, 2014, July 2, 2014, July 28, 2014,
September 15, 2014, October 7, 2014 and November 10, 2014 (solely with respect to the unaudited pro forma condensed combined statement of income for the year ended December 31, 2013 and the notes thereto) |
|
|
| Plains Exploration & Production Company (“PXP”) SEC Filings |
|
Period or date filed |
| Annual Report on Form 10-K (solely with respect to Part II Items 8 and 9A) |
|
Fiscal year ended December 31, 2012 filed February 21, 2013 |
|
|
| Quarterly Report on Form 10-Q (solely with respect to the financial statements of PXP included therein) |
|
Fiscal quarter ended March 31, 2013 filed May 6, 2013 |
We will provide to each person, including any beneficial owner, to whom this prospectus and any accompanying prospectus
supplement is delivered, upon written or oral request and without charge, a copy of the documents referred to above that we have incorporated by reference. You can request copies of such documents if you call or write us at the following address or
telephone number: Freeport-McMoRan Inc., Attention: Investor Relations, 333 North Central Avenue, Phoenix, Arizona 85004-2189, (602) 366-8100.
This prospectus and the information incorporated by reference herein, contains summaries of certain agreements that we have filed as exhibits to various
SEC filings, as well as certain agreements that we will enter into in connection with the offering of securities covered by this prospectus. The descriptions of these agreements contained in this prospectus or information incorporated by reference
herein do not purport to be complete and are subject to, or qualified in their entirety by reference to, the definitive agreements. Copies of the definitive agreements will be made available without charge to you by making a written or oral request
to us.
10
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein, in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified and superseded, to constitute a part of this prospectus.
11
Information concerning forward-looking statements
This prospectus, including the documents incorporated by reference herein, contains “forward-looking statements” within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. Such forward-looking information is intended to be covered by the safe harbor to “forward-looking statements” provided by the Private Securities
Litigation Reform Act of 1995. These statements may be made directly in this prospectus or may be incorporated in this prospectus by reference to other documents. Representatives of FCX may also make forward-looking statements.
Forward-looking statements are all statements other than statements of historical facts, such as projections or expectations relating to ore grades and
milling rates, production and sales volumes, unit net cash costs, cash production costs per barrel of oil equivalent (“BOE”), operating cash flows, capital expenditures, exploration efforts and results, development and production
activities and costs, liquidity, tax rates, the impact of copper, gold, molybdenum, cobalt, crude oil and natural gas price changes, the impact of derivative positions, the impact of deferred intercompany profits on earnings, reserve estimates,
future dividend payments, debt reduction and share purchases. The words “anticipates,” “may,” “can,” “plans,” “believes,” “potential,” “estimates,” “expects,”
“projects,” “targets,” “intends,” “likely,” “will,” “should,” “to be” and any similar expressions are intended to identify those assertions as forward-looking statements. The
declaration of dividends is at the discretion of our Board of Directors (“the Board”) and will depend on our financial results, cash requirements, future prospects, and other factors deemed relevant by the Board.
We caution readers that forward-looking statements are not guarantees of future performance and that our actual results may differ materially from those
anticipated, projected or assumed in the forward-looking statements. Important factors that can cause our actual results to differ materially from those anticipated in the forward-looking statements include supply of and demand for, and prices of
copper, gold, molybdenum, cobalt, crude oil and natural gas, mine sequencing, production rates, industry risks, regulatory changes, political risks, drilling results, the outcome of negotiations with the Indonesian government regarding an amendment
to PT Freeport Indonesia’s (“PT-FI”) Contract of Work, the potential effects of violence in Indonesia, the resolution of administrative disputes in the Democratic Republic of Congo, weather- and climate-related risks, labor relations,
environmental risks, litigation results, currency translation risks and other factors described in more detail under the heading “Risk Factors” in our annual report on Form 10-K for the year
ended December 31, 2013 and in our quarterly report on Form 10-Q for the quarter ended September 30, 2014, filed with the SEC as updated by our subsequent filings with the SEC.
Investors are cautioned that many of the assumptions on which our forward-looking statements are based are likely to change after our forward-looking
statements are made, including for example commodity prices, which we cannot control, and production volumes and costs, some aspects of which we may or may not be able to control. Further, we may make changes to our business plans that could or will
affect our results. We caution investors that we do not intend to update forward-looking statements more frequently than quarterly notwithstanding any changes in our assumptions, changes in business plans, actual experience or other changes, and we
undertake no obligation to update any forward-looking statements.
Legal opinions
The validity of the securities in respect of which this prospectus is being delivered will be passed on for us by Davis Polk & Wardwell LLP, New
York, New York.
Experts
The consolidated financial statements of FCX appearing in its annual report on Form 10-K for the year ended December 31, 2013 (including schedules appearing
therein), and the effectiveness of FCX’s internal control over
12
financial reporting as of December 31, 2013 have been audited by Ernst & Young LLP, an independent registered public accounting firm, as set forth in their reports thereon, included
therein, and incorporated herein by reference. Such consolidated financial statements and FCX management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2013 are incorporated herein by
reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
With respect to the
unaudited condensed consolidated interim financial information of FCX for the three-month periods ended March 31, 2014 and March 31, 2013, six-month periods ended June 30, 2014 and June 30, 2013 and nine-month periods ended
September 30, 2014 and 2013, incorporated by reference in this prospectus, Ernst & Young LLP reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their
separate reports dated May 9, 2014, August 11, 2014 and November 7, 2014, included in FCX’s Quarterly Report on Form 10-Q for the quarters ended March 31, 2014, June 30, 2014
and September 30, 2014, and incorporated by reference herein, state that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their report on such information should
be restricted in light of the limited nature of the review procedures applied. Ernst & Young LLP is not subject to the liability provisions of Section 11 of the Securities Act for their report on the unaudited interim financial
information because that report is not a “report” or a “part” of the registration statement, of which this prospectus forms a part, prepared or certified by Ernst & Young LLP within the meaning of Sections 7 and 11
of the Securities Act.
The consolidated financial statements of PXP and management’s assessment of the effectiveness of internal control
over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form 10-K of PXP for the year ended December 31,
2012 have been so incorporated in reliance on the report (of which the report dated February 21, 2013 contains an explanatory paragraph on the effectiveness of internal control over financial reporting due to the exclusion of certain elements
of the internal control over financial reporting of the Gulf of Mexico business PXP acquired as of December 31, 2012) of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
Reserves
Certain information with respect to the oil and gas reserves associated with FCX’s oil and gas prospects and PXP’s oil and gas prospects is
derived from the reports of Netherland, Sewell & Associates, Inc. an independent petroleum consulting firm, incorporated in this prospectus by reference to FCX’s Annual Report on Form 10-K for the year ended December 31,
2013, filed with the SEC on February 27, 2014 and PXP’s Annual Report on Form 10-K for the year ended December 31, 2012, filed with the SEC on February 21, 2013, and upon the authority of said firm as experts with respect to
the matters covered by such report and in giving such report.
Certain information with respect to the oil and gas reserves associated with
FCX’s oil and gas prospects is derived from the report of Ryder Scott Company, L.P., an independent petroleum consulting firm, incorporated in this prospectus by reference to FCX’s Annual Report on Form 10-K for the year ended
December 31, 2013, filed with the SEC on February 27, 2014, and upon the authority of said firm as experts with respect to the matters covered by such report and in giving such report.
13
Part II
Information not required in prospectus
| Item 14. |
Other expenses of issuance and distribution |
The following table sets forth the costs and expenses to be borne by Freeport-McMoRan Inc. (“FCX”) and Freeport-McMoRan Oil & Gas LLC (“FM O&G” and together with FCX, the
“Registrants”) in connection with the offerings described in this Registration Statement.
|
|
|
|
|
| Registration fee |
|
$ |
* |
|
| Transfer agent and trustee fees and expenses |
|
$ |
** |
|
| Printing |
|
$ |
** |
|
| Accounting fees and expenses |
|
$ |
** |
|
| Legal fees and expenses |
|
$ |
** |
|
| Rating agency fees |
|
$ |
** |
|
| Miscellaneous |
|
$ |
** |
|
|
|
|
|
|
| Total |
|
$ |
** |
|
| * |
Omitted because the registration fee is being deferred pursuant to Rule 456(b). |
Item 15.
Indemnification of directors and officers
Freeport-McMoRan Inc.
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to
directors and officers in terms sufficiently broad to permit indemnification for liabilities (including reimbursement for expenses incurred) arising under the Securities Act.
As permitted by the Delaware General Corporation Law, the FCX certificate of incorporation includes a provision that eliminates the personal liability of FCX’s directors for monetary damages for
breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to FCX or its shareholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (3) under section 174 of the Delaware General Corporation Law or (4) for any transaction from which the director derived an improper personal benefit.
As a result of this provision, FCX’s ability or that of FCX shareholders to successfully prosecute an action against a director for breach of his or her duty of care is limited. However, this
provision does not affect the availability of equitable remedies such as an injunction or rescission based upon a director’s breach of his or her duty of care. The SEC has taken the position that this provision will have no effect on claims
arising under the federal securities laws.
In addition, the FCX certificate of incorporation provides for mandatory indemnification rights,
subject to limited exceptions, to any director or executive officer who (because of the fact that he or she is or was FCX’s director or officer) is involved in a legal proceeding of any nature. These indemnification rights include reimbursement
for expenses incurred by FCX’s director or officer in advance of the final disposition of a proceeding according to applicable law.
The
indemnification provisions in the FCX certificate of incorporation and bylaws may be sufficiently broad to permit indemnification of FCX’s directors and executive officers for liabilities arising under the Securities Act.
FCX also provides insurance from commercial carriers against some liabilities incurred by FCX’s directors and officers.
II-1
Freeport-McMoRan Oil & Gas LLC
FM O&G is a limited liability company organized under the laws of the State of Delaware. Pursuant to the Delaware Limited Liability Company Act (the “DLLCA”), subject to such standards
and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
As permitted by the DLLCA, the FM O&G limited liability company agreement includes a provision that eliminates the personal liability of
FM O&G’s member, managers and officers for monetary damages for breach of fiduciary duty, except for liability of an officer for the amount of a financial benefit received by the officer to which he or she was not entitled or for an
intentional violation of criminal law.
In addition, the FM O&G limited liability company agreement provides for mandatory indemnification
rights to any officer who (because of the fact that he or she is FM O&G’s officer) is involved in a legal proceeding of any nature. These indemnification rights include reimbursement for expenses incurred by FM O&G’s officer in
advance of the final disposition of a proceeding.
FCX also provides insurance from commercial carriers against some liabilities incurred by
FM O&G’s managers and officers.
II-2
Item 16. Exhibits
The following is a list of all exhibits filed as a part of this registration statement on Form S-3, including those incorporated herein by reference.
|
|
|
| Exhibit No. |
|
Document |
|
|
| 1.1* |
|
Form of Underwriting Agreement |
|
|
| 4.1 |
|
Composite Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the quarter ended June 30, 2014 (File No.
001-11307-01) filed August 11, 2014) |
|
|
| 4.2** |
|
Form of Indenture for Senior Notes (incorporated herein by reference to Exhibit 4.2 to the Registration Statement on Form S-3 (File No. 333-179420) filed February 8,
2012) |
|
|
| 4.3** |
|
Form of Indenture for Subordinated Notes (incorporated herein by reference to Exhibit 4.3 to the Registration Statement on Form S-3 (File No. 333-179420) filed
February 8, 2012) |
|
|
| 4.4* |
|
Form of Senior Note |
|
|
| 4.5* |
|
Form of Subordinated Note |
|
|
| 4.6* |
|
Form of Warrant Agreement |
|
|
| 4.7* |
|
Form of Warrant Certificate |
|
|
| 4.8* |
|
Form of Purchase Contract Agreement |
|
|
| 4.9* |
|
Form of Purchase Contract |
|
|
| 4.10* |
|
Form of Unit Agreement |
|
|
| 4.11* |
|
Form of Unit Certificate |
|
|
| 4.12 |
|
Form of Certificate representing shares of common stock, par value $0.10 (incorporated by reference to the Registration Statement on Form 8-A filed on June 29, 1995, as amended by
the amendment on Form 8-A/A filed November 26, 1996, and as further amended by the amendment on Form 8-A/A filed January 26, 2009) |
|
|
| 4.13 |
|
Form of Certificate of designations of preferred stock (incorporated by reference to Exhibit 4.9 to the Registration Statement on Form S-3 (File No. 333-02699) filed April 22,
1996) |
|
|
| 5.1** |
|
Opinion of Davis Polk & Wardwell LLP (incorporated herein by reference to Exhibit 5.1 to the Registration Statement on Form S-3 (File No. 333-179420) filed February 8,
2012) |
|
|
| 5.2 |
|
Opinion of Davis Polk & Wardwell LLP |
|
|
| 12.1** |
|
Statement regarding computation of ratio of earnings to fixed charges (incorporated herein by reference to Exhibit 12.1 to the Registration Statement on Form S-3 (File
No. 333-179420) filed February 8, 2012) |
|
|
| 12.2 |
|
Statement regarding computation of ratio of earnings to fixed charges |
|
|
| 15.1** |
|
Letter regarding unaudited interim financial statements (incorporated herein by reference to Exhibit 15.1 to the Registration Statement on Form S-3 (File No. 333-179420)
filed February 8, 2012) |
|
|
| 15.2 |
|
Letter regarding unaudited interim financial statements |
|
|
| 23.1** |
|
Consent of Ernst & Young LLP (incorporated herein by reference to Exhibit 23.1 to the Registration Statement on Form S-3 (File No. 333-179420) filed February 8,
2012) |
|
|
| 23.2** |
|
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1) (incorporated herein by reference to Exhibit 23.2 to the Registration Statement on Form S-3 (File
No. 333-179420) filed February 8, 2012) |
II-3
|
|
|
| Exhibit No. |
|
Document |
|
|
| 23.3 |
|
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.2) |
|
|
| 23.4 |
|
Consent of Ernst & Young LLP |
|
|
| 23.5 |
|
Consent of PricewaterhouseCoopers LLP |
|
|
| 23.6 |
|
Consent of Netherland, Sewell & Associates, Inc. |
|
|
| 23.7 |
|
Consent of Ryder Scott Company, L.P. |
|
|
| 24.1** |
|
Powers of Attorney of Freeport-McMoRan Inc. (incorporated herein by reference to Exhibit 24.1 to the Registration Statement on Form S-3 (File No. 333-179420) filed February 8,
2012) |
|
|
| 24.2 |
|
Powers of Attorney of Freeport-McMoRan Oil & Gas LLC (included on the signature page of this Registration Statement) |
|
|
| 25.1** |
|
Statement of Eligibility of U.S. Bank National Association on Form T-1 for Senior Note Indenture (incorporated herein by reference to Exhibit 25.1 to the Registration Statement on
Form S-3 (File No. 333-179420) filed February 8, 2012) |
|
|
| 25.2** |
|
Statement of Eligibility of U.S. Bank National Association on Form T-1 for Subordinated Note Indenture (incorporated herein by reference to Exhibit 25.2 to the Registration
Statement on Form S-3 (File No. 333-179420) filed February 8, 2012) |
|
|
| 25.3 |
|
Statement of Eligibility of U.S. Bank National Association on Form T-1 for Senior Note Indenture |
|
|
| 25.4 |
|
Statement of Eligibility of U.S. Bank National Association on Form T-1 for Subordinated Note Indenture |
| * |
To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K. |
II-4
Item 17. Undertakings
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made of securities registered hereby, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
II-5
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrants undertake that in a primary offering of securities of the undersigned registrants pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be
sellers to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrants;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrants or its securities provided by or on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser.
(b) That, for purposes of determining any liability under the Securities Act of 1933, each filing of FCX’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of
the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrants hereby undertake to file an application for the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under section 305(b)(2) of the Act.
II-6
Signatures
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this post-effective Amendment No. 1 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona, on
November 10, 2014.
|
|
|
| Freeport-McMoRan Inc. |
|
|
| By: |
|
/s/ Richard C. Adkerson |
|
|
Richard C. Adkerson |
|
|
Vice Chairman of the Board, President and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, as amended, this post-effective Amendment No. 1 to
the registration statement has been signed by the following persons in the capacities indicated with respect to Freeport-McMoRan Inc.
|
|
|
| Signature |
|
Title |
|
|
| * James R. Moffett |
|
Chairman of the Board |
|
|
| /s/ Richard C. Adkerson
Richard C. Adkerson |
|
Vice Chairman of the Board, President and Chief Executive Officer
(Principal Executive Officer) |
|
|
| James C. Flores |
|
Vice Chairman of the Board |
|
|
| * Kathleen L. Quirk |
|
Executive Vice President, Chief Financial Officer and Treasurer
(Principal Financial Officer) |
|
|
| * C. Donald Whitmire, Jr. |
|
Vice President and Controller-Financial Reporting (Principal Accounting Officer) |
|
|
| * Gerald J. Ford |
|
Lead Independent Director |
|
|
| * Robert J. Allison, Jr. |
|
Director |
|
|
| Alan R. Buckwater
III |
|
Director |
|
|
| * Robert A. Day |
|
Director |
II-7
|
|
|
| Signature |
|
Title |
|
|
| Thomas A. Fry, III |
|
Director |
|
|
| * H. Devon Graham, Jr. |
|
Director |
|
|
| Lydia H. Kennard |
|
Director |
|
|
| * Charles C. Krulak |
|
Director |
|
|
| * Bobby Lee Lackey |
|
Director |
|
|
| * Jon C. Madonna |
|
Director |
|
|
| * Dustan E. McCoy |
|
Director |
|
|
| * Stephen H. Siegele |
|
Director |
|
|
| Frances Fragos Townsend |
|
Director |
* Richard C. Adkerson hereby signs this registration statement on behalf of the indicated persons for whom he is
attorney-in-fact on November 10, 2014, pursuant to a power of attorney filed herewith.
|
|
|
|
|
| By: |
|
/s/ Richard C. Adkerson |
| Name: |
|
Richard C. Adkerson |
| Title: |
|
Attorney-in-fact |
Dated: November 10, 2014
II-8
Signatures
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this post-effective Amendment No. 1 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona, on November 10, 2014.
|
|
|
| Freeport-McMoRan Oil & Gas LLC |
|
|
| By: |
|
FCX Oil & Gas Inc., its
sole member |
|
|
| By: |
|
/s/ Kathleen L.
Quirk |
|
|
Kathleen L. Quirk |
|
|
Executive Vice President |
II-9
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James C. Flores and Michael J. Arnold, and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power to act separately and full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or his or her or their substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this post-effective Amendment No. 1 to the
registration statement has been signed below by the following persons in the capacities indicated on November 10, 2014.
|
|
|
| Signature |
|
Title |
|
|
| /s/ James C. Flores |
|
Manager, President, Chief Executive Officer (Principal Executive Officer) |
| James C. Flores |
|
|
|
|
| /s/ Michael J. Arnold |
|
Manager, Executive Vice President |
| Michael J. Arnold |
|
|
|
|
| /s/ Winston M. Talbert |
|
Executive Vice President, Chief Financial Officer
(Principal Financial Officer)
|
| Winston M. Talbert |
|
|
|
| /s/ Nancy I. Williams |
|
Vice President, Controller (Principal Accounting Officer) |
| Nancy I. Williams |
|
|
|
| /s/ Kathleen L. Quirk |
|
Executive Vice President |
| Kathleen L. Quirk |
|
|
II-10
Exhibit Index
|
|
|
| Exhibit No. |
|
Document |
|
|
| 1.1* |
|
Form of Underwriting Agreement |
|
|
| 4.1 |
|
Composite Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the quarter ended June 30, 2014 (File No.
001-11307-01) filed August 11, 2014) |
|
|
| 4.2** |
|
Form of Indenture for Senior Notes (incorporated herein by reference to Exhibit 4.2 to the Registration Statement on Form S-3 (File No. 333-179420) filed February 8,
2012) |
|
|
| 4.3** |
|
Form of Indenture for Subordinated Notes (incorporated herein by reference to Exhibit 4.3 to the Registration Statement on Form S-3 (File No. 333-179420) filed
February 8, 2012) |
|
|
| 4.4* |
|
Form of Senior Note |
|
|
| 4.5* |
|
Form of Subordinated Note |
|
|
| 4.6* |
|
Form of Warrant Agreement |
|
|
| 4.7* |
|
Form of Warrant Certificate |
|
|
| 4.8* |
|
Form of Purchase Contract Agreement |
|
|
| 4.9* |
|
Form of Purchase Contract |
|
|
| 4.10* |
|
Form of Unit Agreement |
|
|
| 4.11* |
|
Form of Unit Certificate |
|
|
| 4.12 |
|
Form of Certificate representing shares of common stock, par value $0.10 (incorporated by reference to the Registration Statement on Form 8-A filed on June 29, 1995, as amended by
the amendment on Form 8-A/A filed November 26, 1996, and as further amended by the amendment on Form 8-A/A filed January 26, 2009) |
|
|
| 4.13 |
|
Form of Certificate of designations of preferred stock (incorporated by reference to Exhibit 4.9 to the Registration Statement on Form S-3 (File No. 333-02699) filed April 22,
1996) |
|
|
| 5.1** |
|
Opinion of Davis Polk & Wardwell LLP (incorporated herein by reference to Exhibit 5.1 to the Registration Statement on Form S-3 (File No. 333-179420) filed
February 8, 2012) |
|
|
| 5.2 |
|
Opinion of Davis Polk & Wardwell LLP |
|
|
| 12.1** |
|
Statement regarding computation of ratio of earnings to fixed charges (incorporated herein by reference to Exhibit 12.1 to the Registration Statement on Form S-3 (File
No. 333-179420) filed February 8, 2012) |
|
|
| 12.2 |
|
Statement regarding computation of ratio of earnings to fixed charges |
|
|
| 15.1** |
|
Letter regarding unaudited interim financial statements (incorporated herein by reference to Exhibit 15.1 to the Registration Statement on Form S-3 (File
No. 333-179420) filed February 8, 2012) |
|
|
| 15.2 |
|
Letter regarding unaudited interim financial statements |
|
|
| 23.1** |
|
Consent of Ernst & Young LLP (incorporated herein by reference to Exhibit 23.1 to the Registration Statement on Form S-3 (File No. 333-179420) filed February 8,
2012) |
|
|
| 23.2** |
|
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1) (incorporated herein by reference to Exhibit 23.2 to the Registration Statement on Form S-3 (File
No. 333-179420) filed February 8, 2012) |
II-11
|
|
|
| Exhibit No. |
|
Document |
|
|
| 23.3 |
|
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.2) |
|
|
| 23.4 |
|
Consent of Ernst & Young LLP |
|
|
| 23.5 |
|
Consent of PricewaterhouseCoopers LLP |
|
|
| 23.6 |
|
Consent of Netherland, Sewell & Associates, Inc. |
|
|
| 23.7 |
|
Consent of Ryder Scott Company, L.P. |
|
|
| 24.1** |
|
Powers of Attorney of Freeport-McMoRan Inc. (incorporated herein by reference to Exhibit 24.1 to the Registration Statement on Form S-3 (File No. 333-179420) filed February 8,
2012) |
|
|
| 24.2 |
|
Powers of Attorney of Freeport-McMoRan Oil & Gas LLC (included on the signature page of this Registration Statement) |
|
|
| 25.1** |
|
Statement of Eligibility of U.S. Bank National Association on Form T-1 for Senior Note Indenture (incorporated herein by reference to Exhibit 25.1 to the Registration Statement on
Form S-3 (File No. 333-179420) filed February 8, 2012) |
|
|
| 25.2** |
|
Statement of Eligibility of U.S. Bank National Association on Form T-1 for Subordinated Note Indenture (incorporated herein by reference to Exhibit 25.2 to the Registration
Statement on Form S-3 (File No. 333-179420) filed February 8, 2012) |
|
|
| 25.3 |
|
Statement of Eligibility of U.S. Bank National Association on Form T-1 for Senior Note Indenture |
|
|
| 25.4 |
|
Statement of Eligibility of U.S. Bank National Association on Form T-1 for Subordinated Note Indenture |
| * |
To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K. |
II-12
Exhibit 5.2
|
|
|
|
|
|
|
New York Menlo
Park Washington DC São Paulo London |
|
Paris
Madrid Tokyo
Beijing
Hong Kong |
|
|
|
| Davis Polk & Wardwell LLP 450 Lexington Avenue
New York, NY 10017 |
|
212 450 4000 tel 212 701 5800
fax |
November 10, 2014
Freeport-McMoRan Inc.
333 North Central Avenue
Phoenix, Arizona 85004-2189
Ladies and
Gentlemen:
Freeport-McMoRan Inc., a Delaware corporation (the “Company”) and Freeport-McMoRan Oil & Gas LLC (“FM
O&G” or the “Guarantor” and together with the Company, the “Companies”) are filing with the Securities and Exchange Commission a Post-Effective Amendment No. 1 (the “Amendment”) to the
Registration Statement (File No. 333-179420) on Form S-3 (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities
Act”), guarantees (the “Guarantees”) of the Company’s senior debt securities and subordinated debt securities (collectively, the “Debt Securities”) by the Guarantor, which Debt Securities may be issued
pursuant to a senior debt indenture among the Company, the Guarantor and U.S. Bank National Association, as trustee (the “Senior Debt Trustee”) (the “Senior Debt Indenture”) and a subordinated debt indenture among
the Company, the Guarantor and U.S. Bank National Association, as trustee (the “Subordinated Debt Trustee” and, together with the Senior Debt Trustee, the “Trustees”) (the “Subordinated Debt
Indenture,” and together with the Senior Debt Indenture, the “Indentures”).
We, as your counsel, have examined
originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinions expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as
originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement that have not been executed will conform to
the forms thereof, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and
officers of the Company and the Guarantor that we reviewed were and are accurate and (vii) all representations made by the Company and the Guarantor as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our
opinion, assuming the Indentures and any supplemental indenture to be entered into in connection with the issuance of any Debt Securities have been duly authorized, executed and delivered by the Trustees and the Company and, if applicable, the
Guarantor; the specific terms of a particular series of Debt Securities and the related Guarantees have been duly authorized and established in accordance with the Indentures; and such Debt Securities and the related Guarantees have been duly
authorized, executed, authenticated, issued and delivered in accordance with the Indenture, any supplemental indenture and the applicable underwriting or other agreement against payment therefor, such Guarantees will constitute valid and binding
obligations of the Guarantor, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general
applicability, provided that we express no opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) any provision of the Indenture that
purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of the Guarantor’s obligation.
|
|
|
|
|
| Freeport-McMoRan Inc. |
|
2
|
|
November 10, 2014 |
In connection with the opinions expressed above, we have assumed that, at or prior to the time of the
delivery of any such security, (i) the Board of Directors of the Company and the Managers of the Guarantor, as the case may be shall have duly established the terms of such security and duly authorized the issuance and sale of such security and
such authorization shall not have been modified or rescinded; (ii) each of the Company and the Guarantor shall remain validly existing as a corporation or LLC, as the case may be, in good standing under the laws of the State of Delaware;
(iii) the Registration Statement shall have become effective and such effectiveness shall not have been terminated or rescinded; and (iv) the Indentures, the Debt Securities and the Guarantees are each valid, binding and enforceable
agreements of each party thereto (other than as expressly covered above in respect of the Guarantor); and (v) there shall not have occurred any change in law affecting the validity or enforceability of such security. We have also assumed that
the execution, delivery and performance by the Company or the Guarantor of any security whose terms are established subsequent to the date hereof (a) require no action by or in respect of, or filing with, any governmental body, agency or
official and (b) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon the Company or the Guarantor.
We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act.
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement referred to above and further consent to the reference to our name under the caption “Legal Matters” in the prospectus, which is a part of the Registration Statement. In giving this consent, we do
not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
Exhibit 12.2
Freeport-McMoRan Inc.
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(in millions, except ratios)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
For the nine
months ended
September 30,
2014 |
|
|
For the years ended December 31, |
|
| |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
|
2009 |
|
|
|
|
|
|
|
|
| Income (loss) from continuing operations before income taxes and equity in affiliated companies’ net earnings |
|
$ |
3,024 |
|
|
|
4,913 |
|
|
|
5,486 |
|
|
|
8,818 |
|
|
|
8,512 |
|
|
|
5,816 |
|
| Amortization of previously capitalized interest |
|
|
41 |
|
|
|
45 |
|
|
|
41 |
|
|
|
36 |
|
|
|
34 |
|
|
|
31 |
|
| Less: capitalized interest |
|
|
(178 |
) |
|
|
(174 |
) |
|
|
(81 |
) |
|
|
(109 |
) |
|
|
(66 |
) |
|
|
(78 |
) |
| Less: preferred dividends of a consolidated subsidiary |
|
|
(45 |
) |
|
|
(31 |
) |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Earnings from continuing operations before fixed charges |
|
$ |
2,842 |
|
|
|
4,753 |
|
|
|
5,446 |
|
|
|
8,745 |
|
|
|
8,480 |
|
|
|
5,769 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fixed charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Interest expense, net of capitalized interest |
|
$ |
707 |
|
|
|
550 |
|
|
|
180 |
|
|
|
301 |
|
|
|
448 |
|
|
|
568 |
|
| Capitalized interest |
|
|
178 |
|
|
|
174 |
|
|
|
81 |
|
|
|
109 |
|
|
|
66 |
|
|
|
78 |
|
| Amortization of debt expenses, premiums and discounts |
|
|
(225 |
) |
|
|
(32 |
) |
|
|
7 |
|
|
|
11 |
|
|
|
14 |
|
|
|
18 |
|
| Interest portion of rental expense |
|
|
20 |
|
|
|
23 |
|
|
|
22 |
|
|
|
23 |
|
|
|
26 |
|
|
|
32 |
|
| Preferred dividends of a consolidated subsidiary |
|
|
45 |
|
|
|
31 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges |
|
$ |
725 |
|
|
|
746 |
|
|
|
290 |
|
|
|
444 |
|
|
|
554 |
|
|
|
696 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Adjusted earnings |
|
$ |
3,567 |
|
|
|
5,499 |
|
|
|
5,736 |
|
|
|
9,189 |
|
|
|
9,034 |
|
|
|
6,465 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Ratio of earnings to fixed charges (a) |
|
|
4.9 |
|
|
|
7.4 |
|
|
|
19.8 |
|
|
|
20.7 |
|
|
|
16.3 |
|
|
|
9.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Preferred dividend requirements: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges |
|
$ |
725 |
|
|
|
746 |
|
|
|
290 |
|
|
|
444 |
|
|
|
554 |
|
|
|
696 |
|
| Preferred stock dividends |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
96 |
|
|
|
370 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Combined fixed charges and preferred stock dividends |
|
$ |
725 |
|
|
|
746 |
|
|
|
290 |
|
|
|
444 |
|
|
|
650 |
|
|
|
1,066 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Ratio of earnings to combined fixed charges and preferred stock
dividends (a) |
|
|
4.9 |
|
|
|
7.4 |
|
|
|
19.8 |
|
|
|
20.7 |
|
|
|
13.9 |
|
|
|
6.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| (a) |
For purposes of computing the consolidated ratio of earnings to fixed charges, earnings consist of income from continuing operations before income
taxes, equity in affiliated companies’ net earnings and cumulative effect of accounting changes. Noncontrolling interests were not deducted from earnings as all such subsidiaries had fixed charges. Fixed charges from continuing operations
consist of interest (including capitalized interest) of all indebtedness; amortization of debt discounts, premiums and expenses; and that |
| |
portion of rental expense that FCX believes to be representative of interest. For purposes of calculating the ratio of earnings to combined fixed charges and preferred stock dividends, the
preferred stock dividend requirements were assumed to be equal to the pre-tax earnings that would be required to cover such dividend requirements. The amount of pre-tax earnings required to cover such preferred stock dividends was computed using the
effective tax rate for each applicable year. |
Exhibit 15.2
Letter Regarding Unaudited Interim Financial Statements
November 10, 2014
To the Board of Directors and
Stockholders of Freeport-McMoRan Inc.:
We are aware of the incorporation by reference in this Post-Effective Amendment No. 1 to this Registration
Statement (Form S-3 No. 333-179420) and related Prospectus of Freeport-McMoRan Inc. for the registration of common stock, preferred stock, debt securities, warrants, purchase contracts, units and the related guarantees of Freeport-McMoRan Oil &
Gas LLC of our reports dated May 7, 2014, August 11, 2014 and November 7, 2014 relating to the unaudited condensed consolidated interim financial statements of Freeport-McMoRan Inc. that are included in its Forms 10-Q for the quarters
ended March 31, 2014, June 30, 2014 and September 30, 2014.
/s/ Ernst & Young LLP
Phoenix, Arizona
November 10, 2014
Exhibit 23.4
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Post-Effective Amendment No. 1 to this Registration Statement (Form S-3 No. 333-179420) and related Prospectus of Freeport-McMoRan Inc. for the registration of common stock, preferred stock, debt securities, warrants, purchase
contracts, units and the related guarantees of Freeport-McMoRan Oil & Gas LLC and to the incorporation by reference therein of our reports dated February 27, 2014, with respect to the consolidated financial statements and schedule of
Freeport-McMoRan Inc. and the effectiveness of internal control over financial reporting of Freeport-McMoRan Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2013, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Phoenix, Arizona
November 10, 2014
Exhibit 23.5
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3/A of Freeport-McMoRan Oil & Gas LLC of our report dated
February 21, 2013, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting, which appears in Plains Exploration & Production Company’s Annual Report on Form 10-K for the year
ended December 31, 2012. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/
PricewaterhouseCoopers LLP
Houston, Texas
November 10, 2014
Exhibit 23.6
Consent of Independent Petroleum Engineers and Geologists
We hereby consent to the references to our firm under the caption “Experts” in this Registration Statement (Form S-3/A) and related Prospectus of
Freeport-McMoRan Inc. for the registration of common stock, preferred stock, debt securities, warrants, purchase contracts, units, and the related guarantees of Freeport-McMoRan Oil & Gas LLC and to the incorporation by reference therein of
our reserves report prepared for Freeport-McMoRan Inc. and its subsidiaries (collectively, the “Company”) relating to the estimated quantities of certain of the Company’s proved and probable reserves of oil and gas and present values
thereof as of December 31, 2013, which were originally included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the U.S. Securities and Exchange Commission on February 27, 2014.
We also consent to the references in the Notes to the Consolidated Financial Statements included in the Form 10-K of Plains Exploration & Production Company filed February 21, 2013, to our
reserves reports to the interest of Plains Exploration & Production Company and its subsidiaries (collectively, “PXP”), relating to the estimated quantities of certain of PXP’s proved and probable reserves of oil and gas and
present values thereof for certain periods. We also consent to the reference to us under the heading “Oil and Natural Gas Reserves” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2013,
incorporated by reference into this Registration Statement.
|
|
|
| NETHERLAND, SEWELL & ASSOCIATES, INC. |
|
|
| By: |
|
/s/ Danny D. Simmons |
|
|
Danny D. Simmons, P.E. |
|
|
President and Chief Operating Officer |
|
| Houston, Texas |
| November 10, 2014 |
Exhibit 23.7
Consent of Independent Petroleum Engineers and Geologists
We hereby consent to the references to our firm under the caption “Experts” in this Registration Statement (Form S-3/A) and related Prospectus of
Freeport-McMoRan Inc. for the registration of common stock, preferred stock, debt securities, warrants, purchase contracts, units and the related guarantees of Freeport-McMoRan Oil & Gas LLC and to the incorporation by reference therein of
our reserve report prepared for Freeport-McMoRan Inc. and its subsidiaries (collectively, the “Company”) relating to the estimated quantities of certain of the Company’s proved and probable reserves of oil and gas and present values
thereof as of December 31, 2013, which were originally included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the U.S. Securities and Exchange Commission on February 27, 2014. We
also consent to the reference to us under the heading “Oil and Natural Gas Reserves” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2013, incorporated by reference into this Registration Statement.
/s/ RYDER SCOTT COMPANY, L.P.
RYDER SCOTT COMPANY, L.P.
TBPE Firm Registration No. F-1580
Houston, Texas
November 10, 2014
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ |
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK
NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S.
Employer Identification No.
|
|
|
| 800 Nicollet Mall
Minneapolis, Minnesota |
|
55402 |
| (Address of principal executive offices) |
|
(Zip Code) |
Steven A. Finklea
U.S. Bank National Association
5555 San Felipe, Suite 1150
Houston, Texas 77057
(713) 235-9208
(Name,
address and telephone number of agent for service)
Freeport-McMoRan Inc.
(Issuer with respect to the Securities)
|
|
|
| Delaware |
|
74-2480931 |
| (State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
|
|
|
| 333 North Central Avenue
Phoenix, Arizona |
|
85004-2189 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Senior Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. |
GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| |
a) |
Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| |
b) |
Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. |
AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 |
Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. |
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| |
1. |
A copy of the Articles of Association of the Trustee.* |
| |
2. |
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| |
3. |
A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| |
4. |
A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| |
5. |
A copy of each Indenture referred to in Item 4. Not applicable. |
| |
6. |
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| |
7. |
Report of Condition of the Trustee as of September 30, 2014 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
| * |
Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Houston,
State of Texas on the 10th of November, 2014.
|
|
|
| By: |
|
/s/ Steven A. Finklea |
|
|
Steven A. Finklea |
|
|
Vice President |
3
Exhibit 2
|
|
|
|
|
|
Office of the Comptroller of the Currency |
| |
Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE
I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and
control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National
Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
|
|
|
|
|
|
|
|
|
|
IN TESTIMONY WHEREOF, today, September 2, 2014, I have hereunto subscribed my name and caused my seal of office to be affixed to these
presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia. |
| |
|
|
| |
|
Comptroller of the Currency |
4
Exhibit 3
|
|
|
|
|
|
Office of the Comptroller of the Currency |
| |
Washington, DC 20219 |
CERTIFICATION OF FIDUCIARY POWERS
I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:
1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession,
custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank
National Association,” Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962,
76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
|
|
|
|
|
|
|
|
|
|
IN TESTIMONY WHEREOF, today, September 2, 2014, I have hereunto subscribed my name and caused my seal of office to be affixed to these
presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia. |
| |
|
|
| |
|
Comptroller of the Currency |
5
Exhibit 4
AMENDED AND RESTATED
BYLAWS
OF
U.S. BANK NATIONAL ASSOCIATION
ARTICLE I.
MEETINGS OF
SHAREHOLDERS
Section 1. Annual Meeting
The annual meeting of shareholders shall be held at the main banking house of the Association or other convenient place duly authorized by the
Board of Directors (the “Board”) at 11:00 a.m. on the second Tuesday in March of each year, or such other date or time which the Board may designate at any Board meeting held prior to the required date for sending notice of the annual
meeting to the shareholders. Notice of such meeting shall be mailed to shareholders not less than ten (10) or more than sixty (60) days prior to the meeting date.
Section 2. Special Meetings
Special
meetings of shareholders may be called and held at such times and upon such notice as is specified in the Articles of Association.
Section 3.
Quorum
A majority of the outstanding capital stock represented in person or by proxy shall constitute a quorum of any meeting of
the shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice.
Section 4. Inspectors
The Board of
Directors may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted
upon by shareholders at all annual and special meetings of shareholders.
Section 5. Voting
In deciding on questions at meetings of shareholders, except in the election of directors, each shareholder shall be entitled to one vote for
each share of stock held. A majority of votes cast shall decide each matter submitted to the shareholders, except where by law a larger vote is required. In all elections of directors, each shareholder shall have the right to vote the number
6
of shares owned by him for as many persons as there are directors to be elected, or to cumulate such shares and give one candidate as many votes as the number of directors multiplied by the
number of his shares equal, or to distribute them on the same principle among as many candidates as he shall think fit.
Section 6. Waiver and
Consent
The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
ARTICLE II.
BOARD OF
DIRECTORS
Section 1. Term of Office
The directors of this Association shall hold office for one year and until their successors are duly elected and qualified.
Section 2. Number
As provided in
the Articles of Association, the Board of this Association shall consist of not less than five nor more than twenty-five members. At any meeting of the shareholders held for the purpose of electing directors, or changing the number thereof, the
number of directors may be determined by a majority of the votes cast by the shareholders in person or by proxy.
Any vacancy occurring in the Board shall
be filled by the remaining directors. Between meetings of the shareholders held for the purpose of electing directors, the Board by a majority vote of the full Board may increase the size of the Board by not more than four directors in any one but
not to more than a total of twenty-five directors, and fill any vacancy so created in the Board. All directors shall hold office until their successors are elected and qualified.
Section 3. Regular Meetings
The
organizational meeting of the Board of Directors shall be held as soon as practicable following the annual meeting of shareholders at such time and place as the Chairman or President may designate. Other regular meetings of the Board of Directors
shall be held quarterly at such time and place as may be designated in the notice of the meeting. When any regular meeting of the Board falls on a holiday, the meeting shall be held on the next banking business day, unless the Board shall designate
some other day.
Section 4. Special Meetings
Special meetings of the Board of Directors may be called by the Chairman of the Board of the Association, or at the request of three or more
Directors. Notice of the time, place and purposes of such meetings shall be given by letter, by telephone, in person, by facsimile, by electronic mail or other reasonable manner to every Director.
7
Section 5. Quorum
A majority of the entire membership of the Board shall constitute a quorum of any meeting of the Board.
Section 6. Necessary Vote
A
majority of those Directors present and voting at any meeting of the Board of Directors shall decide each matter considered, except where otherwise required by law or the Articles or Bylaws of this Association.
Section 7. Compensation
Directors,
excluding full-time employees of the Bank, shall receive such reasonable compensation as may be fixed from time to time by the Board of Directors.
ARTICLE III.
OFFICERS
Section 1. Who Shall Constitute
The Officers of the Association shall be a Chairman of the Board, Chief Executive Officer, a President, a Secretary, and other officers such as
Vice Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Trust Officers, Assistant Trust Officers, Controller, and Assistant Controller, as the Board may
appoint from time to time. The Board may choose to delegate authority to elect officers other than the Chairman, Chief Executive Officer, President, Secretary, Vice Chairman and Executive Vice Presidents, to the Chief Executive Officer or President.
Any person may hold two offices. The Chief Executive Officer and the President shall at all times be members of the Board of Directors.
Section 2.
Term of Office
All officers shall be elected for and shall hold office until their respective successors are elected and qualified
or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board of Directors in its sole discretion to discharge any officer at any time.
Section 3. Chairman of the Board
The Chairman of the Board shall have general executive powers and duties and shall perform such other duties as may be assigned from time to
time by the Board of Directors. He shall, when present, preside at all meetings of the shareholders and directors and shall be ex officio a member of all committees of the Board.
Section 4. Chief Executive Officer
The Chief Executive Officer, who may also be the Chairman or the President, shall have general executive powers and duties and shall perform
such other duties as may be assigned from time to time by the Board of Directors.
8
Section 5. President
The President shall have general executive powers and duties and shall perform such other duties as may be assigned from time to time by the
board of Directors. In addition, if designated by the Board of Directors, the President shall be the Chief Executive Officer and shall have all the powers and duties of the Chief Executive Officer, including the same power to name temporarily a
Chief Executive Officer to serve in the absence of the President if there is a vacancy in the position of the chairman or in the event of the absence or incapacity of the Chairman.
Section 6. Vice Chairmen of the Board
The Board of Directors shall have the power to elect one or more Vice Chairmen of the Board of Directors. Any such Vice Chairman of the Board
shall participate in the formation of the policies of the Association and shall have such other duties as may be assigned to him from time to time by the Chairman of the Board or by the Board of Directors.
Section 7. Other Officers
The Secretary and all
other officers appointed by the Board of Directors shall have such duties as defined by law and as may from time to time be assigned to them by the Chief Executive Officer or the Board of Directors.
ARTICLE IV.
COMMITTES
Section 1. Compensation Committee
The duties of the Compensation Committee of the Association shall be carried out by the Compensation Committee of the financial holding company
that is the parent of this Association.
Section 2. Committee on Audit
The duties of the Audit Committee of the Association shall be carried out by the Audit Committee of the financial holding company that is the
parent of this Association.
Section 3. Trust Management Committee
The Board of Directors of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the
Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee
the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. All actions of the Trust Committee shall be reported
to the Board of Directors.
9
Section 4. Other Committees
The Board of Directors may appoint, from time to time, other committees for such purposes and with such powers as the Board may direct.
ARTICLE V.
MINUTE BOOK
The organization papers of this Association, the Bylaws as revised or amended from time to time and the proceedings of all regular
and special meetings of the shareholders and the directors shall be recorded in a minute book or books. All reports of committees required to be made to the Board shall be recorded in a minute book or shall be filed by the recording officer. The
minutes of each meeting of the shareholders and the Board shall be signed by the recording officer.
ARTICLE VI.
CONVEYANCES, CONTRACTS, ETC.
All transfers and conveyances of real estate, mortgages, and transfers, endorsements or assignments of stock, bonds, notes, debentures or
other negotiable instruments, securities or personal property shall be signed by any elected or appointed officer.
All checks, drafts,
certificates of deposit and all funds of the Association held in its own or in a fiduciary capacity may be paid out by an order, draft or check bearing the manual or facsimile signature of any elected or appointed officer of the Association.
All mortgage satisfactions, releases, all types of loan agreements, all routine transactional documents of the Association, and all other
instruments not specifically provided for, whether to be executed in a fiduciary capacity or otherwise, may be signed on behalf of the Association by any elected or appointed officer thereof.
The Secretary or any Assistant Secretary of the Association or other proper officer may execute and certify that required action or authority
has been given or has taken place by resolution of the Board under this Bylaw without the necessity of further action by the Board.
ARTICLE VII.
SEAL
The Association shall have no corporate seal.
10
ARTICLE VIII.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AND EMPLOYEES
Section 1.
General.
The Association shall indemnify to the full extent permitted by and in the manner permissible under the Delaware General
Corporation Law, as amended from time to time (but, in the case of any such amendment, only to the extent that such amendment permits the Association to provide broader indemnification rights than said law permitted the Association to provide prior
to such amendment), any person made, or threatened to be made, a party to any action, suit, or proceeding, whether criminal, civil, administrative, or investigative, by reason of the fact that such person (i) is or was a director, advisory
director, or officer of the Association or any predecessor of the Association, or (ii) is or was a director, advisory director or officer of the Association or any predecessor of the Association and served any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise as a director, advisory director, officer, partner, trustee, employee or agent at the request of the Association or any predecessor of the Association; provided, however,
that the Association shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person, except for a proceeding contemplated by Section 4 of this Article VIII, only if such
proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. Advancement of Expenses.
The right to indemnification conferred in this Article VIII shall be a contract right and shall include the right to be paid by the Association the expenses
incurred in defending any such proceeding or threatened proceeding in advance of its final disposition, such advances to be paid by the Association within 20 days after the receipt by the Association of a statement or statements from the claimant
requesting such advance or advances from time to time; provided, however, that if the General Corporation Law of the State of Delaware requires, the payment of such expenses incurred by a director, advisory director or officer in his
or her capacity as a director, advisory director or officer (and not in any other capacity in which service was or is rendered by such person while a director, advisory director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Association of an undertaking by or on behalf of such director, advisory director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director, advisory director or officer is not entitled to be indemnified under this Article VIII or otherwise.
Section 3. Procedure for Indemnification.
To obtain indemnification under this Article VIII, a claimant shall submit to the Association a written request, including therein or therewith
such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification
pursuant to the first sentence of this Section 3, a determination, if required by applicable law, with respect to the claimant’s entitlement thereto shall be made as follows: (1) if requested by the claimant, by Independent Counsel
(as hereinafter defined), or (2) if no request is
11
made by the claimant for a determination by Independent Counsel, (i) by a majority vote of the Disinterested Directors (as hereinafter defined), even though less than a quorum, or by a
majority vote of a committee of Disinterested Directors designated by a majority vote of Disinterested Directors, even though less than a quorum, or (ii) if there are no Disinterested Directors or if the Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the claimant. In the event the determination of entitlement to indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors. If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within 10 days after such determination.
Section 4. Certain Remedies.
If a
claim under Section 1 of this Article VIII is not paid in full by the Association within thirty days after a written claim pursuant to Section 3 of this Article VIII has been received by the Association, or if a claim under Section 2
of this Article VIII is not paid in full by the Association within twenty days after a written claim pursuant to Section 2 of this Article VIII has been received by the Association, the claimant may at any time thereafter bring suit against the
Association to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Association) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the State of Delaware for the Association to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Association. Neither the
failure of the Association (including its Board of Directors or Independent Counsel) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the Association (including its Board of Directors or Independent Counsel) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 5. Binding Effect.
If a
determination shall have been made pursuant to Section 3 of this Article VIII that the claimant is entitled to indemnification, the Association shall be bound by such determination in any judicial proceeding commenced pursuant to Section 4
of this Article VIII.
Section 6. Validity of this Article VIII.
The Association shall be precluded from asserting in any judicial proceeding commenced pursuant to Section 4 of this Article VIII that the
procedures and presumptions of this Article VIII are not valid, binding and enforceable and shall stipulate in such proceeding that the Association is bound by all the provisions of this Article VIII.
12
Section 7. Nonexclusivity, etc.
The right to indemnification and the payment of expenses incurred in defending a proceeding or threatened proceeding in advance of its final
disposition conferred in this Article VIII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Association, Bylaws, agreement, vote of shareholders or Disinterested
Directors or otherwise. No repeal or modification of this Article VIII, or adoption of any provision inconsistent herewith shall in any way diminish or adversely affect the rights of any present or former director, advisory director, officer,
employee or agent of the Association or any predecessor thereof hereunder in respect of any occurrence or matter arising, or of any claim involving allegations of acts or omissions occurring or arising, prior to any such repeal or modification.
Section 8. Insurance.
The
Association may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Association or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or
loss, whether or not the Association would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. To the extent that the Association maintains any policy or
policies providing such insurance, each such director or officer, and each such agent or employee to whom rights to indemnification have been granted as provided in Section 9 of this Article VIII, shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage thereunder for any such director, officer, employee or agent.
Section 9.
Indemnification of Other Persons.
The Association may grant rights to indemnification, and rights to be paid by the Association the
expenses incurred in defending any proceeding in advance of its final disposition, to any present or former employee or agent of the Association or any predecessor of the Association to the fullest extent of the provisions of this Article VIII with
respect to the indemnification and advancement of expenses of directors, advisory directors and officers of the Association.
Section 10.
Severability.
If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Article VIII (including, without limitation, each portion of any paragraph of this Article VIII containing any such provision held to be
invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of any paragraph of this
13
Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Section 11. Certain Definitions.
For purposes of this Article VI:
(1) “Disinterested Director” means a director of the Association who is not and was not a party to the matter in
respect of which indemnification is sought by the claimant.
(2) “Independent Counsel” means a law firm, a member
of a law firm, or an independent practitioner that is experienced in matters of corporation law and shall include any such person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in
representing either the Association or the claimant in an action to determine the claimant’s rights under this Article VIII.
Section 12.
Notices.
Any notice, request or other communication required or permitted to be given to the Association under this Article VIII
shall be in writing and either delivered in person or sent by telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary of the Association and shall be
effective only upon receipt by the Secretary.
Section 13. Payments
Notwithstanding any other provision of this Article VIII, however, (a) any indemnification payments to an institution-affiliated party, as
defined at 12 USC 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 USC 1828(k) and the associated regulations; and (b) any
indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 USC 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be
consistent with safe and sound banking practices.
ARTICLE IX.
AMENDMENTS
These Bylaws,
or any of them, may be added to, altered, amended or repealed by the Board at any regular or special meeting of the Board.
14
ARTICLE X.
GOVERNING
LAW
This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate
governance procedures, to the extent not inconsistent with Federal banking statutes and regulations.
October 20, 2014
Exhibit 6
CONSENT
In accordance
with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: November 10, 2014
|
|
|
| By: |
|
/s/ Steven A. Finklea |
|
|
Steven A. Finklea |
|
|
Vice President |
15
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 9/30/2014
($000’s)
|
|
|
|
|
| |
|
9/30/2014 |
|
| Assets |
|
|
|
|
| Cash and Balances Due From Depository Institutions |
|
$ |
6,169,498 |
|
| Securities |
|
|
96,412,984 |
|
| Federal Funds |
|
|
61,856 |
|
| Loans & Lease Financing Receivables |
|
|
244,220,646 |
|
| Fixed Assets |
|
|
4,101,858 |
|
| Intangible Assets |
|
|
13,291,012 |
|
| Other Assets |
|
|
22,775,893 |
|
|
|
|
|
|
| Total Assets |
|
$ |
387,033,747 |
|
|
|
| Liabilities |
|
|
|
|
| Deposits |
|
$ |
284,226,575 |
|
| Fed Funds |
|
|
1,282,645 |
|
| Treasury Demand Notes |
|
|
0 |
|
| Trading Liabilities |
|
|
565,781 |
|
| Other Borrowed Money |
|
|
42,642,374 |
|
| Acceptances |
|
|
0 |
|
| Subordinated Notes and Debentures |
|
|
5,023,000 |
|
| Other Liabilities |
|
|
12,043,509 |
|
|
|
|
|
|
| Total Liabilities |
|
$ |
345,783,884 |
|
|
|
| Equity |
|
|
|
|
| Common and Preferred Stock |
|
|
18,200 |
|
| Surplus |
|
|
14,266,407 |
|
| Undivided Profits |
|
|
26,110,078 |
|
| Minority Interest in Subsidiaries |
|
$ |
855,178 |
|
|
|
|
|
|
| Total Equity Capital |
|
$ |
41,249,863 |
|
|
|
| Total Liabilities and Equity Capital |
|
$ |
387,033,747 |
|
16
Exhibit 25.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ |
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK
NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S.
Employer Identification No.
|
|
|
| 800 Nicollet Mall
Minneapolis, Minnesota |
|
55402 |
| (Address of principal executive offices) |
|
(Zip Code) |
Steven A. Finklea
U.S. Bank National Association
5555 San Felipe, Suite 1150
Houston, Texas 77057
(713) 235-9208
(Name,
address and telephone number of agent for service)
Freeport-McMoRan Inc.
(Issuer with respect to the Securities)
|
|
|
| Delaware |
|
74-2480931 |
| (State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
|
|
|
| 333 North Central Avenue
Phoenix, Arizona |
|
85004-2189 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Subordinated Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. |
GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| |
a) |
Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| |
b) |
Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. |
AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 |
Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. |
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| |
1. |
A copy of the Articles of Association of the Trustee.* |
| |
2. |
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| |
3. |
A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| |
4. |
A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| |
5. |
A copy of each Indenture referred to in Item 4. Not applicable. |
| |
6. |
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| |
7. |
Report of Condition of the Trustee as of September 30, 2014 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
| * |
Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Houston,
State of Texas on the 10th of November, 2014.
|
|
|
| By: |
|
/s/ Steven A. Finklea |
|
|
Steven A. Finklea |
|
|
Vice President |
3
Exhibit 2
|
|
|
|
|
|
Office of the Comptroller of the Currency |
| |
Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE
I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and
control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National
Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
|
|
|
|
|
|
|
|
|
|
IN TESTIMONY WHEREOF, today, September 2, 2014, I have hereunto subscribed my name and caused my seal of office to be affixed to these
presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia. |
| |
|
|
| |
|
Comptroller of the Currency |
4
Exhibit 3
|
|
|
|
|
|
Office of the Comptroller of the Currency |
| |
Washington, DC 20219 |
CERTIFICATION OF FIDUCIARY POWERS
I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:
1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession,
custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank
National Association,” Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962,
76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
|
|
|
|
|
|
|
|
|
|
IN TESTIMONY WHEREOF, today, September 2, 2014, I have hereunto subscribed my name and caused my seal of office to be affixed to these
presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia. |
| |
|
|
| |
|
Comptroller of the Currency |
5
Exhibit 4
AMENDED AND RESTATED
BYLAWS
OF
U.S. BANK NATIONAL ASSOCIATION
ARTICLE I.
MEETINGS OF
SHAREHOLDERS
Section 1. Annual Meeting
The annual meeting of shareholders shall be held at the main banking house of the Association or other convenient place duly authorized by the
Board of Directors (the “Board”) at 11:00 a.m. on the second Tuesday in March of each year, or such other date or time which the Board may designate at any Board meeting held prior to the required date for sending notice of the annual
meeting to the shareholders. Notice of such meeting shall be mailed to shareholders not less than ten (10) or more than sixty (60) days prior to the meeting date.
Section 2. Special Meetings
Special
meetings of shareholders may be called and held at such times and upon such notice as is specified in the Articles of Association.
Section 3.
Quorum
A majority of the outstanding capital stock represented in person or by proxy shall constitute a quorum of any meeting of
the shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice.
Section 4. Inspectors
The Board of
Directors may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted
upon by shareholders at all annual and special meetings of shareholders.
Section 5. Voting
In deciding on questions at meetings of shareholders, except in the election of directors, each shareholder shall be entitled to one vote for
each share of stock held. A majority of votes cast shall decide each matter submitted to the shareholders, except where by law a larger vote is required. In all elections of directors, each shareholder shall have the right to vote the number
6
of shares owned by him for as many persons as there are directors to be elected, or to cumulate such shares and give one candidate as many votes as the number of directors multiplied by the
number of his shares equal, or to distribute them on the same principle among as many candidates as he shall think fit.
Section 6. Waiver and
Consent
The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
ARTICLE II.
BOARD OF
DIRECTORS
Section 1. Term of Office
The directors of this Association shall hold office for one year and until their successors are duly elected and qualified.
Section 2. Number
As provided in
the Articles of Association, the Board of this Association shall consist of not less than five nor more than twenty-five members. At any meeting of the shareholders held for the purpose of electing directors, or changing the number thereof, the
number of directors may be determined by a majority of the votes cast by the shareholders in person or by proxy.
Any vacancy occurring in the Board shall
be filled by the remaining directors. Between meetings of the shareholders held for the purpose of electing directors, the Board by a majority vote of the full Board may increase the size of the Board by not more than four directors in any one but
not to more than a total of twenty-five directors, and fill any vacancy so created in the Board. All directors shall hold office until their successors are elected and qualified.
Section 3. Regular Meetings
The
organizational meeting of the Board of Directors shall be held as soon as practicable following the annual meeting of shareholders at such time and place as the Chairman or President may designate. Other regular meetings of the Board of Directors
shall be held quarterly at such time and place as may be designated in the notice of the meeting. When any regular meeting of the Board falls on a holiday, the meeting shall be held on the next banking business day, unless the Board shall designate
some other day.
Section 4. Special Meetings
Special meetings of the Board of Directors may be called by the Chairman of the Board of the Association, or at the request of three or more
Directors. Notice of the time, place and purposes of such meetings shall be given by letter, by telephone, in person, by facsimile, by electronic mail or other reasonable manner to every Director.
7
Section 5. Quorum
A majority of the entire membership of the Board shall constitute a quorum of any meeting of the Board.
Section 6. Necessary Vote
A
majority of those Directors present and voting at any meeting of the Board of Directors shall decide each matter considered, except where otherwise required by law or the Articles or Bylaws of this Association.
Section 7. Compensation
Directors,
excluding full-time employees of the Bank, shall receive such reasonable compensation as may be fixed from time to time by the Board of Directors.
ARTICLE III.
OFFICERS
Section 1. Who Shall Constitute
The Officers of the Association shall be a Chairman of the Board, Chief Executive Officer, a President, a Secretary, and other officers such as
Vice Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Trust Officers, Assistant Trust Officers, Controller, and Assistant Controller, as the Board may
appoint from time to time. The Board may choose to delegate authority to elect officers other than the Chairman, Chief Executive Officer, President, Secretary, Vice Chairman and Executive Vice Presidents, to the Chief Executive Officer or President.
Any person may hold two offices. The Chief Executive Officer and the President shall at all times be members of the Board of Directors.
Section 2.
Term of Office
All officers shall be elected for and shall hold office until their respective successors are elected and qualified
or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board of Directors in its sole discretion to discharge any officer at any time.
Section 3. Chairman of the Board
The Chairman of the Board shall have general executive powers and duties and shall perform such other duties as may be assigned from time to
time by the Board of Directors. He shall, when present, preside at all meetings of the shareholders and directors and shall be ex officio a member of all committees of the Board.
Section 4. Chief Executive Officer
The Chief Executive Officer, who may also be the Chairman or the President, shall have general executive powers and duties and shall perform
such other duties as may be assigned from time to time by the Board of Directors.
8
Section 5. President
The President shall have general executive powers and duties and shall perform such other duties as may be assigned from time to time by the
board of Directors. In addition, if designated by the Board of Directors, the President shall be the Chief Executive Officer and shall have all the powers and duties of the Chief Executive Officer, including the same power to name temporarily a
Chief Executive Officer to serve in the absence of the President if there is a vacancy in the position of the chairman or in the event of the absence or incapacity of the Chairman.
Section 6. Vice Chairmen of the Board
The Board of Directors shall have the power to elect one or more Vice Chairmen of the Board of Directors. Any such Vice Chairman of the Board
shall participate in the formation of the policies of the Association and shall have such other duties as may be assigned to him from time to time by the Chairman of the Board or by the Board of Directors.
Section 7. Other Officers
The Secretary and all
other officers appointed by the Board of Directors shall have such duties as defined by law and as may from time to time be assigned to them by the Chief Executive Officer or the Board of Directors.
ARTICLE IV.
COMMITTES
Section 1. Compensation Committee
The duties of the Compensation Committee of the Association shall be carried out by the Compensation Committee of the financial holding company
that is the parent of this Association.
Section 2. Committee on Audit
The duties of the Audit Committee of the Association shall be carried out by the Audit Committee of the financial holding company that is the
parent of this Association.
Section 3. Trust Management Committee
The Board of Directors of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the
Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee
the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. All actions of the Trust Committee shall be reported
to the Board of Directors.
9
Section 4. Other Committees
The Board of Directors may appoint, from time to time, other committees for such purposes and with such powers as the Board may direct.
ARTICLE V.
MINUTE BOOK
The organization papers of this Association, the Bylaws as revised or amended from time to time and the proceedings of all regular
and special meetings of the shareholders and the directors shall be recorded in a minute book or books. All reports of committees required to be made to the Board shall be recorded in a minute book or shall be filed by the recording officer. The
minutes of each meeting of the shareholders and the Board shall be signed by the recording officer.
ARTICLE VI.
CONVEYANCES, CONTRACTS, ETC.
All transfers and conveyances of real estate, mortgages, and transfers, endorsements or assignments of stock, bonds, notes, debentures or
other negotiable instruments, securities or personal property shall be signed by any elected or appointed officer.
All checks, drafts,
certificates of deposit and all funds of the Association held in its own or in a fiduciary capacity may be paid out by an order, draft or check bearing the manual or facsimile signature of any elected or appointed officer of the Association.
All mortgage satisfactions, releases, all types of loan agreements, all routine transactional documents of the Association, and all other
instruments not specifically provided for, whether to be executed in a fiduciary capacity or otherwise, may be signed on behalf of the Association by any elected or appointed officer thereof.
The Secretary or any Assistant Secretary of the Association or other proper officer may execute and certify that required action or authority
has been given or has taken place by resolution of the Board under this Bylaw without the necessity of further action by the Board.
ARTICLE VII.
SEAL
The Association shall have no corporate seal.
10
ARTICLE VIII.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AND EMPLOYEES
Section 1.
General.
The Association shall indemnify to the full extent permitted by and in the manner permissible under the Delaware General
Corporation Law, as amended from time to time (but, in the case of any such amendment, only to the extent that such amendment permits the Association to provide broader indemnification rights than said law permitted the Association to provide prior
to such amendment), any person made, or threatened to be made, a party to any action, suit, or proceeding, whether criminal, civil, administrative, or investigative, by reason of the fact that such person (i) is or was a director, advisory
director, or officer of the Association or any predecessor of the Association, or (ii) is or was a director, advisory director or officer of the Association or any predecessor of the Association and served any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise as a director, advisory director, officer, partner, trustee, employee or agent at the request of the Association or any predecessor of the Association; provided, however,
that the Association shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person, except for a proceeding contemplated by Section 4 of this Article VIII, only if such
proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. Advancement of Expenses.
The right to indemnification conferred in this Article VIII shall be a contract right and shall include the right to be paid by the Association the expenses
incurred in defending any such proceeding or threatened proceeding in advance of its final disposition, such advances to be paid by the Association within 20 days after the receipt by the Association of a statement or statements from the claimant
requesting such advance or advances from time to time; provided, however, that if the General Corporation Law of the State of Delaware requires, the payment of such expenses incurred by a director, advisory director or officer in his
or her capacity as a director, advisory director or officer (and not in any other capacity in which service was or is rendered by such person while a director, advisory director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Association of an undertaking by or on behalf of such director, advisory director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director, advisory director or officer is not entitled to be indemnified under this Article VIII or otherwise.
Section 3. Procedure for Indemnification.
To obtain indemnification under this Article VIII, a claimant shall submit to the Association a written request, including therein or therewith
such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification
pursuant to the first sentence of this Section 3, a determination, if required by applicable law, with respect to the claimant’s entitlement thereto shall be made as follows: (1) if requested by the claimant, by Independent Counsel
(as hereinafter defined), or (2) if no request is
11
made by the claimant for a determination by Independent Counsel, (i) by a majority vote of the Disinterested Directors (as hereinafter defined), even though less than a quorum, or by a
majority vote of a committee of Disinterested Directors designated by a majority vote of Disinterested Directors, even though less than a quorum, or (ii) if there are no Disinterested Directors or if the Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the claimant. In the event the determination of entitlement to indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors. If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within 10 days after such determination.
Section 4. Certain Remedies.
If a
claim under Section 1 of this Article VIII is not paid in full by the Association within thirty days after a written claim pursuant to Section 3 of this Article VIII has been received by the Association, or if a claim under Section 2
of this Article VIII is not paid in full by the Association within twenty days after a written claim pursuant to Section 2 of this Article VIII has been received by the Association, the claimant may at any time thereafter bring suit against the
Association to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Association) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the State of Delaware for the Association to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Association. Neither the
failure of the Association (including its Board of Directors or Independent Counsel) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the Association (including its Board of Directors or Independent Counsel) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 5. Binding Effect.
If a
determination shall have been made pursuant to Section 3 of this Article VIII that the claimant is entitled to indemnification, the Association shall be bound by such determination in any judicial proceeding commenced pursuant to Section 4
of this Article VIII.
Section 6. Validity of this Article VIII.
The Association shall be precluded from asserting in any judicial proceeding commenced pursuant to Section 4 of this Article VIII that the
procedures and presumptions of this Article VIII are not valid, binding and enforceable and shall stipulate in such proceeding that the Association is bound by all the provisions of this Article VIII.
12
Section 7. Nonexclusivity, etc.
The right to indemnification and the payment of expenses incurred in defending a proceeding or threatened proceeding in advance of its final
disposition conferred in this Article VIII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Association, Bylaws, agreement, vote of shareholders or Disinterested
Directors or otherwise. No repeal or modification of this Article VIII, or adoption of any provision inconsistent herewith shall in any way diminish or adversely affect the rights of any present or former director, advisory director, officer,
employee or agent of the Association or any predecessor thereof hereunder in respect of any occurrence or matter arising, or of any claim involving allegations of acts or omissions occurring or arising, prior to any such repeal or modification.
Section 8. Insurance.
The
Association may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Association or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or
loss, whether or not the Association would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. To the extent that the Association maintains any policy or
policies providing such insurance, each such director or officer, and each such agent or employee to whom rights to indemnification have been granted as provided in Section 9 of this Article VIII, shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage thereunder for any such director, officer, employee or agent.
Section 9.
Indemnification of Other Persons.
The Association may grant rights to indemnification, and rights to be paid by the Association the
expenses incurred in defending any proceeding in advance of its final disposition, to any present or former employee or agent of the Association or any predecessor of the Association to the fullest extent of the provisions of this Article VIII with
respect to the indemnification and advancement of expenses of directors, advisory directors and officers of the Association.
Section 10.
Severability.
If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Article VIII (including, without limitation, each portion of any paragraph of this Article VIII containing any such provision held to be
invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of any paragraph of this
13
Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Section 11. Certain Definitions.
For purposes of this Article VI:
(1) “Disinterested Director” means a director of the Association who is not and was not a party to the matter in
respect of which indemnification is sought by the claimant.
(2) “Independent Counsel” means a law firm, a member
of a law firm, or an independent practitioner that is experienced in matters of corporation law and shall include any such person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in
representing either the Association or the claimant in an action to determine the claimant’s rights under this Article VIII.
Section 12.
Notices.
Any notice, request or other communication required or permitted to be given to the Association under this Article VIII
shall be in writing and either delivered in person or sent by telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary of the Association and shall be
effective only upon receipt by the Secretary.
Section 13. Payments
Notwithstanding any other provision of this Article VIII, however, (a) any indemnification payments to an institution-affiliated party, as
defined at 12 USC 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 USC 1828(k) and the associated regulations; and (b) any
indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 USC 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be
consistent with safe and sound banking practices.
ARTICLE IX.
AMENDMENTS
These Bylaws,
or any of them, may be added to, altered, amended or repealed by the Board at any regular or special meeting of the Board.
14
ARTICLE X.
GOVERNING
LAW
This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate
governance procedures, to the extent not inconsistent with Federal banking statutes and regulations.
October 20, 2014
Exhibit 6
CONSENT
In accordance
with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: November 10, 2014
|
|
|
| By: |
|
/s/ Steven A. Finklea |
|
|
Steven A. Finklea |
|
|
Vice President |
15
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 9/30/2014
($000’s)
|
|
|
|
|
| |
|
9/30/2014 |
|
| Assets |
|
|
|
|
| Cash and Balances Due From Depository Institutions |
|
$ |
6,169,498 |
|
| Securities |
|
|
96,412,984 |
|
| Federal Funds |
|
|
61,856 |
|
| Loans & Lease Financing Receivables |
|
|
244,220,646 |
|
| Fixed Assets |
|
|
4,101,858 |
|
| Intangible Assets |
|
|
13,291,012 |
|
| Other Assets |
|
|
22,775,893 |
|
|
|
|
|
|
| Total Assets |
|
$ |
387,033,747 |
|
|
|
| Liabilities |
|
|
|
|
| Deposits |
|
$ |
284,226,575 |
|
| Fed Funds |
|
|
1,282,645 |
|
| Treasury Demand Notes |
|
|
0 |
|
| Trading Liabilities |
|
|
565,781 |
|
| Other Borrowed Money |
|
|
42,642,374 |
|
| Acceptances |
|
|
0 |
|
| Subordinated Notes and Debentures |
|
|
5,023,000 |
|
| Other Liabilities |
|
|
12,043,509 |
|
|
|
|
|
|
| Total Liabilities |
|
$ |
345,783,884 |
|
|
|
| Equity |
|
|
|
|
| Common and Preferred Stock |
|
|
18,200 |
|
| Surplus |
|
|
14,266,407 |
|
| Undivided Profits |
|
|
26,110,078 |
|
| Minority Interest in Subsidiaries |
|
$ |
855,178 |
|
|
|
|
|
|
| Total Equity Capital |
|
$ |
41,249,863 |
|
|
|
| Total Liabilities and Equity Capital |
|
$ |
387,033,747 |
|
16
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